In Re Jesusa (2004) · DecisionDepot

In Re Jesusa

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
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California Supreme Court Mar 1, 2004 No. S106843Published

Before: Baxter

10 Cal.Rptr.3d 205 (2004) 85 P.3d 2 32 Cal.4th 588 In re JESUSA V., a Person Coming Under the Juvenile Court Law.

Los Angeles County Department of Children and Family Services, Plaintiff and Respondent,

Heriberto C., Defendant and Appellant.

No. S106843. Supreme Court of California.

March 1, 2004. [209] John L. Dodd, Tustin, under appointment by the Supreme Court, and Lisa A. DiGrazia for Defendant and Appellant.

Lloyd W. Pellman, County Counsel, and Lois D. Timnick, Deputy County Counsel, for Plaintiff and Respondent.

Children's Law Center of Los Angeles, Law Offices of Kenneth P. Sherman, Marissa Coffey, Monterey Park, and Kenneth P. Sherman for Minor.

Donna Wickham Furth and Shannan Wilber for Northern California Association of Counsel for Children and Legal Services for Children, San Francisco, as Amici Curiae on behalf of Minor.

BAXTER, J.

Jesusa V. became the subject of this dependency action when her biological father, Heriberto C., was taken into police custody for beating and raping her mother, and her mother, who was pregnant at the time, was hospitalized because of her injuries. At the detention hearing, the juvenile court ordered Jesusa to be placed with Paul B., the mother's husband and the father of her five other children.

[210] Paul, who was married to the mother at the time Jesusa was born and who had received the child into his home and had held her out as his own, promptly requested a declaration that he was Jesusa's presumed father. (Fam.Code, § 7611, subds.(a), (d).) Nine days later, Heriberto also filed a request to be declared the presumed father. The juvenile court ordered the Los Angeles County Sheriff to produce Heriberto, who was incarcerated, for the hearing to identify the presumed father and to adjudicate the dependency petition. (See Pen.Code, § 2625.) In the interim, however, Heriberto had been convicted of the rape and moved from the county jail to North Kern State Prison, rendering the court's transfer order ineffective. The hearing went forward in Heriberto's absence but in the presence of his attorney. At that hearing, the juvenile court declared that Paul was Jesusa's presumed father[1] under Family Code section 7612 and found that Jesusa was a dependent of the court under Welfare and Institutions Code section 300, subdivisions (a) and (b). With the mother's consent, the court maintained Jesusa's placement with Paul.

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At the outset, we reject the notion that the juvenile court was bound by section 7612, subdivision (b) to accord determinative weight to biology. This section, which derives from the UPA, nowhere states that biology is a conclusive consideration of policy and logic. (Doe v. Doe (2002) 99 Hawai'i 1, 52 P.3d 255, 262 ["If the genetic presumption `controlled' as a matter of law, then [the statute] would plainly say so, and there would be no point in directing the court to consider which competing presumption `on the facts is founded on the weightier considerations of policy and logic'"].) Moreover, other states that have adopted the UPA have consistently declined to make biology determinative under their analog to section 7612 when confronted by competing presumptions of paternity. In N.A.H. v. S.L.S. (Colo.2000) 9 P.3d 354, for example, the Colorado Supreme Court found that "neither the presumption of legitimacy nor the presumption based on biology is conclusive" (id. at p. 362) and held instead "that when presumptions of paternity arise in more than one potential father, trial courts must take the best interests of the child into account as part of policy and logic in resolving competing presumptions." (Id. at p. 366.) In Doe v. Doe, supra, 99 Hawai'i 1, 52 P.3d 255, the Hawai'i Supreme Court similarly found that "the genetic testing presumption is not more important than the other presumptions; it is one of several that must be considered...." (Id. at p. 262.) In Witso v. Overby (Minn.2001) 627 N.W.2d 63, the Minnesota Supreme Court declared that even if genetic tests identified one man as the biological father, the court must nonetheless "weigh the conflicting presumptions, and `the presumption which on the facts is founded on the weightier considerations of policy and logic controls.'" (Id. at p. 69; Matter of Welfare of C.M.G. (Minn.Ct.App.1994) 516 N.W.2d 555, 560 ["Where competing presumptions of paternity [220] exists, the determination of paternity is no longer solely an issue of biological fact"].) And, in Love v. Love (1998) 114 Nev. 572, 959 P.2d 523, 527, where only the husband's presumption was at issue and he sought to disclaim paternity on the ground he was not the biological father, the Nevada Supreme Court observed that "where factors conflict, as they may here, the district court must use its discretion to apply considerations of policy and logic to the relevant evidence." In short, our construction which permits a court to consider every relevant consideration of policy and logic is in accord with every UPA state to have addressed the issue.[6]

Although the UPA does not expressly provide that one presumed father's established biological paternity necessarily rebuts the presumption of another presumed father under subdivision (a) of section 7611, that conclusion is evident from the statutory framework as a whole. In addition to defining specific presumptions in subdivisions (a) through (d), section 7611 of the UPA incorporates by reference the presumptions set forth in sections 7540 and 7576. Section 7540 establishes a presumption that "the child of a wife cohabiting with her husband ... is ... a child of the marriage." Although the presumption purports to be "conclusive[ ]" (§ 7540), it is not; "[n]otwithstanding" the presumption, "if the court finds that the conclusions of all the experts, as disclosed by the evidence, based on blood tests performed pursuant to [section 7551], are that the husband is not the father of the child, the question of paternity of the husband shall be resolved accordingly." (§ 7541, subd. (a), italics added.) Parties with standing to request such testing must do so within "two years from the child's date of birth." (§ 7541, subds.(b), (c).) Section 7576, subdivision (a), establishes a "presumption," with "the same force and effect as the presumption under Section 7540," that the child of a man and woman executing a voluntary declaration of paternity before January 1, 1997, "is ... the man's child." Although this presumption also purports to be "conclusive[ ]" (§ 7576, subd. (a)), it [245] is not; "any person" may rebut it "by requesting blood or genetic tests pursuant to" section 7551 within three years from the date of the declaration's execution. (§ 7576, subd. (d).) Thus, the Legislature has expressly provided that, as to young children, biological proof necessarily rebuts even the "conclusive[ ]" presumptions under sections 7540 and section 7576, subdivision (a). Logically, if the Legislature provided that proof of biological paternity necessarily rebuts these so-called conclusive presumptions, both of which are UPA presumptions, then surely the Legislature intended that such proof would rebut the nonconclusive UPA presumption under section 7611, subdivision (a).[5]

