Superior Court of Alameda County, No. HF04153838, Wynne S. Carvill and Kevin R. Murphy, Judges (Alameda County Super. Ct. No. HF04153838).
The opinion of the court was delivered by: Simons, Acting P.J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Charisma R. (Charisma) and Kristina S. (Kristina) were a same sex couple who began dating in July 1997, moved in together in August 1998, and registered as domestic partners with the State of California in January 2002.*fn2 In December 2001, the couple decided they wanted to have children and Kristina would be the first to try to become pregnant. Following several months of effort, Kristina became pregnant by artificial insemination and gave birth to Amalia in April 2003. In July 2003, Kristina moved out of the home she shared with Charisma, taking Amalia with her. Kristina appeals from the trial court's orders declaring Charisma a presumed parent of Amalia and establishing a schedule for reunification of Charisma and Amalia. Among other things, we reject Kristina's contentions that Charisma did not parent Amalia for a sufficient period of time to be declared a presumed parent under Family Code section 7611, subd. (d) (hereafter section 7611(d)),*fn3 and we hold Kristina has not shown the trial court's orders violate her constitutional rights to equal protection and due process. In a cross-appeal, Charisma contends the court misunderstood the scope of its authority with respect to allocation of her travel expenses for the reunification process. The cross-appeal has merit. We affirm the trial court's orders except as to allocation of the travel expenses, which we reverse and remand to provide the court an opportunity to exercise its discretion.*fn4
After deciding they wanted children, Charisma and Kristina contacted a sperm bank, jointly filled out the required paperwork to obtain sperm from an anonymous donor, and pursued their goal of Kristina becoming pregnant through in-home artificial insemination. Charisma assisted Kristina in the insemination process. The couple kept a joint journal regarding the process, in which Kristina was referred to as "mommy" and Charisma was referred to as "momma."
After five months of attempts at in-home insemination, Charisma ordered two additional vials of sperm in early July 2002. On the evening of July 8, Charisma used one vial to inseminate Kristina at home; the next morning Kristina took the second vial to a doctor who inseminated her through intrauterine insemination. One of these two inseminations resulted in Kristina becoming pregnant.
Amalia was born in April 2003. Charisma was present for the birth and cut the umbilical cord. On the birth certificate, signed by Kristina, Amalia was given a hyphenated last name that was a combination of Charisma's and Kristina's last names. The couple brought Amalia into their home and shared parenting responsibilities for the first six weeks of her life. At that point, Kristina returned to work and Charisma cared for Amalia full-time during the day; she also provided care at night.
In July 2003, approximately seven weeks after Kristina returned to work, she moved out of the home she shared with Charisma, taking Amalia with her. Since then, and before the trial court ordered reunification in 2008, Kristina allowed Charisma to see Amalia on only two occasions in the summer of 2003. In the summer of 2005, Kristina moved to Texas with Amalia.*fn5
In May 2004, Charisma filed a petition to establish a parental relationship with Amalia. The trial court denied the petition, concluding that Charisma lacked standing to bring the action under the Uniform Parentage Act (UPA) (§ 7600 et seq.). (Charisma R. v. Kristina S. (2006) 140 Cal.App.4th 301, 303 (Charisma I).) Charisma appealed, and this court reversed in June 2006, concluding that Charisma had standing to establish parentage under the UPA despite the fact that she lacked a biological relationship to Amalia. (Charisma I, at pp. 303-304, citing Elisa B. v. Superior Court (2005) 37 Cal.4th 108, 119-120 (Elisa B.). Because the trial court did not have the benefit of the Elisa B. decision at the time of its initial ruling, this court remanded the matter to the trial court for a determination, in light of Elisa B., whether Charisma is a presumed parent under section 7611(d) and, if so, whether this is an appropriate case in which to rebut the parentage presumption. (Charisma I, at pp. 304, 307.)
On remand, the trial court found that Charisma is a presumed parent and that the presumption had not been rebutted. The court appointed custody evaluators who reported that adoption of a reunification plan would be appropriate. In May 2008, the court adopted a plan for gradual reunification of Charisma and Amalia through joint therapy sessions in Texas with a court-appointed therapist.
