County of Orange v. Younge

Filed 4/3/07 County of Orange v. Younge CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from an Order of the Superior Court of Orange County, James L. Waltz, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Bill Lockyer, Attorney General, Thomas R. Yanger, Assistant Attorney General, Paul Reynaga and Linda M. Gonzalez, Deputy Attorneys General, for Plaintiff and Appellant.

No appearance for Defendant and Respondent.

The County of Orange appeals from an order denying its motion for a determination that Troy Michael Younge is the legal father of 15-year-old T., and obligating him to continue paying child support for her. The County argues the trial court erred because Younge qualified as T.s legal father under both the doctrine of paternity by estoppel, and the presumption created by Family Code section 7611, subdivision (d). We are unpersuaded. None of the cases we have found applies the doctrine of paternity by estoppel to an alleged father whose conduct was based upon the honest, but incorrect, belief that he actually was the childsnatural father. As for Family Code section 7611, subdivision (d), it applies only to one who both receives the child into his home and openly holds out the child as his natural child. In this case, it is undisputed that Younge never received T. into his home. Consequently, the order is affirmed.

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T. was born in 1991. For the first five years of her life, T.s mother believed that a man other than Younge was her father. In 1996, her mother filed a motion with the court requesting that both that other man and Younge take paternity tests to determine the identity of T.s biological father. The other man took the test, and was excluded as T.s father. T.s mother then told Younge he was T.s father, and he believed that he was. Younge did not take the paternity test, and instead entered into an oral agreement with T.s mother to pay child support. Younge also added T. to his medical insurance, listing her as his daughter.

At around that same time, Younge began visiting with T. on weekends at her mothers home. When T. got older, Younge also took her out to eat, or to the movies on occasion. Generally, Younge visited with T. once or twice per month, for an average of three to four hours each time.

Younge also attended T.s birthday parties and two of her school choir functions, and gave her gifts at appropriate times. He also took her to a couple of family functions, where he introduced her as his daughter. T. also referred to Younge as her dad, although she never had occasion to introduce him to any third parties as her father.

In April of 2005, Younge ceased his visits with T., and also his support payments. The Countys Department of Child Support Services filed a complaint to establish Younges paternity of T., and enforce his obligation to pay support. Younge answered the complaint, contesting his obligation to pay support and requesting a paternity test.

The paternity test revealed that Younge was not T.s biological father, as he had believed. Nonetheless, the County asserted he should be declared T.s putative father, and remain obligated to pay support for her, based upon a theory of paternity by estoppel, as well as the presumption established by Family Code section 7611, subdivision (d).

The court appointed an attorney to represent T.s interests, and scheduled the matter for a hearing. At the hearing, T.s attorney represented to the court that T. was then aware that Younge was not her biological father, and was saddened by the revelation. Although T. did not give the impression that her relationship with Younge had been very affectionate or constant, she nonetheless expressed her desire to maintain it.

T.s mother testified, and explained that she had recently married. T. and her new stepfather dont have a very good relationship. Shes kind of angry. T.s mother expressed the belief that T.s anger had been caused by the cessation of regular contact with Younge, the only father she had ever known, and that T. would thus be benefited emotionally by having Younge declared her putative father. T.s mother acknowledged, however, that Younge could not be forced to visit with T. if he chose not to.

Younge also testified. He stated that T.s mother had originally told him she was sure he was T.s father, and he accepted her representation as true. He was, however, upset to learn that he and the other man who was originally tested for paternity were not the only candidates, and he had come to believe that T.s mother had formulated a plan to obtain support money from him. Younge initially stated that he wanted to continue a father-daughter relationship with T., whom he described as a great little girl. However, when asked if he was willing to financially support T., he replied I dont want to have to be told what I have to do. I mean, if there is a relationship then thats something I would do anyway, you know.

He later stated he did not want to continue his relationship with T., expressing anger at what he believed had been manipulative conduct by T.s mother.

At the conclusion of the evidence, and after hearing argument from the parties, the court denied the Countys request to have Younge declared T.s putative father. The court explained that Family Code section 7611, subdivision (d) could not be applied, because I find that Mr. Younge did not receive this child into his home. The court then explained that it accepted the Countys assertion that the phrase into his home should be interpreted broadly, rather than literally,^[1]but even with that understanding, it concluded that the relationship between Younge and T. wasnt deep and did not demonstrate either the quality or quantity of time necessary to qualify Younge as T.s presumed father under the statutory test even allowing for the fact he had acknowledged her as his own.

As for the paternity by estoppel theory, the court weighed the impact, on both Younge and T., of declaring him to be her putative father, against the impact of not doing so. The court noted that such a declaration was a legal fiction, since all parties now knew that Younge was not T.s biological father, and that imposing the label of father on Younge would not make him any more likely to pursue a real relationship with her. The court also specifically found that declaring Younge to be T.s putative father would not be in her best interest, and that there was still time for T. to discover the identity of her biological father. Considering all of this, the court concluded it would not be fair to estop Younge from denying paternity.

