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Civil, Family, and Administrative Appeals and Writs

In re Salvador M.

In re Salvador M. (2003) 111 Cal.App.4th 1353, was the first case granting presumed maternity to a woman who was raising her brother as her own child after the death of their mother. As a result, women who are raising children as their own may receive services that are not normally available to non-parents. In this family law case, Ms. Conrad represented the appellant, who had raised her brother as her own child after the death of their mother. The child referred to appellant as "mom" and her other children as his brother and sister. After appellant's brother was removed from her custody, the trial court denied appellant presumed maternity status, which was required in order to provide appellant with legal representation and services to reunify with her brother. The appellate court held that the appellant was her brother's presumed mother because her brother thought she was his mother and she held herself out to the world as his mother even though she admitted to school officials and governmental authorities that she was his sister.


Here is the discussion and order from this case:


Designation as a presumed parent is critical in dependency proceedings because it entitles the presumed parent to appointed counsel, custody absent a finding of detriment and a reunification plan (§§ 317, subd. (a); 361.2, subd. (a); 361.5, subd. (a)). Consequently, presumed parentage has been heavily litigated in the past decade. Though most of the decisional law has focused on the definition of the presumed father, the legal principles concerning the presumed father apply equally to a woman seeking presumed mother status. (In re Karen C. (2002) 101 Cal.App.4th 932, 938, 124 Cal.Rptr.2d 677.)

Family Code section 7611 sets forth rebuttable presumptions of paternity. The presumption pertinent to our discussion is contained in subdivision (d), which provides that a man is presumed to be the natural father of a child if he receives the child into his home and openly holds the child out as his natural child. (Fam.Code, § 7611, subd. (d).) The proponent has the burden of proving the foundational facts by a preponderance of the evidence, i.e., that he received the child into his home and openly and publicly acknowledged paternity. (In re Spencer W. (1996) 48 Cal.App.4th 1647, 1653, 56 Cal.Rptr.2d 524.)

The paternity presumptions are driven, not by biological paternity, but by the state's interest in the welfare of the child and the integrity of the family. (In re Nicholas H. (2002) 28 Cal.4th 56, 65, 120 Cal.Rptr.2d 146, 46 P.3d 932 (Nicholas H.).) The familial relationship between a nonbiological father and an older child [over two years of age], resulting from years of living together in a purported parent/child relationship, is “considerably more palpable than the biological relationship of actual paternity” and “should not be lightly dissolved.” (Ibid.) We review a lower court's determination of presumed father status for substantial evidence. (Miller v. Miller (1998) 64 Cal.App.4th 111, 117–118, 74 Cal.Rptr.2d 797.)

Turning to the merits of this case, we first reject respondent's argument that appellant lacks standing to raise the issue of whether she is Salvador's presumed mother. Whether appellant had standing to raise the issue before the juvenile court is irrelevant as the matter was fully litigated and the court issued an order finding she was not the presumed mother. Moreover, she clearly has standing to raise the issue on appeal. She was a party to the action and she was aggrieved by the court's denial of her motion because it renders her ineligible for reunification services. (In re Frank L. (2000) 81 Cal.App.4th 700, 703, 97 Cal.Rptr.2d 88.)

Further, we are not persuaded by respondent's argument appellant failed to establish that she openly held Salvador out to the community as her son because she did not publicly admit maternity. Respondent relies on appellant's failure to represent Salvador as her son to her family and her admission to school officials, as well as the police officers and social workers involved in her case, that she was Salvador's half-sister. However, respondent ignores the most compelling evidence that appellant held Salvador out as her own son—i.e., the fact that eight-year-old Salvador believed appellant was his mother. At his age, Salvador would not still believe appellant was his mother unless she so represented herself. Though appellant's family knew she was not his biological mother, we can reasonably infer from this record that family members went along with the fiction, at least in front of Salvador. Otherwise, Salvador would know or at least suspect that appellant was not his mother. Yet, the fact that Salvador believed appellant was his mother is not disputed in this case. Therefore, for Salvador to hold on to that belief for so long must mean that appellant held Salvador out to the community as her son. Such a conclusion is affirmed by appellant's statement “to the rest of the world, Salvador is my son.” Based on the foregoing, we conclude substantial evidence supports a finding appellant established herself as Salvador's presumed mother long before she was forced to truthfully admit her actual relationship to school officials. We further conclude her admission that she was not Salvador's biological mother did not rebut the presumption. (Nicholas H., supra, 28 Cal.4th at p. 63, 120 Cal.Rptr.2d 146, 46 P.3d 932.)

Finally, this is not an appropriate case, as respondent alternatively argues, to find the presumption was rebutted pursuant to Family Code section 7612 which provides, in relevant part, that a presumption under section 7611 may be rebutted “in an appropriate action only by clear and convincing evidence.” Respondent argues this is an appropriate action to rebut the presumption because to find appellant a presumed mother would undercut the Legislature's design that children such as Salvador be placed through the adoptive process. However, we need not reconcile the statutory provisions governing paternity presumptions and the adoptive process, as that issue is not before this court. Rather, we conclude this is clearly not an appropriate case to find respondent rebutted the presumption because there was no competing maternal interest and to sever this deeply rooted mother/child bond would contravene the state's interest in maintaining the family relationship. In sum, we conclude appellant established an unrebutted presumption of maternity. Having concluded petitioner is Salvador's presumed mother, we need not review the court's denial of her motion to be designated Salvador's de facto parent.


The judgment is reversed. Respondent court is directed to vacate its order denying appellant presumed maternity. The court is further directed to enter an order granting her presumed mother status and to order a plan of reunification with services commencing as of the date of the order.