Michael M. v. Giovanna F.

• Decision Date: 29 April 1992
• Docket Number: No. A049899,A049899
• Citation: 7 Cal.Rptr.2d 460,5 Cal.App.4th 1272
• Parties: MICHAEL M., Plaintiff and Appellant, v. GIOVANNA F. et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

Page 460

7 Cal.Rptr.2d 460

5 Cal.App.4th 1272

MICHAEL M., Plaintiff and Appellant, v. GIOVANNA F. et al., Defendants and Respondents.

No. A049899.

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

April 29, 1992.

[5 Cal.App.4th 1275] Ronald B. Bass, Walnut Creek, for plaintiff and appellant.

Anderson & Watt, Terrance W. Andrews, Albany, for defendants and respondents.

BENSON, Associate Justice.

Michael M. ("Michael") appeals the dismissal of his paternity action brought against respondents Giovanna F. ("Giovanna") and Matthew F. ("Matthew") (collectively We find Michael has alleged facts that if proven, would establish a protected federal due process interest in an opportunity to establish his paternity, and an opportunity to show that the formation of a parental relation between him and Brian by means of appropriate visitation or custody orders would be in Brian's best interests. We find that on the facts of this case, the state's interest in enforcing the standing provisions of the UPA are outweighed by Michael's due process interest. We conclude that as applied to Michael, the UPA's standing provisions are an unconstitutional infringement on Michael's substantive due process rights. In view of our conclusion, we do not reach his claim that the denial of standing deprives him of equal protection, nor do we reach his claims based on state law.

"respondents") after the trial court sustained respondents' demurrer to his second amended complaint without leave to amend. ¹ Michael contends portions of the Uniform Parentage Act ("UPA") as adopted in California (Cal.Civ.Code, § 7000, et seq.) are unconstitutional as applied to him because they deny him standing to maintain an action to establish paternity of his child, Brian F. ("Brian"). He argues the denial amounts to a deprivation of due process and of the equal protection of the laws, and in addition asserts it violates his privacy rights under the California Constitution.

We reverse and remand for further proceedings at which Michael may attempt to establish his paternity and that he should be entitled to visitation or custody rights.

I. FACTS AND PROCEDURAL HISTORY

We assume the facts as pleaded in the complaint are true, and draw all reasonable inferences from those facts in Michael's favor. (Silberg v. Anderson (1990) 50 Cal.3d 205, 210, 266 Cal.Rptr. 638; Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496, 86 Cal.Rptr. 88, 468 P.2d 216.) Accordingly, our summary of fact is taken from Michael's second amended complaint.

Michael and Giovanna, then both single, lived together periodically beginning in 1986. On October 6, 1988 they became engaged to be married. During their engagement, a child, later named Brian, was conceived. In December 1988, after Brian was conceived, Giovanna broke off the engagement. Before the engagement was broken, Giovanna often told Michael she was pregnant with their child. In March 1989, Michael wrote to Giovanna to inquire whether she had confirmed her pregnancy, but received no reply. In the same month, Giovanna married Matthew. Michael did not learn of the marriage until July 1989, when he saw Giovanna, who appeared to be in the last weeks of a full term pregnancy. After seeing Giovanna, Michael sought to speak with her regarding her pregnancy. She refused and eventually obtained an order restraining Michael from further contact with respondents.

On August 4, 1989 Matthew contacted Michael and informed him that Giovanna had given birth to a child, but refused to tell him the birth date or name of the baby. Michael explained he wanted to know whether the child was his because, if it was, he wanted to participate in its upbringing and to contribute to its support. Michael asked permission to visit Brian, but respondents refused. On August 9, 1989, respondents obtained a permanent order from the Contra Costa Superior Court enjoining Michael from further contact with them. On the same day, Michael filed his complaint to declare paternity.

After demurrers to the complaint and the first amended complaint were sustained with leave to amend, Michael filed a second The respondents' demurrer to the second amended complaint was sustained without leave to amend on the ground that Michael lacked standing to maintain the action. This appeal followed.

amended complaint in which he requested a declaration of paternity and joint physical and legal custody of Brian. On August 23, 1989 he sent respondents a check for Brian's support. The check was returned uncashed and Michael then established a bank account for Brian's benefit.

