[REHEARING GRANTED] In re Raphael P. (2002)

In re RAPHAEL P. III, a Person Coming Under the Juvenile Court Law.

SAN FRANCISCO DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. RAPHAEL P., Defendant and Appellant.

(Superior Court of the City and County of San Francisco, Nos. JD973410 & JD993418, Donna J. Hitchens, Judge.)

(Opinion by Kline, P. J., with Lambden and Ruvolo, JJ., concurring.)

COUNSEL

Alan Siraco, under appointment by the Court of Appeal, for Defendant and Appellant.

Louise H. Renne, City Attorney, Kamala D. Harris, and Jennifer Williams, Deputy City Attorneys, for Plaintiff and Respondent.

Janet G. Sherwood under appointment by the Court of Appeal, for Minor. [96 Cal. App. 4th 719]

OPINION

KLINE, P. J.

Raphael P. appeals from an order of the juvenile court denying him presumed father status in the dependency proceeding concerning minor Raphael P. III. He contends the trial court's ruling, based upon a blood test confirming he was not the minor's biological father, was erroneous. With some reluctance, we affirm.

STATEMENT OF THE CASE AND FACTS

Raphael P. III was born in August 1997. His birth certificate lists his mother as Niemaha E., age 16, and his father as appellant, age 19.

According to appellant's declaration, he was in a relationship with Niemaha E. when Raphael was conceived, she told him he was the father and he so believed. Appellant was at this time in a drug rehabilitation program at Walden House. When he was released, appellant went to live with his grandmother, Agnes J., on Duke Court in San Francisco. Niemaha, then four and a half months pregnant, was in a foster home from which she frequently "went 'AWOL.'" Agnes J. tried to arrange with the San Francisco Department of Human Services (Department) for Niemaha to live with her; although this effort was unsuccessful, Niemaha moved in anyway and lived with appellant throughout her pregnancy. Appellant contributed to her financial support, was present at Raphael's birth in August 1997, was listed as the father on the baby's birth certificate and believed he signed a form at the hospital stating that he was the baby's father. When Niemaha and Raphael left the hospital, they lived with appellant at his grandmother's house. Appellant contributed financially to Raphael's support, cared for him, played with him, and took him to doctor's appointments.

On October 24, 1997, the Department filed a petition alleging that Raphael came within the provisions of Welfare and Institutions Code section [96 Cal. App. 4th 720] 300, subdivision (b) in that his mother was a dependent of the court and was "AWOL" with the minor, the mother refused to go to placement, the mother had dropped out of school and had no legal means of support, and "[t]he adult father may be harboring the minor mother and the baby and is not cooperating with this agency in getting the minor mother back into placement." This petition listed the baby's father as Curtis T. and the father's address as "c/o" Yolanda B. at the Duke Court address; notice of the hearing was mailed to Curtis T., "c/o" Yolanda B. Yolanda B. is appellant's mother. The parties failed to appear for a hearing on November 14 and the matter was continued to December 19, the court's minutes indicating that notice had been given to the father, who had failed to appear, and that the mother's whereabouts were unknown. Notice of this hearing had been addressed to "Curtis T[.]," "c/o Yolanda B[.]" The hearing was again continued to January 23, 1998, at which time it was taken off calendar pending service of a warrant.

Meanwhile, according to appellant's declaration, in December 1997, when Raphael was about four months old, appellant was required to return to Walden House for an additional five months to complete his diversion program. After 30 days, he was permitted to bring Raphael to Walden House for visits and spent 10 hours with Raphael each Saturday. Raphael was living with Niemaha at her grandmother's house. When appellant was released from Walden House, Raphael was living in Oakland with Yolanda B., who told appellant that Niemaha had dropped the baby off. Over the next five months, appellant frequently stayed with Raphael at Yolanda B.'s house and sometimes took Raphael with him to Agnes J.'s house; Niemaha sometimes stayed with them.

Appellant was arrested in October 1998 and incarcerated at the San Francisco jail in San Bruno until May 1999. During this time, Yolanda B. brought Raphael to visit appellant. Upon his release, appellant went to live again at Agnes J.'s house and continued to live there after she died. Yolanda B. and Raphael moved to Taylor Street in San Francisco and appellant spent weekends with them. Yolanda B. also brought Raphael to stay overnight with appellant. Appellant saw Raphael at least three times a week after May 1999. He considered Raphael his son, Raphael called him "Daddy" and appellant's extended family accepted Raphael as his son.

On November 12, 1999, a subsequent petition was filed alleging that Raphael came within the provisions of Welfare and Institutions Code section 300, subdivision (b), in that the mother had given conflicting information as to the minor's whereabouts, which were currently unknown; the mother left the minor at home alone at night on October 1, 1999; the mother had a [96 Cal. App. 4th 721] history of abandoning her children and on November 10, 1999, had left the minor's half-sibling with the paternal grandmother without making provisions for his ongoing care; the mother had not benefited from family preservation services; the mother had a history of unstable housing; the mother temporarily resided in the home of the grandmother, Alberta T., and the mother's paternal uncle, who was an alleged sexual offender; and the mother was a previous dependent of the court. This petition listed the father as Romear P., subsequently changed to Raphael P., and his address as "c/o" Yolanda B. at a Taylor Street address.

The Department's report indicated that it received a report on October 2, 1999, from the mother of a friend of Niemaha's, with whom Niemaha had been living, that Niemaha had gone out the night before, leaving two-year-old Raphael and his one-month-old half-brother, Keandre J., with no one to take care of them. On November 10, 1999, the Department was contacted by Crystal J., Keandre's paternal grandmother, who reported that the baby had been left with her and Niemaha had not come to get him. The Department's report stated that Raphael's whereabouts were unknown.

In a subsequent report, the Department stated that Raphael had been located on November 16, at the home of Yolanda B. Yolanda B. said Raphael had been living with her since about November 10 and the social worked placed the child with her.

At a hearing on November 19, the court detained Raphael and approved his placement with Yolanda B. The court found notice had been given as required by law and the father had willfully failed to appear for the hearing. The court's minutes list Raphael's father as "Curtis T[.]" and a subsequent "notice concerning rehearing" was sent to "Curtis T[.]" at the Duke Court address.

