M.M. v. D.V.

66 Cal.App.5th 733

281 Cal.Rptr.3d 361

M.M., Plaintiff and Appellant,

v.D.V. et al., Defendants and Respondents.

D077468

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

Filed July 19, 2021

Law Offices of Ben Aguilar and Benjamin Aguilar, for Plaintiff and Appellant.

Stephen Temko, San Diego, for Defendants and Respondents.

IRION, J.

M.M. appeals from a judgment denying his petition to establish a parental relationship with his biological son (Child). M.M. filed the petition after he learned, when Child was two years old, that he was Child's biological father. M.M. alleged that he was entitled to status as a presumed father under the principles of due process and equal protection set forth in Adoption of Kelsey S. (1992) 1 Cal.4th 816, 4 Cal.Rptr.2d 615, 823 P.2d 1216 ( Kelsey S. ) for unwed fathers who are prevented by the mother or by a third party from establishing presumed father status. M.M. does not dispute the parental status of T.M., who is married to Child's mother (Mother), is listed on Child's birth certificate as the father, and signed a Voluntary Declaration of Parentage at the Child's birth. However, M.M. contends that he should be accorded status as Child's third parent pursuant to Family Code section 7612, subdivision (c).¹

For the purpose of our analysis, we assume without deciding that M.M. is entitled to presumed parent status as a Kelsey S. father, making him eligible to be adjudged a third parent to Child. However, even assuming that M.M. is entitled to presumed parent status, we conclude that the trial court properly determined that M.M. should not be adjudged a third parent due to his lack of an existing relationship with Child. Accordingly, we affirm the judgment.

I.FACTUAL AND PROCEDURAL BACKGROUND

M.M. and Mother were in a relationship in 2015, which overlapped with the time period during which Mother began a relationship with T.M.² Mother discovered a pregnancy in December 2015 and informed M.M. that he might be the father. However, after a doctor's visit in January 2016, Mother told M.M. that based on the doctor's estimate of the date of conception, M.M. could not be the father.

The Child was born in July 2016. At the time, T.M. believed he was Child's father. T.M. therefore signed a voluntary declaration of parentage and was listed as Child's father on the birth certificate. T.M. and Mother got married when Child was seven months old. In July 2017, a daughter was born to T.M. and Mother. Because the couple's daughter was discovered to have a rare genetic condition that was not present in Child, Mother and T.M. decided to reach out to M.M. to find out if he was Child's father, rather than T.M. M.M. agreed to submit to DNA testing. The results of the DNA test established in January 2019 that M.M. is the biological father of Child. At the time, Child was two years old.

After discovering that M.M. was Child's biological father, Mother permitted M.M. to meet with Child on several occasions for brief periods of time.³ However, as the trial court found, "there have been no real visits nor was there evidence of any type of bonding between [M.M.] and [Child]." Mother permitted contact between M.M. and Child for a few weeks or months,⁴ but she then cut off contact after deciding that "it would be confusing and traumatizing to try to introduce a stranger into the child's life and to take away some of his time with the person he viewed as his father." According to the parties' settled statement, M.M. testified that if he had "known prior to January 2019 that [Child] was his biological son, he would have assumed his obligations. But he testified he never offered to pay nor has [h]e paid any child support."

As reflected in the settled statement, "The actions [M.M.] took to establish a relationship with [Child] once he was informed by Mother she would not allow him to have a relationship with the minor, was to retain counsel and open a case to establish his parental rights." Specifically, on September 16, 2019, M.M. filed a petition to establish a parental relationship with Child. Mother filed a response, and T.M. was joined in the action due to his status as Child's father based on, among other things, his execution of a Voluntary Declaration of Parentage at Child's birth. In connection with a motion to dismiss filed by T.M. and Mother, M.M. clarified that he was not attempting to challenge T.M.'s status as Child's father and was not seeking to set aside the Voluntary Declaration of Parentage signed by T.M. Instead, M.M. was seeking to be recognized as a third parent to Child pursuant to section 7612, subdivision (c).

