Opinion
H046797
02-23-2021
A.I., Respondent, v. N.O., Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. 18FL001022)
Appellant N.O. (Mother) appeals a trial court order finding respondent A.I. (Father) to be the presumed parent of her biological child, A.O., under Family Code section 7611, subdivision (d). Mother contends the trial court misinterpreted the statute and applied "improper criteria" when it determined that Father received A.O. into his home and held her out as his own child. She further argues the record lacks substantial evidence to support the trial court's findings. We disagree and affirm the trial court's order.
Subsequent statutory references are to the Family Code unless otherwise noted.
I. FACTUAL AND PROCEDURAL BACKGROUND
We refer to A.O. and the witnesses who testified at trial by their initials in order to protect A.O.'s privacy rights, pursuant to California Rules of Court, rule 8.90(b).
In July 2018, Father, representing himself, filed a petition seeking a parentage determination and custody orders concerning A.O., who was born in 2011. There were no orders in place regarding A.O.'s parentage before Father filed his petition, and no other persons claimed parentage. Mother also represented herself, and contested Father's presumed parentage claim. The court held a bench trial "pursuant to Family Code Section 7611[(d)] with regard to parentage issues." Father testified and called four witnesses. Mother testified on her own behalf.
As appellant, Mother has the burden to provide an adequate record. (In re Marriage of Oliverez (2019) 33 Cal.App.5th 298, 312.) Mother did not designate Father's petition as part of her appendix on appeal. We therefore presume Father's petition, or any motion he filed seeking orders, was filed under section 7611, subdivision (d) based on other pleadings that were included in the record. (Ibid.)
The transcript from the January 2019 hearing indicates the court said "7611(b)" rather than "7611(d)"; it appears this may be a transcription error, as the court cited section 7611, subdivision (d) and its requirements later in the proceeding and in its ruling.
Mother did not designate any pleadings filed prior to October 2018, or any court orders indicating how the matter came to be set for trial, and did not provide the trial court's register of actions. Father's trial brief is the first document in Mother's designation.
A. Father's Case
Father stated in his trial brief that he sought visitation with A.O. based on his history of "picking up and dropping off [A.O.] at school, at basketball practice/games, school field trips, summer camps, taking her on family holiday vacations, taking her to theme parks, taking her to dentist/Dr[.] appointments, taking her to family events from both of her parents, taking her shopping for school clothing/shoes, taking her out to the movies or out for ice cream/donuts, to the park to just hang out, and countless many other little things that fathers naturally do with their daughters on a regular basis. Our lives have been intertwined for a very long time and I am hoping to continue building on our already developed relationship."
Father testified that the parties had an "on and off" relationship from 2004 until Mother moved to Utah in 2010 to complete her Ph.D.; he learned she was pregnant in Summer 2010, while he was travelling abroad. The parties resumed their relationship once he returned from his trip, although he believed the baby likely was not his child. Father visited Mother in Utah shortly before her due date, so he could "anticipate the birth and be present." He had not told his employer he was expecting a child, and was not able to take significant time off from work, so returned to California before A.O. was born.
Father did not remember whether he first saw A.O. in California or Utah, although he recalled having to wait some time because he did not have any additional accrued vacation he could take from work. He alleged he visited A.O. in Utah on 30 or more occasions in 2011 and 2012. He would care for A.O. while Mother was in class, taking walks, getting lunch, going to movies and getting breakfast, "whatever she needed done or whatever," including changing diapers and giving A.O. formula. Father also travelled with Mother and A.O. to conferences related to Mother's degree program, allowing Mother to "be where she needed to be without the baby."
Although a DNA test revealed Father was not A.O.'s biological parent, Father testified that he told his family he intended to accept her as his child. He admitted it took "a while" to tell them all, as his family is "quite traditional." Father first told his mother, B.C., about A.O.
Mother and A.O. lived in Utah until November 2014; during that time Father sent "some money to help with expenses," but admittedly not "a lot of money." He put Mother and A.O. on his health insurance, which he was able to do as "domestic partners" because they had PG&E bills in both of their names; A.O. and Mother were on his insurance from May 2012 through December 2015.
Father provided a photo of a medical I.D. card listing himself as the member, and Mother and A.O. as dependents; the caption states the photo is from 2012.
Before Mother moved back to California, Father learned that he was expecting a child with another woman, K.B. Despite this, Mother and A.O. moved into Father's home in Hollister in November 2014. Father's biological daughter was born shortly before Thanksgiving 2014; he immediately wanted to introduce the baby to A.O., which Mother allowed.
The parties and A.O. spent the 2014 Thanksgiving holiday with Father's family at Father's home in Hollister. The following month Mother, Father, and A.O. were in a car accident in which Father was seriously injured; Mother and A.O. visited him in the hospital, while continuing to live in his house, where they all resided after he was released from the hospital. Father and Mother's relationship deteriorated during this time. Father confirmed that he told Mother, "in a moment of anger where [he] was really upset," that their constant conflict was not fair to A.O. However, Father claimed he shortly thereafter discussed with Mother "at length [his] desire to continue to stay in [A.O.'s] life and to remain to be seen as her father...." He never told anyone else that he thought about not seeing A.O. anymore, and did not take her off his health insurance.