At the jurisdictional hearing on December 6, the court found the allegations of the subsequent petition true. The court's minutes listed the father as Romear P. In its jurisdictional/dispositional hearing report, which referred to appellant by his correct name, the Department stated that appellant lived in Hunter's Point but used his mother's Taylor Street address as his mailing address. The social worker stated she had "contacted" appellant at his mailing address but had received no response. It was recommended that Raphael remain in the care of Yolanda B. because he was "very bonded with her," she had his childcare and medical care in place and her apartment had ample room.

At a dispositional hearing on January 21, 2000, again in appellant's absence, the court continued Raphael's placement with Yolanda B. On [96 Cal. App. 4th 722] February 22, the court vacated the findings it had made as to appellant on December 6, 1999, and January 19, 2000. Appellant was found to have willfully failed to appear, the petition was amended to allege that the father's ability to care for the child was unknown, and this allegation was found true. The record contains the notice of the February 22, 2000, hearing that was mailed to appellant at Yolanda B.'s address on February 2.

In the Department's July 5, 2000, status review report, the social worker related that she had on four occasions asked Yolanda B. to have appellant call to arrange visitation, that Yolanda B. represented she had transmitted these messages, and that appellant had not contacted the worker. Notice of the July 20 hearing was mailed to appellant at Yolanda B.'s address, as was notice of its continuation to September 7. Appellant did not appear at the hearing; the dependency and Raphael's placement were continued.

On February 14, 2001, a supplemental petition was filed alleging that Yolanda B. had failed to provide adequate care for Raphael; that she had an ongoing substance abuse problem that interfered with her ability to care for the minor; that she had an open in-home dependency case regarding her own son, Ramone C.; and that there was an open referral regarding Yolanda B. and her 11- and 13-year-old daughters.

On February 15, with appellant in court, Raphael was ordered detained in an emergency shelter. The court ordered paternity testing for appellant.

The Department's March 5 report indicated that it had recently discovered Yolanda B. had had an open family maintenance case regarding her son Ramone since he was returned to her care on October 28, 1999, having been removed for neglect in December 1995. Yolanda B. had had signed a statement on November 16, 1999, that she had never been investigated for or involved in child abuse or neglect. On February 7, 2001, the Department received its 15th referral regarding Yolanda B. and her children, alleging general neglect of her daughters. The Department reported there was evidence that Yolanda B.'s daughters were providing most of Raphael's care and that Yolanda B. was struggling with her sobriety, as well as that Yolanda B. was having trouble paying bills and had engaged in welfare fraud by accepting two adult "fast passes" a month. Raphael's behavior had reportedly been deteriorating since the end of November, with him displaying aggressiveness toward other children. He had been placed in foster care with Keandre, in the home of Susan S., on February 9. Susan S. wanted to adopt Keandre and stated that she would also give Raphael a permanent home.

The social worker reported that she met appellant for the first time on February 9, 2001. Appellant asked if Raphael could be placed with him. The [96 Cal. App. 4th 723] social worker discussed reunification requirements and appellant stated he had no prior knowledge of them because he had been incarcerated. Appellant stated that he lived between the houses of his aunt and his girlfriend and that his son had been visiting him regularly. After Raphael's removal, appellant had been coming to the Department for visits with him. Appellant stated in his declaration that he initially was not aware of the dependency proceeding and became involved immediately upon learning of it.

The genetics test ordered by the court excluded appellant as Raphael's father.

After continuances, the review hearing was set for April 5, 2001. On March 29, appellant filed a motion for presumed father status, which was opposed by counsel for Raphael. On April 5, the trial court denied appellant's motion and sustained the supplemental petition. Appellant's application for a rehearing on his motion for presumed father status was denied on May 3. On May 10, the court terminated reunification services and set a Welfare and Institutions Code section 366.26 hearing for September 19, 2001.

Appellant filed a notice of appeal on May 31, 2001. fn. 1

DISCUSSION

Family Code fn. 2 section 7611 provides in pertinent part: "A man is presumed to be the natural father of a child if he meets the conditions provided in Chapter 1 (commencing with Section 7540) or Chapter 3 (commencing with Section 7570) of Part 2 or in any of the following subdivisions: . . . [¶] (d) He receives the child into his home and openly holds out the child as his natural child. . . ." fn. 3 The presumption set forth in section 7611, subdivision (d), "is a rebuttable presumption affecting the burden of proof and may be rebutted in an appropriate action only by clear and convincing evidence." (§ 7612, subd. (a).)

Only one of the other two means of establishing presumed father status mentioned in section 7611 is relevant to this case: Section 7570 et seq. [96 Cal. App. 4th 724] provides for voluntary declarations of paternity which, when filed with the Department of Child Support Services, have the force and effect of a judgment of paternity. (In re Liam L. (2000) 84 Cal. App. 4th 739, 746-747.) fn. 4

[1a] Appellant maintains that he is Raphael's presumed father under both section 7570 et seq. and section 7611, subdivision (d). The trial court rejected the former contention because it found no evidence a voluntary declaration of paternity had in fact been filed with the required agency. It found the presumption of section 7611, subdivision (d), rebutted by the blood test excluding appellant as Raphael's biological father.

I.

Section 7571, subdivision (a), provides: "[U]pon the event of a live birth, prior to an unmarried mother leaving any hospital, the person responsible for registering live births under Section 102405 of the Health and Safety Code shall provide to the natural mother and shall attempt to provide, at the place of birth, to the man identified by the natural mother as the natural father, a voluntary declaration of paternity together with the written materials described in Section 7572. Staff in the hospital shall witness the signatures of parents signing a voluntary declaration of paternity and shall forward the signed declaration to the Department of Child Support Services within 20 days of the date the declaration was signed. A copy of the declaration shall be made available to each of the attesting parents." If the declaration is not registered by the person responsible for registering live births at the hospital, [96 Cal. App. 4th 725] "it may be completed by the attesting parents, notarized, and mailed to the Department of Child Support Services at any time after the child's birth." (§ 7571, subd. (d).) "Except as provided in Sections 7575 [recission or motion to set aside declaration], 7576 [effect of declaration made on or before Dec. 31, 1996], and 7577 [effect of minor's declaration], a completed voluntary declaration of paternity, as described in Section 7574 [form requirements], that has been filed with the Department of Child Support Services shall establish the paternity of a child and shall have the same force and effect as a judgment for paternity issued by a court of competent jurisdiction. The voluntary declaration of paternity shall be recognized as a basis for the establishment of an order for child custody, visitation, or child support." (§ 7573.)

