Guardianship of Ethan S.

• Decision Date: 05 July 1990
• Docket Number: No. A041445,A041445
• Citation: 221 Cal.App.3d 1403,271 Cal.Rptr. 121
• Court: California Court of Appeals Court of Appeals
• Parties: In re GUARDIANSHIP OF the Person and Estate of ETHAN S., a Minor. WAYNE S., Petitioner and Respondent, v. Lewis HEADRICK, as Guardian, etc., Objector and Appellant. WAYNE S., Plaintiff and Respondent, v. Lewis HEADRICK, Defendant and Appellant.

Page 121

271 Cal.Rptr. 121

221 Cal.App.3d 1403

In re GUARDIANSHIP OF the Person and Estate of ETHAN S., a Minor.

WAYNE S., Petitioner and Respondent, v. Lewis HEADRICK, as Guardian, etc., Objector and Appellant.

WAYNE S., Plaintiff and Respondent, v. Lewis HEADRICK, Defendant and Appellant.

No. A041445.

Court of Appeal, First District, Division 2, California.

July 5, 1990.

As Modified Aug. 2, 1990.

Review Denied Sept. 20, 1990.

As Corrected March 1, 1991.

[221 Cal.App.3d 1406] Juliana Drous, San Francisco, for defendant and appellant.

Allyce Kimerling, San Francisco, for plaintiff and respondent.

SMITH, Associate Justice.

These appeals in consolidated guardianship and parentage proceedings over minor Ethan S. (Ethan) raise issues of a putative father's right to counsel and the paternity presumption of Evidence Code section 621. Lewis Headrick, the boy's guardian and the defendant in an action brought by S. (Wayne) under the Uniform Parentage Act (UPA) (Civ.Code, § 7000 et seq.), appeals from orders granting Wayne summary judgment and terminating the guardianship. We will affirm both orders.

BACKGROUND

Since the contentions on appeal center on the summary judgment, we draw the facts mainly from the evidence presented on that motion. Wayne supported his motion with voluminous exhibits, declarations and the records on file. Opposition filed by Headrick did not dispute the facts but relied on the legal effect of the statutory presumption of paternity.

Ethan was born in July 1980, in Fortuna, to Maureen Ellen Greenwald, who was married to and living with Headrick. Two older children, Iris (Greenwald's from a prior relationship) and Ezra Headrick, also lived in the home. However, Headrick was traveling and Greenwald was having an extramarital affair with Wayne in San Francisco when Ethan was conceived. She was sure that Wayne, not Headrick, was the father. With Headrick's acquiescence, she gave Ethan the S. surname, and Wayne consented to being designated the child's father on the birth certificate. Though he lived with Headrick for the first years of his life, Ethan always believed that Wayne was his father. He called him "dad," called Headrick "Lewis" and considered Iris and Ezra his half-sister and half-brother.

Greenwald and Headrick separated in November 1981. She filed in Humboldt County Superior Court for dissolution a year later, her petition naming Iris and Ezra, but not Ethan, as children of the marriage. Headrick was served and allowed the case to go by default, never objecting to the omission of Ethan in the petition. The dissolution became final in 1983. The interlocutory decree awarded the parties joint legal and physical custody of Iris and Ezra, with no mention of Ethan. Greenwald moved to Australia in 1984 and, except for providing affidavits in support of Wayne, was not involved in the proceedings below. She had ceased being a "primary caretaker" for him in December 1981, soon after the separation, and never sought custody for herself below.

Ethan stayed with Headrick and the two older children, in Humboldt County, until 1985. During that time, Headrick consistently represented, to the county welfare department and others, that Wayne, not he, was Ethan's father. Headrick lived with Jan McAdam until she left in 1984, after having a child by him. Wayne remained friends with Headrick during this time and had visits with Ethan.

In March 1985, Ethan began living with Wayne in the San Francisco apartment where Wayne lived with Jack Haygood, who was Wayne's partner and an old friend of Headrick's. The reason is disputed. According to Wayne, Jan McAdam told him of ongoing child neglect by Headrick. ¹ When confronted by Wayne, Headrick admitted having trouble caring for all three children and told him it was his (Wayne's) turn to take care of Ethan. According to Headrick, he left Ethan with Wayne during a busy time in school and then allowed him to remain there partly because Ethan was a comfort to Haygood, who was suffering from AIDS.

In March 1985, the same month that Ethan began living in San Francisco, Headrick filed in Humboldt County Superior Court to have himself appointed Ethan's legal guardian. The petition named Greenwald and Wayne as the parents and himself as the "father of the minor's brother & sister." Headrick gave Wayne's address as "unknown" (although Wayne had lived at the same address for 10 years) and later filed a purported consent by Wayne to the nomination. ² The court issued letters of guardianship in July 1985, after receiving a report in which Headrick told a social worker he was not Ethan's biological father.