Father testified that Mother and A.O. moved with him to Gilroy in April or May 2015. Mother enrolled A.O. in ballet and Father attended the majority of her classes. For Father's Day 2015, Father testified Mother helped A.O. and his daughter make Father's Day artwork for him, similar to items he received from A.O. every year. In August 2015, Father, Mother, and A.O. went to Disneyland with B.C., her husband, and Father's friend R.A., who brought his wife and child. The trip was difficult, because Mother was upset that K.B. was pregnant again.
Shortly after the trip, the parties ended their relationship and Mother and A.O. moved out of Father's home. Father claimed he made it clear to Mother he wanted to maintain his relationship with A.O., as he saw her as his daughter; he tried to FaceTime with A.O. but Mother would change her number or block Father's calls, and would not respond to his emails asking for an opportunity to talk to A.O. The only communication Mother and Father had from late 2015 through mid-2016 was through one of Mother's friends, who contacted Father to obtain approximately $15,000 he had been holding for Mother; Mother reinstated contact directly with Father once he paid her the money, but did not allow contact between Father and A.O., despite Father "always [asking] about [A.O.] and always [trying] to put it on the table."
Father testified he was able to reconnect with A.O. by phone in December 2016 or January 2017, after a period in which the parties were in regular contact and would discuss what it would look like to reintroduce Father into A.O.'s life; Father wanted to be sensitive to A.O. and go with Mother's recommendations on how to reintroduce him, so that he did not "cause more damage." Father paid for the venue for A.O.'s birthday party in February 2017, although he did not attend the party at Mother's request. After that, Mother would share more pictures of A.O. with Father, and allowed Father to have phone calls and FaceTime with A.O. more frequently.
Once Father agreed he would not have A.O. in the presence of K.B. or her children, Mother allowed Father to begin seeing A.O. in April or May 2017. Father claimed he paid for half of A.O.'s summer camp, started picking her up and dropping her off at camp on occasion, and went on field trips with her camp; he said his relationship with A.O. quickly reverted to its status in October 2015, such that A.O. wanted to spend more time with him and her siblings. A.O. spent Father's Day 2017 with Father. During this period, most of the time Father spent with A.O. was outside of Mother's presence.
By the time school started in fall 2017, Father claimed A.O. was calling him "dad," which she began doing four to five weeks after reconnecting with him. Father took A.O. to her first day of school and participated in events at her school. A.O. told people at her school that Father was her "dad", and the teachers knew him as A.O.'s father. Mother listed him as "father" when she added him as a person who was authorized to pick A.O. up from school. Mother also allowed Father to sign A.O. up for a youth basketball league in Hollister, where Father was again residing. Father took A.O. to practices and attended her games.
Father testified he started having overnight visits with A.O. sometime between October and December 2017, with the stipulation that K.B. not be present. Although this was difficult, because Father had to pick A.O. up in Salinas or Gonzales, and his two other children lived in San Jose, Father accommodated Mother's wishes by going from Hollister to San Jose to get his son and daughter, and then driving to Gonzales or Salinas to get A.O. Mother allowed Father to take A.O. to Christmas at his family's house in December 2017, for a two-to-three-day period, finding out later that K.B.'s children were there too.
By February 2018, Father was taking or picking up A.O. from school two times per week; the parties planned and held A.O.'s birthday party together. Father took A.O. with his family to Monterey Bay Aquarium; Mother did not come. He also took A.O. to visit his family in Sacramento. Father allowed A.O. to be in K.B.'s presence on July 4, 2018, alleging he could not arrange to have all of his children together for the holiday if K.B. did not bring their children to Hollister, where she then stayed for "4th of July with fireworks." When Mother learned of this, she withdrew her permission for Father to take A.O. on a trip for an upcoming three-day weekend; Mother did not allow Father to see A.O. for two weeks. Mother also withdrew her agreement for Father to take A.O. on a trip to Hawaii, which A.O. had indicated she wanted to take with Father. When Mother cut off Father's contact with A.O., Father claimed A.O. texted him from Mother's phone or laptop, saying that she loved and missed him; Father believed Mother blocked him from writing back. Father also went to Mother's house trying to see A.O.
At this time, Father also attempted to convince Mother to put his name on A.O.'s birth certificate, something he had been asking about since late 2016. He wanted to be able to cover A.O. through his health insurance, but he was not able to do so unless he also covered Mother as a domestic partner, or he obtained legal recognition of A.O. as his daughter. Father also suggested Mother should seek child support from him instead of from A.O.'s biological father, who had seen her once.
When Mother would no longer allow Father to see A.O. or have contact with her, Father sought parental rights and custody of A.O. through the court process.
Several witnesses testified that they witnessed Father describe and treat A.O. as his daughter. B.C., Father's mother, stated that after A.O. was born, although the results of the DNA test indicated Father was not A.O.'s biological parent, he nevertheless told B.C. he wanted to be in A.O.'s life. She saw photos and videos of Father's visits with A.O. in Utah, which she claimed reflected a "normal father-child relationship." When B.C. met A.O. in 2013, A.O. was calling Father "Papa."