No voluntary declaration of paternity is included in the record in this case. Appellant stated in his declaration in the trial court that "[a]t the hospital, I wanted to be put on the baby's birth certificate as the father. I believe I and Neimaha were given a form to sign to say that I was the baby's father. I signed it." Moreover, appellant argues that the appearance of his name as the father on Raphael's birth certificate, which does appear in the record, proves he signed the voluntary declaration of paternity. Health and Safety Code section 102425, which sets forth the information required to be included in a birth certificate, provides: "If the parents are not married to each other, the father's name shall not be listed on the birth certificate unless the father and the mother sign a voluntary declaration of paternity at the hospital before the birth certificate is prepared. The birth certificate may be amended to add the father's name at a later date only if paternity for the child has been established by a judgment of a court of competent jurisdiction or by the filing of a voluntary declaration of paternity." (See, 42 U.S.C. 666(a)(5)(D)(i).)

Appellant argues, as he did in the trial court, that since Health and Safety Code section 102425 prohibits listing an unmarried father on the birth certificate absent a signed voluntary declaration of paternity, the fact that his name appears on the birth certificate demonstrates he in fact signed the certificate. The trial court seemed to accept this logic, acknowledging that appellant "said he signed one in the hospital, and the name on the birth certificate indicates he probably did." The trial court rejected appellant's argument, however, because there was no evidence that the voluntary declaration of paternity was filed with the Department of Child Support Services as required by section 7573 for the voluntary declaration of paternity to have the force of a judgment of paternity.

Appellant pointed out to the trial court that section 7571 requires hospital staff to forward the signed declaration to the Department of Child Support [96 Cal. App. 4th 726] Services. As the party seeking to establish presumed father status, however, appellant had the burden of providing evidence to support the presumption upon which he relied. As he produced no evidence that a voluntary declaration of paternity had been filed with the required agency, the trial court correctly rejected his claim of presumed father status based upon the declaration.

Counsel for appellant argues that the trial court erred in failing to determine, once appellant appeared in the proceedings, whether he had executed a voluntary declaration of paternity. In dependency proceedings, the court is required, at the detention hearing or "as soon thereafter as practicable," to inquire of the mother and other appropriate persons "as to the identity and address of all presumed or alleged fathers." (Welf. & Inst. Code, § 316.2, subd. (a); Cal. Rules of Court, rule 1413.) Certain specific issues are enumerated to be included in this inquiry, "as the court deems appropriate," including "[w]hether any man has formally or informally acknowledged or declared his possible paternity of the child, including by signing a voluntary declaration of paternity." (Welf. & Inst. Code, § 316.2, subd. (a)(5); see, Cal. Rules of Court, rule 1413, subd. (b)(5).) Here, the trial court apparently failed to inquire whether a voluntary declaration of paternity had been executed and filed, although it did issue a "paternity inquiry" to the district attorney's office inquiring whether paternity had been previously declared by a court order or judgment. Assuming the trial court did fail to direct any of the parties to determine whether a voluntary declaration of paternity had been filed with the Department of Child Support Services, however, appellant's attorney does not explain how this failure would require the court to assume the declaration had in fact been filed or relieve appellant of the obligation to present evidence that the document existed and had been filed.

II.

Under section 7611, subdivision (d), a man is "presumed to be the natural father of a child if he . . . receives the child into his home and openly holds out the child as his natural child." Appellant argues that he fulfilled the requirements of this statute because he lived with Raphael's mother during her pregnancy, he attended Raphael's birth and was listed on the birth certificate as Raphael's father, Raphael and the mother lived with appellant at his grandmother's home for several months after Raphael was born, appellant regularly stayed with Raphael at appellant's mother's home after appellant completed his diversion program and frequently had Raphael with him at his grandmother's home, and appellant and all his extended family viewed Raphael as appellant's son. The trial court, without deciding whether the facts supported application of the presumption, accepted the [96 Cal. App. 4th 727] argument of appellant's trial counsel that the blood test demonstrating appellant was not Raphael's biological father precluded appellant from establishing the presumption of paternity or rebutted that presumption.

The trial court relied primarily upon In re Olivia H. (1987) 196 Cal. App. 3d 325 (Olivia H.), which held that a man shown by blood tests not to be the biological father was precluded from establishing presumptive father status under the predecessor statute to section 7611, subdivision (d). Olivia H. equated the blood test results with a judgment of paternity, holding that the case was governed by the statutory directive that "'[t]he presumption [that a man is the natural father of a child] is rebutted by a court decree establishing paternity of the child by another man.'" (Id. at p. 330, see § 7612, subd. (c).) fn. 5

Other courts have since questioned this conclusion. In re Jerry P. (2002) 95 Cal. App. 4th 793, 804 (Jerry P.) disagreed with Olivia H.: "In our view, section 7612, subdivision (c), contemplates a situation in which a man of flesh and blood, as opposed to a mere hypothetical man, is put forward as the father of the child. Otherwise, a child could be precluded from having a loving, nurturing relationship with a committed father by a man the child may never even have met, who may be totally uninterested in the child and who cannot obtain presumed father status in his own right." Previously, the court in Comino v. Kelley (1994) 25 Cal. App. 4th 678, 686, footnote 10 (Comino), had noted: "We question whether a negative blood test of one man is the equivalent of an affirmative judicial declaration of paternity of another man, but we need not decide the issue here."

It is clear that a man is not required to produce evidence of biological paternity to be declared a presumed father under section 7611. (Id. at p. 685 [construing former Civ. Code, § 7004].) The question in this case, however, is whether biological proof of nonpaternity necessarily precludes presumed father status.

