Filed 6/28/13 J.B. v. Superior Court CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                      (El Dorado)


J.B.,                                                                                           C071961

                   Petitioner,                                                           (Super. Ct. Nos.
                                                                                          SDP20120018,
         v.                                                                               SDP20120019,
                                                                                         & SDP20120020)
THE SUPERIOR COURT OF EL DORADO COUNTY,

                   Respondent;

M.W. et al.,

                   Real Parties in Interest.




         The respondent court entered an order declaring Valarie B. the presumed parent of
minors M.W., Ja.W., and D.W. Because petitioner J.B. had a preexisting judgment
establishing the paternity of the minors, which rebuts the presumption, we shall issue a
writ of mandate compelling the respondent court to vacate its order. (Fam. Code, § 7612,
subd. (c).)1




1        Further undesignated statutory references are to the Family Code.

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                                           FACTS
       Petitioner is the biological father of minors M.W., Ja.W., and D.W. He is also the
biological father of minor Jo.W., who is not a subject of the instant petition. The minors‟
mother, F.W., had been in an intermittent relationship with Valarie B. for almost 20 years
and Valarie B. participated in raising the minors. That relationship finally ended around
2007 or 2008. The minors knew petitioner as their father, but he was not as involved in
raising them.
       On October 4, 2001, petitioner appeared at the San Mateo County Department of
Child Support Services and requested the department open a child support case and that
the minors be genetically tested. An order for genetic testing was issued by the San
Joaquin County Superior Court. The minors‟ biological mother, F.W., did not comply
with the order. Eventually, on March 28, 2002, when the minors were visiting petitioner
for the weekend, petitioner brought the minors M.W., Ja.W., and D.W. into child support
services to have the genetic tests performed. On July 23, 2002, an individual from child
support services went to F.W.‟s home and had Jo.W. swabbed for genetic testing. The
genetic tests showed that petitioner is the biological father of all four minors.
       On October 22, 2002, a “Judgment Regarding Parental Obligations” was entered
by the San Joaquin County Superior Court, declaring the biological mother, F.W., and
petitioner “the mother and father” of each of said minors. The judgment ordered $0 for
monthly child support obligations, to commence November 1, 2001.
       On May 27, 2008, after an uncontested hearing, an order was entered by the San
Joaquin County Superior Court, again declaring petitioner “is the parent of and must pay
current child support for” each of said minors and modifying the child support
obligations of petitioner to $1,199 a month. On November 8, 2011, an order was entered
by the San Joaquin County Superior Court, again declaring petitioner “is the parent of
and must pay current child support for” each of said minors and modifying the child
support obligations of petitioner to $553 a month.

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       On August 22, 2012, the respondent court, in connection with dependency
proceedings brought on behalf of the minors, found Valarie B. to be the presumed parent
of minors M.W., Ja.W., and D.W. Petitioner filed a petition for writ of mandate
challenging the respondent court‟s August 22, 2012, order declaring Valarie B. the
minors‟ presumed parent.
       On October 9, 2012, we notified the parties we were considering issuing a
peremptory writ in the first instance, and invited opposition to the petition, pursuant to
Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171. Our order further invited
the respondent court to reconsider its August 22, 2012, order, pursuant to Brown,
Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233, 1250. The
respondent court subsequently informed this court of its intent not to change its order,
necessitating this opinion.
       We shall issue a peremptory writ.
                                        DISCUSSION
       Petitioner contends the respondent court erred in declaring Valarie B. the
presumed parent because he had a preexisting judgment establishing paternity of said
minors. We agree.
        Section 7611 provides that a “man is presumed to be the natural father of a child
if . . . [¶] . . . [¶] (d) [h]e receives the child into his home and openly holds out the child
as his natural child.” This is a rebuttable presumption. (In re Jesusa V. (2004) 32 Cal.4th
588, 603-604.) Section 7612, subdivision (c), expressly provides that the presumption “is
rebutted by a judgment establishing paternity of the child by another man.” Although the
language of sections 7611 and 7612 refers to presumptions of paternity, the statutes apply
equally to women. (Elisa B. v. Superior Court (2005) 37 Cal.4th 108, 119.)
       In this case, the respondent court was provided with a “Judgment Regarding
Parental Obligations” dated October 22, 2002, declaring the biological mother, F.W., and
petitioner “the mother and father” of each of said minors. Subsequent orders dated

