Dawn D. v. Superior Court

952 P.2d 1139, 17 Cal. 4th 932, 98 Cal. Daily Op. Serv. 2511, 98 Daily Journal DAR 3423, 72 Cal. Rptr. 2d 871, 1998 Cal. LEXIS 1686

• Court: California Court of Appeal
• Decided: April 6, 1998
• Docket: No. S060966
• Status: Published

Opinions

Opinion

WERDEGAR, J.

In this case we determine whether the presumption created by Family Code section 7611¹ and the standing rule embodied in section ² constitutionally may be applied to preclude an alleged biological father from establishing his paternity of a child bom during the mother’s marriage to another man. The husband in this case is presumed to be the child’s natural father, as the child was bom during the marriage (§ 7611, subd. (a)) and he has received the child into his home and openly holds out the child as his natural child (§7611, subd. (d)). Because, however, the husband and wife were not cohabiting at the time of conception, the presumption is not conclusive. (See, e.g., Steven W. v. Matthew S. (1995) 33 Cal.App.4th 1108, 1114 [39 Cal.Rptr.2d 535]; City and County of San Francisco v. Strahlendorf (1992) 7 Cal.App.4th 1911, 1915 [9 Cal.Rptr.2d 817]; § 7540.)³ The alleged biological father does not meet any of the statutory criteria for presumed fatherhood. He relies, instead, on an asserted constitutional liberty interest, protected as a matter of substantive due process, not to be denied the opportunity to establish a parental relationship with the child.

We conclude the alleged biological father in this case has no constitutionally protected liberty interest defeating California’s statutory presumption favoring the husband.

Facts and Procedural Posture

Our recitation of facts is drawn from the trial court’s findings and the parties’ pleadings.

Dawn D. and her husband, Frank F., were married in June 1989. In early January 1995 Dawn separated from her husband and began living with Jerry K. Dawn became pregnant the following month. In April 1995 she moved out of Jerry’s household and returned to her husband. In August 1995 Jerry filed the complaint in the present action to establish a parental relationship and seeking eventual visitation with the as-yet unborn child. In anticipation of his assuming fatherly responsibilities, Jerry completed a parenting course. On November 9, 1995, Dawn gave birth to a son, who has resided with Dawn and Frank ever since that time. Jerry attempted to negotiate with Dawn and Frank an agreement for child support and visitation, but the parties have not effectuated such an agreement.

Dawn moved for judgment on the pleadings. She argued Jerry could not assert a valid claim to be the father of her son, inasmuch as her husband is presumptively the child’s natural father and California law recognizes only one natural father for any child. She further contended Jerry was not within the class of persons granted standing to seek blood testing under the Family Code. Finally, she contended the state’s interest in the integrity and preservation of the family unit outweighed Jerry’s interest in establishing his paternity of her son.

The trial court denied Dawn’s motion. Relying on Michael M. v. Giovanna F. (1992) 5 Cal.App.4th 1272 [7 Cal.Rptr.2d 460] and Adoption of Kelsey S. (1992) 1 Cal.4th 816 [4 Cal.Rptr.2d 615, 823 P.2d 1216] (Kelsey S.), the court found that because Jerry had done all he could to demonstrate a commitment to his parental responsibilities, he had established “due process rights” that must be balanced against the state’s interest in enforcing the statutory presumption in favor of Frank. The trial court noted the state’s continuing interest in the welfare of the child and in family stability, an interest best exemplified in the conclusive presumption contained in section 7540, which allows parentage to be challenged by someone other than the husband or wife only in exceptional circumstances. The trial court reasoned, however, that the inapplicability of section 7540 in this case supports an inference “the [Legislature perceived a decreased threat to the family stability if a wife is not cohabiting with her husband at the time of the conception.” The court therefore concluded Jerry should be permitted to try to establish he is the child’s biological father and, to that end, granted Jerry’s motion for blood testing.

Dawn petitioned the Court of Appeal, seeking a stay of further proceedings and a writ of mandate to compel the trial court to vacate its order denying her motion for judgment on the pleadings and enter a new order granting the motion. The Court of Appeal invited Jerry to file a response and notified the parties that unless good cause were shown it might issue a peremptory writ in the first instance. (See Palma v. U. S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180 [203 Cal.Rptr. 626, 681 P.2d 893].) After consideration of the parties’ responsive papers, the Court of Appeal summarily denied the petition.

We granted Dawn’s petition for review, directed respondent court to show cause before this court why the relief sought in the petition for writ of mandate should not be granted, and stayed all proceedings in the superior court pending final determination of this cause.