The majority's conclusion also defeats the Legislature's intent in establishing the "rebuttable presumption ... of paternity" based on biology that is currently found in section 7555, subdivision (a). In 1986, when it first enacted this presumption, the Legislature expressly declared in an uncodified section of the enacting legislation: "It is the intent of the Legislature to standardize the process by which paternity is established in order to achieve a greater degree of equity and consistency in paternity determinations. The Legislature finds that the science of genetic testing has advanced to the degree that paternity determinations resulting from such testing are so reliable that the burden of proof can be shifted to the putative father." (Stats.1986, ch. 629, § 1, pp. 2136-2137 [enacting Evid.Code, former § 895.5].) A legislative analysis explained that the section was necessary because," `under existing law, juries, regardless of the biological facts, tend to arrive at their decisions because of very subjective factors such as the appearance of the natural mother, and the ability of the expert witnesses to explain complex matters. The results of trials on these issues do not always correspond to the biological realities, regardless of how overwhelming such evidence may be. In fact, under [one appellate decision], the court is free to ignore blood test evidence. This bill should standardize paternity determinations and insure that blood test findings are given appropriate consideration.'" (Sen. Com. on Judiciary, analysis of Assem. Bill No. 3326 (1985-1986 Reg. Sess.) May 28, 1986, pp. 2-3.) My conclusion that Heriberto's conceded biological paternity necessarily rebuts Paul's presumption is consistent with and implements the Legislature's stated desire to "standardize paternity determinations and insure that" such determinations "correspond to the biological realities." (Id. at p. 3.) The majority's conclusion that a court need only consider biological paternity as one of several "relevant factors" in weighing competing presumptions (maj. opn., ante, 10 Cal.Rptr.3d at p. 220, 85 P.3d at p. [247] 15) is directly contrary to and defeats the Legislature's clearly stated intent.

This conclusion is consistent with a critical fact that the majority's analysis ignores: whereas the section 7611 presumptions, none of which is based on biology, are all subject to the UPA weighing process under section 7612, the presumption based on biology under section 7555 is expressly not subject to that weighing process. By its terms, section 7612 requires the weighing of conflicting presumptions that "arise under Section 7611." As explained above, the presumptions that arise under section 7611 are those specified in [248] subdivisions (a) through (e) of that section and those incorporated by reference from "Chapter 1 (commencing with Section 7540) and Chapter 3 (commencing with Section 7570) of Part 2." All of these presumptions are based on factors other than biology: marriage (§§ 7540, 7611, subd. (a)), attempted marriage (§ 7611, subds.(b), (c)), a voluntary declaration of paternity (§§ 7576, 7611, subd. (e)), or conduct towards the child (§ 7611, subd. (d)). The presumption based on biology under section 7555 appears in chapter 2 of part 2, not in chapter 1 or chapter 3. Because the presumption under section 7555 based on biology does not "arise under Section 7611," it is not subject to weighing under section 7612, subdivision (b); it "may be rebutted" only "by a preponderance of the evidence" disproving the biological facts (§ 7555) and it necessarily rebuts the presumptions that arise under subdivisions (a) through (d) of section 7611. Moreover, the Legislature's exclusion of the presumption based on biology was clearly intentional, not simply an oversight. Until 1994, the only presumption incorporated by reference into the UPA was the presumption in chapter 1 of part 2 based on marriage. (§ 7540; see Stats.1993, ch. 219, § 176, p. 1670.) In 1994, the Legislature amended section 7611 to incorporate the presumption in chapter 3 of part 2 based on a voluntary declaration of paternity. (§ 7576; see Stats.1994, ch. 1269, § 53, p. 8058.) Clearly, the Legislature made a conscious decision to exclude the presumption in chapter 2 based on biology (§ 7554) from the UPA's balancing process under section 7612. This choice reflects the Legislature's intent that biological paternity would control paternity determinations, not that it would be, as the majority asserts, simply a factor that a court must weigh.

[250] The legislative history of the 1990 amendment extending standing to presumed fathers is perhaps even more significant. Regarding the "[n]eed for" this change, one legislative analysis explained: "[T]his measure would rectify those situations where unwed biological fathers are foreclosed from establishing paternity and precluded from continuing a supportive relationship with a child who was born while the mother was married and cohabiting with another man. [It] ... allow[s] a father who has demonstrated an interest in raising and providing for his child in a familial relationship the opportunity to establish paternity under the above factual circumstances. [¶] ... With more children born out of wedlock, to women who may be technically married, but no longer living with their husbands, ... legislation must be adopted which addresses the problems of unwed fathers who want to become involved and be responsible for the welfare of their children." (Sen. Com. on Judiciary, analysis of Sen. Bill No.2015 (1989-1990 Reg. Sess.) Mar. 27, 1990, p. 3.) Another analysis explained that the amendment specifically targeted "those situations wherein a mother, a biological father, and child have lived together as a family, and thereupon, the mother departs to return to a husband or to live elsewhere and the biological father does not have access to the procedures that are otherwise available to a divorced father for determination of' custody or visitation." (Assem. Com. on Judiciary, analysis of Sen. Bill No.2015 (1989-1990 Reg. Sess.) Apr. 4, 1990, p. 3.) The amendment was meant to change the fact that, under then-existing law, where a mother's husband qualified for the conclusive presumption under Evidence Code former section 621, a biological father who also qualified as "a presumed father [could] be refused visitation rights regardless of his established relationship with the child." (Assem. Com. on Judiciary, Report on Sen. Bill No. 2015 (Apr. 4, 1990) p. 3.) The Legislature passed the amendment despite the contention of opponents that it would "seriously erode[ ]" the "public policy of promoting the integrity of an intact family unit, and providing certainty to the relationship of a child in such a family." (Id. at p. 4.) These statements, and the 1990 amendment itself, demonstrate the Legislature's intent that where a man who is a presumed father under section 7611 seeks to establish his paternity within a child's first two years of life, proof of his biological paternity conclusively and necessarily rebuts any other man's UPA presumption, even the otherwise conclusive presumption of the mother's husband.

