Cnty. of Orange v. Cole
Cnty. of Orange v. Cole
Opinion of the Court
*507INTRODUCTION
This is an appeal from a paternity order and a child support order. Our opinion addresses the interplay between Family Code section 7611, subdivision (d) ( *743section 7611(d) ),
The sperm of Brian Jeffrey Cole was used to inseminate Mie Lynn Tsuchimoto, who gave birth to a boy (the child).
The trial court's findings regarding section 7611(d) are supported by substantial evidence. The inability to establish parenthood under section 7613 does not preclude a finding of parenthood under section 7611(d). We agree with the one existing published case addressing the intersection of sections 7613 and 7611(d) ; that case did not have an evidentiary record on which to make a decision, necessitating remand to the trial court. We publish this opinion because the evidentiary record here is fully developed, allowing us to conclude that, on this record, presumed parenthood has been established notwithstanding section 7613 regarding sperm donors.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Tsuchimoto and Cole met in 1991, and began a sexual relationship in 2005. Tsuchimoto and Cole discussed raising a child together. Tsuchimoto was impregnated with Cole's extracted sperm via in vitro fertilization. (Cole had *508previously had a vasectomy.) Cole agreed to have his sperm extracted for the purpose of impregnating Tsuchimoto. Tsuchimoto paid all the costs of the fertilization process. Cole was present in the delivery room when their son was born in February 2008, and selected the child's name. Cole spent one or two nights per week at Tsuchimoto's residence. Because Cole was a pilot, Tsuchimoto believed he was out of town when he was not with her.
However, Cole was married to another woman, with whom he has two children, during the entirety of his relationship with Tsuchimoto. Tsuchimoto was aware that Cole was married, but believed Cole and his wife were separated during the period when Tsuchimoto was pregnant. Cole's residence with his wife is located about five miles from Tsuchimoto's residence.
Cole identified himself to Tsuchimoto's family and friends as the child's father, did not publicly correct others who said he was the child's father, and did not stop the child from calling him "daddy."
Cole never paid child support, but did buy gifts for the child and occasionally bought groceries. Cole bought a car for Tsuchimoto after the child's birth. Cole also paid Tsuchimoto about $500 monthly, which he claimed was for renting garage *744space from her, and helped her make her mortgage payments for a period in 2009.
Cole never brought the child to his own residence, never introduced the child to his wife or older children, and never identified himself as the child's father to any of his family or friends. Cole did not add the child to his insurance or his estate planning documents, never told his wife and children about the child, and claimed he never intended to have a relationship with the child.
In 2010, Cole cut off all contact with Tsuchimoto and the child. At all times, Cole insisted that he would not be financially responsible for the child.
In August 2014, the County of Orange filed a complaint against Cole, asking that he be declared the child's father and that he be ordered to pay child support. Cole denied that he was the biological father of the child.
Following trial of the matter, the court issued a detailed statement of decision in which it concluded Cole was the child's presumed father. The court made its statement of decision an order of the court. The court then ordered Cole to pay child support. Cole filed a notice of appeal from the paternity order and the child support order.
*509DISCUSSION
I.
SECTION 7611( D )
"A person is presumed to be the natural parent of a child if ... [¶] ... [¶] (d) The presumed parent receives the child into his or her home and openly holds out the child as his or her natural child." ( § 7611(d).) This is a rebuttable presumption. The County bore the burden of establishing by a preponderance of the evidence the foundational facts on which the presumption rests. Once the County established the existence of the presumption, the burden shifted to Cole to rebut it by clear and convincing evidence. (§ 7612, subd. (a); In re J.O. (2009)
"On appeal, we review a trial court's finding of presumed parent status under the substantial evidence standard. [Citations.] We view the evidence in the light most favorable to the ruling, giving it the benefit of every reasonable inference and resolving all conflicts in support of the judgment. [Citation.] We defer to the trial court's credibility resolutions and do not reweigh the evidence. [Citation.] If there is substantial evidence to support the ruling, it will not be disturbed on appeal even if the record can also support a different ruling." ( R.M. v. T.A. (2015)
The purpose of the presumption of parenthood in section 7611(d) is rooted in the " ' "strong social policy in favor of preserving [an] ongoing [parent] and child relationship." ' [Citation.] The presumption is based on the state's 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 developed parent-child ... relationships which give young children social and emotional strength and stability." ' " ( R.M. v. T.A., supra , 233 Cal.App.4th at p. 773,
"When determining whether the person has met the statutory requirements of receiving the child into his or her home and openly holding the child out as his or her own, the court may consider a wide variety of factors, including the person's provision of physical and/or financial support for the child, efforts to place the person's name on the birth certificate, efforts to seek legal custody, and the *745breadth and unequivocal nature of the person's acknowledgement of the child as his or her own. [Citation.] No single factor is determinative; rather, the court may consider all the circumstances when deciding whether the person demonstrated a parental relationship by holding *510out the child as his or her own and assuming responsibility for the child by receiving the child into his or her home." ( R.M. v. T.A., supra , 233 Cal.App.4th at p. 774,
