Martinez v. Vaziri, H041758

• Decision Date: 08 April 2016
• Docket Number: H041758
• Citation: 200 Cal.Rptr.3d 884,246 Cal.App.4th 373
• Court: California Court of Appeals
• Parties: Anthony MARTINEZ, Plaintiff and Appellant, v. Shabnam VAZIRI et al., Defendants and Respondents.

246 Cal.App.4th 373

200 Cal.Rptr.3d 884

Anthony MARTINEZ, Plaintiff and Appellant,

v.Shabnam VAZIRI et al., Defendants and Respondents.

H041758

Court of Appeal, Sixth District, California.

Filed April 8, 2016

Counsel for Plaintiff/Appellant Anthony Martinez: O'Reilly Law Office, Kathleen O'Reilly

Counsel for Defendants/Respondents Shabnam Vaziri, Brad J. Martinez: In propria persona

Premo, J.Petitioner appeals the denial of his petition to establish a parental relationship, as a third natural parent, with his three-year-old niece (child). The trial court ruled that petitioner met the statutory criteria of a presumed parent, but found the presumption was rebutted under the recently amended Family Code section 7612, subdivisions (c) and (d).¹ Pursuant to section 7612, subdivision (c), the trial court found that recognizing only two parents—child's mother and biological father (father)—would not be detrimental to child, and therefore ruled that, pursuant to section 7612, subdivision (d), an earlier filed judgment of parentage for child's father rebutted petitioner's presumed parent status. Petitioner contends the trial court misinterpreted the statutory standard for evaluating detriment and thereby abused its discretion in finding there would be no detriment to child in denying petitioner parental status.

We conclude the trial court's determination of no detriment under section 7612, subdivision (c) appears to have derived from an improperly narrow construction of the statutory language, resulting in the trial court's failure to consider all relevant factors under the statute. Because the rebuttal of petitioner's presumed parent status was contingent on the trial court's evaluation of detriment under section 7612, subdivision (c), we will reverse the order denying the petition and remand for reconsideration.

I. STATUTORY FRAMEWORK

The Uniform Parentage Act (UPA), specifically sections 7611 and 7612, governs this action. The UPA defines the "[p]arent and child relationship" as "the legal relationship existing between a child and the child's natural or adoptive parents incident to which the law confers or imposes rights, privileges, duties, and obligations." (§ 7601, subd. (b).) The paternity presumptions of the UPA " ‘are driven by state interest in preserving the integrity of the family and legitimate concern for the welfare of the child.’ " (In re Nicholas H. (2002) 28 Cal.4th 56, 65, 120 Cal.Rptr.2d 146, 46 P.3d 932 (Nicholas H. ).) One purpose of the UPA is "to distinguish those who have demonstrated a commitment to the child regardless of biology and grant them the ‘elevated status of presumed [parenthood].’ " (E.C. v. J.V. (2012) 202 Cal.App.4th 1076, 1085, 136 Cal.Rptr.3d 339.)

Here, the trial court determined petitioner to be a presumed parent of child pursuant to section 7611, subdivision (d), which provides: "A person is presumed to be the natural parent of a child if the person ... receives the child into his ... home and openly holds out the child as his ... natural child." (§ 7611, subd. (d).) Neither side contests this determination on appeal. The trial court found this presumption was rebutted, however, by clear and convincing evidence under section 7612, subdivisions (c) and (d) —a finding petitioner claims was erroneous for several reasons.

Effective January 1, 2014, section 7612, subdivisions (c) and (d) provide: "(c) In an appropriate action, a court may find that more than two persons with a claim to parentage under this division are parents if the court finds that recognizing only two parents would be detrimental to the child. In determining detriment to the child, the court shall consider all relevant factors, including, but not limited to, the harm of removing the child from a stable placement with a parent who has fulfilled the child's physical needs and the child's psychological needs for care and affection, and who has assumed that role for a substantial period of time. A finding of detriment to the child does not require a finding of unfitness of any of the parents or persons with a claim to parentage. [¶] (d) Unless a court orders otherwise after making the determination specified in subdivision (c), a presumption under Section 7611 is rebutted by a judgment establishing parentage of the child by another person." (§ 7612, subds. (c), (d).)

