Charisma R. v. Kristina S.

• Decision Date: 26 June 2009
• Docket Number: No. A122264.,A122264.
• Citation: 175 Cal.App.4th 361,96 Cal. Rptr. 3d 26
• Court: California Court of Appeals Court of Appeals
• Parties: CHARISMA R., Plaintiff and Appellant, v. KRISTINA S., Defendant and Appellant.

175 Cal.App.4th 361

96 Cal. Rptr. 3d 26

CHARISMA R., Plaintiff and Appellant, v. KRISTINA S., Defendant and Appellant.

No. A122264.

Court of Appeals of California, First District, Division Five.

June 26, 2009.

CERTIFIED FOR PARTIAL PUBLICATION^*

Squire, Sanders & Dempsey, Amy E. Rose, Robert J. Guite and Jason M. Richardson for Plaintiff and Appellant.

Liberty Counsel and Mary E. McAlister for Defendant and Appellant.

OPINION

SIMONS, Acting P. J.—

Charisma R. (Charisma) and Kristina S. (Kristina) were a same-sex couple who began dating in July 1997, moved in together in August 1998, and registered as domestic partners with the State of California in January 2002.¹ In December 2001, the couple decided they wanted to have children and Kristina would be the first to try to become pregnant. Following several months of effort, Kristina became pregnant by artificial insemination and gave birth to Amalia in April 2003. In July 2003, Kristina moved out of the home she shared with Charisma, taking Amalia with her. Kristina appeals from the trial court's orders declaring Charisma a presumed parent of Amalia and establishing a schedule for reunification of Charisma and Amalia. Among other things, we reject Kristina's contentions that Charisma did not parent Amalia for a sufficient period of time to be declared a presumed parent under Family Code section 7611, subdivision (d) (hereafter section 7611(d)),² and we hold Kristina has not shown the trial court's orders violate her constitutional rights to equal protection and due process. In a cross-appeal, Charisma contends the court misunderstood the scope of its authority with respect to allocation of her travel expenses for the reunification process. The cross-appeal has merit. We affirm the trial court's orders except as to allocation of the travel expenses, which we reverse and remand to provide the court an opportunity to exercise its discretion.³

BACKGROUND

After deciding they wanted children, Charisma and Kristina contacted a sperm bank, jointly filled out the required paperwork to obtain sperm from an anonymous donor, and pursued their goal of Kristina becoming pregnant through in-home artificial insemination. Charisma assisted Kristina in the insemination process. The couple kept a joint journal regarding the process, in which Kristina was referred to as "mommy" and Charisma was referred to as "momma."

After five months of attempts at in-home insemination, Charisma ordered two additional vials of sperm in early July 2002. On the evening of July 8, Charisma used one vial to inseminate Kristina at home; the next morning Kristina took the second vial to a doctor who inseminated her through intrauterine insemination. One of these two inseminations resulted in Kristina becoming pregnant.

Amalia was born in April 2003. Charisma was present for the birth and cut the umbilical cord. On the birth certificate, signed by Kristina, Amalia was given a hyphenated last name that was a combination of Charisma's and Kristina's last names. The couple brought Amalia into their home and shared parenting responsibilities for the first six weeks of her life. At that point, Kristina returned to work and Charisma cared for Amalia full time during the day; she also provided care at night.

In July 2003, approximately seven weeks after Kristina returned to work, she moved out of the home she shared with Charisma, taking Amalia with her. Since then, and before the trial court ordered reunification in 2008, Kristina allowed Charisma to see Amalia on only two occasions in the summer of 2003. In the summer of 2005, Kristina moved to Texas with Amalia.⁴

In May 2004, Charisma filed a petition to establish a parental relationship with Amalia. The trial court denied the petition, concluding that Charisma lacked standing to bring the action under the Uniform Parentage Act (UPA) (§ 7600 et seq.). (Charisma R. v. Kristina S. (2006) 140 Cal.App.4th 301, 303 (Charisma I).) Charisma appealed, and this court reversed in June 2006, concluding that Charisma had standing to establish parentage under the UPA despite the fact that she lacked a biological relationship to Amalia. (Charisma I, at pp. 303-304, citing Elisa B. v. Superior Court (2005) 37 Cal.4th 108, 119-120 [33 Cal.Rptr.3d 46, 117 P.3d 660] (Elisa B.).) Because the trial court did not have the benefit of the Elisa B. decision at the time of its initial ruling, this court remanded the matter to the trial court for a determination, in light of Elisa B., whether Charisma is a presumed parent under section 7611(d) and, if so, whether this is an appropriate case in which to rebut the parentage presumption. (Charisma I, at pp. 304, 307.)