This question was answered in the negative, at least in the context of dependency proceedings, in Jerry P. In Jerry P., the child was removed from the mother's custody and placed in foster care shortly after birth; the man who believed himself to be the father had held himself out as the baby's [96 Cal. App. 4th 728] father from the time he learned of the mother's pregnancy, provided support to the mother during her pregnancy, visited the baby every day at the hospital until the baby was moved to the foster home without his knowledge, then visited regularly once he was permitted by the court. Blood tests, however, confirmed the man was not the biological father.

In addition to disagreeing with Olivia H., as described above, Jerry P. followed In re Kiana A. (2001) 93 Cal. App. 4th 1109 (Kiana A.), which had previously interpreted section 7612, subdivision (a), "as giving the trial court discretion to decide whether proof the 'presumed father' is not the biological father is sufficient to rebut the presumption." (Jerry P., supra, at p. 803.) Kiana A. noted that section 7612, subdivision (a), "states a presumption of paternity 'may be rebutted in an appropriate action only by clear and convincing evidence. (Italics added.) Thus, although the results of genetic testing constitute clear and convincing evidence, it does not follow that such evidence will rebut the presumption in every case. Rather, the statute seeks to protect presumptions of paternity, once they have arisen, from being set aside except upon clear and convincing evidence and only in an appropriate case." (Kiana A., supra, at pp. 1118-1119; Jerry P. supra, at pp. 803-804.)

Jerry P. further questioned whether presumed fatherhood even should be treated as an evidentiary presumption in the dependency context. [2] In dependency cases, presumed fathers are entitled to reunification services while "mere biological" fathers are not. (In re Zacharia D. (1993) 6 Cal. 4th 435, 451 (Zacharia D.).) fn. 6 Thus, Jerry P. noted that while the primary purpose of section 7611 is to establish paternity through presumptions, the purpose of the statute in the dependency context is to determine whether an alleged father has demonstrated sufficient commitment to parental responsibilities to be given the rights to reunification [96 Cal. App. 4th 729] services and custody. (Jerry P., supra, at p. 804.) Jerry P. stated that "it would not make sense to use the categories in section 7611 simply to establish an evidentiary presumption a man is a 'natural father' when being a 'natural father' is a step below being a 'presumed father.'" (Id. at p. 805.) Additionally, according to Jerry P., "if the role of section 7611 in a dependency proceeding was merely to establish an evidentiary presumption a man was the child's natural father, a man who was already established to be the child's natural father before dependency proceedings commenced could never become a 'presumed father' because a presumption under the statute would be unnecessary. We fail to see the rationality in a system which would confer more rights on a father when his biological tie to the child is unknown than when it is." (Ibid.) Jerry P. noted language in California Supreme Court cases "suggest[ing] in the dependency context the term 'presumed father' is not an evidentiary term but a term of convenience used to identify a preferred class of fathers by reference to the familial bonds described in section 7611 which the Legislature has determined reasonably approximate the class of fathers it wishes to benefit": "In Kelsey S. [Adoption of Kelsey S. (1992) 1 Cal. 4th 816] the court stated: 'A man's parentage of a child may be undisputed and legally proven, but he may nevertheless fail to be a "presumed father" . . . . Conversely, even if paternity is denied and legally disproved, a man may be deemed, under some circumstances, to be a "presumed father."' [1 Cal.4th at p. 823, fn. 3.] Although Kelsey S. was an adoption case, it relied on the same categories in section 7611 for determining presumed father status as are used in dependency cases. Moreover, in Zacharia D., which was a dependency case, the court noted 'it is possible for a man to achieve presumed father status, with its attendant rights and duties, without being the biological father.'" (Ibid.)

[1b] Other cases also reflect the principle that biology is not necessarily the determining factor with respect to presumed fatherhood. The Comino court refused to allow the mother, on appeal, to introduce blood tests she claimed eliminated the probability that the man found to be her child's presumed father was his biological father because she had not introduced these tests in the trial court. (25 Cal.App.4th at pp. 685-686.) Presumed father status had been established under former Civil Code section 7004, subdivision (a)(4) [now § 7611, subd. (d)], as the man had lived with the mother and child as a family for the two and a half years following birth, supporting the child and sharing care giving responsibilities with the mother. (Id. at p. 682.) Comino also rejected the mother's attempt to defeat the presumed father's claim by relying on the conclusive statutory presumption that the child of a wife living with her husband, who is not impotent or [96 Cal. App. 4th 730] sterile, is a child of the marriage. (§ 7540 [former Evid. Code, § 621, subd. (a)].) Although the mother had been married to another man at the time of conception, the marriage was one of "convenience" to a man with whom she was not sexually involved, the court found the policies underlying the presumption would not be served by applying it to a marriage that existed in name only and that the societal concern for the child to have a father would be better served by preserving the child's relationship with the only man he had ever known as his father. (25 Cal.App.4th at p. 684.)

In Dawn D. v. Superior Court (1998) 17 Cal. 4th 932 (Dawn D.), the Supreme Court held that a man who claimed to be a biological father was not entitled to obtain blood tests to prove his paternity because the mother's husband was the presumed father under section 7611, subdivisions (a) and (d). The mother had separated from her husband and begun living with the alleged biological father at the time of conception, but returned to her husband a couple of months later and raised the child with him.

In Michelle W. v. Ronald W. (1985) 39 Cal. 3d 354, the child was conceived while the mother was living with her husband but having an affair with another man, Donald. The husband and wife raised the child together for four years, until they ended the marriage, after which time the husband continued his parental relationship with the child. The mother subsequently married Donald and they sought to establish his paternity. Michelle W. upheld application of the section 7540 presumption in favor of the husband, and denial of a motion for blood tests, because the husband's interest in continuing his established relationship with the child and state's interest in "famial stability and the welfare of the child" outweighed Donald's private interest in establishing paternity and the child's interest in a legal determination of her biological parentage.