Father's sister, A.A., testified that she met A.O. when the baby was one to two years old, learning of her "well after she was born." Father introduced A.O. as his daughter, and A.O. "responded to [Father] as her father." A.A. observed that Father treated A.O. the way her husband treated their children; she felt that Father loved A.O., and that A.O. believed Father was her father.
Both B.C. and A.A. testified that A.O. spent Christmas on at least two occasions with Father's family, at least once without Mother present. A.O. visited Father's family in Sacramento with Father on many occasions; Mother came along on some of the visits, but there were also times Father brought A.O. without Mother accompanying them. B.C. noted that Father treated A.O. like his two other children, and attempted to foster a natural sibling relationship between all three children. When Father bought his home, he dedicated a room to A.O., with a mural of her favorite Disney character. Neither B.C. nor A.A. knew A.O.'s birthdate when asked at trial.
Father's friend, R.A., testified he and his family spent time with Father and A.O. in 2013. While R.A. knew A.O. was not Father's biological child, Father referred to A.O. as his daughter; he witnessed Father acting in a "father capacity" during a play date in a park in summer 2013, as well as at a picnic date in Davis, and had A.O. at all of his son's birthday parties since 2013, with the exception of the last one before the trial. R.A. and Father took trips together, without their children. R.A. witnessed Father FaceTime with A.O. when he was away from her; R.A. testified, "in the middle of some of [their] guy trips, even in situations where [they] were all driving in a car - not the time where it's probably the best time to communicate with someone else on the phone, [Father] would always make time to FaceTime [A.O.]."
K.B., the mother of Father's two biological children, testified she met Father in 2013, at which time "[he] mentioned he had a daughter." She met A.O. a few months after she met Father; she saw that A.O. was very attached to him, and that he made sure A.O. was his priority. She was with Father and A.O. on 10-20 occasions. K.B. testified that she watched A.O. interact with her daughter; A.O. always talked about wanting to go see her baby sister, and was very affectionate towards the child. K.B. saw Father treat both children as his daughters. She testified that Father treated A.O. just as he treated his other children, buying her clothes and shoes, and doing drop-off and pick-up at school; he always mentioned A.O. when asked about his children, and tried to include A.O. in all family activities.
Father attached handwritten letters and cards to his trial brief that he received from A.O. at various points in time, which detailed "how [A.O.] feels about [him] as her Father and also includes comments about her siblings." Included were notes and letters addressed to "daddy" and "dad" in which A.O. expressed that she loved Father: "Dear daddy, I love you so much to my heart that you make me smile every day I think of you every day...." "You are my favorite dad I could ever have I like spending the days when you have me I love you a lot I miss you a lot I in Joy being with you I am happy with you....Love [A.O], daddy, I love you [followed by a drawing of a heart]." (Original spelling and punctuation.)
Father testified regarding photographs attached to his trial brief, that represented "the level of involvement [he has] always had in [A.O.'s] life over the last 8 years," and to "highlight how [he has] held [A.O.] out to be [his] daughter in almost every possible situation with friends, family, school teachers and classmates over the last 8 years." The photographs include A.O., Father, Mother, Father's other children, other family members, A.O.'s friends, A.O.'s basketball team, and others. The dates listed on the photos range from 2011-2018; there are no pictures dated 2016.
B. Mother's Case
Mother opposed Father's request to obtain legal rights as A.O.'s parent. In her trial brief, Mother confirmed Father was not A.O.'s biological parent, and that she had raised A.O. as a single mother since the child's birth. At the time of the court trial, A.O. was seven years of age. Mother asserted that Father had little or no contact with A.O. until she was 18 months old, and no contact for approximately 21 months between the ages of four and six.
Mother cited section 3041 which governs the award of custody to a nonparent over the objection of a parent, which was not at issue before the court. The trial court considered the information Mother provided at the hearing to determine whether Father was a presumed parent under section 7611, subdivision (d).
Mother indicated she and Father were dating while Mother was pregnant with A.O. From A.O.'s birth in 2011 until November 2014, Mother and A.O. lived in Utah, where Mother was completing her doctorate. Father lived in California, and thus he spent limited time with A.O. while they lived in different states. Mother testified Father first met A.O. on a visit she made to California six weeks after A.O.'s birth. Mother alleged any visits Father had with A.O. while she completed her degree were "incidental to [Father and Mother] having dating trips to support [their] 'long-distance' relationship . . . ."
Mother would visit California during her breaks from school. Generally, she stayed with her parents on these visits, but would stay overnight at Father's residence on occasion with A.O. Mother estimated that she stayed with Father three nights each week during June, July, and half of August in 2012 and 2013. For the first year and a half of A.O.'s life, Father would spend only an hour or two with A.O. when Mother would visit her parents "by virtue of [our] ongoing dating relationship."