A trial was held on February 4, 2020, at which M.M., Mother, and T.M. testified. The trial court issued a ruling on February 24, 2020, denying M.M.'s petition. The trial court concluded that M.M. was not eligible to be adjudged a third parent under section 7612, subdivision (c), because he could obtain such a ruling only if he first established that he was a presumed parent. M.M. sought presumed parent status under the principles of equal protection and due process set forth in Kelsey S., supra , 1 Cal.4th 816, 4 Cal.Rptr.2d 615, 823 P.2d 1216 applicable to unwed biological fathers who are thwarted in voluntarily undertaking a parental role.⁵ The trial court held that M.M. did not meet the requirements to be identified as a Kelsey S. father because M.M. did not do enough to come forward promptly and assume parental responsibilities:

"It would have been incumbent upon [M.M.] to have demanded testing when first informed he might have been the father should he have truly wished to take his position as [Child's] father. Instead, he was satisfied with the representations made to him at the time. He chose to waive any rights he might have had at the time by not taking affirmative steps to confirm what he was told. The court would be justified in ending its analysis with this finding but goes further by fully analyzing the applicable Family Code sections in connection with [M.M.'s] argument he was misled and his notice was delayed. Even accepting the late notice argument and [M.M.] was delayed in accepting his role as a father, his failure to pay support or even offer support once he says he began to hold [Child] out as his child was an important factor for the court's decision in this case."

After concluding that M.M. was not entitled to be treated as a presumed father pursuant to Kelsey S., supra , 1 Cal.4th 816, 4 Cal.Rptr.2d 615, 823 P.2d 1216, the trial court gave an alternative ground for its denial of M.M.'s request that he be adjudged to be a third parent under section 7612, subdivision (c). Specifically, the trial court explained that even if it assumed for the sake of its analysis that M.M. was a presumed parent, this was not an appropriate action in which to find that Child has three parents. As the trial court explained, the relevant inquiry under section 7612, subdivision (c) is whether it would be detrimental to Child to have only two parents. Citing In re Donovan L. (2016) 244 Cal.App.4th 1075, 198 Cal.Rptr.3d 550 ( Donovan ), the trial court concluded that because M.M. did not have an existing relationship with Child, no detriment was shown. The trial court's ruling concluded with the observation that "[n]othing in this decision prevents the parties from bringing [M.M.] into [Child's] life at a later time as indicated in the pleadings and testimony received."

M.M. appeals from the judgment.

II.DISCUSSION

The issue before us is whether the trial court erred in ruling that M.M. should not be adjudged to be a third parent of Child. We begin with an overview of the applicable legal standards.

A. Applicable Legal Standards

"The Uniform Parentage Act (UPA) (§ 7600 et seq.) ‘provides the framework by which California courts make [parentage] determinations. ( § 7610, subd. (b).)’ " ( In re L.L. (2017) 13 Cal.App.5th 1302, 1309, 220 Cal.Rptr.3d 904 ( L.L. ).)⁶ A person qualifies as a natural parent either by giving birth or by meeting one of the applicable statutory methods for being adjudged a natural parent. ( § 7610, subd. (a).) Section 7611 sets forth several rebuttable presumptions through which a person may be presumed to be a natural parent (i.e., "a presumed parent" or "presumed father").⁷ "Biological fatherhood does not, in and of itself, qualify a man for presumed father status under section 7611. On the contrary, presumed father status is based on the familial relationship between the man and child, rather than any biological connection. [¶] Section 7611 also recognizes two other grounds for qualification as a presumed father that are outside of the [UPA]. These are an executed voluntary declaration of [parentage] ( § 7570 et seq. ) and the so-called conclusive presumption of paternity (... § 7540 ), which dictates the finding that a mother's husband is her child's father, provided the mother and her husband were married and cohabiting when the child was conceived." ( In re J.L. (2008) 159 Cal.App.4th 1010, 1018, 72 Cal.Rptr.3d 27 ( J.L. ).) In addition, as we have explained, pursuant to Kelsey S., supra , 1 Cal.4th 816, 4 Cal.Rptr.2d 615, 823 P.2d 1216, "an unmarried biological father may, under narrow circumstances, assert constitutional paternity rights, even though he does not qualify under any of the presumptions listed in section 7611." ( J.L. , at p. 1018, 72 Cal.Rptr.3d 27.)

Here, it was undisputed that T.M. is legally recognized as Child's father because T.M. executed a Voluntary Declaration of Parentage at the time of Child's birth.⁸ With certain exceptions that are not relevant here, a Voluntary Declaration of Parentage "is equivalent to a judgment of parentage of the child and confers on the declarant all rights and duties of a parent." ( § 7573.) A biological father may bring a motion, within a limited time frame, to attempt to set aside another man's Voluntary Declaration of Parentage. ( § 7577.) However, M.M. made no attempt to do so here.⁹ Instead,...