Kiana A. also involved competing claims of paternity. The mother had been living with Kevin when she became pregnant but a few months later began to live with Mario, who was named as father on the birth certificate and subsequently married the mother. Mario had been incarcerated since about the time of the child's birth and the child did not recall ever having seen him before the dependency proceedings which began when she was about 12 years old. Kevin had lived with the mother on and off since the child was four years old and treated the child as his own, and the child considered him her father. The trial court denied requests for genetic testing made by Kevin and by the agency, determined that both Kevin and Mario qualified as presumed fathers and held that Kevin's presumption prevailed [96 Cal. App. 4th 731] because of his relationship with the child. Kiana A. rejected Mario's argument that the trial court should have required genetic testing because Mario had not requested such testing in the trial court, but noted that testing would not in any event be determinative: "Even if Mario A. could raise the issue at this juncture, it would fail because biological paternity by a competing presumptive father does not necessarily defeat a nonbiological father's presumption of paternity."

The above cases refused to allow biological evidence to enter the determination of paternity by refusing to permit or require evidence of biological paternity tests. Several other cases in which blood test evidence was presented refused to allow the evidence to control the paternity determination. In Steven W. v. Matthew S. (1995) 33 Cal. App. 4th 1108 (Steven W.), the mother separated from her husband, Matthew, moved in with Steven, then conceived the child while on a weekend away with Matthew. Steven participated in all the preparations for the baby, was listed as father on the birth certificate and shared all caretaking and decision making concerning the child with the mother. He continued to share custody and support after he separated from the mother some two years after the child's birth, including after Matthew returned to live with the mother. Blood tests confirmed Matthew was the child's biological father. Steven claimed to be the child's presumptive father under former Civil Code section 7004, subdivision (a)(1) [now § 7611, subd. (d)]; Matthew claimed to be the presumptive father under that provision as well as under former Civil Code section 7004, subdivision (a)(1) [now § 7611, subd. (a)].

Steven W. upheld the trial court's determination that the presumption of Steven's paternity was controlling, despite the blood tests showing Matthew was the biological father, because of Steven's "enduring father-child relationship" with the child. As section 7612, subdivision (b), now provides, former Civil Code section 7004, subdivision (b), then provided that when two or more presumptions conflict, the one "which on the facts is founded on the weightier consideration of policy and logic controls." As the Steven W. court explained: "The paternity presumptions are driven by state interest in preserving the integrity of the family and legitimate concern for the welfare of the child. The state has an '"interest in preserving and protecting the developed parent-child . . . relationships which give young children social and emotional strength and stability."' (Susan H. v. Jack S. (1994) 30 Cal. App. 4th 1435, 1442 . . . , citing Michelle W. v. Ronald W., supra, 39 Cal. 3d 354, 363 . . .].) The courts have repeatedly held, in applying paternity presumptions, that the extant father-child relationship is to be preserved at the cost of biological ties. (Michelle W. v. Ronald W., supra, at p. 363 [alleged biological father's abstract interest in establishing [96 Cal. App. 4th 732] paternity not as weighty as the state's interest in familial stability and the welfare of the child]; Comino, supra, at p. 684 . . . [court refused to apply conclusive presumption of Evid. Code, § 621 to deny the child the only father she had ever known].)

'"'[I]n the case of an older child [over two years of age] the familial relationship between the child and the man purporting to be the child's father is considerably more palpable than the biological relationship of actual paternity. A man who has lived with a child, treating it as his son or daughter, has developed a relationship with the child that should not be lightly dissolved . . . . This social relationship is much more important, to the child at least, than a biological relationship of actual paternity. . . .'"' (Susan H. v. Jack S., supra, 30 Cal.App.4th at p. 1443, quoting Estate of Cornelious (1984) 35 Cal. 3d 461, 465-466 . . . .)" (Steven W., supra, at pp. 1116-1117.)

In Susan H. v. Jack S., supra, in the midst of proceedings to dissolve her marriage, the mother sought to establish the paternity of another man. The husband had raised the child as his own; the other man disclaimed paternity, relying upon the presumption based on the mother's marriage to her husband. Although blood tests proved the husband was not the father, the court held he remained the presumed father by virtue of his relationship with the child. fn. 7

In Rodney F. v. Karen M. (1988) 61 Cal. App. 4th 233, a man who had had an affair with a married woman sought to establish paternity to her child. Although blood tests showed he was the father, the trial court applied the presumption of section 7540 to hold that the woman's husband was the father, finding the trial court had erred in ordering the blood test because the other man lacked standing to request it. The child had been raised by the husband and wife and had had no contact with the other man. Similarly, in Miller v. Miller (1998) 64 Cal. App. 4th 111 (Miller), the marital presumption was held to prevail over the claim of the apparent biological father, who did not qualify as a presumed father [96 Cal. App. 4th 733] under any of the statutory tests. The husband had a continuing emotional and financial relationship with the child and the Miller court found the other man's interest in establishing paternity insufficient to override the state's interests in "familial stability and the best interest of the child." (Id. at p. 120.)

These cases generally reflect a determination that biology is not necessarily determinative of legal paternity, and specifically that social relationships may "trump" genetics in an appropriate case. In all of the above cases, giving legal recognition to biological paternity would have upset an existing parent-child relationship between the presumed father and the child.

Other cases, however, align with Olivia H., supra, in suggesting that genetic tests disproving a presumptive father's biological connection to the child are dispositive. In re Marriage of Moschetta, (1994) 25 Cal. App. 4th 1218 (Moschetta) involved a surrogacy contract in which a husband and wife agreed to have another woman impregnated with the husband's semen. When the husband and wife separated about seven months after the baby was born, each of them as well as the surrogate asserted claims for custody of the child. Moschetta held that the surrogate and the husband were the legal parents of the child; the wife was not the mother because she had not given birth to the child and was not genetically related to her. (Id. at pp. 1224-1226.) The court rejected the argument that the wife should be considered the mother by a "'gender-neutral'" (id. at p. 1225) application of the presumption that a husband the legal father of his wife's child if the couple were married and cohabiting at the time of conception and the husband is not sterile. "The argument fails because the presumption is not absolutely conclusive, and may be defeated by blood tests which show that the husband is not the genetic father of the child. The key phrase in California's statutory codification of the rule is, 'Except as provided in Section 7541.' Subdivision (a) of Family Code section 7541 provides that if the conclusions of 'all the experts, as disclosed by the evidence based on blood tests,' is that 'the husband is not the father of the child, the question of paternity of the husband shall be resolved accordingly.' [Italics in original.] . . . . Genetic parenthood established by blood tests trumps a presumption based on the cohabitation of a married couple." (25 Cal.App.4th at p. 1225.) fn. 8