I. Substantial Evidence Supports the Trial Court's Finding that the Section 7611(d) Parentage Presumption is Applicable
Under the UPA, an "interested person" may bring an action to determine the existence or nonexistence of a mother and child relationship. (§ 7650, subd. (a).) Section 7611(d) provides that a man is presumed to be the father of a child if he "receives the child into his home and openly holds out the child as his natural child." As explained in Adoption of Michael H. (1995) 10 Cal.4th 1043, 1050-1051, "An unwed father's rights and duties . . . substantially depend on whether he is a "presumed father' within the meaning of section 7611. [Citations.] . . . [T]o 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." (See also In re Spencer W. (1996) 48 Cal.App.4th 1647, 1652 (Spencer W.).) In Elisa B., supra, 37 Cal.4th at pages 119-120, 125-126, the court held that a biological mother's former same sex partner may be declared a presumed parent under a gender-neutral application of section 7611(d). (See also Charisma I, supra, 140 Cal.App.4th at p. 304.)
In Elisa B., the El Dorado County District
Attorney filed a complaint to establish that Elisa was the parent of twins born to her former partner, Emily, and to order Elisa to pay child support. Elisa denied she was the children's parent. (Elisa B., supra, 37 Cal.4th at p. 113.) It was undisputed that Elisa participated in the artificial insemination of Emily with the understanding that they would raise the resulting child or children as coparents, and they did in fact coparent the children in a common family home for over one and one-half years. (Id. at pp. 114-115, 122.) The court pointed out that section 7650, subdivision (a), states that provisions applicable to determining a father and child relationship shall be used to determine a mother and child relationship " "insofar as practicable,' " and concluded Elisa could be considered a presumed parent under section 7611(d). (Elisa B., at pp. 119-120.) The case was not "an appropriate action" to rebut the presumption of parentage with evidence that there was no biological relationship between Elisa and the twins,*fn6 because to allow the presumption to be so rebutted would be contrary to the public policy favoring a child having two parents to provide emotional and financial support. (Id. at pp. 122-125; see also Charisma I, supra, 140 Cal.App.4th at pp. 304-307.)
On remand from Charisma I, supra, 140 Cal.App.4th 301, Charisma bore the burden of proving she is a presumed parent under section 7611(d) by a preponderance of the evidence. (Spencer W., supra, 48 Cal.App.4th at pp. 1652-1653; Glen C. v. Superior Court (2000) 78 Cal.App.4th 570, 585-586.) On appeal, we review the trial court's determination under the substantial evidence standard: "[W]e are bound to uphold [the trial court's judgment] so long as the record is free from prejudicial error and the judgment is supported by evidence which is "substantial,' that is, of " "ponderable legal significance," ' " "reasonable in nature, credible, and of solid value . . . ." ' [Citations.]" (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631.) "Under that standard, we must consider all of the evidence in the light most favorable to the prevailing party, 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. Even in cases where the evidence is undisputed or uncontradicted, if two or more different inferences can reasonably be drawn from the evidence this court is without power to substitute its own inferences or deductions for those of the trier of fact, which must resolve such conflicting inferences in the absence of a rule of law specifying the inference to be drawn. We must accept as true all evidence and all reasonable inferences from the evidence tending to establish the correctness of the trial court's findings and decision, resolving every conflict in favor of the judgment. [Citations.]" (Id., at pp. 630-631.)
A. Kristina's Evidentiary Objections
Kristina objected below to aspects of declarations filed by Charisma, on the grounds of lack of personal knowledge and lack of foundation. However, the trial court never ruled on her objections. Where a party fails to obtain a ruling from the trial court, the objections generally are not preserved on appeal. (Bussard v. Minimed, Inc. (2003) 105 Cal.App.4th 798, 801, fn. 1.) Appellate courts sometimes decline to apply that rule where the party unsuccessfully pressed for a ruling below, but Kristina failed to do so in this case.*fn7 (See Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1580 [party orally requested a ruling and obtained "a blanket ruling of sorts"]; City of Long Beach v. Farmers & Merchants Bank (2000) 81 Cal.App.4th 780, 785 [party made two oral requests for rulings].) Citing Thomas v. Quintero (2005) 126 Cal.App.4th 635, Kristina argues this court may consider her objections even though she failed to obtain a ruling below. However, that case held only that reviewing courts may consider evidentiary objections for the first time on appeal where the lower court "disposed of the motion on a legal ground not requiring a consideration of the evidence presented." (Id. at p. 656.) The court acknowledged the general rule that a party forfeits objections to evidence where the party fails to obtain a ruling from the trial court. (Id. at p. 655.) Because the trial court actually and necessarily considered the evidence presented, Kristina's objections have been forfeited.
