S. Y. v. S. B., C065700

• Decision Date: 08 December 2011
• Docket Number: C065700,Super. Ct. No. 09FL06711
• Parties: S. Y., Plaintiff and Respondent, v. S. B., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

S. Y., Plaintiff and Respondent, v. S. B., Defendant and Appellant.

C065700

Super. Ct. No. 09FL06711

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT Sacramento

Date: December 8, 2011

CERTIFIED FOR PUBLICATION

APPEAL from a judgment of the Superior Court of Sacramento County, Helena R. Gweon, Judge. Affirmed.

Law Office of Elizabeth N. Niemi and Elizabeth N. Niemi; Bartholomew & Wasznicky, Diane E. Wasznicky; C. Athena Roussos; Jay-Allen Eisen Law Corporation, Jay-Allen Eisen and Elizabeth N. Niemi, for Defendant and Appellant.

Wald & Thorndal, and Deborah H. Wald; Wald Law Group, Deborah H. Wald and Paul W. Thorndal, for Plaintiff and Respondent.

Shannon P. Minter, Melanie S. Rowen, Catherine Sakimura, Ilona M. Turner for National Center for Lesbian Rights on behalf of Plaintiff and Respondent.

S. B., the adoptive mother of G.B. and M.B., appeals from a judgment declaring that her former same-sex partner S. Y.¹ is a presumed parent of the children under Family Code section 7611, subdivision (d) (hereafter 7611(d)).² S. B. contends the trial court erred in finding S. Y. is a presumed parent because she never "actually received the children into her own home" or "openly held the children out as her own natural children," as required under section 7611(d). She also asserts that the trial court abused its discretion in concluding this was not an appropriate action in which to rebut the parentage presumption (§ 7612, subd. (a)), and that recognizing S. Y. as a parent violated S. B.'s right to substantive due process by interfering with her interest in the care, custody, and management of her children.

We shall conclude the trial court did not err in finding that S. Y. is a presumed parent of G.B. and M.B. Substantial evidence supports the trial court's findings that (1) S. B.'s home served as the family home, and S. Y. received the children into that home, and (2) S. Y. openly held the children out as her natural children. As we shall explain, whether S. B. intended for S. Y. to obtain legal rights with respect to the children is irrelevant where, as here, S. B. allowed andencouraged S. Y. to function as the children's second parent from birth, and S. Y. openly embraced the rights and obligations of being a parent. We shall further conclude that the trial court acted well within its discretion in finding that S. B. failed to rebut the parentage presumption. Finally, we shall reject S. B.'s claim that recognizing S. Y. as a parent infringes upon her fundamental right to make decisions concerning her children. Accordingly, we shall affirm the judgment.³

FACTUAL AND PROCEDURAL BACKGROUND

On September 24, 2009, S. Y. filed a petition in the trial court seeking to be declared the second, same-sex parent of nine year-old G. B. and five year-old M. B., both of whom were adopted by S. B. at birth. (§§ 7630, subd. (a)(1), 7611(d).) The trial court found there was a factual dispute and set the matter for trial.

A court trial was held on February 25 and 26, 2010. The following evidence was adduced at trial.⁴ S. Y. and S. B. met in1993 and were in a committed relationship for 13 and one-half of the past 16 years -- between 1993 and 2009. During the majority of their relationship, S. Y. and S. B. maintained separate residences; however, S. Y. spent "[v]irtually every night" at S. B.'s house. She slept at S. B.'s house, in S. B.'s bed, at least three or four nights a week and was there every weekend and after work on nights she did not sleep over.

S. Y. worked as a senior planner in the Community Development Department for the City of Sacramento and served as a Colonel in the United States Air Force Reserves. She was a member of the second class of women to graduate from the Air Force Academy and had been a member of the Air Force for nearly 30 years. S. B. worked as a kindergarten teacher.

In 1994, S. B., who had always dreamed of having children, actively began attempting to have a child through artificial insemination. While it had not been S. Y.'s dream to have a child, S. Y. told S. B. that she would support S. B. in pursuing her dream, and that if S. B. was fortunate enough to have a child, S. Y. would co-parent the child with her. A few years later, when S. B.'s efforts to conceive a child proved unsuccessful, she contemplated having in vitro fertilization and asked S. Y. to help pay for it. S. Y. initially was unwilling to help pay the nearly $40,000 it would cost for in vitro fertilization because of the low chance of success given S. B.'sage and medical factors. Several days later, S. Y. told S. B. she would help pay for in vitro fertilization, but by then, S. B. had decided to pursue adoption, with S. Y.'s support and encouragement.

