Tuesday, December 23, 2003
C.A. Overturns Finding Biological Father Entitled to Presumed Father Status
By DAVID WATSON, Staff Writer
A Los Angeles Superior Court referee erred in ruling that the claim of a child’s biological father to presumed father status was stronger than the competing claim of a man who had more contact with the child and accepted her as his daughter, this district’s Court of Appeal ruled yesterday.
Referee D. Zeke Zeidler ordered the girl placed with the man who tests showed was not the father, ordering family maintenance services for that man and reunification services for the mother and the biological father. But he found the biological father to be the child’s presumed father under Family Code Sec. 7611.
Writing for Div. Three, Justice H. Walter Croskey said the man with whom placement was ordered, and not the biological father, should have been awarded presumed father status. Sec. 7611(d) permits that status, he noted, for a man who has received the child into his home and openly held the child out as his natural child.
Both men based their claims to presumed parent status on that statutory provision, and the child had not lived with either of them, Croskey observed. But he said a man who was not the biological father—identified in the opinion only as R.B.—presented evidence he visited the girl, bought clothes for her, and treated her as his daughter.
The justice pointed out that all of the parties and the trial court referred to R.B. as the father until the biological father came forward and asserted his claim.
This was not, Croskey said, a case in which Zeidler—a candidate for an open Los Angeles Superior Court seat—was required to balance the competing claims of two men who both met the statutory requirements. Rather, he explained, the evidence presented by the biological father did not establish his entitlement to presumed fatherhood.
The biological father had rarely seen the six-year-old child since she was one year old, and on those occasions visited with her at homes belonging to others, the justice said.
“By visiting the minor at the maternal grandmother’s home and at his parents’ home, respondent could avoid the constant parental-type tasks that come with having the child in his own home—such as feeding and cleaning up after the minor, changing her clothing, bathing her, seeing to her naps, putting her to bed, taking her for outings, playing games with her, disciplining her, and otherwise focusing on the child,” Croskey wrote. “Indeed, there is no indication of what he did with the minor during his visits.”
Evidence that the biological father held the child out as his own was also lacking, the justice said. Though his attorneys at court hearings and in their points and authorities made assertions on that topic, they were unsupported in the record, Croskey declared.
“At the August 1, 2002 hearing, his attorney related that respondent ‘says he’s held out to be the father.’ That is not the same as respondent holding himself out as the minor’s father, and the same can be said for the fact that his mother carries pictures of the minor in her wallet. The only evidence that respondent proclaimed to the world in some fashion that he is the minor’s father is his own paternity questionnaire. Additionally, there is no evidence that respondent took steps to have his name put on the minor’s birth certificate, or sought tests to affirm paternity prior to his entry into the dependency case.”
It was not necessary, Croskey concluded, to return the case to Zeidler for him to determine whether R.B.’s entitlement to presumed father status could be rebutted under Sec. 7612(a), which permits rebuttal “in an appropriate action.”
“Instead, we can say as a matter of law that this is not an appropriate case in which to find that the presumption that R.B. is the minor’s natural father has been rebutted by such clear and convincing evidence,” the justice explained. “We reiterate that the state’s interest in these matters includes preserving developed parent-child relationships whether or not the father figure has biological ties to the child….Here, the record shows that R.B., his son R., and the minor are a family. It is families that the dependency statutes seek to keep together, and indeed in this case, despite having found that respondent is the presumed father, the trial court continued the minor’s placement with R.B.”
Justice Richard D. Aldrich and Presiding Justice Joan Dempsey Klein concurred.
Zeidler is a candidate in the March 2 primary for the vacancy created by Judge Rosemary Shumsky’s decision not to run for re-election. The other candidates to succeed Shumsky are Deputy Attorney General Bob Henry, Deputy District Attorney David Lopez, Deputy District Attorney Craig Mitchell, Deputy District Attorney Craig Renetzky, and Torrance attorney Michael Shook.
The case is In re A.A., B163195.
Copyright 2003, Metropolitan News Company