The majority is incorrect that my construction of these statutes renders part of section 7612, subdivision (a), "meaningless." (Maj. opn., ante, 10 Cal.Rptr.3d at p. 224, 85 P.3d at p. 18.) As the majority observes, section 7541 specifies that the section 7540 presumption "is rebutted by evidence of biological fatherhood," and section 7576, subdivision (e), specifies that a presumption based on a voluntary paternity declaration "would not override a presumption of paternity arising under section 7555, the genetic testing provision." (Maj. opn., ante, 10 Cal.Rptr.3d at pp. 224-225, 85 P.3d at pp. 18-19.) The majority next correctly observes that subdivision (a) of section 7612 provides: "Except as provided in Chapter 1 (commencing with Section 7540) and Chapter 3 (commencing with Section 7570) of Part 2 ..., a presumption under Section 7611 is a rebuttable presumption affecting the burden of proof and may be rebutted in an appropriate action only by clear and convincing evidence." (See maj. opn., ante, 10 Cal.Rptr.3d at p. 224, 85 P.3d at p. 18.) However, the conclusion the majority reaches based on these provisions is incorrect. That the Legislature "expressly except[ed]" the presumptions under section 7540 and section 7576 "from the operation of section 7612, subdivision (a) and [made] separate provision for the legal effect of biology in those circumstances" does not, as the majority asserts, show the Legislature's "belie[f] that section 7612, subdivision (a) [252] [does] not necessarily accord primacy to biology." (Maj. opn., ante, 10 Cal.Rptr.3d at p. 224, 85 P.3d at p. 18.) Rather, it shows that the Legislature wanted to impose limits with respect to these presumptions that do not exist with respect to the other section 7611 presumptions. Specifically, as the majority recognizes (maj. opn., ante, 10 Cal.Rptr.3d at p. 220, fn. 6, 85 P.3d at p. 14, fn. 6), through the "excepting" clause of section 7612, subdivision (a), the Legislature imposed time limits for rebutting the presumptions under sections 7540 and 7576 that do not apply to the other section 7611 presumptions. (See § 7541, subds. (c), (d) [two-year time limit]; § 7576, subd. (d) [three year time limit]). That is, the "excepting" clause takes the section 7540 and 7576 presumptions out of the general rule that otherwise applies. Thus, contrary to the majority's assertion, my construction does not render "meaningless" the "`excepting' clause" in subdivision (a) of section 7612.[9] (Maj. opn., ante, 10 Cal.Rptr.3d at p. 224, 85 P.3d at p. 18.)

On the other hand, the majority's construction renders meaningless all of subdivision (b) of section 7612. As I have explained, section 7612 gives rise to two separate questions: (1) under subdivision (a), whether a presumed father's presumption is rebutted; and (2) under subdivision (b), where there are competing unrebutted presumptions, which one "on the facts is founded on the weightier considerations of policy and logic." Under the majority's construction, these questions are exactly the same, and a court looks to the exact same factors to answer each. The majority holds that courts must "consider the child's best interest and public policy in determining" under subdivision (a) of section 7612 "whether [a] presumption is rebutted." (Maj. opn., ante, 10 Cal.Rptr.3d at p. 226, 85 P.3d at p. 20.) Similarly, the majority holds that a court "`must take the best interests of the child into account as part of policy and logic in resolving competing presumptions' "under subdivision (b) of section 7612. (Maj. opn., ante, 10 Cal.Rptr.3d at p. 219, 85 P.3d at p. 14.) Thus, although the term "best interests" does not appear in either subdivision (a) or subdivision (b) of section 7612, the majority reads that term into both. In affirming the juvenile court's finding that Paul's presumption was not rebutted, the majority weighs Paul's "relationship" to Jesusa, her half siblings, and her mother against the fact that Heriberto is Jesusa's biological father and he lived with her through her infancy. (Maj. opn., ante, 10 Cal.Rptr.3d at p. 219, 85 P.3d at p. 14.) Likewise, in affirming the juvenile court's finding that Paul's presumption is weightier, the majority weighs the exact same factors, restated almost verbatim. (Maj. opn., ante, 10 Cal.Rptr.3d at p. 224, 85 P.3d at p. 18.) Under the majority's analysis and construction, subdivision (b) of section 7612 is entirely useless; it adds nothing that is not already contained in subdivision (a) of the same section. Thus, it is the majority's construction, not mine, that renders part of section 7612 meaningless. My construction gives effect to all parts of the statute.

The majority's attempt to explain these results simply demonstrates the absurdity of its construction. The majority asserts that it is incorrect to "compar[e]" the "presumption in section 7540" to the other section 7611 presumptions because the former, "[u]nlike" the latter, is "not really a presumption at all but is instead `a rule of substantive law.'" (Maj. opn., ante, 10 Cal.Rptr.3d at p. 225, 85 P.3d at p. 19.) However, the characterization of the section 7540 presumption as a "substantive rule of law" is ours, not the Legislature's. (Kusior, supra, 54 Cal.2d at p. 619, 7 Cal.Rptr. 129, 354 P.2d 657.) Section 7540 provides that the child of a wife cohabiting with her husband is "presumed" to be the child of the marriage. Similarly, section 7611 expressly provides that a man "is presumed" to be a child's natural father "if he meets the conditions provided in" section 7540 "or in" subdivisions (a) through (e) of section 7611. Thus, contrary to the majority's assertion, section 7540, like subdivisions (a) through (e) of section 7611, creates a paternity presumption.[11] In any event, even if, as the majority asserts, [254] section 7540 alone states a substantive rule of law, then the presumption it establishes should be harder to rebut than the other section 7611 presumptions, not easier; yet, under the majority's construction, evidence that necessarily rebuts the section 7540 presumption does not necessarily rebut the other section 7611 presumptions. The majority also errs in suggesting that the other section 7611 presumptions are unlike the section 7540 presumption in that they "were `"established to implement some public policy other than to facilitate the determination of the particular action in which the presumption is applied."'" (Maj. opn., ante, 10 Cal.Rptr.3d at p. 225, 85 P.3d at p. 19.) As we have explained, the section 7540 presumption and the other section 7611 presumptions all serve the same public policy. (In re Nicholas H. (2002) 28 Cal.4th 56, 65, 120 Cal.Rptr.2d 146, 46 P.3d 932 Nicholas H.; Estate of Cornelious (1984) 35 Cal.3d 461, 465, 198 Cal.Rptr. 543, 674 P.2d 245 (Cornelious).) Finally, the majority's analysis is not aided by its observation that, "unlike the section 7540 presumption," the other section 7611 presumptions "may be rebutted `only by clear and convincing evidence.'" (Maj. opn., ante, 10 Cal.Rptr.3d at p. 225, 85 P.3d at p. 19.) The standard of proof for rebutting the section 7540 presumption is actually higher; that presumption is overcome only if "all the experts" agree that "the husband is not the father." (§ 7541, subd. (a), italics added.) Thus, contrary to the majority's suggestion, the difference in the applicable standard of proof again demonstrates that the Legislature intended to make the section 7611 presumption harder to rebut than the other section 7611 presumptions, and that proof rebutting the section 7540 presumption therefore necessarily rebuts the other section 7611 presumptions.