Discussion

The Uniform Parentage Act, section 7600 et seq. (the Act), provides the framework by which California courts make paternity determinations. (§ 7610, subd. (b).) Under section 7611 of the Act, a man is presumed the natural father of a child bom during, or within 300 days after the termination of, his marriage to the child’s mother. (§ 7611, subd. (a).) He also attains the status of presumed father if he receives the child into his home and openly holds out the child as his natural child. (§7611, subd. (d).) By either of these provisions, Dawn’s husband, Frank, is presumed the father of the child involved in this litigation.⁴ Jerry, by contrast, meets none of the statutory conditions for presumed fatherhood: He has neither married nor attempted to marry Dawn, nor, despite his considerable efforts to assert parental rights, has he actually received the child into his home. (§7611; see Kelsey S., supra, 1 Cal.4th 816, 826-830 [declining to recognize doctrine of constructive receipt of child into man’s home].)

The presumptions arising under section 7611 are rebuttable presumptions affecting the burden of proof and may be rebutted in an appropriate action by clear and convincing evidence. (§ 7612, subd. (a).) The Act, however, restricts standing to challenge the presumption of a husband’s paternity to the child, the child’s natural mother, or a presumed father. (§ 7630, subd. (a); cf. § 7631.)⁵ The Act thus precludes Jerry from bringing this paternity action and, therefore, from compelling Dawn and the child to submit to blood tests to resolve the question of biological parenthood. (See §§ 7551 [court may order blood tests in a civil action or proceeding in which paternity is a relevant fact], 7554 [governing determinations of paternity based on blood tests].)

Jerry does not argue he has statutory standing to bring this action; his argument is directed to the proposition that a biological father has a liberty interest, protected as a matter of substantive due process, in being' permitted to develop a parental relationship with his offspring. The Act, he contends, is therefore unconstitutional to the extent it deprives him of the opportunity to establish his parenthood.

A preliminary question is the nature of our inquiry in tlie case of a substantive due process challenge to the Act. California courts have examined substantive due process claims to a right to establish parenthood on a case-by-case basis. “As our discussions have indicated, the reasonableness of a statutory limitation on the right to offer proof of parentage depends on circumstances prevailing in each particular case. Accordingly, a court, before receiving evidence thereof, must in each instance make a preliminary determination, as by offer of proof, that due process concepts would be offended if the particular claimant to parentage were denied an opportunity to prove his claim.” (In re Lisa R. (1975) 13 Cal.3d 636, 651, fn. 17 [119 Cal.Rptr. 475, 532 P.2d 123, 90 A.L.R.3d 1017]; see also Michelle W. v. Ronald W. (1985) 39 Cal.3d 354, 360 [216 Cal.Rptr. 748, 703 P.2d 88].)

Dawn forcefully argues that such a method of analysis runs the risk of merely substituting this court’s policy choices for those of the Legislature. As the United States Supreme Court recently noted in a different context, “[W]e ‘ha[ve] always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.’ [Citation.] By extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. We must therefore ‘exercise the utmost care whenever we are asked to break new ground in this field,’ [citation], lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the members of this Court, [citation].” (Washington v. Glucksberg (1997) _ U.S. _, _ [117 S.Ct. 2258, 2267-2268, 138 L.Ed.2d 772, 787] [upholding, against Fourteenth Amendment challenge, Washington statute criminalizing the act of causing or assisting a suicide].)

We are sympathetic to the democratic motivation underlying the cautious attitude of the authority just quoted. Nevertheless, if the judiciary is to fulfill its role in our tripartite system of government as the final arbiter of constitutional issues, it cannot hope to escape the tension between legislative policy determinations and the challenges raised by those who would seek exceptions thereto. We can, however, while entertaining such challenges, seek to hold the tension in check by always presuming the constitutional validity of legislative acts and resolving doubts in favor of the statute. (Amwest Surety Ins. Co. v. Wilson (1995) 11 Cal.4th 1243, 1252 [48 Cal.Rptr.2d 12, 906 P.2d 1112].)

The due process clause of the Fourteenth Amendment to the federal Constitution provides that “[n]o state shall . . . deprive any person of life, liberty, or property, without due process of law . . . .” (U.S. Const., 14th Amend., § 1.) The United States Supreme Court has long recognized that this provision is not only a guarantee of procedural due process, but also substantively protects certain liberties from state infringement except when justified by the most compelling reasons: “[A] ‘substantive due process’ claim relies upon our line of cases which interprets the Fifth and Fourteenth Amendments’ guarantee of ‘due process of law’ to include a substantive component, which forbids the government to infringe certain ‘fundamental’ liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.” (Reno v. Flores (1993) 507 U.S. 292, 301-302 [113 S.Ct. 1439, 1447, 123 L.Ed.2d 1].) The high court has recognized that the liberty interests protected by the due process clause are broader than just the freedom from physical restraint: “In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the ‘liberty’ specially protected by the Due Process Clause includes the rights to marry . . . ; to have children . . . ; to direct the education and upbringing of one’s children . . . ; to marital privacy . . . ; to use contraception . . . ; to bodily integrity . . . ; and to abortion.” (Washington v. Glucksberg, supra,_U.S. at p._[117 S.Ct. at p. 2268, 138 L.Ed.2d at p. 787], citations omitted.)