Mother denied that Father in any way acted as A.O.'s father or that she shared parenting responsibilities with him. Mother disputed Father's testimony that he took care of A.O. when Mother was in class or at conferences related to her doctorate, and denied that he visited her 30 times in Utah. Father took little interest in A.O. until she was about two years old. At most he changed one or two diapers and gave A.O. a bottle of formula a few times. When Mother would visit Father in California, she testified it was not always comfortable to stay at Father's house, as she felt Father would get upset to see A.O.'s toys in the living room.
Mother testified that she moved back to California with A.O. in November 2014, and lived at Father's residence. Mother claimed the parties' relationship changed after a serious auto accident; the parties discussed breaking up in January or February 2015 because Father recommenced his relationship with K.B., who was pregnant with their second child. Father wanted Mother and A.O. to leave so that K.B. and her children could move in with him. Mother then moved back to her parents' house with A.O., although Mother continued to divide her time between her parents' home and Father's residence through September 2015. She stated she came to believe she was the victim of emotional and psychological abuse, saying it was hard to justify why she kept going back to his home. Mother testified Father indicated he did not want anything to do with A.O. if the parties were no longer together. Although she admitted Father did attempt to have a relationship with A.O. after the break-up, Mother did not think it was appropriate, given "how it all happened;" she changed her phone number and did not communicate with Father. Father did not see A.O. between September 2015 and June 2017.
Mother reestablished a connection with Father in 2017. That summer, Father would occasionally accompany Mother as she dropped A.O. off at summer camp. She then authorized him to pick-up and drop-off A.O. at summer camp, and he paid for one week of the summer session. During the 2017-2018 academic year, Mother authorized Father to drop off and collect A.O. from school up to two times per week; she also allowed A.O. "to stay longer with him when she wanted to--kind of like a play-date."
Mother let Father see A.O. because she believed he had made changes in his life. A.O. had asked about Father during his absence, although Mother believed that was because A.O. was in school and was exposed to more two-parent families. Mother introduced Father in a "step-by-step" manner, following A.O.'s lead. Once Father began acting like he had a right to spend time with A.O., Mother cut off all contact, believing it was not in A.O.'s best interest when Father "would try to make decisions for her, like he was an equal parent." Mother allowed Father to visit with A.O. occasionally, "as friends"; she did not intend that Father treat A.O. as his daughter. Additionally, Mother terminated contact between Father and A.O. because he would expose A.O. to K.B. despite Mother's objections. Mother did not believe K.B. "ever has [A.O.'s] best interest." Mother indicated that Father's infidelity with K.B. and the emotional toll it took on Mother was the reason Mother insisted A.O. could no longer see Father, although she could not specify conduct K.B. engaged in that caused her concern.
After Mother broke off contact with Father, he came to Mother's residence unannounced on four occasions to see A.O. One time he brought his daughter with him, which "disturbed" A.O. Mother asked him to leave and he would not, which upset her sufficiently that she threatened to call the police. Father also brought his son with him, which Mother felt was "emotional manipulation" that caused "trauma."
Mother conceded that A.O. cared about Father and was bonded with him, "perhaps like a father." A.O. would be sad if her relationship with Father ended, but Mother believed A.O. would be able to adjust to the termination of the relationship, in particular because Mother was taking A.O. to therapy. She believed A.O. would ask about Father, but did not know if she would try to seek him out later in her life. Nor did Mother know if A.O. would miss Father's two young children, noting A.O. did not mention them until Father showed up at the house with his daughter. While A.O. might miss the children, "you know she misses her friend in Utah, too, and she is really connected to her, as well."
C. Trial Court's Ruling
The trial court issued its ruling at the conclusion of the hearing. Finding that it was required to act in A.O.'s best interest, and citing section 7611, subdivision (d), the court determined that ". . . this is a situation where the presumed father received [A.O.] and openly held her out as his child," a determination made in part on the "strength and development of the relationship" over the years.
The court confirmed there was no dispute that Father was not A.O.'s biological parent. While Father was not present at A.O.'s birth, the court noted that he tried to be there, and drove 14 hours to visit, but missed the birth because he had to return to work, as his employer did not know "about the paternity issue so he couldn't take paternity leave." Moreover, he took A.O. in despite the DNA results, introducing her to his family. Father introduced photographic evidence reflecting activities and events he and A.O. participated in together, including the birthday party he paid for but was not able to attend. There was evidence he paid for other things as well. The court also considered the cards A.O. gave Father, saying she loved and missed him, as well as the fact Father put Mother and A.O. on his insurance for a period, reflecting, "an indicated parent-child relationship there." The court recognized that Father's relationship with K.B. "hurt some feelings," suggesting that both parties should undertake therapy to help get through those feelings.
Ultimately the court found, ". . . pursuant to 7611(d)—and by the way, that particular code section is about preservation with a familiar family bond absent being a biological father, but I do believe that petitioner met the standard under 7611(d) and would be the presumed parent as the law provides in this case." The court indicated this finding was in A.O.'s best interest, and that A.O. would be "really, really saddened" and "hurt" if the court ruled differently.
The trial court issued a written ruling in conformance with the findings and orders made on the record at the end of the hearing. Mother timely noticed her appeal of the order (Cal. Rules of Court, rule 8.104(a) ), which is appealable pursuant to section 7636 and Code of Civil Procedure section 904, subdivision (a)(1) (see County of San Diego v. Arzaga (2007) 152 Cal.App.4th 1336, 1344).