Nothing suggests that, in adopting the UPA, the Legislature intended to alter the determinative effect of biological paternity under California law in cases involving competing paternity claims. The UPA's purpose was not to enact fundamental changes regarding the role of biology in the law of paternity, but was simply to replace the concept of legitimacy with the concept of the parent and child relationship and to specify a procedure for establishing that relationship. (Legis. Counsel's Dig., Sen. Bill No. 347 (1975-1976 Reg. Sess.) 2 Stats.1975, Summary Dig., p. 344; Johnson, supra, 5 Cal.4th at pp. 88-89, 19 Cal.Rptr.2d 494, 851 P.2d 776.) According to one legislative analysis, "[a]ll of the presumptions established by [the UPA] correspond[ed] to current law." (Sen. Com. on Judiciary, analysis of Sen. Bill No. 347 (1975-1976 Reg. Sess.) May 8, 1975, pp. 15-16, italics added.) For example, the rebuttable presumption at issue in Kusior, which we held was conclusively rebutted by tests showing that the presumed father was not the biological father, was the same rebuttable presumption now contained in section 7611, subdivision (a). The legislative history of the UPA also explained that the UPA presumptions "may be rebutted ... by clear and convincing evidence." (Assem. Com. on Judiciary, Rep. on Sen. Bill No. 347 (1975-1976 Reg. Sess.) Aug. 7, 1975, p. 2.) Similarly, the National Conference of Commissioners on Uniform State Laws, which drafted the 1973 Uniform Parentage Act (1973 Act) from which California's UPA was derived (Adoption of Michael H., supra, 10 Cal.4th at p. 1050, 43 Cal.Rptr.2d 445, 898 P.2d 891), explained that the 1973 Act's presumptions are rebuttable "[i] n accordance with current law in most states relating to the rebuttal of a presumption of `legitimacy.'" (9B West's U. Laws Ann. (2001) U. Parentage Act (1973) com. to § 4, p. 394, italics added.) As explained above, when this comment was written, the law in California provided that rebuttable presumptions were conclusively rebutted by proof such as lack of intercourse, blood tests, the husband's sterility or impotency, or admissions by the mother that the presumed father was not the biological [256] father.[12] The law in other states was the same. (See generally, Annot., Proof of Husband's Impotency or Sterility as Rebutting Presumption of Legitimacy (1978) 84 A.L.R.3d 495; Annot., Presumption of Legitimacy, or of Paternity, of Child Conceived or Born Before Marriage (1958) 57 A.L.R.2d 729.) The majority's conclusion that, despite one presumed father's conceded biological paternity, a court may decline to find another man's presumption rebutted based on a weighing of policy considerations, constitutes a revolutionary change in terms of the law as it existed when California's UPA and the 1973 Act were drafted and approved. Nothing in the legislative history of the UPA indicates that our Legislature even considered, much less intended to make, this revolutionary change. On the contrary, as explained, the legislative history shows that the UPA was intended to preserve existing law regarding the determinative effect of biological paternity in cases involving competing paternity claims.[13]

Indeed, the very language of the UPA demonstrates that the majority's construction is inconsistent with the Legislature's intent. As noted above, the UPA specifies a procedure for establishing "[t]he parent and child relationship" (§ 7610), which the UPA defines as "the legal relationship existing between a child and the child's natural or adoptive parents...." (§ 7601, italics added.) The particular UPA procedure at issue here is that for establishing "[t]he parent and child relationship ... [b]etween a child and the natural father." (§ 7610, subd. (b), italics added.) Under well established principles of statutory construction, in construing these provisions, "[w]e look first to the plain meaning of the statutory language, giving the words their usual and ordinary meaning. [Citation.]" (People v. Garcia (2002) 28 Cal.4th 1166, 1172, 124 Cal.Rptr.2d 464, 52 P.3d 648.) The usual and ordinary meaning of [257] the terms "natural parent" and "natural father" is, respectively, the biological parent and the biological father. (See Lehr v. Robertson (1983) 463 U.S. 248, 262, 103 S.Ct. 2985, 77 L.Ed.2d 614 ["the biological connection ... offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring"].) As Black's Law Dictionary explains, the term "natural father" is "[a]lso termed biological father" and means "[t]he man who impregnated the child's natural mother." (Black's Law Dict. (7th ed.1999) p. 623, col. 1.) For years, we have construed the term "natural" parent, both in interpreting the UPA and in other contexts, in accordance with its common and ordinary meaning, that is, as meaning" biological" parent.[14] Based on the common and ordinary meaning of the terms "natural parent" (§ 7601) and "natural father" (§ 7610, subd. (b)), the UPA's purpose is to specify a procedure for identifying a child's biological father and legally establishing his relationship to his child. Thus, under the statute's plain meaning, although Paul's marriage to Jesusa's "natural mother" initially qualified him under section 7611, subdivision (a), for a presumption that he is Jesusa's "natural father," Heriberto's conceded biological paternity constitutes "clear and convincing evidence" that necessarily rebuts the presumption. (§ 7612, subd. (a); see In re Zacharia D., supra, 6 Cal.4th at p. 450, fn. 18, 24 Cal.Rptr.2d 751, 862 P.2d 751 [UPA presumption of one man "was rebutted by blood tests establishing that [another man] was the biological father"].)