Johnson v. Calvert (1993) 5 Cal. 4th 84 (Johnson) also involved a surrogacy contract, but one in which an embryo [96 Cal. App. 4th 734] created from the egg of a wife and sperm of her husband were implanted in the uterus of another woman who agreed to bear the child for the couple. Johnson determined that both women offered acceptable proof of maternity--the surrogate, that she gave birth to the child, and the wife, that she was genetically related to the child--and resolved the issue in favor of the husband and wife based on the intention reflected in the surrogacy contract that they be the child's parents. As relevant to the present case, in its analysis, Johnson stated: "Evidence Code section 892 [now § 7551] provides that blood testing may be ordered in an action when paternity is a relevant fact. When maternity is disputed, genetic evidence derived from blood testing is likewise admissible. (Evid. Code, § 892 [now § 7551]; see Civ. Code, § 7015 [now § 7560].) The Evidence Code further provides that if the court finds the conclusions of all the experts, as disclosed by the evidence based on the blood tests, are that the alleged father is not the father of the child, the question of paternity is resolved accordingly. (Evid. Code, § 895 [now § 7554].) By parity of reasoning, blood testing may also be dispositive of the question of maternity. Further, there is a rebuttable presumption of paternity (hence, maternity as well) on the finding of a certain number of genetic markers. (Evid. Code, § 895.5 [now § 7555].)" (5 Cal.4th at pp. 91-92.)

In Brian C. v. Ginger K. (2000) 77 Cal. App. 4th 1198, the child was conceived during a time when the wife was having an affair with Brian while continuing to cohabit with her husband, William. During the pregnancy, the wife left her husband and moved in with Brian, who attended the birth, was listed as father on the birth certificate and raised the child as his own. After about a year, the wife and Brian broke up, but he continued his role as father to the child. The wife then reconciled with William and tried to stop Brian from seeing the child. Brian sued to establish paternity and the trial court granted summary judgment in favor of the wife, on the ground that the conclusive presumption of section 7540 made the husband the father. Brian C. determined that William and Brian each had a claim to presumed father status--William on the basis of the section 7540 marital presumption, Brian under section 7611, subdivision (d), by virtue of his actions toward and relationship with the child--and found unconstitutional the trial court's conclusion that section 7540 automatically cut off Brian's rights. fn. 9 In noting that it was not yet called upon to weigh the two presumptions against each other under section 7612, subdivision (b), the [96 Cal. App. 4th 735] Brian C. court stated: "And in all likelihood DNA tests on remand will probably render that problem moot. . . . DNA tests will certainly constitute 'clear and convincing evidence' rebutting any of the presumptions which might favor either Brian or William. (Under subd. (a) of Fam. Code, § 7612, a presumption shown by § 7611 'may be rebutted . . . only by clear and convincing evidence.') Under section 7551, the court may order blood tests at any time on either its own motion or if suggested by any person involved in the case." (77 Cal.App.4th at p. 1222 and fn. 20, italics in original.)

Brian C. thus assumed what Moschetta held and Johnson suggested, that a presumption of paternity, even the "conclusive" presumption established by section 7540, would be rebutted by evidence of genetic tests demonstrating another man to be the father of the child. While Moschetta and Johnson involved maternity rather than paternity, this distinction is irrelevant to their interpretation of the relevant statutes as requiring a decision in accordance with genetic evidence where such evidence has been presented.

All three of these cases, however, involved competing claims of would-be parents who wished to raise the child: Following the biological tie did not deprive the child of a parent. The same is true of the cases described above that allowed biology to be overridden by existing familial relationships: In these cases, refusing to follow the biological tie preserved existing parent-child relationships. In the present case, by contrast, there is only one man attempting to establish presumed father status, only one man who has expressed a paternal interest Raphael. According to appellant, Raphael's mother came to live with him at his grandmother's house during her pregnancy; she and Raphael lived with appellant there for several months after Raphael's birth; appellant cared for, provided for and played with Raphael and generally treated Raphael as his son; appellant continued to have a significant relationship with Raphael over the following years; appellant and his extended family considered Raphael appellant's son; and Raphael considered appellant his father. The trial court did not make factual findings on appellant's claim that he qualified as Raphael's presumed father under section 7611, subdivision (d), or on appellant's ability to parent Raphael at the present time. If appellant's assertions are true, however, he received Raphael into his home as an infant, openly held Raphael out as his son, had a significant relationship with Raphael and was regarded by Raphael as his father. If this is in fact the case, precluding appellant from establishing presumed father status because of the lack of a biological tie to [96 Cal. App. 4th 736] Raphael would defeat an existing parent-child relationship without any replacement except the dependency system. fn. 10

The Legislature has declared as a matter of policy that "[t]here is a compelling state interest in establishing paternity for all children." (§ 7570, subd. (a).) In its findings and declarations regarding the system for voluntary declarations of paternity, the Legislature stated: "Establishing paternity is the first step toward a child support award, which, in turn, provides children with equal rights and access to benefits, including, but not limited to, social security, health insurance, survivors' benefits, military benefits, and inheritance rights. Knowledge of family medical history is often necessary for correct medical diagnosis and treatment. Additionally, knowing one's father is important to a child's development. [¶] A simple system allowing for establishment of voluntary paternity will result in a significant increase in the ease of establishing paternity, a significant increase in paternity establishment, an increase in the number of children who have greater access to child support and other benefits, and a significant decrease in the time and money required to establish paternity due to the removal of the need for a lengthy and expensive court process to determine and establish paternity and is in the public interest." "The Legislature has . . . made it perfectly clear that public policy (and, we might add, common sense) favors, whenever possible, the establishment of legal parenthood with the concomitant responsibility." (In re Marriage of Buzzanca, supra, 61 Cal.App.4th at p. 1423.)