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May 27, 2008, and November 8, 2011, declare petitioner “is the parent of and must pay
current child support for” each of said minors. The foregoing judgment and orders rebut
any presumption under section 7611 and preclude a subsequent declaration that Valarie
B. is the presumed parent of said minors. (See In re Cheyenne B. (2012) 203 Cal.App.4th
1361, 1372-1376 (Cheyenne B.).)
       Cheyenne B. is directly on point. In that case, prior to the initiation of the
dependency proceedings, the Los Angeles County Child Support Services Department
had obtained a judgment regarding parental obligations for child support, finding the
appellant to be the parent of the minor. (Cheyenne B., supra, 203 Cal.App.4th at
pp. 1368, fn. 13, 1372.) The court held that the judgment constituted a judgment
establishing paternity within the meaning of section 7612, subdivision (c), and that such
judgment rebuts another individual‟s section 7611, subdivision (d), presumption.
(Cheyenne B., supra, at pp. 1372-1376.)
       While the respondent court‟s November 7, 2012, clarifying findings and orders
suggests additional case authority holds to the contrary, it does not. In re E.O. (2010)
182 Cal.App.4th 722 simply stands for the proposition that a paternity judgment does not,
in itself, entitle a biological father to presumed father status. (Id. at pp. 727-728.) This
holding is reiterated in Cheyenne B. and does not affect the rebuttal of another person‟s
claim of presumed father status. (Cheyenne B., supra, 203 Cal.App.4th at pp. 1376-
1378.) While the holding in In re E.O. prevents petitioner from using his paternity
judgment as the sole basis for claiming presumed father status for himself, it does not
prevent him from using it to rebut Valarie B.‟s claim of presumed father status.
       Nor is In re A.A. (2003) 114 Cal.App.4th 771, also cited by the respondent court,
applicable here. In re A.A. held that a finding that another man is the biological father in
the same case is not a prior judgment of paternity for purposes of section 7612,
subdivision (c). (In re A.A. , supra,. at pp. 788-789.) It also held that the mere fact that
someone else is the biological father does not necessarily constitute the clear and

                                              4
convincing evidence required to rebut the presumed father status of another for purposes
of section 7612, subdivision (a). (In re A.A. , supra, at p. 788.) It does not hold that a
prior judgment of paternity, based on an individual‟s biological ties to the child, does not
categorically rebut a claim of presumed father status by another, as expressly provided in
section 7612, subdivision (c).
       The holding in In re A.A. was reiterated in In re P.A. (2011) 198 Cal.App.4th 974.
There, the court explained that “Section 7612, subdivision (c), provides that a paternity
presumption under section 7611 „is rebutted by a judgment establishing paternity of the
child by another man.‟ The plain language of that subdivision refers to a judgment, not
merely a finding regarding biological tests used to determine if a man is the child‟s
natural father. (In re A.A., [supra, 114 Cal.App.4th at p.] 789.) This distinction is
critical. In enacting section 7612, subdivision (c), the Legislature established a
categorical rule that allows a presumption of fatherhood to be rebutted when a judgment
of paternity already exists, thereby preventing the court from determining parentage if it
had previously been judicially determined. (See, e.g., Barkaloff v. Woodward (1996)
47 Cal.App.4th 393, 399, [presumption of paternity was rebutted under § 7612 by prior
stipulated judgment of paternity by another man]; Kevin Q. v. Lauren W. (2009)
175 Cal.App.4th 1119, 1141, [voluntary declaration of paternity under § 7573 accorded
force and effect of a judgment].) Stated another way, a section 7611 presumption is
rebutted by a prior judgment because that „judgment acts to preclude the issue of
paternity from being redetermined.‟ (In re A.A., supra, 114 Cal.App.4th at p. 789, italics
added.)” (In re P.A., supra, at p. 982.)2