Relevant legislative history confirms that the Legislature understood and used the term "natural father" in the UPA in accordance with its ordinary meaning, that is, "biological father." As explained above, in 1980, the Legislature first made the "conclusive[ ]" presumption under section 7540 rebuttable by giving "the husband" standing to obtain testing that would necessarily rebut the presumption. (Stats.1980, ch. 1310, § 1, p. 4433 [amending Evid.Code, former § 621, now § 7541, subd. (b)].) One legislative analysis of this amendment explained that a "consequence" of the "irrebutable presumption [wa]s that the child's natural father, when he is not the husband, [could not] establish paternity. Thus, the presumption prevent[ed] the natural father from establishing a legal father-child relationship which is the basis for familial rights...." (Sen. Com. on Judiciary, analysis of Assem. Bill No.1981 (1979-1980 Reg. Sess.) June 23, 1980, pp. 3-4, italics added.) In these comments, the term "natural father" was clearly being used to mean "biological father." Legislative analyses of the 1990 amendment that extended standing to "presumed father[s]" under the UPA (§ 7541, subd. (b)), similarly used the term "natural father" to mean "biological father." Several of those analyses explained that, under then-existing law, standing to rebut the otherwise conclusive presumption under section 7540 [258] was limited to the mother's husband and the mother "if the natural father has filed an affidavit acknowledging paternity." (Sen. Rules Com., Off. of Sen. Floor Analyses, analysis of Sen. Bill No. 2015 (1989-1990 Reg. Sess.) as amended July 6, 1990, p. 2, italics added.) The statute these reports described actually provides standing to the mother "if the child's biological father has filed an affidavit with the court acknowledging paternity...." (§ 7541, subd. (c), italics added.) Another analysis explained that the amendment enables "a presumed father" under the UPA to obtain blood tests "to establish himself to be the biological father." (Assem. Com. on Judiciary, Republican Analysis of Sen. Bill No. 2015 (1989-1990 Reg. Sess.) July 7, 1990, italics added.) As already explained, the UPA sets forth a procedure for establishing a parent-child relationship "[b]etween a child and the natural father...." (§ 7610, subd. (b), italics added.) Still another analysis explained that the amendment addressed problems arising under the high court's decision in Michael H. v. Gerald D. (1989) 491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d 91, where "[t]he dissenting opinions argued that a natural father's biological link to his child combined with a substantial parent-child relationship maintained between them, guarantees the natural father a liberty interest in his relationship with child." (Assem. Com. on Judiciary, analysis of Sen. Bill No. 2015 (1989-1990 Reg. Sess.) Apr. 4, 1990, p. 4, italics added.) By interchangeably using the terms "biological" and "natural" in discussing one of the presumptions under the UPA (§ 7611), these analyses clearly demonstrate the Legislature's understanding and intent that the term "natural father" in the UPA (§ 7610, subd. (b)) would be interpreted in accordance with its ordinary meaning, that is, "biological father." The logical conclusion based on this ordinary meaning is that a presumed father's conceded biological paternity necessarily rebuts the presumption that another man is "the natural father" of a child.[15] (§ 7611.)

This conclusion is consistent with our analysis in Johnson. There, we had to resolve the competing maternity claims of two women: one who gave birth to the child and another who had provided the egg that was implanted into the first. (Johnson, supra, 5 Cal.4th at p. 87, 19 Cal.Rptr.2d 494, 851 P.2d 776.) We first reasoned that the UPA, which "applies to any parentage determination," governed the issue. (Id. at p. 89, 19 Cal.Rptr.2d 494, 851 P.2d 776.) We then reasoned that, because both women had a biological claim to maternity, "the [UPA] presumptions contained in [section 7611] do not apply." (Johnson, supra, 5 Cal.4th at p. 91, 19 Cal.Rptr.2d 494, 851 P.2d 776.) These presumptions, we explained, "describe situations in which substantial evidence points to a particular man as the natural father of the child. [Citation.]" (Ibid., italics added.) We then held that, because both women had established a biological basis for their claim, "there [was] no need to resort to an evidentiary presumption to ascertain the identity of the [259] natural mother." (Id. at p. 91, 19 Cal.Rptr.2d 494, 851 P.2d 776, italics added.) We next expressly rejected the very approach the majority adopts here: that courts applying the UPA should "decide parentage based on the best interests of the child." (Johnson, supra, 5 Cal.4th at p. 93, fn. 10, 19 Cal.Rptr.2d 494, 851 P.2d 776.) We explained that under our statutory framework, "the determination of parentage must precede, and should not be dictated by, eventual custody decisions." (Ibid.) We also explained that concerns about the child's "best interests" should be addressed, not through parentage determinations, but through our "dependency laws, which are designed to protect all children irrespective of the manner of birth or conception." (Ibid.) We ultimately held that, in resolving the competing maternity claims "under the [UPA]," "the parties' intentions" controlled, rather than the child's best interests. (Id. at p. 95, 19 Cal.Rptr.2d 494, 851 P.2d 776.)

Relevant legislative history confirms that the distinction we drew in Nicholas H. between cases where the biological father seeks to establish his paternity claim and cases where he does not correctly reflects the Legislature's intent. As explained above, when the Legislature extended standing to contest section 7540's conclusive presumption to a "presumed father" under section 7611 and to "the child," it did so only "for purposes of establishing [the presumed father's] paternity." (Stats.1990, ch. 543, § 2, p. 2855 [amending Evid.Code, former § 621, now Fam.Code, § 7541, subd. (b)].) According to the amendment's legislative history, the Legislature specifically included this limitation to "clarify that the purpose for" giving presumed fathers and the child standing was "to establish the paternity of the presumed father" and to prevent "a presumed father (who may not be the biologic father) or the child [from] fil[ing] a motion to have the husband determined as not the biologic father, with no intent of obtaining a legal determination to establish paternity in someone else." (Assem. Com. on Judiciary, analysis of Sen. Bill No. 2015 (1989-1990 Reg. Sess.) Apr. 4, 1990, p. 6.) At the same time the Legislature added this limitation, it rejected a proposed amendment that would have deleted the restriction barring a mother from contesting the husband's conclusive presumption unless "the child's biological father has filed an affidavit with the court acknowledging paternity of the child." (§ 7541, subd. (c).) One legislative analysis explained that this proposed amendment could, "if the mother establishes her husband's lack of paternity," leave the child "legally without a father," which "would be contrary to public policy." (Assem. Com. on Judiciary, analysis of Sen. Bill No. 2015 (1989-1990 Reg. Sess.) Apr. 4, 1990, p. 6.) This legislative history supports our statement in Nicholas H. that the case now before us in which a biological father who is also a presumed father seeks "to perfect his claim" and to rebut the presumption of another man is precisely the kind of case "the Legislature had in mind" as an "`appropriate action'" where the presumption would be rebutted. (Nicholas H., supra, 28 Cal.4th at p. 70, 120 Cal.Rptr.2d 146, 46 P.3d 932.)