All undesignated references to rules of court are to the California Rules of Court unless otherwise noted.
II. DISCUSSION
A. Standard of Review
The Uniform Parentage Act (UPA) (§ 7600 et seq.) defines the relationship between a parent and child as "the legal relationship existing between a child and the child's natural or adoptive parents. . . ." (§ 7601.) "Section 7611 sets forth several rebuttable presumptions of paternity. . . . Section 7611, subdivision (d) creates a rebuttable presumption of presumed fatherhood if '[t]he presumed parent receives the child into his . . . home and openly holds out the child as his . . . natural child.' " (W.S. v. S.T. (2018) 20 Cal.App.5th 132, 142 (W.S.).) This presumption can apply even if the presumed father admits he is not the child's biological parent. (Elisa B. v. Superior Court (2005) 37 Cal.4th 108, 121-122 (Elisa B.); In re Nicholas H. (2002) 28 Cal.4th 56, 58-59.)
The party claiming entitlement to presumed parent status under section 7611, subdivision (d) has the burden to establish, by a preponderance of the evidence, the facts supporting his or her entitlement. (R.M. v. T.A. (2015) 233 Cal.App.4th 760, 774 (R.M.); In re T.R. (2005) 132 Cal.App.4th 1202, 1210 (T.R.).) Once the presumption has been established, it may be rebutted only by clear and convincing evidence. The party disputing the presumed parent finding bears that burden. (§ 7612, subd. (a); R.M., supra, 233 Cal.App.4th at pp. 774-775.)
We review the trial court's factual findings, including its findings that the claimant received the child into his or her home and openly held the child out as his or her natural child, under the substantial evidence standard. (Charisma R. v. Kristina S. (2009) 175 Cal.App.4th 361, 376 (Charisma R.), disapproved on another ground by Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532, fn.7.) " 'Substantial evidence' means that evidence which, when viewed in light of the entire record, is of solid probative value, maintains its credibility and inspires confidence that the ultimate fact it addresses has been justly determined. [Citations.]" (People v. Conner (1983) 34 Cal.3d 141, 150.) "The focus is on the quality, rather than the quantity, of the evidence. 'Very little solid evidence may be "substantial," while a lot of extremely weak evidence might be "insubstantial." ' [Citation]" (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 652.)
We consider the evidence in the light most favorable to the judgment, " ' ". . .giving it the benefit of every reasonable inference, and resolving conflicts in support of the judgment. [Citations.] [¶] It is not our task to weigh conflicts and disputes in the evidence; that is the province of the trier of fact. Our authority begins and ends with a determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, in support of the judgment." ' [Citation.]" (S.Y. v. S.B. (2011) 201 Cal.App.4th 1023, 1031 (S.Y.).) "If there is substantial evidence to support the ruling, it will not be disturbed on appeal even if the record can also support a different ruling. [Citation.]" (R.M., supra, 233 Cal.App.4th at p. 780.) "[I]t is a settled appellate principle that if a judgment is correct on any theory, the appellate court will affirm it regardless of the trial court's reasoning. [Citation.]" (Young v. California Fish & Game Com. (2018) 24 Cal.App.5th 1178, 1192-1193.)
B. Presumed Parentage Under Section 7611 , Subdivision (d)
The purpose underlying the statutory recognition of presumed parenthood is "to distinguish between those fathers who have entered into some familial relationship with the mother and child and those who have not." (In re Sabrina H. (1990) 217 Cal.App.3d 702, 708.) Thus a person who has demonstrated a commitment to the child and the child's welfare, even if not the biological parent, is entitled to the elevated status of presumed parenthood. (T.R., supra, 132 Cal.App.4th at pp. 1211-1212.) It is only a person who has established a fully developed parental relationship with the child, not one who desires such a relationship, who is to be granted presumed parent status, as it is the parental relationship that is recognized and protected under the statute. (In re D.M. (2012) 210 Cal.App.4th 541, 556 (D.M.).)
A presumed parent must demonstrate an abiding commitment to the child and the child's well-being, regardless of the parent's relationship with the child's other parent. (See E.C. v J.V. (2012) 202 Cal.App.4th 1076 (E.C.).) "Section 7611, subdivision (d), . . . requires something more than a man's being the mother's casual friend or long-term boyfriend; he must be 'someone who has entered into a familial relationship with the child: someone who has demonstrated an abiding commitment to the child and the child's well-being' regardless of his relationship with the mother. [Citation.]" (D.M., supra, 210 Cal.App.4th at p. 553.)