I

The County first argues the court erred in refusing to apply estoppel in this case, because Younge held himself out to be T.s father for 11 years; he intended that she rely upon his representation of fatherhood; and she did believe him to be her natural father. In our view, the court did not err in refusing to apply the doctrine.

Generally speaking, the doctrine of equitable estoppel is a rule of fundamental fairness whereby a party is precluded from benefiting from his inconsistent conduct which has induced reliance to the detriment of another [citation]; In re Lisa R. (1975) 13 Cal.3d 636, 645; Evid. Code, 623^[]). (1) Under well settled California law four elements must be present in order to apply the doctrine of equitable estoppel: (1) the party to be estopped must be apprised of the facts; (2) he must intend that his conduct shall be acted upon or must so act that the party asserting the estoppel had a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury (Driscoll v. City of Los Angeles (1967) 67 Cal.2d 297, 305; Simank Realty, Inc. v. DeMarco (1970) 6 Cal.App.3d 610, 616; Safway Steel Products, Inc. v. Lefever (1953) 117 Cal.App.2d 489, 491). While pronounced and applied primarily within the context of commercial transactions, the elements of estoppel have equal application to establish the relationship between a child and his putative father. (In re Marriage of Valle (1975) 53 Cal.App.3d 837, 840-84, italics added.)

In In re Marriage of Valle, supra, the husband and wife brought two children the natural children of husbands brother from Mexico. Moreover, the birth certificates by which the children entered the United States showed the parties as the natural parents. The record is undisputed that from the very outset the children regarded the parties as their natural parents, and the parties likewise considered and treated the children as their own. (In re Marriage of Valle, supra, 53 Cal.App.3d at p. 839.) Of course, the parents themselves were never mistaken; they always knew the true facts. Under those circumstances, the court concluded the husband was properly estopped from denying his paternity of the children.

The other cases applying the doctrine of paternity by estoppel are similar, in that the putative father was at all times aware of the true facts regarding paternity, and nonetheless chose to represent himself to the child and others as the childs natural father. In In re Marriage of Pedregon (2003) 107 Cal.App.4th 1284, the husband did not even meet the wife until the child was 10 months old. The parents began living together when the child was 18 months old, and married four months later. The child believed the husband to be his father.

In In re Marriage of Johnson (1979) 88 Cal.App.3d 848, the child was born 10 days prior to husband and wifes marriage, and they stipulated the husband was not the natural father. However, despite this fact, Andrew visited Patricia in the hospital, was allowed to hold the child (a privilege reserved for the parents themselves), and participated in selecting a name for Jimmy. Shortly after his birth, Jimmy was baptized and Andrew stood up with him, and told the priest that he was the childs father; the baptismal record reflects this representation. Further, when Jimmy entered school, Andrew admitted he may have signed some papers as Jimmys father and that he did in fact attend parent-teacher conferences, identifying himself as Jimmys father. (Id. at p. 850.)

In In re Marriage of Freeman (1996) 45 Cal.App.4th 1437, the husband had undergone vasectomy reversal surgery, with only limited success. He produced only one-quarter the amount of sperm necessary to be considered fertile, and when the wife learned she was pregnant, she confessed to him that she had been having unprotected sex with another man. Wife promised to stop seeing her paramour, and husband agreed to treat her child as his own. It was only when the couple later separated, that the husband attempted to avoid the statutory presumption of paternity by arguing he was sterile at the time the child was conceived.

Finally, in Clevenger v. Clevenger (1961) 189 Cal.App.2d 658, the case which introduced the concept of paternity by estoppel, the child in question was conceived during a period in which the husband and wife were separated, and the parties stipulated that the husband was not the childs natural father. However, when the parties later reconciled just prior to the childs birth, the husband gave the child his name, and otherwise treated the child as his own.

Each of the forgoing cases is distinguishable from the situation here, because Younge never made any representations to T. or anyone else which he did not believe to be true. At the time Younge made the representations at the heart of the Countys estoppel claim, he actually thought he was T.s natural father. Because Younge was not apprised of the facts at the time of his he held himself out as T.s father (In re Marriage of Valle, supra, 53 Cal.App.3d at p. 841, italics added), estoppel does not apply.

Additionally, even if the doctrine of estoppel were theoretically available, we would conclude the trial court did not err in refusing to apply it in this case. Although the County contends the court improperly considered whether the application of estoppel would be fair to Younge only, without considering the impact on T., we cannot agree. In our view, the court properly analyzed the issue of fairness by considering how the application of estoppel would affect each of them, and then comparing those effects to determine the most equitable result.