The majority's analysis is both unpersuasive and incorrect. It is unpersuasive because it ignores the fact that blood test evidence showing that the tested man is not the father does necessarily rebut the presumption of a husband who is "conclusively presumed" to be the father under section 7540. (§ 7541, subd. (a).) To paraphrase the majority," `[i]t is unlikely the Legislature would without explicitly so stating adopt a contrary rule'" that [264] test results do not necessarily rebut the nonconclusive UPA presumptions. (Maj. opn., ante, 10 Cal.Rptr.3d at p. 217, 85 P.3d at p. 12.) The majority's analysis is incorrect because it does not focus on the correct statute. In determining whether Heriberto's biological paternity necessarily rebuts Paul's presumption under section 7611, we should consider the Legislature's treatment of presumptions based on voluntary paternity declarations. That issue is governed by section 7576, not, as the majority asserts, by section 7575. As explained above, section 7576, subdivision (a), provides that a voluntary declaration of paternity completed before January 1, 1997, raises a "presumption" that the child of the man executing the voluntary declaration "is ... the man's child." As also explained above, section 7576, subdivision (d), provides that "any person" may rebut the "presumption" raised by such a declaration by obtaining genetic tests pursuant to section 7551. This provision makes a presumption based on a voluntary declaration expressly subject to California's Uniform Act on Blood Tests to Determine Paternity (§ 7550 et seq.), including the direction in section 7554 that the "question of paternity shall be resolved" in accordance with tests showing that the "alleged father is not the father." Thus, a presumption based on a voluntary declaration, like a section 7540 presumption, is necessarily rebutted by test results showing that the presumed father is not the father. That test results necessarily rebut the presumptions under both sections 7540 and 7576 follows not just from subdivision (d) of section 7576, but also from subdivision (a), which expressly declares that the "presumption" based on a voluntary paternity declaration "has the same force and effect as the presumption under Section 7540." (§ 7575, subd. (a).) This fact supports my construction because, again to quote the majority, "`[i]t is unlikely the Legislature would'" provide that the so-called conclusive UPA presumptions under both sections 7540 and 7576 are necessarily rebutted by such evidence and, "without explicitly so stating," "`adopt a contrary rule'" with respect to the nonconclusive UPA presumptions.[20] (Maj. opn., ante, 10 Cal.Rptr.3d at p. 217, 85 P.3d at p. 12.)

The non-California decisions on which the majority relies do not support the majority's conclusion because the statutes they construed are significantly different from California's UPA. As explained above, when our Legislature established a presumption based on test results, it excluded that presumption from the UPA's weighing process under section 7612 and specifically declared its "intent ... to standardize the process by which paternity is established in order to achieve a greater degree of equity and consistency in paternity determinations." (Stats.1986 ch. 629, § 1, pp. 2136-2137.) It thus provided clear evidence of its intent to make established biological paternity determinative as to which competing UPA presumption is, "on the facts ... founded on the weightier considerations of policy and logic...." (§ 7612, subd. (b), italics added.) By contrast, in Colorado, Hawai'i, Minnesota, and Nevada, the presumption based on scientific tests is just one of several presumptions stated in their version of section 7611, that is, their version of section 4 of the 1973 Act. (Colo. Rev. Stats. § 19-4-105; Hawaii Rev. Stats. § 584-4(a); Minn.Stat. § 257.55, subd. (1); Nev. Rev. Stats. § 126.051(1).) Notably, in the decisions the majority cites, the courts relied on this fact, and the fact that the same statute provided for the weighing of conflicting presumptions, in concluding that their state's presumption based on biology does not necessarily overcome the presumptions based on other factors.[22] For example, as one of the cited cases explained, "the original lodestar of [Minnesota's] parentage act" was "biological "paternity; thus, "[w]hen the parentage act was first adopted in [Minnesota], ... the effort was to find the biological father and then to adjudicate that person the legal father." (Matter of Welfare of C.M.G. (Minn.Ct.App.1994) 516 N.W.2d 555, 560, fn. 8, italics added.) However, "when the [Minnesota] legislature added the presumption established under the genetic [267] test presumption, [citation], it ... treated [that presumption] simply as the sixth presumption [under the parentage act]." (Ibid.) This fact "demonstrate[s]" that, in Minnesota, "other considerations ha[ve] since made the search something more than a search for a biological father." (Ibid.) This decision, and the others the majority cites, do not support the majority's conclusion precisely because their analyses depended on the fact that, unlike our Legislature, the legislatures in Colorado, Hawai`i, Minnesota, and Nevada expressly made their presumption based on biology subject to weighing by placing it in the weighing provision of their version of the 1973 Act.[23] Indeed, by recognizing that, absent this fact, the "lodestar of the parentage act" is "biological" paternity (C.M.G., supra, 516 N.W.2d at p. 560, fn. 8), these decisions actually support my conclusion that biological paternity is determinative under California's statutory scheme, at least as to children no more than two years of age.[24]