Ethan lived with Wayne for the next two years except for a visit with Headrick and the other children in 1985 and a month-long trip to Hawaii with them in late 1986. Ethan went to kindergarten and first grade in San Francisco and flourished in Wayne's care, also forming strong bonds with Wayne's parents, Sy and Sophie S. The grandparents (grandparents in Ethan's eyes) visited occasionally, and he and Wayne spent six weeks at their New Jersey home. Jack Haygood was a co-caretaker for Ethan until he succumbed to AIDS in November 1986.

A custody dispute leading to the instant appeals arose in early 1987 and peaked when Headrick forcibly tried to remove Ethan from his first-grade classroom on April 10. In a violent confrontation, Headrick grabbed and held Ethan in a stand-off with the classroom teacher, Ethan's classmates and the school principal. San Francisco police ultimately convinced Headrick to leave.

That same day, on learning of the confrontation, Wayne filed a complaint in San Francisco Superior Court (No. 874023) under the UPA, seeking sole custody, as Ethan's natural father, and a determination that Headrick was not the legal father. The mother, Greenwald, was served in Australia and defaulted, but she submitted declarations in support of Wayne. Headrick answered, claiming to be Ethan's father under the presumption of Evidence Code section 621. ³

On April 17, a week before answering the UPA action, Headrick applied ex parte in the guardianship case (Super.Ct. Humboldt County, 1985, No. 25892) for a restraining order that Ethan be returned to him based on fears that the grandparents might take the child to New Jersey. The order issued but, when the court heard from the S.'s attorney, was vacated pending a contested hearing on Headrick's application for a preliminary hearing. The grandparents were at the time staying with Ethan in San Francisco to help out during a hospitalization of Wayne for an AIDS related illness. Wayne had been diagnosed as having ARC (AIDS-related complex), a precursor to AIDS.

At a hearing on April 24 attended by all parties (including the grandparents), the court denied the preliminary injunction and referred the matter to the child-welfare-services division of the Humboldt County Department of Social Services for an investigation and report (Prob.Code, § 1513), meanwhile ordering a visit with Headrick and restraining Ethan's removal from San Francisco. Pending consideration of the report, a second visit was ordered.

The report, filed in two parts by social worker Jeanne Reilly, recommended that Ethan remain with the S.'s and that the injunction be denied. Reilly noted the two previous county welfare services referrals (see fn. 1, ante), the July 1985 guardianship and that Headrick had not made use of the guardianship since then. She interviewed Headrick, Iris and Ezra, and others. Concern that Headrick could not provide a secure, stable home for Ethan prompted her recommendations. Nothing in the report indicated that Headrick claimed or was understood to be Ethan's natural father.

A juvenile probation report received through the San Francisco Juvenile Court provided an evaluation of the S. home based on interviews with Wayne and his parents. The report found the parents to be energetic and "still young and healthy" (at ages 65 and 70). They were willing and able to provide a happy home for Ethan and, should Wayne not regain his health, to provide a permanent home in New Jersey. They were financially well off and had set up an education trust fund for Ethan five years earlier. The report found them able to provide a stable, nurturing environment for him. ⁴ Humboldt County Superior Court Judge J. Michael Brown evidently interviewed Ethan himself.

In July, Judge Brown heard a motion by Headrick for temporary visitation. In opposition, the S.'s submitted another report, from clinical psychologist Jonathan Canick, with whom Ethan had been in private therapy. Canick found that Ethan had formed strong bonds with Wayne and with the grandparents, whom he viewed as parent figures; Ethan did not regard Headrick as his father and resented what he saw as Headrick's attempts to intrude on the security of his life with the S.'s; after the schooltime "kidnapping" episode in April, Ethan developed an intense fear of being abducted off the street and began wetting himself. Having to fend for himself in his early years had made him feel obligated to take care of other children and adults (particularly Headrick). He had made great progress in therapy and school. Canick advised against visitation. Taking that and the other records into account, Judge Brown denied visitation pending a full hearing on a motion brought by Headrick in the interim to have the guardianship terminated and to place custody with himself, as legal father.

Headrick also moved for visitation in the UPA action, and the matter was heard in August before San Francisco Superior Court Judge Ina L. Gyemant. Taking into account records on file in the Humboldt County action and additional declarations from Wayne and from Ethan's school principal (to whom Headrick had admitted not being Ethan's father), Judge Gyemant denied the motion, making written findings. She found that Ethan had lived with Wayne for nearly three years, that Wayne had been diagnosed as having AIDS,...