Cnty. of L.A. v. Christopher W.

41 Cal.App.5th 827

254 Cal.Rptr.3d 565

COUNTY OF LOS ANGELES, Plaintiff and Respondent,

v.CHRISTOPHER W. et al., Defendants and Respondents;

Jennifer D., Appellant.

B292570

Court of Appeal, Second District, Division 1, California.

Filed November 1, 2019

Cliff Dean Schneider, Los Angeles, for Appellant Jennifer D.

No appearance for Plaintiff and Respondent County of Los Angeles.

No appearance for Defendant and Respondent Christopher W.

No appearance for Defendant and Respondent Colin K.

ROTHSCHILD, P. J.

Christopher W. is the biological father of M.D. The mother of M.D. is Jennifer D. (Mother). Christopher and Mother never married and their personal relationship ended soon after Mother became pregnant with M.D. While Mother was pregnant, she began a dating relationship with Colin K. After M.D. was born, Colin posted pictures of himself with M.D. on his page on the Internet Website Facebook, along with messages implying that he is M.D.’s father. When M.D. was two years old, Colin moved in with Mother and M.D.

The County of Los Angeles (the County), acting through its Child Support Services Department, commenced an action against Christopher to establish his paternity and his obligation to provide child support for M.D. ( Fam. Code, §§ 17400, 17404.)¹ Christopher successfully moved to join Colin as a party in the action and asserted that Colin, not he, is M.D.’s father, pursuant to section 7611, subdivision (d). The County, Mother, and Colin disagreed.

After an evidentiary hearing, the court determined that Colin is M.D.’s father, and Christopher is not. After the entry of judgment, Mother appealed. For the reasons discussed below, we reverse the judgment.

FACTUAL BACKGROUND

Mother and Christopher had a relationship that ended in 2013. About two months later, Mother informed Christopher that she was pregnant and that he was the father. They were never married and never lived together.

In December 2013, while Mother was pregnant, Mother and Colin began dating. Mother was then living alone in a condominium.

Colin lived and worked as a supervisor in a sober living house where visitors (including Mother) were not allowed. In light of their relationship and Mother’s pregnancy, some people teased Colin about becoming "a daddy."

M.D. was born in May 2014. Christopher went to the hospital on the day M.D. was born and held him briefly. While Christopher was at the hospital, he saw a sign that read "Congrats Colin & Jennifer." Mother asked Christopher if he was going to sign M.D.’s birth certificate, and he said he would not. The birth certificate does not identify anyone as M.D.’s father.

Colin spent time with Mother at the hospital before and after M.D.’s birth, and drove her and M.D. to Mother’s home when they left the hospital. During the first two years of M.D.’s life, Colin visited Mother about once a week for about an hour and a half. Colin never stayed with Mother overnight during that time.

Christopher interacted with M.D. three times. The first was when he held M.D. in the hospital on the day he was born. The second time occurred in a restaurant shortly after M.D.’s birth. The third time took place in late 2014 or early 2015, when he spent about an hour with M.D. while Mother and Colin went out to dinner. Mother eventually told Christopher that she did not want him to be involved in M.D.’s life and, for that reason (according to Christopher), Christopher did not provide any financial support for M.D. or visit him.

In May 2016, when M.D. was about two years old, Colin and Mother (along with M.D.) "got a place together." Colin paid for his "own stuff," and did not support M.D. financially. Colin would hold M.D., play and watch television with him, care for him when Mother was not home, and discipline him. M.D. refers to Colin as both "Colin" and "Daddy."

Colin is not listed as M.D.’s father on M.D.’s or Mother’s medical records, and he has not included him as a dependent on his health insurance. He accompanied Mother during M.D.’s pediatric visits, but did not represent himself to the physician as M.D.’s father.

Colin has a Facebook account. For some period of time, he allowed his Facebook page to be viewed by anyone with a Facebook account. After this litigation began, he limited access to his Facebook "friends." During the time when his page was viewable by any Facebook member, Colin posted eight photographs of himself and M.D.² The photographs were accompanied by statements such as: "Me and my [M.D.]"; "I love my [M.D.], a.k.a. Turkey" (a term of endearment, according to Colin); "I can’t wait to spend time with my little guy today"; "me and my boy"; "[l]ittle man on daddy’s laptop"; "[m]e and my boy at the petting zoo"; "[d]inner time with my boy with [Mother]"; and " ‘[a]fter an hour of crying in my car,’ " " ‘[m]y little guy’ ... ‘finally fell asleep.’ " Four of the pictures are dated, and indicate that they were taken over a period between June 2014 and August 2015, before Colin began living with Mother and M.D. The comment "[l]ittle man on daddy’s laptop" was posted on Father’s Day 2015. The other pictures are undated.