Presumptive paternity based upon a man's relationship with a child under section 7611, subdivision (d), serves similar interests, albeit not the concern with knowledge of family medical history. As discussed above, the presumptive paternity statutes allow paternity to be established without direct reference to biology. Existing case law is clear that a court is not required to examine biological evidence in making a determination of paternity. (Dawn D., supra; Michelle W., supra; Comino, supra.) Jerry P., Steven W., Kiana A., Rodney F., Susan H. and Miller all stand for the proposition that one man may be found a child's presumed father despite evidence that another is the biological father. These cases, however, did not directly discuss the statutory provisions that led Moschetta, Johnson and Brian C. to view biological evidence as determinative. The former cases--while undoubtedly correct as [96 Cal. App. 4th 737] a matter of social policy--appear inconsistent with the directive of section 7554 that paternity determinations be made in accordance with blood test evidence.

Although Moschetta, Johnson and Brian C., did not directly hold that blood test evidence must be treated as determinative regardless of the facts of a given case, the statutes they construed are quite explicit. Sections 7540 and 7541 provide that even the otherwise conclusive marital presumption must give way to biological evidence: "Notwithstanding Section 7540, if the court finds that the conclusions of all the experts, as disclosed by the evidence based on blood tests performed pursuant to Chapter 2 (commencing with Section 7550), are that the husband is not the father of the child, the question of paternity of the husband shall be resolved accordingly." (§ 7541, subd. (a), emphasis added.) Section 7551 authorizes courts to order genetic testing in civil actions or proceedings "in which paternity is a relevant fact." Section 7554, subdivision (a), like section 7541, directs that "[i]f the court finds that the conclusions of all the experts, as disclosed by the evidence based upon the tests, are that the alleged father is not the father of the child, the question of paternity shall be resolved accordingly." In the face of this statutory language, it is difficult to see how the Legislature's directive to follow the results of biological tests can be viewed as anything other than mandatory.

We recognize, as Kiana A. pointed out, that section 7612 states the presumptions of section 7611 "'may be rebutted in an appropriate action only by clear and convincing evidence.'" (93 Cal.App.4th at p. 1118, italics added in Kiana A.) Kiana A. read this language to indicate that "although the results of genetic testing constitute clear and convincing evidence, it does not follow that such evidence will rebut the presumption in every case. Rather, the statute seeks to protect presumptions of paternity, once they have arisen, from being set aside except upon clear and convincing evidence and only in an appropriate case. . . . '[A]s between two men, both of whom qualify as presumptive fathers, biological paternity does not necessarily determine which presumption will prevail under section 7612.'" (93 Cal.App.4th at pp. 1118-1119.) In a case such as the present, where there is only one man asserting paternity, the case for refusing to make the results of genetic testing determinative in every case would appear even stronger. (See Jerry P., supra, at p. 804.) To read section 7612, subdivision (a), as allowing the trial court to decide which cases are "appropriate" for rebuttal with the results of genetic testing, however, would allow the rebuttable presumptions of section 7611 to be even more conclusive than the conclusive presumption of section 7540, which expressly gives way to contrary biological proof. [96 Cal. App. 4th 738]

Appellant argues that the provisions of section 7612, read as a whole, reflect a legislative intent that a section 7611 presumption of paternity be rebutted only by proof that another identified man is the child's father, not by proof that the alleged father is not the biological one. This is because, appellant urges, subdivisions (b) and (c) of section 7612 "expressly contemplate competing paternal interests, not simply the absence or negation of one." Subdivisions (b) and (c) of section 7612 do indeed deal with competing paternal interests: Subdivision (b) directs that a conflict between presumptions arising under section 7611 be resolved in favor of the presumption grounded on "weightier considerations of policy and logic" while subdivision (c) directs that a section 7611 presumption is rebutted by a judgment establishing paternity of the child by another man. Subdivision (a) of section 7611, however, simply states that a section 7611 presumption "may be rebutted in an appropriate case only by clear and convincing evidence." The statute by its terms does not require clear and convincing evidence of another man's paternity. Moreover, reference to the entire statutory scheme governing paternity determinations makes it illogical to read section 7612 as appellant would have us do. As discussed above, section 7540 and 7541 provide that the otherwise expressly "conclusive" presumption that a husband cohabiting with his wife is the father of her child to be rebutted by blood test evidence demonstrating "that the husband is not the father of the child." (§ 7541.) If the otherwise conclusive marital presumption is rebutted by proof that the husband is not the father--rather than proof that an identifiable other man is the child's father--we cannot read section 7612 to make the rebuttable presumption of section 7611 more conclusive than the section 7540 presumption.

We are left with a conflict in the Family Code, as least as applied to cases like this one, between the legislative policy statement favoring establishment of paternity on the one hand and statutes requiring nonrecognition of a nonbiological father regardless of his relationship with the child and desire to accept paternal responsibility. Neither the presumed father statutes nor those governing use of genetic tests to determine paternity were developed for use in the dependency context. The presumed father statutes are part of the Uniform Parentage Act (Civ. Code, § 7000 et seq.), which was enacted "to eliminate the legal distinction between legitimate and illegitimate children," replacing "the distinction between legitimate and illegitimate children with the concept of the 'parent and child relationship.'" (Johnson, supra, at pp. 88-89.) Whatever role genetic testing may play in resolving disputes between competing would-be fathers, or confirming the financial obligations of fathers who might prefer to ignore their roles, we fail to see what purpose is served by using genetic testing to defeat an existing father-child relationship when there is no biological father seeking to assume care, [96 Cal. App. 4th 739] support and nurturance of the child. Thus, in the present case, appellant does not seek to interfere with another man's claim of paternity. Considering just the present case, if appellant's assertions are true and if he is presently fit to parent Raphael, allowing appellant to take custody of the boy with whom he has shared a parent-child relationship since birth might appear completely appropriate. fn. 11 Our task, however, is not to determine the appropriate social policy, but to interpret the statutes enacted by our Legislature. The Legislature has adopted a statutory scheme under which biological proof--when it is ascertained--trumps presumptions of paternity. Conflict between these statutes and the policy favoring establishment of paternity must be resolved by the Legislature. In the case before us--again, if appellant's characterization of his relationship with Raphael is correct--the facts command sympathy for a man who will lose his parental role in a child's life and the child who will lose the man he has known as his father. Whether the lack of biological connection should be determinative in such a case is a policy decision we are not authorized to make.