Section 7611, subdivision (d) does not define what constitutes receipt of the child into a person's home, or holding a child out as a person's own, and does not otherwise specify factors the trial court must consider to determine whether a person has met these requirements. Some appellate courts have identified various factors the trial court may consider in determining whether a petitioner has received the child into his or her home and held the child out as his or her own: ". . . whether the man actively helped the mother in prenatal care; whether he paid pregnancy and birth expenses commensurate with his ability to do so; whether he promptly took legal action to obtain custody of the child; whether he sought to have his name placed on the birth certificate; whether and how long he cared for the child; whether there is unequivocal evidence that he had acknowledged the child; the number of people to whom he had acknowledged the child; whether he provided for the child after it no longer resided with him; whether, if the child needed public benefits, he had pursued completion of the requisite paperwork; and whether his care was merely incidental. [Citations.]" (T.R., supra, 132 Cal.App.4th at p. 1211.)
A child is not required to live with the presumed parent for the parent to obtain the benefit of the presumption; regular visits along with monetary and non-monetary support can suffice to establish a person received a child into his or her home. (See In re L.L. (2017) 13 Cal.App.5th 1302, 1314; In re A.A. (2003) 114 Cal.App.4th 771, 784 [man involved with minor "from the very beginning, with [m]other's blessing" received child into his home through regular visitation and provision for the child's needs by buying the child "clothes, toys and food, and other essentials."].) An alleged parent need not receive the child into his or her home for a specific period to qualify under section 7611, subdivision (d). Indeed, "the child's physical presence within the alleged father's home is, by itself, insufficient under section 7611, subdivision (d)." (W.S., supra, 20 Cal.App.5th at p. 145.)
The biological parent may not intend that the alleged presumed parent attain such status. The trial court can find presumed parentage even in the face of a stated intent to serve as a single parent, where the biological parent "allowed and encouraged [the presumed parent] to function as the [child's] second parent from birth, and [the presumed parent] openly embraced the rights and obligations of being a parent." (S.Y., supra, 201 Cal.App.4th at pp. 1026, 1035; accord R.M., supra, 233 Cal.App.4th at p. 773.) Nor need the petitioner be a "perfect parent" in order to qualify under section 7611, subdivision (d); "[h]e . . . simply must demonstrate a parental relationship, however imperfect," with the child. (Jason P. v. Danielle S. (2017) 9 Cal.App.5th 1000, 1023 (Jason P.).)
An alleged parent is not required to prove the existence of all, or even most, of the factors discussed here. (Jason P., supra, 9 Cal.App.5th at p. 1021.) "The list does, however, illuminate a common thread: whether, through his or her conduct, an alleged parent has demonstrated a commitment to the minor child and the minor child's well-being, thereby distinguishing the alleged parent as someone who has entered into a familial relationship with the child from someone who has not." (E.C., supra, 202 Cal.App.4th at p. 1087.)
C. The Trial Court Correctly Interpreted Section 7611 , Subdivision (d)
Mother contends the trial court misinterpreted section 7611, subdivision (d) and "applied incorrect criteria" when it made its decision to afford Father presumed parent status. She asserts that the trial court committed this legal error by electing to rule from the bench, without obtaining legal guidance through the parties' legal briefing or its own independent research, rather than taking the case under submission for further consideration. We are not persuaded.
Whether a trial court applied the correct legal standard to an issue in exercising its discretion is a question of law that requires de novo review. (Eneaji v. Ubboe (2014) 229 Cal.App.4th 1457, 1464; Cellphone Termination Fee Cases (2009) 180 Cal.App.4th 1110, 1118.) Applying that standard here, the record demonstrates that the trial court understood that section 7611, subdivision (d) required Father to establish the "two elements necessary to invoke the presumption: reception [of the minor] into [his] home and openly and publicly acknowledging paternity." (In re Spencer W. (1996) 48 Cal.App.4th 1647, 1652.) The trial court explicitly cited the language of section 7611, subdivision (d) when it indicated that ". . . this is a situation where the presumed father received [A.O.] and openly held her out as his child . . . ."
When it determined whether the necessary elements were proved by Father to establish the status of a presumed parent, the trial court considered the "strength and development" of Father's relationship with A.O., including his absence at A.O.'s birth, his introduction of A.O. to his family, his involvement in A.O.'s life, the extent of his financial contributions for A.O.'s benefit, and A.O.'s expressed feelings towards Father. The trial court correctly stated that the intent of section 7611, subdivision (d) is to preserve the family bond. (See County of Orange v. Cole (2017) 14 Cal.App.5th 504, 509; R.M., supra, 233 Cal.App.4th at p. 773.)
Under rule 5.393(b)(2), the decision to require trial briefs is within the trial court's discretion. Similarly, there is no rule mandating that the trial court take any matter under submission before ruling, and here, where the parties litigated the case in a single day of testimony, it is not clear that the contribution of further briefing or time would have provided further assistance to the court. The trial court may not have stated the factors it considered in the most artful way, but we see no indication on the record that the trial court did other than "correctly consider[] whether [Father] assumed parental responsibilities and took on the role of a parent in [A.O.'s] life." (W.S., supra, 20 Cal.App.5th at p. 149.) We conclude the trial court applied the correct legal standard when it interpreted section 7611, subdivision (d), and committed no legal error.
D. Substantial Evidence Supports the Trial Court's Determinations That Father Received A.O. Into His Home and Held Her Out as His Own Child
Mother contends that substantial evidence does not support the trial court's finding that Father received A.O. into his home and held her out as his own child. Based on our careful review of the record, we conclude otherwise.