Except as suggested by the photographs and comments on his Facebook page, there is no evidence in the record that Colin told anyone that he is M.D.’s father.

PROCEDURAL BACKGROUND

On April 1, 2015, the County filed a complaint regarding parental obligations against Christopher, as the defendant, and naming Mother as "other parent." (Capitalization omitted.) ( §§ 17400, subd. (a), 17404, subd. (a).) The County sought a determination that Christopher and Mother are the parents of M.D., and an order that Christopher pay child support payments to the State Disbursement Unit in the amount of $1,420 per month.

On May 1, 2015, Christopher, acting in propria persona, filed an answer to the complaint in which he denied being the father of M.D., requested a genetic test to determine paternity, and asserted that "[s]omeone else [has been] stating they are [the] father from time of birth until present." (Capitalization omitted.)

In March 2017, Christopher substituted counsel in his place and filed a motion to join Colin as a party in the action on the ground that Colin is M.D.’s "presumed father" because "he has taken [M.D.] into his home and he has openly held him out as his son." No one opposed the motion. On May 23, 2017, the court granted the motion and permitted Christopher to file a petition to establish that Colin and Mother have a parental relationship with M.D.³ Colin and Mother responded separately to the petition, and each averred that Christopher is M.D.’s father and Colin is not.

A genetic test confirmed that Christopher is M.D.’s biological father, and Christopher thereafter admitted that fact.

In August 2017, the court held an evidentiary hearing where the facts that we summarized above were adduced. On November 30, 2017, the court issued a ruling and statement of decision. The court determined that Colin is a presumed father of M.D. under section 7611, subdivision (d). The court found that the eight photographs and comments Colin posted on Facebook were "dispositive," and found "persuasive" Colin’s use of the possessive "my" to refer to M.D. in seven of the eight photographs and the word "daddy" in the eighth. The photographs, the court explained, "signal more than just a casual relationship compelled by the necessity of two people who happen to live in the same home." By posting them on Facebook, Colin conveyed "in what is now the public square whereby anyone, including [Christopher] could see [them]," "nothing short of a parent-child relationship nurtured by [Colin]."

Regarding Christopher, the court found that he did not meet the requirements of being a presumed father under section 7611, subdivision (d), but is a "presumed father" under section 7555, based upon the genetic test results. That presumption, the court stated, "is easily overcome by the lack of a relationship between [Christopher] and [M.D.], while at the same time an ever-closer relationship between [Colin] and [M.D.] developed." The court then determined that the presumption of parentage in Colin’s favor "is founded on the weightier considerations of policy and logic," and that the genetic presumption of paternity in Christopher’s favor "is easily outweighed by the relationship that [Colin] fostered and which [M.D.] has confirmed."

In June 2018, the court entered a judgment regarding parental obligations declaring that Mother and Colin are the parents of M.D., and that "pursuant to ... section 7611, [subdivision] (d) and ... section 7612, [subdivision] (d) [Christopher] is not the father of [M.D.]" (Capitalization omitted.) The judgment does not provide for an order to anyone to pay child support. Mother filed a timely notice of appeal.

Contrary to the California Rules of Court, Mother did not serve her notice of appeal on Colin, and the superior court clerk did not serve Colin with a notification of Mother’s notice of appeal. ( Cal. Rules of Court, rules 8.100(a)(1) & 8.100(e)(1).) Nor did Mother serve her opening brief or other documents on Colin. When these deficiencies came to our attention, we directed Mother to serve Colin with the notice of appeal and her opening brief, which Mother promptly did, and we provided Colin with an opportunity to file a brief. (See id. , rule 8.100(a)(3).) Neither Colin, Christopher, nor the County filed a brief.

DISCUSSION

Every parent has the duty to support his or her minor children. (§§ 3900, 4053, subd. (a); Pen. Code, § 270.) This duty, existing at common law and codified in California since 1872 "is among the most fundamental obligations recognized by modern society." ( Moss v. Superior Court (1998) 17 Cal.4th 396, 409–410, 71 Cal.Rptr.2d 215, 950 P.2d 59.) Indeed, there are "few interests of greater importance to the state than the proper discharge by parents of their duties to their children." ( Pencovic v. Pencovic (1955) 45 Cal.2d 97, 103, 287 P.2d 501.)

The duty to support one’s child arises...