Specifically, the court evaluated the impact of the proposed estoppel on T., by first noting that she (like everyone else) was no longer under the impression that Younge was her natural father. Moreover, the court found there was still sufficient time for T. to discover the identity of her natural father; and under those circumstances, perpetuating the legal fiction that Younge was T.s father would not be in her best interest. The court also explained that although T. had expressed a desire to maintain the relationship she had developed with Younge, no court order was going to make that happen. Mr. Younge convinces me that he no longer wants to have such a relationship with this child, and I cant force that upon him, nor can I force this upon a 14-year-old child. And I dont know what interest would be served . . . by perpetuating the legal fiction [of] calling Mr. Younge the [putative] father in this case when he is not the biological father and no longer wants a relationship with her, so he professes.

By considering the impact of the proposed estoppel not only on Younge, but on T. as well, the court properly balanced their interests to arrive at what it concluded was the most equitable result. We can discern no error. Indeed, we are inclined to agree with the trial court that any chance of Younge and T. maintaining a relationship could only be damaged if he resented a financial obligation imposed by the courts.

II

The County next asserts that Family Code section 7611, subdivision (d), creates a legal presumption that Younge is T.s father. That provision states as follows: A man is presumed to be the natural father of a child if he meets the conditions . . . in any of the following subdivisions: [] . . . [] (d) He receives the child into his home and openly holds out the child as his natural child.

In this case, the court found this Family Code presumption did not apply, because while there was evidence Younge had treated T. as his natural child, there was no evidence he ever took her into his home even for a visit. The County does not dispute that factual conclusion, but instead attempts to argue around it by asserting, in effect, a species of substantial compliance: What the County claims is that Younge received T[.] into his life fully and completely (italics added), by supporting her emotionally and financially, and visiting with her twice per month. But that, of course, is not what the statutory provision requires.

What the provision requires is that a presumed father must receive the child into his home (italics added), and our Supreme Court has concluded the requirement must be construed literally. (Adoption of Kelsey S. (1992) 1 Cal.4th 816 [construing former Civ. Code,  7004].) In Kelsey S., it was undisputed . . . that petitioner openly held out the child as being his own. Petitioner, however, did not physically receive the child into his home. He was prevented from doing so by the mother, by court order, and allegedly also by the prospective adoptive parents. (Id. at p. 825.) Nonetheless, the court explained that [o]n its face, the statute refers to actual receipt of the child. The statute does not refer either explicitly or implicitly to attempted receipt or constructive receipt. . . . [] Even if the statute were ambiguous, petitioner does not point to any legislative history supporting a theory of constructive receipt. Nor are we aware of any extrinsic evidence that the Legislature did not mean what it said

. . . . (Id. at pp. 826-827; see also In re Kyle F. (2003) 112 Cal.App.4th 538, 542 [to become a presumed father, he must not only openly and publicly admit paternity but must also physically bring the child into his home.]

In light of the courts determination that the requirements of Family Code section 7611, subdivision (d) must be strictly complied with, we conclude it is simply irrelevant that Younge may have treated T. as his child, or provided financial or emotional support for her the trial courts conclusion that Younge never received T. into his home precludes application of Family Code section 7611, subdivision (d) in this case.

The Countys two alternative rationales for application of the statutory presumption fare no better. It first argues that pursuant to In re Jerry P. (2002) 95 Cal.App.4th 793, the strict interpretation of Family Code section 7611, subdivision (d) may operate as a denial of equal protection for a biological father within the child dependency system, in situations where the mother has thwarted his efforts to receive the child into his home. However, Jerry P. is distinguishable from this case for at least three significant reasons: First, this is not a dependency case; second, Younge is not asserting any right to be declared T.s presumed father and consequently the provisions application here does not violate his rights; and third, there is no evidence that anyone thwarted Younges efforts to receive T. into his home.

The County also relies upon In re Nicholas H. (2002) 28 Cal.4th 56, for the proposition that it is not appropriate to allow Mr. Younge to rebut the presumption established in Family Code section 7611, subdivision (d), in this case because it leaves [T.] fatherless. However, there is no question about rebutting the presumption here, because that presumption was never established in the first place. In Nicholas H., the father sought to be declared Nicholas presumed father, and actually did satisfy both requirements of Family Code section 7611, subdivision (d). The trial court consequently concluded he was entitled to presumed father status pursuant to that provision. Nonetheless, the appellate court reversed, based upon its own determination that the statutory presumption was rebutted as a matter of law by the fathers admission that he was not Nicholas biological father. The Supreme Court disagreed, explaining that the statutory presumption can only be rebutted in appropriate cases, and it was inappropriate do so over the fathers objection when the rebuttal would actually leave the child fatherless. Nothing in Nicholas H. suggests that the statutory requirements of section 7611, subdivision (d) can themselves be ignored, or that a man can be declared a presumed father without regard to those requirements, simply because the child in question needs someone to be her father. Consequently, as we have no occasion to consider any rebuttal of the statutory presumption in this case, Nicholas H. simply doesnt apply.

The order is affirmed. Younge is entitled to his costs on appeal.

BEDSWORTH, ACTING P. J.

WE CONCUR:

ARONSON, J.

IKOLA, J.

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^[1] As we explain, infra, that conclusion was incorrect, in any event. The phrase into his home means just that.