Alameda County Social Services Agency v. Kimberly H.

A man who receives a child into his home and openly holds the child out as his natural child is presumed to be the natural father of the child. (Fam. Code, § 7611, subd. (d); hereafter section 7611(d).) 1 The presumption that he is the natural father “is a rebuttable presumption affecting the burden of proof and may be rebutted in an appropriate action only by clear and convincing evidence.” (§ 7612, subd. (a); hereafter section 7612(a).) The question presented by this case is whether a presumption arising under section 7611(d) is, under section 7612(a), necessarily rebutted when the presumed father seeks parental rights but admits that he is not the biological father of the child.

The answer to this question is of the gravest concern to the six-year-old boy involved in this case. While his presumed father is providing a loving home for him, his mother has not done so, and his biological father, whose identity has never been judicially determined, has shown no interest in doing so. Therefore, if, as the Court of Appeal concluded, the juvenile court had no discretion under section 7612(a) but to find that the presumption arising under section 7611(d) was rebutted by the…