II. STATUTORY SCHEME

Though Michael did not expressly style his suit as such, the parties and the court below were agreed that Michael's action was brought under the UPA, enacted in California as Civil Code sections 7000-7021. ² The UPA provides a comprehensive scheme for judicial determination of paternity, and was intended to rationalize procedure, to eliminate constitutional infirmities in then-existing state law, and to improve state systems of support enforcement. (9B West's U.Laws Ann. (1987) U.Parentage Act, comrs. note, pp. 287-290; Legis.Counsel's Dig., Sen.Bill No. 347, 2 Stats.1975 (Reg.Sess.) Summary Dig., p. 344.) Relevant here, the UPA expressly specifies those persons who have standing to sue for a declaration of paternity. (Civ.Code, § 7006 [authorizing actions declaring existence or non-existence of paternal relation].) ³ Under the statutory scheme, the standing of the various potential parties to bring such an action depends in large part on the existence or non-existence of a man who is presumed to be the child's father under the various provisions of Civil Code section 7004. ⁴ However, it is unnecessary to discuss these rather complex provisions in detail. As Michael contends in this appeal, and as respondent concedes, absent adoption proceedings, ⁵ a biological father has no standing to sue for a declaration of paternity so long as a different presumed father exists and the biological father has been unable to take the child into his home and hold it out as his own. Because Matthew and Giovanna were married when Brian was born, Matthew is the presumed father. (Civ.Code, § 7004, subd. (a)(1).) Thus, Michael lacks standing under the UPA to bring an action either to establish his paternity, or to rebut the presumption that Matthew is the child's father. This lack of standing gives rise to the issue now before us: whether the statutory scheme as applied to Michael impermissibly infringes on his constitutional rights.

III. DISCUSSION

We begin our discussion with a brief review of the general principles we apply.

There are two species of due process rights. First, a right to fair procedure where the state proposes to interfere with or impair constitutionally protected interests; and second, a substantive right to be free of governmental interference with fundamental constitutional rights absent some compelling reason for interference. (See, e.g., Anti-Fascist Committee v. McGrath (1951) 341 U.S. 123, 168, 71 S.Ct. 624, 646, 95 L.Ed. 817 (Frankfurter, J., concurring) [right to fair procedure]; Griswold v. Connecticut (1965) 381 U.S. 479, 485, 85 S.Ct. 1678, 1682, 14 L.Ed.2d 510 [unnecessarily broad invasion of fundamental right prohibited].) Both species are invoked here. First, because Michael has been denied standing to sue in the first instance, he has been deprived of any hearing at which he may be heard to assert whatever rights he may have to form a parental relation with Brian. (See Stanley v. Illinois (1972) 405 U.S. 645, 657, 92 S.Ct. 1208, 1215, 31 L.Ed.2d 551 [unwed father entitled to hearing on question of parental fitness].) Second, his claim that he has such a right is based on a recognized substantive due process right to be free of state interference with personal relations between family members. (See In re Lisa R. (1975) 13 Cal.3d 636, 648, 119 Cal.Rptr. 475, 532 P.2d 123; Michael H. v. Gerald D. (1989) 491 U.S. 110, 124, 109 S.Ct. 2333, 2342, 105 L.Ed.2d 91 [plurality opn. of Scalia, J.].)

Michael's claim that he has been deprived of due process depends on the existence of a constitutionally protected interest in a biological father's parental relation with his offspring. Though there is no clear agreement on the exact boundaries of such a right, the extremes are well-defined. First, there is no constitutionally protected interest in a parental relation where the basis for that relation is the genetic or biological connection created by impregnation alone. (Lehr v. Robertson (1983) 463 U.S. 248, 261, 103 S.Ct. 2985, 2993, 77 L.Ed.2d 614; and see In re Lisa R., supra, 13 Cal.3d at p. 649, 119 Cal.Rptr. 475, 532 P.2d 123.) " 'Parental rights do not spring full-blown from the biological connection between parent and child. They require relationships more enduring.' " (Lehr, supra, 463 U.S. at p. 260, 103 S.Ct. at p. 2992, quoting Caban v. Mohammed (1979) 441 U.S. 380, 397, 99 S.Ct. 1760, 1770, 60 L.Ed.2d 297 [disn. opn. of Stewart, J.].) Where an unwed father fails to demonstrate any interest in forming a relationship with a child from the beginning, any rights conferred by the biological connection are lost. Thus, in Lehr, where the alleged biological father had shown no inclination to establish his paternity despite the existence of a statutory procedure by which he could have done so, he had no protected interest in his paternal relationship with his child, and was not harmed by the state's failure to notify him of adoption proceedings. (Lehr, supra, 463 U.S. at pp. 255, 261, 103 S.Ct. at pp. 2990, 2993; cf. Adoption of Kelsey S. (1992) 1 Cal.4th 816, 838, 4 Cal.Rptr.2d 615, 823 P.2d 1216 [where unwed father had promptly demonstrated his intent to form a relationship, his potential relationship with the child was "worthy of constitutional protection"].) At the other end of the spectrum, an existing parental relationship established between an...