On remand, the trial court found that Charisma is a presumed parent and that the presumption had not been rebutted. The court appointed custody evaluators who reported that adoption of a reunification plan would be appropriate. In May 2008, the court adopted a plan for gradual reunification of Charisma and Amalia through joint therapy sessions in Texas with a court-appointed therapist.

DISCUSSION

I. Substantial Evidence Supports the Trial Court's Finding That the Section 7611(d) Parentage Presumption Is Applicable

(1) Under the UPA, an "interested person" may bring an action to determine the existence or nonexistence of a mother and child relationship. (§ 7650, subd. (a).) Section 7611(d) provides that a man is presumed to be the father of a child if he "receives the child into his home and openly holds out the child as his natural child." As explained in Adoption of Michael H. (1995) 10 Cal.4th 1043, 1050-1051 [43 Cal.Rptr.2d 445, 898 P.2d 891], "An unwed father's rights and duties ... substantially depend on whether he is a `presumed father' within the meaning of section 7611. [Citations.] ... [T]o become a presumed father, a man who has neither married nor attempted to marry his child's biological mother must not only openly and publicly admit paternity, but must also physically bring the child into his home." (See also In re Spencer W. (1996) 48 Cal.App.4th 1647, 1652 (Spencer W.).) In Elisa B., supra, 37 Cal.4th at pages 119-120, 125-126, the court held that a biological mother's former same-sex partner may be declared a presumed parent under a gender-neutral application of section 7611(d). (See also Charisma I, supra, 140 Cal.App.4th at p. 304.)

In Elisa B., the El Dorado County District Attorney filed a complaint to establish that Elisa was the parent of twins born to her former partner, Emily, and to order Elisa to pay child support. Elisa denied she was the children's parent. (Elisa B., supra, 37 Cal.4th at p. 113.) It was undisputed that Elisa participated in the artificial insemination of Emily with the understanding that they would raise the resulting child or children as coparents, and they did in fact coparent the children in a common family home for over one and one-half years. (Id. at pp. 114-115, 122.) The court pointed out that section 7650, subdivision (a), states that provisions applicable to determining a father and child relationship shall be used to determine a mother and child relationship "`insofar as practicable,'" and concluded Elisa could be considered a presumed parent under section 7611(d). (Elisa B., at pp. 119-120.) The case was not "an appropriate action" to rebut the presumption of parentage with evidence that there was no biological relationship between Elisa and the twins,⁵ because to allow the presumption to be so rebutted would be contrary to the public policy favoring a child having two parents to provide emotional and financial support. (Elisa B., at pp. 122-125; see also Charisma I, supra, 140 Cal.App.4th at pp. 304-307.)

On remand from Charisma I, supra, 140 Cal.App.4th 301, Charisma bore the burden of proving she is a presumed parent under section 7611(d) by a preponderance of the evidence. (Spencer W., supra, 48 Cal.App.4th at pp. 1652-1653; Glen C. v. Superior Court (2000) 78 Cal.App.4th 570, 585-586 .) On appeal, we review the trial court's determination under the substantial evidence standard: "[W]e are bound to uphold [the trial court's judgment] so long as the record is free from prejudicial error and the judgment is supported by evidence which is `substantial,' that is, of `"ponderable legal significance,"' `"reasonable in nature, credible, and of solid value ...."' [Citations.]" (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631 .) "Under that standard, we must consider all of the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference, and resolving conflicts in support of the judgment. [Citations.] [¶] It is not our task to weigh conflicts and disputes in the evidence; that is the province of the trier of fact. Our authority begins and ends with a determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, in support of the judgment. Even in cases where the evidence is undisputed or uncontradicted, if two or more different inferences can reasonably be drawn from the evidence this court is without power to substitute its own inferences or deductions for those of the trier of fact, which must resolve such conflicting inferences in the absence of a rule of law specifying the inference to be drawn. We must accept as true all evidence and all reasonable inferences from the evidence tending to establish the correctness of the trial court's findings and decision, resolving every conflict in favor of the judgment. [Citations.]" (Id. at pp. 630-631.)

A. Kristina's Evidentiary Objections

Kristina objected below to aspects of declarations filed by Charisma, on the grounds of lack of personal knowledge and lack of foundation. However, the trial court never ruled on her objections. Where a party fails to obtain a ruling from the trial court, the objections generally are not preserved on appeal. (Bussard v. Minimed, Inc. (2003) 105...