2       To the extent that In re P.A. states that a judgment of paternity does not
automatically extinguish another‟s rights as a presumed father, we disagree and find the
context of the statement distinguishable. (See In re P.A., supra, 98 Cal.App.4th at
p. 983.) The biological father in that case did not have a judgment of paternity, but
rather, had evidence he was the biological father and argued that a judgment could be

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       A child support order is a judgment of paternity entitled to res judicata effect. (De
Weese v. Unick (1980) 102 Cal.App.3d 100, 106-107; City and County of San Francisco
v. Cartagena (1995) 35 Cal.App.4th 1061, 1064-1066.) Its validity is not dependent or
conditioned on the actual payment of court ordered child support and petitioner cannot be
estopped from relying upon it due to his failure to pay.3
       Section 7645 et seq., is the statutory means provided to set aside or vacate a
judgment establishing paternity under specified circumstances. Additionally, where
extrinsic fraud is practiced upon the court, an independent equitable action to challenge a
judgment may be available. (De Weese v. Unick, supra, 102 Cal.App.3d at p. 107; City
and County of San Francisco v. Cartagena, supra, 35 Cal.App.4th at pp. 1066-1067.)
However, unless or until petitioner‟s judgment of paternity is set aside, it conclusively
rebuts a section 7611 presumption.
       We also disagree with the respondent court that application of section 7612,
subdivision (c), is “nonsensical.” Section 7612, subdivision (c), precludes serial
redeterminations of parentage, which is conducive to providing stability for a child, as
well as stability of judgments. (See De Weese v. Unick, supra, 102 Cal.App.3d at
p. 105.) The statute does not prevent an individual who is acting as a parent to a child
from pursuing his/her parental rights to the exclusion of an individual who has only
biological ties but has no relationship or provided no support -- even when that individual
has a judgment of paternity. Section 7800 et seq. sets forth the circumstances and


subsequently entered to bootstrap his way into defeating another‟s existing claim of
presumed father status. Here, petitioner has a preexisting judgment of paternity,
predating Valarie B.‟s claim of rights.
3     Whether an individual has provided financial support may be relevant in cases
where there are two competing presumptions and weighing under section 7612,
subdivision (b), is being performed. (See In re J.O. (2009) 178 Cal.App.4th 139, 150.)
However, because petitioner‟s judgment of paternity conclusively rebuts any section
7611 presumption, no weighing is performed here.

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procedures for the termination of a biological parent‟s rights, and provides for the
necessary notice and due process. Additionally, in the context of a dependency case, an
individual may request placement of the child as a nonrelated extended family member
(Welf. & Inst. Code, § 362.7) or be declared a de facto parent (Cal. Rules of Court, rule
5.502(10)).
       In any event, the statutory language of section 7612, subdivision (c), is plain and
clear. There is no statutory grant of judicial discretion to ignore the application of section
7612, subdivision (c). A judgment of paternity conclusively rebuts a section 7611,
subdivision (d), presumption. We, therefore, need not look further than the language
itself. (Cheyenne B., supra, 203 Cal.App.4th at p. 1376; People v. Walker (2002)
29 Cal.4th 577, 581 [“if the statutory language is not ambiguous, then we presume the
Legislature meant what it said, and the plain meaning of the language governs”].) Even
if we were to disagree with the policy underlying this rule, our decision here is mandated
by the statute, and we are not at liberty to rewrite the legislative scheme. Policy
determinations and changes to California‟s existing statutory framework to accommodate
complicated and changing familial patterns are matters for the Legislature. (In re M.C.
(2011) 195 Cal.App.4th 197, 213-214.)
       Finally, we do not find the application of section 7612, subdivision (c), to tread on
the equal protection rights of same-sex couples. A nonbiological parent of a child has the
same rights and complications in asserting his/her relationship with the child over that of
a biological parent, regardless of whether that individual is in a same-sex or opposite-sex
relationship with the other parent.




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                                     DISPOSITION
      Let a peremptory writ of mandate issue directing the respondent court to vacate
that portion of its August 22, 2012, order which declares Valarie B. the presumed parent
of minors M.W., Ja.W., and D.W.



                                           BLEASE                   , Acting P. J.


We concur:


         MAURO                    , J.


         HOCH                     , J.




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