The majority's attempt to refute this conclusion fails. Initially, the majority confuses and avoids the issue by insisting that the proceedings here merely determined who "the presumed father" is, not who the father is. (Maj. opn., ante, 10 Cal.Rptr.3d at p. 212, 85 P.3d at p. 8.) The majority states that a juvenile court may determine "the identity of a child's presumed father" through an action brought under Family Code section 7630 and Welfare and Institutions Code section 316.2, subdivision (d). (Maj. opn., ante, 10 Cal.Rptr.3d at p. 230, 85 P.3d at p. 23, italics added.) However, as we have explained, section 7630 of the UPA sets forth "the means" by which "[a] man can establish a father and child relationship," not merely his status as a presumed father. (Johnson, supra, 5 Cal.4th at p. 90, 19 Cal.Rptr.2d 494, 851 P.2d 776, italics added.) The plain language of section 7630 confirms this fact. It authorizes "a man presumed to be the child's father" under section 7611 to bring an action to "declar[e]" the actual "existence of the father and child relationship" that is merely "presumed under ... Section 7611." (§ 7630, subd. (a)(1).) It also authorizes "[a]n action to determine the existence of the father and child relationship with respect to a child who has no presumed father under Section 7611." (§ 7630, subd. (c), italics added.) The UPA'S legislative history also confirms this fact; it explains that the UPA "sets forth a procedure whereby a man can be judicially determined to be the father of the child," and that "[a]ll rights of ... the parents with regard to th[e] child ... are based on the parent and child relationship" established under the UPA's procedure. (Sen. Com. on Judiciary, analysis of Sen. Bill No. 347 (1975-1976 Reg. Sess.) as amended May 8, 1975, p. 14, italics added.) Finally, the other statute the majority cites Welfare and Institutions Code section 316.2, subdivision (d) also confirms this fact; it says nothing about identifying the presumed father, but provides that "[i]f a man appears in the dependency action and files an action under Section 7630 or 7631 of the Family Code, the court shall determine if he is the father." (Italics added.) Thus, contrary to the majority's statement, nothing in either Family Code section 7630 or Welfare and Institutions Code section 316.2, subdivision (d), authorizes a determination of the identity of the presumed father.

In any event, the majority errs in holding that Heriberto has no constitutional protection absent such a showing. Contrary to the majority's analysis, neither Kelsey nor Michael H. supports this conclusion or even suggests that the taking of steps to formalize the paternal role is an absolute prerequisite to constitutional protection. On the contrary, in Kelsey, we identified "prompt legal action to seek custody" as only one of many factors "[a] court should consider." (Kelsey, supra, 1 Cal.4th at p. 849, 4 Cal.Rptr.2d 615, 823 P.2d 1216.) We more broadly held that, in determining whether a biological father has made the showing necessary to trigger due process protections, a court should not look to any one factor, but "should consider all factors," including the biological father's "conduct both before and after the child's birth." (Ibid.) The majority asserts that Heriberto did less than the father in [273] Kelsey, who filed an action to establish his parental role only two days after the child's birth. (Maj. opn., ante, 10 Cal.Rptr.3d at p. 222, 85 P.3d at p. 16.) However, in terms of demonstrating a timely and full commitment to parental responsibilities, Heriberto did far more than the father in Kelsey. The father in Kelsey never lived with or even visited his child. (Kelsey, supra, 1 Cal.4th at pp. 822, 825, 4 Cal.Rptr.2d 615, 823 P.2d 1216.) By contrast, Heriberto lived with Jesusa's mother for a year before Jesusa's birth, lived with Jesusa and her mother as a family until his arrest almost two years after Jesusa's birth, and acted as Jesusa's father during those two years. Given these circumstances, and the fact that Paul has always conceded that Heriberto is Jesusa's father, Heriberto had no reason to take "legal steps to formalize his relationship" with Jesusa or "`seek custody of'" her. (Maj. opn., ante, 10 Cal.Rptr.3d at p. 222, 85 P.3d at p. 16.) Moreover, during this dependency proceeding, Heriberto continues to assert his paternity and acknowledges that, if a judgment is entered establishing his paternity, he "will have the obligation to support" Jesusa until she is at least 18. Based on his conduct over the entire relevant period, Heriberto clearly qualifies for constitutional protection, even assuming, as the majority does, he did not take steps to formalize his paternal relationship. The majority errs in concluding otherwise.[30]

The majority's analysis is incorrect, because it mischaracterizes and incorrectly weights the relevant interests to be balanced. On one side of the scale, the majority places Heriberto's "largely abstract interest in being an absent presumed father while he remains in prison." (Maj. opn., ante, 10 Cal.Rptr.3d at p. 222, 85 P.3d at p. 16.) However, Heriberto's interest is hardly abstract; it arises from the period he lived with Jesusa's mother during her pregnancy and from the actual parental relationship he developed with Jesusa during the almost two years he lived with her as her father. As previously noted, according to Jesusa's mother, Heriberto was "always ... very loving and gentle to" Jesusa during this time. Moreover, the majority takes the short-term, myopic view in focusing only on Heriberto's "interest in being an absent presumed father while he remains in prison." (Maj. opn., ante, 10 Cal.Rptr.3d at p. 222, 85 P.3d at p. 16, italics added.) Heriberto will not be in prison forever; as the majority notes, he received "three years in prison" for his rape conviction. (Maj. opn., ante, 10 Cal.Rptr.3d at p. 211, 85 P.3d at p. 7.) This three-year period will end in May 2004, only a few months from now (assuming Heriberto is not released even earlier based on custody credits). We must consider not only Heriberto's interest while he remains in prison, but also his interest in being a father after his impending release. The juvenile court's paternity determination will seriously interfere with indeed, [274] it will terminate Heriberto's rights long after his release. On the other side of the scale, the majority places the "substantial state interests in familial stability and the welfare of the child." (Maj. opn., ante, 10 Cal.Rptr.3d at p. 222, 85 P.3d at p. 16.) In this case, the state's interest in familial stability is "relatively weak [ ]," given that Jesusa lived with Heriberto and her mother as a family until Heriberto's arrest almost two years after Jesusa's birth, and that Paul has never claimed he is actually Jesusa's father. (Brian C. v. Ginger K., supra, 77 Cal.App.4th at p. 1217, 92 Cal.Rptr.2d 294; see also Michael H. v. Gerald D., supra, 491 U.S. at p. 120, fn. 1, 109 S.Ct. 2333 (plur. opn. of Scalia, J.) ["where the husband and wife have not been cohabiting" and husband "already knows the child is not his, [it is] less likely that the paternity hearing will disrupt an otherwise harmonious and apparently exclusive marital relationship"].) Moreover, the state's interest in the child's welfare is amply protected by the separate statutory scheme relating to custody issues and termination of parental rights. For all of these reasons, the majority's rejection of Heriberto's due process claim is erroneous.[31]