In enacting the current version of section 7612, subdivisions (c) and (d),² the Legislature made express findings: "(a) Most children have two parents, but in rare cases, children have more than two people who are that child's parent in every way. Separating a child from a parent has a devastating psychological and emotional impact on the child, and courts must have the power to protect children from this harm. [¶] (b) The purpose of this bill is to abrogate In re M.C. (2011) 195 Cal.App.4th 197, 123 Cal.Rptr.3d 856 insofar as it held that where there are more than two people who have a claim to parentage under the Uniform Parentage Act, courts are prohibited from recognizing more than two of these people as the parents of a child, regardless of the circumstances. [¶] (c) This bill does not change any of the requirements for establishing a claim to parentage under the Uniform Parentage Act. It only clarifies that where more than two people have claims to parentage, the court may, if it would otherwise be detrimental to the child, recognize that the child has more than two parents. [¶] (d) It is the intent of the Legislature that this bill will only apply in the rare case where a child truly has more than two parents, and a finding that a child has more than two parents is necessary to protect the child from the detriment of being separated from one of his or her parents." (Stats. 2013, ch. 564, § 1.)

II. TRIAL COURT PROCEEDINGS

Petitioner initiated proceedings to establish parentage of child pursuant to sections 7611, subdivision (d) and 7612, subdivision (c). Petitioner is child's biological uncle. Mother is child's mother and the respondent. Father is petitioner's half-brother. The court held an evidentiary hearing at which petitioner and mother were present. Father was incarcerated at the time of the hearing and attended telephonically.

The following facts, established at the hearing on August 20, 2014, are not in dispute. Petitioner and mother had been in a relationship for many years when mother conceived child. A separate paternity action, brought by mother, and genetic test established that father was child's biological father. Father abandoned mother during her pregnancy. He has been incarcerated for extended periods since child's birth; in total he has had approximately seven or eight hours of contact with child. Mother has sole legal and physical custody of child, with no visitation to father. An unresolved Child Protective Services (CPS) case, which arose out of the brief window of contact between father and child, remained open as of the evidentiary hearing on petitioner's parentage action.

Aware that he was not the father, petitioner determined to raise child as his daughter. During mother's pregnancy, petitioner accompanied her to prenatal appointments as well as parenting and birthing classes. Petitioner was present and cut the umbilical cord at child's birth in November 2012. Petitioner moved in with mother immediately after child's birth and lived with mother and child for the first six months, during which time petitioner helped care for child. Petitioner testified that he considered himself to be "[i]n every way father. I helped feed, took turns with the middle of the nights, waking up, bonding, singing, goodnights." In May 2013, petitioner moved to his own apartment but continued to see child on average three days and two to three nights per week. Petitioner held child out as his daughter to all but a small set of family and friends who knew he was not the biological father.

In November 2013, when child was about one year old, petitioner spanked child during a visit, leaving bruises. Petitioner testified about the incident: "I made the mistake to spank my daughter.... I was completely unaware of my strength or her sensitivity. A few bruises were left, and ... quite an emotional scar on me once I saw the pictures. And CPS was involved due to a mandated reporter."

Mother noticed the bruising and called her counselor, who contacted CPS. CPS removed child from mother for several days. In the resulting investigation, CPS found petitioner had caused the bruises (which he admitted) and had tested positive for illegal substances. CPS returned child to mother's custody subject to a case plan that prohibited contact between petitioner and child for six months. Mother and petitioner adhered to the plan, during which time child lived exclusively with mother. After the six-month no contact period and consultation with therapists, mother allowed petitioner to resume visitation in range of five to 20 hours each week. Petitioner's visitation with child was ongoing at the time of the trial court hearing. Mother and petitioner also have stayed in touch with a parenting coach or therapist for guidance on raising child.

Mother testified that she "would agree that [petitioner] has been the male role model in [child's] life."³ "[Child] does refer to him as father," she stated. Mother was aware that petitioner had "issues including substance abuse" but "believed he was clean and sober" until the November 2013 incident, when she became aware he had relapsed. As of the hearing, mother believed petitioner had regained and maintained his sobriety.

Regarding the parentage action, mother's testimony was that "she absolutely acknowledges [petitioner's] involvement and support of [child] in numerous ways, but is in a position where she is concerned that if she were to absolutely consent to this proceeding, that ... might affect her custodial rights in the future." Due to the November 2013 incident, which left "remarkable bruises" on child, CPS was "very clear ... about the...