Dawn D. v. Superior Court (Jerry K.)

• Decision Date: 06 April 1998
• Docket Number: No. S060966,S060966
• Citation: 952 P.2d 1139,72 Cal.Rptr.2d 871,17 Cal.4th 932
• Court: California Supreme Court
• Parties: , 952 P.2d 1139, 98 Cal. Daily Op. Serv. 2511, 98 Daily Journal D.A.R. 3423 DAWN D., Petitioner, v. The SUPERIOR COURT of Riverside County, Respondent; JERRY K., Real Party in Interest.

Page 871

72 Cal.Rptr.2d 871

17 Cal.4th 932, 952 P.2d 1139, 98 Cal. Daily Op. Serv. 2511,

98 Daily Journal D.A.R. 3423

DAWN D., Petitioner, v. The SUPERIOR COURT of Riverside County, Respondent;

JERRY K., Real Party in Interest.

No. S060966.

Supreme Court of California.

April 6, 1998.

Sharon J. Waters, Diane Catran Roth and Andrew I. Roth, Riverside, for Petitioner.

William C. Katzenstein, County Counsel, Robert M. Pepper, Principal Deputy County Counsel, and Lucy J. Furuta, Deputy County Counsel, for Respondent.

Lawrence J. La Rocca, Newport Beach, and Marjorie G. Fuller, Fullerton, for Real Party in Interest.

WERDEGAR, Justice.

In this case we determine whether the presumption created by Family Code section 7611 ¹ and the standing rule embodied We conclude the alleged biological father in this case has no constitutionally protected liberty interest defeating California's statutory presumption favoring the husband.

                [952 P.2d 1140]  in [17 Cal.4th 935]  section 7630 2 constitutionally may be applied to preclude an alleged biological father from establishing his paternity of a child born during the mother's marriage to another man.  The husband in this case is presumed to be the child's natural father, as the child was born during the marriage (§ 7611, subd.  (a)) and he has received the child into his home and openly holds out the child as his natural child (§ 7611, subd.  (d)).  Because, however, the husband and wife were not cohabiting at the time of conception, the presumption is not conclusive.  (See, e.g., Steven W. v. Matthew S.   (1995) 33 Cal.App.4th 1108, 1114, 39 Cal.Rptr.2d 535;  City and County of San Francisco v. Strahlendorf (1992) 7 Cal.App.4th 1911, 1915, 9 Cal.Rptr.2d 817;  § 7540.) 3  The alleged biological father does not meet any of the statutory criteria for presumed fatherhood.  He relies, instead, on an asserted constitutional liberty interest, protected as a matter of substantive due process, not to be denied the opportunity to establish a parental relationship with the child
                

FACTS AND PROCEDURAL POSTURE

Our recitation of facts is drawn from the trial court's findings and the parties' pleadings.

Dawn D. and her husband, Frank F., were married in June 1989. In early January 1995 Dawn separated from her husband and began living with Jerry K. Dawn became pregnant the following month. In April 1995 she moved out of Jerry's household and returned to her husband. In August 1995 Jerry filed the complaint in the present action to establish a parental relationship and seeking eventual visitation with the as-yet unborn child. In anticipation of his assuming fatherly responsibilities, Jerry completed a parenting course. On November 9, 1995, Dawn gave birth to a son, who has resided with Dawn and Frank ever since that time. Jerry attempted Dawn moved for judgment on the pleadings. She argued Jerry could not assert a valid claim to be the father of her son, inasmuch as her husband is presumptively the child's natural father and California law recognizes only one natural father for any child. She further contended Jerry was not within the class of persons granted standing to seek blood testing under the Family Code. Finally, she contended the state's interest in the integrity and preservation of the family unit outweighed Jerry's interest in establishing his paternity of her son.

[952 P.2d 1141] to negotiate with Dawn and Frank an agreement for child support and visitation, but the parties have not effectuated such an agreement.

The trial court denied Dawn's motion. Relying on Michael M. v. Giovanna F. (1992) 5 Cal.App.4th 1272, 7 Cal.Rptr.2d 460 and Adoption of Kelsey S. (1992) 1 Cal.4th 816, 4 Cal.Rptr.2d 615, 823 P.2d 1216 (Kelsey S.), the court found that because Jerry had done all he could to demonstrate a commitment to his parental responsibilities, he had established "due process rights" that must be balanced against the state's interest in enforcing the statutory presumption in favor of Frank. The trial court noted the state's continuing interest in the welfare of the child and in family stability, an interest best exemplified in the conclusive presumption contained in section 7540, which allows parentage to be challenged by someone other than the husband or wife only in exceptional circumstances. The trial court reasoned, however, that the inapplicability of section 7540 in this case supports an inference "the [L]egislature perceived a decreased threat to the family stability if a wife is not cohabiting with her husband at the time of the conception." The court therefore concluded Jerry should be permitted to try to establish he is the child's biological father and, to that end, granted Jerry's motion for blood testing.