In 1998, S. B. was chosen by a birth mother, and S. Y. helped S. B. prepare for the baby's arrival. Although that adoption ultimately fell through, the next year, S. B. was chosen by another birth mother.

G.B. was born in November 1999. S. Y. accompanied S. B. to Redding for his birth, obtaining time off from her job with the City of Sacramento to do so. S. Y. told her supervisor, who was aware of her relationship with S. B., that she would be accompanying S. B. to Redding for the birth of a child she would co-parent. S. Y. was in the hospital waiting room during G.B.'s birth, and after he was born, S. B. brought him out to show her. S. Y. stayed in Redding until S. B. and G. B. were ready to come home. When G. B. was released from the hospital, S. B., S. Y., and G. B. returned to Sacramento together. S. Y. stayed with S. B. and G. B. most nights and every weekend, assisting in G. B.'s care as much as S. B. would allow. She changed his diapers, helped bathe him, played with him, and prepared formula for S. B. to provide using a device designed to simulate breastfeeding. She paid for the updated home study for G. B.'s adoption and purchased necessities, including formula, diapers, and baby food. In 2000, shortly after G. B. was born, S. Y., S. B., and G. B. travelled to Hawaii, and later went to Texas to visit S. Y.'s parents.

In 2003, S. Y. sought to be named G. B.'s guardian in the event something happened to S. B. She and S. B. contacted an attorney to make that happen, but S. B. cancelled the appointment.

In June 2003, the parties broke up. The break-up lasted two and one-half years. During that time, S. Y. remained active in G. B.'s life, except when S. B. interfered with her efforts.⁵S. Y. continued to go to S. B.'s home most evenings and every weekend to spend time with G. B. and to assist with his care. She also continued to go on outings and vacations with S. B. and G. B. When S. Y. was promoted to the rank of Colonel in April 2004, S. B. and G. B. participated in the pinning of the epaulets ceremony, a privilege reserved for family. The ceremony took place in front of approximately 65 of S. Y.'s family, friends, and colleagues.

While S. Y. and S. B. were broken up, S. B. decided to adopt another child. Because they were not together, S. Y. did not then have an expectation of co-parenting a second child with S. B. and told S. B. so in an email.

In mid 2004, S. B. was selected by a birth mother who lived in Minnesota. M. B. was born in July 2004. S. Y. did not accompany S. B. to Minnesota for M. B.'s birth, but when the adoption process was delayed, she flew to Minnesota at S. B.'srequest to assist with G. B. M. B.'s middle name is a combination of S. Y.'s middle name and the birthmother's name.

Following M. B.'s birth, S. Y. continued to go to S. B.'s home most evenings and every weekend to spend time with the children and to assist with their care, except when S. B. interfered with her efforts.⁶ She also participated in all birthdays and holiday celebrations and continued to go on outings and vacations with S. B. and the children.

In November 2005, the parties reconciled, and S. Y. resumed spending most nights at S. B.'s and stopping by on other nights to spend time with the children. Had it not been for the children, it is doubtful S. Y. would have resumed her relationship with S. B.

When each child reached the age of about one year old, S. Y. set up college savings accounts, in which she continued to make monthly contributions. She named the children as beneficiaries on "everything [she had]," including her life insurance policy and mutual funds. She displayed photographs of the children and S. B. in her cubicle at work for everyone to see. She brought S. B. and the children to family events organized through her work, such as company picnics and Pops in the Park. Although S. Y. referred to herself as the children's "godparent," her supervisor understood "she was in her role asthe parent." Through her actions, S. Y. made it obvious to her supervisor that she "was claiming that the individuals in those pictures [in her cubicle] were her family." S. Y. regularly worked in G. B.'s classroom (roughly 40 times) since he began attending school. G. B.'s second grade teacher referred to her as "a parent, adult volunteer . . . ." She attended back to school nights, open houses, field trips, and other school functions. She attended all of G. B.'s baseball games and most of his practices over the years. During the years the parties were together, S. B. and the children gave S. Y. Mother's Day cards.

In 2006, S. Y.'s parents, to celebrate their 50th wedding anniversary, took their entire family, including S. Y., S. B., and the children, on a cruise. S. Y.'s mother watched S. Y. interact with the children and described her as "just another parent." S. Y. got the children ready and attended to their needs. S. Y.'s mother testified that during one visit to Texas, G. B. was ill and S. Y. cleaned up his vomit, demonstrating the teamwork the parties showed as parents.

S. Y.'s parents considered G. B. and M. B. as their grandchildren by S. Y. They contributed $3,000 each to G. B.'s and M. B.'s college accounts, as they had done for their other grandchildren. They...