The judgment is affirmed.

Lambden, J., and Ruvolo, J., concurred.

FN 1. Appellant's parental rights were terminated at a hearing on November 27, 2001. Respondent, on January 24, 2002, after completion of the briefing on appeal, asked this court to take judicial notice of the termination order and to dismiss the appeal as moot. We take judicial notice of the order but deny the request for dismissal. We deny this request: If the trial court's determination that appellant could not be considered Raphael's presumed father was incorrect, the resulting termination proceedings which occurred without appellant's participation could not stand.

FN 2. Unless otherwise indicated, all further statutory references are to the Family Code.

FN 3. Under the other subdivisions of section 7611, a man is presumed to be the natural father of a child if: "(a) He and the child's natural mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a judgment of separation is entered by a court.

"(b) Before the child's birth, he and the child's natural mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and either of the following is true:

"(1) If the attempted marriage could be declared invalid only by a court, the child is born during the attempted marriage, or within 300 days after its termination by death, annulment, declaration of invalidity, or divorce.

"(2) If the attempted marriage is invalid without a court order, the child is born within 300 days after the termination of cohabitation.

"(c) After the child's birth, he and the child's natural mother have married, or attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and either of the following is true:

"(1) With his consent, he is named as the child's father on the child's birth certificate.

"(2) He is obligated to support the child under a written voluntary promise or by court order."

FN 4. The other means, not applicable to the present case, is through the conclusive presumption of section 7540: "[T]he child of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage," except as demonstrated by blood tests sought within two years of the child's birth according to the provisions of section 7541.

FN 5. At the time Olivia H. was decided the presumption now contained in section 7611, subdivision (d), was contained in former Civil Code section 7004, subdivision (a)(4). Former Civil Code section 7004, subdivision (b), provided that the "presumption is rebutted by a court decree establishing paternity of the child by another man." Section 7612, subdivision (c), differs from the former statute only in that it refers to a "judgment" rather than a "court decree."

FN 6. The statutes the Supreme Court construed in Zacharia D. which led it to conclude that only presumed fathers are entitled to reunification services have since been changed. At that time, Welfare and Institutions Code section 361.5 required provision of reunification services to "the minor and the minor's parents or guardians" and the first statutory differentiation between "presumed," "alleged" and "natural" fathers appeared in statutes addressing potential termination of parental rights, beginning with Welfare and Institutions Code section 366.23 requiring notice of a Welfare and Institutions Code section 366.26 hearing to both presumed and alleged fathers. (6 Cal.4th at p. 448.) Currently, Welfare and Institutions Code section 361.5 requires reunification services for "the child and the child's mother and statutorily presumed father or guardians. Upon a finding and declaration of paternity by the juvenile court or proof of a prior declaration of paternity by any court of competent jurisdiction, the juvenile court may order services for the child and the biological father, if the court determines that the services will benefit the child." This statutory change does not alter the point that Jerry P. drew from Zacharia D., that presumed fathers rate higher in dependency proceedings than biological fathers, as the current statute makes reunification services mandatory for presumed fathers but discretionary for biological fathers.

FN 7. Appellant also points out that biology does not control in cases involving a husband's consent to artificial insemination of his wife with sperm from a donor. In such cases, the husband is the legal father despite the absence of biological relationship. (People v. Sorenson (1968) 68 Cal. 2d 280, 284.) Similarly, In re Marriage of Buzzanca (1998) 61 Cal. App. 4th 1410 involved a married couple who entered an agreement to have an embryo genetically unrelated to either of them implanted in a surrogate who would give birth to the child. The husband filed for dissolution just before the baby was born and claimed there were no children of the marriage. Buzzanca found the husband and wife were both lawful parents of the child despite the lack of biological connection, just as a man who consents to artificial insemination of his wife, although not genetically related to the child, is the child's legal father. (§ 7613.)

FN 8. It may be noteworthy that the wife in Moschetta, by the time of the appeal, did not assert any claim to the trial and in fact filed a brief in support of the trial court judgment finding the husband and the surrogate mother to be the legal parents of the child. (25 Cal.App.4th at p. 1224.)

FN 9. Other courts have refused to apply the marital presumption in situations where, although the child was conceived during marriage, there remained no marital unit to protect and blood tests established another man to be the father of the child. (Alicia R. v. Timothy M. (1994) 29 Cal. App. 4th 1232 [marriage annulled some two years after child's birth]; County of Orange v. Leslie B. (1993) 14 Cal. App. 4th 976 [marriage ended before child born].) In these cases, the courts refused to apply the presumption where its purposes of protecting the family unit would not be served and the biological father was attempting to avoid responsibility for the child. (Leslie B., supra, 14 Cal.App.4th at pp. 980-982.)

FN 10. Among the many factual issues not resolved in this case is the question when appellant learned of the existence of the dependency proceedings. Whether appellant had notice of the proceedings from early on and neglected to come forward as Raphael's father, or did not receive notice until later and came forward immediately upon receiving it, would have significant bearing on any determination whether appellant could be viewed as a presumptive father under section 7611, subdivision (d).

FN 11. We recognize that the policy implications of any given means of determining paternity (and maternity) are tremendous. When confronted with a man who has every reason to believe he is a child's biological father and who has developed a strong paternal relationship with a child who has no other parent able to assume parental responsibility, it may seem quite difficult to justify termination of the existing relationship solely because of a belated discovery of the absence of a biological tie. On the other hand, obvious problems would be created by a statutory scheme that allowed any person, however unrelated, to forge a parental type relationship with a child which could then potentially be used to assert rights against the child's relatives (by blood or marriage).