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Estate of Britel

California Court of Appeals, Fourth District, Third Division

April 23, 2015

Estate of AMINE BRITEL, Deceased. MOUNA BRITEL et al., Objectors and Respondents.

Appeal from an order of the Superior Court of Orange County, No. 30-2011-00478927 Randall J. Sherman, Judge.

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COUNSEL

Law Offices of Debra Graynom-Daly, Debra Graynom-Daly; Law Offices of Diane Corwin, Diane Corwin; Ferguson Case Orr Paterson, Wendy C. Lascher, and John A. Hribar for Petitioners and Appellants.

Bidna & Keys, Howard M. Bidna, and Richard D. Keys for Objectors and Respondents.

Public Counsel and Lisa R. Jaskol for Women Lawyers Association of Los Angeles, The Harriet Buhai Center for Family Law, and Public Counsel as Amici Curiae on behalf of Petitioners and Appellants.

OPINION

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IKOLA, J.

Amine Britel died intestate in 2011. Appellant Jackie Stennett, the mother of A.S., a child born out of wedlock, petitioned to administer Amine’s estate and for A.S. to be declared Amine’s heir under Probate Code section 6453, subdivision (b)(2) (section 6453(b)(2)).[1] Under section 6453(b)(2), a nonmarital child may establish that he or she is the natural child of an intestate decedent by proving the decedent “openly held out the child as his own.”

The court denied Jackie’s petitions. It granted the petition of respondent Mouna Britel (Amine’s adult sister) to administer Amine’s estate, which petition listed respondent Rhita Bhitel (Amine’s mother) as Amine’s surviving parent.

We affirm the court’s order. In doing so, we conclude section 6453(b)(2)’s phrase, “openly held out, ” requires the alleged father to have made an unconcealed affirmative representation of his paternity in open view. We also conclude substantial evidence supports the court’s finding Amine did not openly hold out A.S as his child. Finally, we conclude section 6453(b)(2) does not violate the state or federal equal protection rights of nonmarital children or of nonmarital children who can prove paternity using DNA tests.

FACTS

Evidence prior to A.S.’s birth

In the fall of 1999, Amine and Jackie met at Harvard Business School and developed a romantic relationship. In the early summer of 2000, they graduated. Jackie went to work in Atlanta, Georgia, while Amine moved to Newport Beach, California.

In August 2000, Jackie phoned Amine and told him she was pregnant. The next day, Amine sent Jackie an e-mail message saying he was “devastated, ” he would never be able to share the news with his parents, and that having a

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child out of wedlock was contrary to his Muslim religion and his culture and would bring him “a total shame [he would] have to bear for the rest of [his] life.” Amine continued: “Please understand that I do love you but I am just not ready to be a father right now. I want us to have a child through a legitimate marriage and not outside of wedlock. We need to live together, learn about each other, and then make a committment [sic] for life. I perceive marriage as a very serious engagement. I was devastated for the past two years as a result of a bad marriage. In all fairness, I believe I should be a part of this decision. [¶] It is important for us to meet to discuss this issue as soon as possible and find a suitable arrangement for both of us.”

Later that month or possibly in early September, Jackie visited Amine in California for three or four days. She had initially planned to stay around a week, but the trip was cut short and she returned to Atlanta. Within the next few days, Amine and Jackie spoke by phone between five and 10 times. The end result was that Amine told Jackie not to contact him again and that he did not want her or the baby to be in touch with him or his family.

Amine told his best friend, Youssef Choukri, that Jackie said she was pregnant with his baby, and that his having a child out of wedlock would bring shame to his family (who were highly regarded in Morocco) and might possibly cause Amine to be disinherited. Amine initially told Choukri he was not sure whether Jackie was really pregnant, but that he had told Jackie that if she was indeed pregnant, he would like her to have an abortion.

In late 2000 or early 2001, Amine told Choukri that Jackie had had an abortion. Amine and Choukri never discussed the matter again.

At trial, Jackie testified she never told Amine she had had an abortion.

Evidence after A.S.’s birth

A.S. was born to Jackie in February 2001. Amine is not listed as the father on A.S.’s birth certificate. Prior to Amine’s death, Jackie never sought a paternity order to determine whether Amine was A.S.’s father. Amine never provided any financial support to A.S., never met her, and never communicated with her.

For many years, Jackie comported with Amine’s request that she not contact him. Then, in November 2006, Jackie sent Amine an e-mail message, which stated in part, “Per your last request I have kept my distance from you for the past six years.” Jackie’s e-mail message informed Amine that A.S. wanted a relationship with him.

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Amine did not respond to Jackie’s e-mail message, so Jackie phoned him. In the phone call, Jackie told Amine that A.S. asked about him and wanted him in her life. Amine was “terse and cold, ” asked Jackie not to phone him again, and made it clear he wanted nothing to do with Jackie or A.S. This phone call and Jackie’s e-mail message were the only communications between Jackie and Amine from the time A.S. was born until Amine’s death.

Amine was close with his family members, but never told them he had a child.

In February 2011, Amine was 41 years old, and a world class bicyclist. He was riding his bicycle in broad daylight, when he was struck and killed by a drunk, texting driver. At the time of his death, Amine was not married and had no domestic partner. He died intestate.

Jackie never sought a paternity order while Amine was alive because she wanted him “to participate when he was ready and by his own choice, ” and she did not “want to force his hand.”

Over respondents’ objection, the court admitted into evidence a DNA test showing a 99.9996 percent probability that Amine was A.S.’s father.

The court’s ruling

The court found Jackie’s testimony was “not convincing”[2] and that Choukri was a credible witness. The court ruled: “The evidence submitted on the question of whether Amine Britel held out [A.S.] as his own child was disputed. After consideration and weighing of all testimony and evidence..., and the demeanor and credibility of the witnesses, the Court finds that Jackie Stennett did not carry her burden of establishing by clear and convincing evidence that Amine Britel openly held out [A.S.] as his own child in ...


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