In any event, the specific evidentiary objections asserted on appeal are either without merit or relate to evidence unnecessary to support the trial court's judgment. Kristina argues there is no basis to conclude she authored or authorized a birth announcement e-mail, but the announcement is relevant to show that Charisma held out Amalia as her child, regardless of Kristina's participation or knowledge. Kristina argues there was inadequate foundation to admit various e-mails and postings from internet chat rooms, mostly related to the efforts to conceive Amalia, and that various declarants made assertions about care Charisma provided for Amalia without personal knowledge. However, as discussed below, the record provides overwhelming support for the trial court's findings that Charisma actively participated in Amalia's conception and cared for Amalia following her birth, including averments in Charisma's declaration and Kristina's own admissions. Accordingly, Kristina was not prejudiced by any error in admitting the challenged evidence below.
B. Charisma's Claim to Presumed Parent Status Is Not Defeated by the Limited Duration of her Parenting of Amalia
Kristina argues that Charisma did not parent Amalia for a sufficient period of time to satisfy section 7611(d).
Whether section 7611(d) requires Charisma to show she parented Amalia for an extended duration is a question of statutory interpretation we decide de novo. (California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 699.) The primary objective in statutory interpretation is to determine and give effect to the underlying legislative intent. (Code Civ. Proc., § 1859.) We begin by examining the statutory language, giving the words their usual, ordinary meanings and, if possible, giving each word and phrase significance. (Curle v. Superior Court (2001) 24 Cal.4th 1057, 1063; Young v. Gannon (2002) 97 Cal.App.4th 209, 223.) "If the terms of the statute are unambiguous, we presume the lawmakers meant what they said, and the plain meaning of the language governs." (Estate of Griswold (2001) 25 Cal.4th 904, 911.) Section 7611(d), read gender-neutrally (Charisma I, supra, 140 Cal.App.4th at p. 304), provides that a man or woman is presumed to be a natural parent of a child if "[he or she] receives the child into [his or her] home and openly holds out the child as [his or her] natural child." On its face, the statute contains no durational requirement; it does not, for example, state that the child must be received or held out "for a significant period of time."
Without deciding the issue before this court, prior decisions have addressed the durational issue in defining the term "receives." The use of "receives" in section 7611(d) has its origins in Civil Code former section 230, which addressed the adoption of an illegitimate child by the father. That section provided: "The father of an illegitimate child, by publicly acknowledging it as his own, receiving it as such, with the consent of his wife, if he is married, into his family, and otherwise treating it as if it were a legitimate child, thereby adopts it as such; and such child is thereupon deemed for all purposes legitimate from the time of its birth." (Civ. Code, former § 230, repealed by Stats. 1975, ch. 1244, § 8, p. 3196.) When the Legislature enacted the UPA in 1975, it replaced the concept of legitimacy with the concept of parentage and replaced Civil Code former section 230 with the language now in section 7611(d). (Adoption of Kelsey S. (1992) 1 Cal.4th 816, 827-828 (Kelsey S.).)*fn8
The court in Kelsey S. addressed the "receiving" requirement, both pre-UPA and post-UPA. In that case, the alleged father*fn9 did not physically receive the child into his home because the birth mother sought to put the child up for adoption. (Kelsey S., supra, 1 Cal.4th at p. 825.) The court considered the alleged father's argument that "constructive receipt [of the child] is sufficient when the mother prevents actual receipt." (Id. at p. 828.) The court rejected that argument as a matter of statutory interpretation, because the plain language of the statute contemplates "actual" receipt rather than "attempted receipt or constructive receipt." (Id. at pp. 826, 830.) In the course of its analysis, the court discussed a pre-UPA case, In re Richard M. (1975) 14 Cal.3d 783, which suggested that constructive receipt might be sufficient. (Kelsey S., at pp. 827-828.) Kelsey S. declined to adopt that suggestion, pointing out that in Richard M. the father "had in fact received the child into his home, albeit briefly. The court therefore was not faced with the question before us, i.e., whether constructive receipt is sufficient when the mother prevents actual receipt." (Kelsey S., at p. 828.)