We recognize that Mother and Father's testimony differed on numerous important points. We are required to draw all factual inferences in favor of the trial court's finding that Father made the showing required by section 7611, subdivision (d), and to defer to the court's credibility resolutions. (Charisma R., supra, 175 Cal.App.4th at p. 377; R.M., supra, 233 Cal.App.4th at p. 780; S.Y., supra, 201 Cal.App.4th at p. 1031.) Based on these fundamental principles of appellate review, where the testimony of Mother, Father, and other witnesses is in conflict, we presume the trial court found Father or his witnesses more credible than Mother.
There is substantial evidence supporting the required element that Father received A.O. into his home under section 7611, subdivision (d). Mother contends that the intermittent nature of her relationship with Father and the limited time Father spent with A.O. as a result are indicia that Father did not meet the requirement that he received the child in his home. But the record reveals that while Mother lived in Utah for the first three years of A.O.'s life, Father visited Mother 30 times and cared for A.O. when Mother was in classes and at conferences. Mother also visited Father with A.O. three times weekly each summer of those three years. A.O. moved into Father's home for approximately 10 months before the couple terminated their relationship. Mother then prevented Father from having contact with A.O. for 17 months. Subsequently, with her consent, he then gradually increased the time he spent with A.O. over a period of 15 months culminating in overnight weekend visits and trips away from Mother. Mother characterizes this time as insufficient to demonstrate an existing parental relationship between Father and A.O. But the receiving element has no durational requirement. Rather, "[w]e conclude that receipt of the child into the home must be sufficiently unambiguous as to constitute a clear declaration regarding the nature of the relationship, but it need not continue for any specific duration." (Charisma R., supra, 175 Cal.App.4th at p. 375.)
We agree with Father that the record contains evidence of his close bond with A.O. and of his actions that demonstrate his commitment to A.O. and her well-being. (E.C., supra, 202 Cal.App.4th at p. 1087.) Father cared for A.O. when he visited Mother and A.O. in Utah at least 30 times for the first three years of A.O.'s life and when he traveled with A.O. and Mother to Mother's conferences. Mother and A.O. physically lived in Father's home on Mother's completion of her doctoral education, and Father specifically designated a bedroom for A.O., and placed a mural of her favorite Disney character on the wall. Father attended A.O.'s ballet classes, took her to extended family gatherings, and treated her as his child and integral family member.
Even after Mother and Father were no longer in a relationship, Father fostered a sibling relationship between A.O. and his two biological children. He took her to family events, overnight weekend visits and trips away from mother. He included her in vacations and sporting events, collected A.O. from summer camp, regularly picked her up from school as an authorized and identified parent, and participated in her school events and basketball league. Photos reflected their time together during outings and special occasions. The totality of Father's involvement with A.O. over eight years constituted a "fully developed parental relationship with the child." (R.M., supra, 233 Cal. App.4th at p. 776.) Mother conceded as much when she testified that A.O. was bonded with him "perhaps like a father."
Whether the person seeking presumed parent status took prompt legal action to obtain parental rights is one factor the trial court may consider when evaluating a claim under section 7611, subdivision (d). (T.R., supra, 132 Cal.App.4th at p. 1211.) Mother suggests that Father made no such efforts. But when the parties were no longer involved in a relationship, Mother concedes Father consistently wanted to see A.O. and expressed his desire to maintain his relationship with the child. Because of Father's relationship with K.B., Mother prevented Father from seeing and communicating with A.O. for approximately 16 or 17 months. While Father did not attempt to obtain legal parentage rights during that period, Mother and Father agree that he consistently pressed his case to see A.O. Once relations between Mother and Father became more amicable, Father proceeded to visit with A.O. based on Mother's recommendations to be sensitive to her needs and not "cause more damage." Mother confirmed she reintroduced Father into A.O.'s life in a "step-by-step" manner. By Fall 2017, Mother encouraged Father's parental relationship with A.O. She allowed him to have overnight visits with A.O. beginning around November 2017, including giving her consent to have A.O. spend Christmas with Father's family. She also showed willingness to allow Father to take A.O. on longer trips, including a trip to Hawaii, although she ultimately withheld permission when tensions arose between the parties because Father allowed A.O. to attend events with K.B. When Mother again terminated contact between A.O. and Father, he sought to formally establish his parental rights through the court process.
Mother also asserts that there is no evidence that Father provided financial support for A.O.'s benefit. We disagree, as the record demonstrates otherwise. While Father provided only a small amount of money to Mother for A.O. while she resided in Utah he included Mother and A.O. on his health care plan commencing at A.O. birth and for as long as A.O. remained eligible as the child of Mother as his qualifying domestic partner. Mother and A.O. lived in Father's home. Father purchased A.O. clothes and shoes. He took A.O. on vacations and to sporting events and paid for summer camp and birthday parties. Father also attempted to convince Mother to put his name on A.O.'s birth certificate, something he had been asking about since late 2016. He wanted to be able to continue to provide A.O. coverage through his health insurance as a dependent, but he was not able to do so unless A.O. was legally recognized as his daughter. Prior to commencing litigation, Father suggested that Mother should seek child support from him instead of from A.O.'s biological father.