Dawn petitioned the Court of Appeal, seeking a stay of further proceedings and a writ of mandate to compel the trial court to vacate its order denying her motion for judgment on the pleadings and enter a new order granting the motion. The Court of Appeal invited Jerry to file a response and notified the parties that unless good cause were shown it might issue a peremptory writ in the first instance. (See Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180, 203 Cal.Rptr. 626, 681 P.2d 893.) After consideration of the parties' responsive papers, the Court of Appeal summarily denied the petition.

We granted Dawn's petition for review, directed respondent court to show cause before this court why the relief sought in the petition for writ of mandate should not be granted, and stayed all proceedings in the superior court pending final determination of this cause.

DISCUSSION

The Uniform Parentage Act, section 7600 et seq. (the Act), provides the framework by which California courts make paternity determinations. (§ 7610, subd. (b).) Under section 7611 of the Act, a man is presumed the natural father of a child born during, or within 300 days after the termination of, his marriage to the child's mother. (§ 7611, subd. (a).) He also attains the status of presumed father if he receives the child into his home and openly holds out the child as his natural child. (§ 7611, subd. (d).) By either of these provisions, Dawn's husband, Frank, is presumed the father of the child involved in this litigation. ⁴ Jerry, by contrast, meets none of the statutory conditions for presumed fatherhood: He has neither married nor attempted to marry Dawn, nor, despite his considerable efforts to assert parental rights, has he actually received the child into his home. (§ 7611; see Kelsey S., supra, 1 Cal.4th 816, 826-830, 4 Cal.Rptr.2d 615, 823 P.2d 1216 [declining to recognize The presumptions arising under section 7611 are rebuttable presumptions affecting the burden of proof and may be rebutted in an appropriate action by clear and convincing evidence. (§ 7612, subd. (a).) The Act, however, restricts standing to challenge the presumption of a husband's paternity to the child, the child's natural mother, or a presumed father. (§ 7630, subd. a); cf. § 7631.) ⁵ The Act thus precludes Jerry from bringing this paternity action and, therefore, from compelling Dawn and the child to submit to blood tests to resolve the question of biological parenthood. (See §§ 7551 [court may order blood tests in a civil action or proceeding in which paternity is a relevant fact], 7554 [governing determinations of paternity based on blood tests].)

[952 P.2d 1142] doctrine of constructive receipt of child into man's home].)

Jerry does not argue he has statutory standing to bring this action; his argument is directed to the proposition that a biological father has a liberty interest, protected as a matter of substantive due process, in being permitted to develop a parental relationship with his offspring. The Act, he contends, is therefore unconstitutional to the extent it deprives him of the opportunity to establish his parenthood.

A preliminary question is the nature of our inquiry in the case of a substantive due process challenge to the Act. California courts have examined substantive due process claims to a right to establish parenthood on a case-by-case basis. "As our discussions have indicated, the reasonableness of a statutory limitation on the right to offer proof of parentage depends on circumstances prevailing in each particular case. Accordingly, a court, before receiving evidence thereof, must in each instance make a preliminary determination, as by offer of proof, that due process concepts would be offended if the particular claimant to parentage were denied an opportunity to prove his claim." (In re Lisa R. (1975) 13 Cal.3d 636, 651, fn. 17, 119 Cal.Rptr. 475, 532 P.2d 123; see also Michelle W. v. Ronald W. (1985) 39 Cal.3d 354, 360, 216 Cal.Rptr. 748, 703 P.2d 88.)

Dawn forcefully argues that such a method of analysis runs the risk of merely substituting this court's policy choices for those of the Legislature. As the United States Supreme Court recently noted in a different context, "[W]e 'ha [ve] always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.' [Citation.] By extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. We must therefore 'exercise the utmost care whenever We are sympathetic to the democratic motivation underlying the cautious attitude of the authority just quoted. Nevertheless, if the judiciary is to fulfill its role in our tripartite system of government as the final arbiter of constitutional issues, it cannot hope to escape the tension between legislative policy determinations and the challenges raised by those who would seek exceptions thereto. We can, however, while entertaining such challenges, seek to hold the tension in check by always presuming the constitutional validity of legislative acts and...