Here, the court found: "The facts in this case involving Mr. Cole and [the child] are unique because it is absolutely clear that Mr. Cole wanted a child with Ms. [Tsuchimoto]. He was not a mere bystander and donor. He underwent a medical procedure for the specific purpose of retrieving viable semen in order to impregnate Ms. [Tsuchimoto]. This had been discussed thoroughly between the two of them. ... [¶] Mr. Cole strongly contends that his real home was with his wife. The evidence is consistent with him having two residences: one with his wife and one with Ms. [Tsuchimoto]. As a pilot Mr. Cole was able to spend 2 to 4 days every week with Ms. [Tsuchimoto] and [the child][
Viewing the facts in the light most favorable to the court's order, we conclude there was sufficient evidence to support the court's findings. Cole voluntarily agreed to undergo a sperm extraction for the purpose of conceiving a child with Tsuchimoto. Tsuchimoto testified she and Cole discussed raising this child together, and marrying at some point. Cole provided financial support for Tsuchimoto before and after the child's birth. Cole was *511present when the child was born, and helped Tsuchimoto care for him during the first two and a half years of his life. Cole spent an average of one to two nights a week at Tsuchimoto's house, and Tsuchimoto believed that he was traveling for work on the other nights. Cole either identified himself as the child's father to Tsuchimoto's friends and family, or did not correct Tsuchimoto or the child when they referred *746to him as such. Cole did not introduce Tsuchimoto or the child to his friends and family, but told Tsuchimoto he had no friends.
Cole argues that the presumption of section 7611(d) never arose because the evidence did not support the court's findings that Cole received the child into his home and openly held him out as his natural child. We disagree. As the court noted, Cole was in essence maintaining two homes during the first two and a half years of the child's life-one with his wife and older children, and the other with Tsuchimoto and the child. Cole lived in the second of these homes regularly, helped pay for it, and cared for the child while he was there. Further, while Cole did not tell his wife and older children about the child, he publicly acknowledged to Tsuchimoto's friends and family that he was the child's father, he did not correct Tsuchimoto when she referred to him as the child's father, and he did not object when the child called him "daddy." The statute does not require that Cole hold out the child as his own in every situation and it does not protect fathers who lead double lives.
Cole attempts to overcome the presumption with his own testimony that he did not want a relationship with the child and never wanted any financial responsibilities for him. The trial court rejected Cole's testimony that the child never called him "daddy," based on the child being a "major part of Mr. Cole's life" for two and a half years. Cole's intention to avoid financial responsibility does not rebut the presumption of parenthood.
II.
SECTION 7613
Cole argues that the court should never have considered the application of section 7611(d) because another statute precluded any parental relationship with the child. The version of section 7613 in place when the child was conceived and born provided: "The donor of semen provided to a licensed physician and surgeon or to a licensed sperm bank for use in assisted reproduction by a woman other than the donor's spouse is treated in law as if he were not the natural parent of a child thereby conceived." (Former § 7613, subd. (b), as enacted by Stats. 1992, ch. 162, § 10.) The inability to establish parenthood based on section 7613 does not prevent parenthood from being established under section 7611(d), however.
*512In Jason P. v. Danielle S. (2014)
Both sections 7611 and 7613 are part of the Uniform Parentage Act, and must be interpreted in such a way as to give meaning to both. " ' "The statutory purpose [of section 7611 ] is to distinguish between those fathers who have entered into some familial relationship with the mother and child and those who have not." ' [Citation.] A biological connection to *747the child is not necessary for the presumption of paternity to arise. [Citation.] Nor is it necessary for the person seeking presumed parent status to have entered into the familial relationship from the time of conception or birth. '[T]he premise behind the category of presumed father is that an individual who has demonstrated a commitment to the child and the child's welfare-regardless of whether he is biologically the father-is entitled to the elevated status of presumed fatherhood.' [Citation.] Thus, a sperm donor who has established a familial relationship with the child, and has demonstrated a commitment to the child and the child's welfare, can be found to be a presumed parent even though he could not establish paternity based upon his biological connection to the child." ( Jason P., supra, 226 Cal.App.4th at pp. 177-178,
Jason P., supra, 226 Cal.App.4th at page 171,
The appellate court in Jason P., supra,
Cole does not raise any argument specific to the amount of child support the trial court ordered him to pay.
*748DISPOSITION
The orders are affirmed. Respondent to recover costs on appeal.
WE CONCUR:
O'LEARY, P.J.
ARONSON, J.
All further statutory references are to the Family Code.
We exercise our discretion under rule 8.90(b)(1) of the California Rules of Court not to name the child.
Both Tsuchimoto and Cole testified that Cole spent, on average, one to two nights per week at Tsuchimoto's house. Cole also testified that some weeks he did not stay at Tsuchimoto's house at all. Presumably, the court's finding that Cole spent up to four nights per week with Tsuchimoto was a means of explaining how to achieve an average of one to two nights when some of the testimony was that he spent no nights.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.