When interpreting the UPA, courts have consistently emphasized "the public policy favoring a child having two parents to provide emotional and financial support. . . ." (Charisma R., supra, 175 Cal.App.4th at p. 375; Elisa B., supra, 37 Cal.4th 108, 124 ["By recognizing the value of determining paternity, the Legislature implicitly recognized the value of having two parents, rather than one, as a source of both emotional and financial support . . . .].) We conclude that the evidence in this record shows that Father established his commitment to provide both emotional and monetary support or its equivalent through essentials for the child's benefit.
Finding that substantial evidence supports the trial court's determination that Father is a presumed parent under section 7611, subdivision (d), does not require us to "depart radically" from prior decisions, as Mother alleges. She cites to W.S., supra, 20 Cal.App.5th 132, as one of those decisions. In W.S., the trial court found a biological father was not a presumed parent under section 7611, subdivision (d), based on conflicting evidence provided by the biological father, the mother, and her husband, who was himself a presumed parent under section 7540 ; we affirmed the trial court's ruling. (Id. at pp. 137, 140.) On appeal, the biological father argued the trial court misinterpreted the "receiving requirement" of section 7611, subdivision (d), contending it was sufficient that he physically took the child into his home, such that the trial court erred in requiring him to prove "regular visitation and the assumption of parent-type obligations and duties such as feeding, bathing, putting daughter to bed, changing her clothes, disciplining her, and other similar tasks." (Id. at p. 142.) Reviewing the matter de novo, we determined the trial court applied the correct legal standard, as we do here. But the facts in W.S. are distinguishable from those in the instant matter; there was conflicting evidence regarding the closeness of the biological father's relationship with the child. Here, even Mother conceded that A.O. was bonded with Father and would be sad if her relationship with Father was terminated. In short, the record supports the trial court's finding that Father's actions over the course of A.O.'s life amounted to a clear declaration of his parental commitment to her, and that he had thus "received her into his home" as required under section 7611, subdivision (d).
Section 7540 creates a conclusive presumption, subject to certain limitations, that a child born to cohabiting spouses is a child of the marriage.
Mother also suggests our decision is a departure from the California Supreme Court's holding in Adoption of Michael H. (1995) 10 Cal.4th 1043, 1051. At the portion of the opinion cited by Mother, the Supreme Court clarified, "to become a presumed father, a man who has neither married nor attempted to marry his child's biological mother must not only openly and publicly admit paternity, but must also physically bring the child into his home." (Ibid., italics in original.) There is substantial evidence Father physically brought A.O. into his home when Mother returned from Utah, such that we are not departing from the Supreme Court's ruling.
Mother also contends that there was no substantial evidence presented at trial establishing that Father held A.O. out as his natural daughter. We conclude otherwise. Father made it clear to his family he intended to accept A.O. as his daughter, despite the fact he was not her biological parent. Father told his mother he intended to accept A.O. as his child before he confirmed through DNA testing that he was not her biological parent. When Mother moved to California, he unequivocally held A.O. out as his daughter to family and friends. Witnesses testified that Father acted like a parent with A.O. when they saw him with the child. He introduced A.O. to his two biological children and fostered a natural sibling relationship among the three children. He included A.O. in family events, including holiday gatherings. After Mother and Father terminated their relationship, he was listed as A.O.'s father on the form authorizing who could collect A.O. from school. A.O. referred to him as her father, and he was known as her father to her community of classmates, sports teammates, and teachers. Father's clear acceptance when others identified him as A.O.'s father, combined with his own assertion of himself as her father in his family and social circles constitutes substantial evidence that he held A.O. out to the community as his daughter.
By our review of this evidence supporting the trial court's findings under section 7611, subdivision (d), we do not lightly dismiss Mother's claims. In her appellate briefs, Mother presents us with a compelling argument that the trial court could have adopted an alternative outcome based on the evidence presented at trial. While this may be true, that is not what governs our decision. We must view the evidence in the light most favorable to the trial court's ruling; if such evidence exists, we must uphold the ruling, even if the record could support a different ruling. (R.M., supra, 233 Cal.App.4th at p. 780; S.Y., supra, 201 Cal.App.4th at p. 1031.) Applying this deferential standard of review, we conclude substantial evidence supports the trial court's determination that Father is a presumed parent under section 7611, subdivision (d). The record shows that Father demonstrated a commitment to A.O. and her well-being, such that he entered into a familial relationship with her. (W.S., supra, 20 Cal.App.5th at p. 143; E.C., supra, 202 Cal.App.4th at p. 1087.) The record before us also demonstrates that A.O. is the subject of the love and support of both Mother and Father, and benefits from the presence of both in her life. We affirm the trial court's order affording presumed parent status to Father.
III. DISPOSITION
The order granting Father presumed parent status under section 7611, subdivision (d) is affirmed.
/s/_________
Greenwood, P.J. WE CONCUR: /s/_________
Bamattre-Manoukian, J. /s/_________
Grover, J.