The majority's conclusion also raises serious and doubtful constitutional questions with respect to the equal protection clause. In Kelsey, we explained that when a biological father "has come forward to grasp his parental responsibilities, his parental rights are entitled to equal protection as those of the mother." (Kelsey, supra, 1 Cal.4th at p. 849, 4 Cal.Rptr.2d 615, 823 P.2d 1216, fn. omitted.) Contrary to this principle, under the majority's conclusion, the parental rights of a biological father who has made the necessary commitment to his parental responsibilities do not receive the same protection as the parental rights of a biological mother. As explained above, we held in Johnson that, under the UPA, the parentage claim of a woman who has established her biological maternity and who "from the outset intended to be the child's mother" cannot be defeated based on the child's best interests, even by another woman who also establishes a biological basis for parentage. (Johnson, supra, 5 Cal.4th at p. 93, 19 Cal.Rptr.2d 494, 851 P.2d 776.) Here, the majority holds that a man in the same position who has established his biological paternity, who moved in with the mother a year before the child's birth and intended from the outset to be the child's father, and who lived with the child and acted as her father for almost two years after her birth does not enjoy the same protection; his parentage claim may be defeated if a court concludes that the child's best interests are served by recognizing the paternity claim of someone with no biological basis for his claim. Thus, in interpreting the UPA as establishing lesser protection for the rights of a biological father, the majority's holding renders our statutory scheme violative of the equal protection clause. As we explained in Kelsey:"We simply do not in our society take children away from their mothers married or otherwise" merely because a [275] "best interest" inquiry suggests that "a `better' ... parent can be found.... [N]o valid reason [exists] why we should be less solicitous of a father's" rights. (Kelsey, supra, 1 Cal.4th at p. 846, 4 Cal.Rptr.2d 615, 823 P.2d 1216.)

The majority is also incorrect regarding the effect of my construction where a child is "the product of rape." (Maj. opn., ante, 10 Cal.Rptr.3d at p. 229, fn. 11, 85 P.3d at p. 22, fn. 11.) The majority asserts that, under these circumstances, my construction requires a court "to favor the biological father over any other presumed father." (Ibid.) However, this assertion overlooks the fact that, under my construction, even though a biological father qualifies as a presumed father, his parental rights would surely be terminated where the child is the product of rape, and another presumed father would be able to obtain custody and parental rights through adoption. The majority's assertion also overlooks the fact that my approach is precisely the approach the Legislature, through its statutes, has dictated where a child is the product of rape and the rapist qualifies under section 7611 as a presumed father. (§§ 7611.5 [prohibiting rapists from becoming presumed fathers only if they do not qualify under § 7611]), 7825, subd. (b) [in action for order declaring child free from father's custody and control, that [276] child is product of rape raises "conclusive presumption" that "father is unfit to have custody or control"]; Welf. & Inst.Code, § 366.26, subd. (c)(1) (["convict[ion] of a felony indicating parental unfitness ... constitute[s] a sufficient basis for termination of parental rights" unless "termination would be detrimental to the child"].) The majority also errs in asserting that my construction gives a rapist "`"a right of reunification services ... simply because [he] is the biological father of the child."'" (Maj. opn., ante, 10 Cal.Rptr.3d at p. 229, fn. 11, 85 P.3d at p. 22, fn. 11.) The majority's assertion overlooks the fact that, consistent with the Legislature's express intent, my construction applies not to all biological fathers, but only to those who otherwise qualify as presumed fathers under section 7611. (See § 7611.5.) More importantly, the majority's assertion overlooks the fact that, even where a rapist qualifies as a presumed father, our statutes expressly deprive him of any right to reunification services. (Welf. & Inst.Code, §§ 361.5, subds. (b)(12), (c), (e)(1).) My construction has no effect on operation of these statutes.

Nor is the majority correct that my construction would produce an "absurd result." (Maj. opn., ante, 10 Cal.Rptr.3d at p. 213, fn. 2, 85 P.3d at p. 8.) The majority asserts that, under my conclusion, a juvenile court "must" give notice and order a prisoner's production for "every" hearing in the course of the dependency proceeding. (Maj. opn., ante, 10 Cal.Rptr.3d at p. 213, fn. 2, 85 P.3d at p. 8, fn. 2.) However, by the statute's express terms, even after giving notice, a court must order the prisoner's production only"[u]pon receipt ... of a statement from the prisoner or his or her attorney indicating the prisoner's desire to be present during the court's proceedings...." (Pen.Code, § 2625, subd. (d).) We have no reason to believe that a prisoner would request to be present for mundane "housekeeping matters," such as "scheduling hearings." (Maj. opn., ante, 10 Cal.Rptr.3d at p. 213, fn. 2, 85 P.3d at p. 8, fn. 2.) Indeed, wise counsel would advise against such a course, so as not to irritate the judge who will be deciding the substantive issues. Moreover, even after asking to be present, a prisoner may waive his right. Again, wise counsel would advise a prisoner to follow this course. Finally, contrary to the majority's assertion, my construction does not even necessarily require that notice be given and the prisoner's option thus invoked with respect to all such mundane matters. In applying other statutes that mandate a criminal defendant's presence at trial, we have held the presence requirement inapplicable to such matters. (E.g., People v. Ochoa (2001) 26 Cal.4th 398, 435, 110 Cal.Rptr.2d 324, 28 P.3d 78.) A similar limitation would be appropriate with respect to Penal Code section 2625. Of course, as I have explained, the paternity determination at issue here was anything but mundane; it determined Heriberto's parental rights and, as the majority concedes, had to be made before the petition could be adjudicated. Thus, contrary to the majority's assertion, my construction would not produce an anomalous result.

In Re Jesusa

BAXTER, J.

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BACKGROUND

DISCUSSION

DISPOSITION

III

I. HERIBERTO's BIOLOGICAL PATERNITY CONTROLS.

C. Policy Considerations

II. HERIBERTO HAD A STATUTORY RIGHT TO BE PERSONALLY PRESENT.

III. CONCLUSION.

NOTES

AI Brief