Kelsey S. also pointed out that under the pre-UPA scheme there was a policy of liberal construction in favor of finding legitimation, so that children did not end up without a legal father. (Kelsey S., supra, 1 Cal.4th at pp. 828-829.) The court stated there was no need to "strain" to find a father through the doctrine of constructive receipt because in the case before it there were two competing fathers, so the child would end up with a legal father in any event. (Ibid.) Although the court declined to liberally construe the requirement in the case before it,*fn10 the court did not suggest that actual receipt of a child for a significant duration is required. To the contrary, the court discussed Michael U. v. Jamie B. (1985) 39 Cal.3d 787, in which the biological father sought temporary custody of the child in order to establish his presumed parentage claim. The court favorably quoted the decision as follows: " "Michael is a natural father, not a presumed father, because he has not yet received Eric [the child] into his home. [Citation.] If, however, he actually acquired physical custody, he could receive Eric into his home and thereby acquire the status of a presumed father. [Citations.] . . . Thus the present controversy, although nominally about the temporary custody of Eric pending the adoption proceeding, will probably determine the fate of the proposed adoption.' " (Kelsey S., at p. 829, quoting Michael U., at p. 791; see also Kelsey S., at p. 842 [stating that the superior court had "the authority to grant petitioner custody of his child so that he could qualify as a presumed father"].) The clear implication is that the "receiving" requirement is a necessary formality, but not one that requires "receipt" for any particular duration.
Moreover, as previously mentioned, the use of the term "receives" in section 7611(d) originates in the use of the term "receiving" in Civil Code former section 230. As Kelsey S. explained, under the pre-UPA cases it was sufficient if the alleged father "briefly" received the child into the home. (Kelsey S., supra, 1 Cal.4th at pp. 827-828.) We presume the Legislature was aware of the judicial interpretations of the receiving element at the time it adopted the UPA. (People v. Harrison (1989) 48 Cal.3d 321, 329 [the Legislature "is deemed to be aware of statutes and judicial decisions already in existence, and to have enacted or amended a statute in light thereof. [Citation.] Where a statute is framed in language of an earlier enactment on the same or an analogous subject, and that enactment has been judicially construed, the Legislature is presumed to have adopted that construction. [Citation.]"].) If the Legislature had intended to require an alleged parent to live with a child for an extended period of time, it would likely have used a different term than "receives" or added an express durational requirement. But Kristina presents no analysis of the statutory language or legislative history supporting a conclusion that the Legislature intended so fundamental a change.
None of the cases Kristina cites suggests section 7611(d) imposes a durational requirement to obtain presumed parent status. In Brian C. v. Ginger K. (2000) 77 Cal.App.4th 1198, 1219-1221, two men had competing claims for presumed father status; the court referred to the duration of one man's parenting, but did not suggest there is a durational requirement. County of Los Angeles v. Sheldon P. (2002) 102 Cal.App.4th 1337, 1344-1345, also referred to the duration of one man's parenting in comparing two alleged fathers. The court in Miller v. Miller (1998) 64 Cal.App.4th 111 did not emphasize the duration of parenting in applying section 7611(d). In that case, a man was denied presumed parent status because he had not clearly held the child out as his own and because there was a conclusive presumption that the mother's former husband was the father. (Miller, at pp. 118-119.) In Spencer W., supra, 48 Cal.App.4th 1647, the man seeking presumed father status was "equivocal in asserting his parental relationship" and left the home once the mother stopped supporting him. (Id. at pp. 1651, 1653-1654.) In In re T.R. (2005) 132 Cal.App.4th 1202, the man seeking presumed father status was found to have molested the child. (Id. at pp. 1211-1212.) The court in In re Nicholas H. (2002) 28 Cal.4th 56, 70, addressed rebuttal of the parentage presumption, not the requirements of section 7611(d).
In re A.A. (2003) 114 Cal.App.4th 771, 786, does characterize cohabitation for a period of "one to three months" as "exceedingly small," but it does not suggest that section 7611(d) contains a durational requirement. Instead, the court reversed the trial court's presumed parenthood finding because the evidence supporting the finding was "secondhand," the minor did not live with or visit the alleged father in the man's own home, and there was little evidence the man held himself out as the minor's father. (In re A.A., at pp. 786-787.) Moreover, In re A.A. ultimately adopted an expansive interpretation of the "receives" requirement, in holding the trial court erred in refusing to find a second man a presumed father, even though the minor never actually lived with the man. The court reasoned: "The record is clear that the minor never actually lived with R.B. However, when a mother and father of a child are not inclined to live with each other, their child often lives with only one of the parents and visits the other. . . . Although the minor was not received into R.B.'s home to live with him on a full-time basis, he was involved with the ...