The United States Supreme Court has developed the following methodology for deciding whether an asserted interest is a fundamental liberty interest protected by due process: First, the court must make a “ ‘careful description’ of the asserted fundamental liberty interest.” (Washington v. Glucksberg, supra, _ U.S. at p. _ [117 S.Ct. at p. 2268, 138 L.Ed.2d at p. 788].) This “careful description” is concrete and particularized, rather than abstract and general; thus, in Washington v. Glucksberg, a case addressing a state statute forbidding assisted suicide, the high court rejected the view the interest in question was “ ‘whether there is a liberty interest in determining the time and manner of one’s death’ ” or a “ ‘liberty to choose how to die.’ ” (Id. at p--[117 S.Ct. at p. 2269, 138 L.Ed.2d at p. 789].) Instead, the high court formulated the interest more specifically as “whether the ‘liberty’ specially protected by the Due Process Clause includes a right to commit suicide which itself includes a right to assistance in doing so.” (Ibid.) Likewise, in a case challenging the policy of the Immigration and Naturalization Service to place deportable alien juveniles in custodial child care rather than to release them to unrelated adults, the Supreme Court rejected the contention the right at issue was the “ ‘freedom from physical restraint,’ ” instead characterizing it as “the alleged right of a child who has no available parent, close relative, or legal guardian, and for whom the government is responsible, to be placed in the custody of a willing-and-able private custodian rather than of a government-operated or government-selected child-care institution.” (Reno v. Flores, supra, 507 U.S. 292, 302 [113 S.Ct. 1439, 1447].)

Second, the court must determine whether the asserted interest, as carefully described, is one of our fundamental rights and liberties; central to this determination is whether the asserted interest finds support in our history, our traditions, and the conscience of our people. (Washington v. Glucksberg, supra,_U.S. at p._[117 S.Ct. at p. 2268, 138 L.Ed.2d at p. 788]; Reno v. Flores, supra, 507 U.S. 292, 303 [113 S.Ct. 1439, 1447].)

Only if a court decides the asserted liberty interest is a fundamental interest protected by the'due process clause does it weigh the state’s countervailing interest, to determine whether the latter is sufficiently compelling to justify the state’s infringement of the liberty interest. “[B]y establishing a threshold requirement—that a challenged state action implicate a fundamental right—before requiring more than a reasonable relation to a legitimate state interest to justify the action, [this approach] avoids the need for complex balancing of competing interests in every case.” (Washington v. Glucksberg, supra,_U.S. at p._[117 S.Ct. at p. 2268, 138 L.Ed.2d at pp. 788-789].)

Adhering to the United States Supreme Court’s methodology for analyzing substantive due process claims, our first step, therefore, is to make a “careful description” of the asserted liberty interest. (Washington v. Glucksberg, supra,_U.S. at p._[117 S.Ct. at p. 2268, 138 L.Ed.2d at p. 788].) Carefully described, the interest for which the alleged biological father, Jerry, seeks constitutional protection is his interest in establishing a relationship with his child born to a woman married to another man at the time of the child’s conception and birth.

The next step is to. decide whether this interest is constitutionally protected. This question has a ready answer, for the United States Supreme Court has considered and rejected due process protection for this interest. In Michael H. v. Gerald D. (1989) 491 U.S. 110, 124-127 [109 S.Ct. 2333, 2342-2344, 105 L.Ed.2d 91], four justices, in a plurality opinion by Justice Scalia, concluded the biological father of a child bom to a woman married to another man had no liberty interest in continuing his relationship with the child, notwithstanding that he had lived with the mother and child for almost a year and visited her for an additional eight months, and the child called him “Daddy.” In rejecting the liberty interest claim of a man who was not only the biological father, but also had an actual personal relationship with the child, the plurality necessarily rejected as well the position that a biological connection without any actual personal relationship gives rise to a protected liberty interest.

Three dissenting justices in Michael H. v. Gerald D., supra, 491 U.S. 110, concluded the actual personal relationship between the biological father and his child was a protected liberty interest. They rejected, however, the possibility that a biological father having no existing personal relationship with his child bom to a woman married to another man could have any liberty interest in establishing a relationship with the child: “[Although an unwed father’s biological link to his child does not, in and of itself, guarantee him a constitutional stake in his relationship with that child, such a link combined with a substantial parent-child relationship will do so.” (Id. at pp. 142-143 [109 S.Ct. at p. 2352] (dis. opn. of Brennan, J., joined by Marshall, J., and Blackmun, J.).) The dissenting opinion concluded, “a mere biological connection is insufficient to establish a liberty interest on the part of an unwed father.” (Id. at p. 143, fn. 2 [109 S.Ct. at p. 2352].) Thus, at least seven of the nine high court justices in Michael H. expressly rejected the view that an unwed father’s biological link to a child alone gives rise to a protected liberty interest. (See also Lehr v. Robertson (1983) 463 U.S. 248, 259-260 [103 S.Ct. 2985, 2992, 77 L.Ed.2d 614] [drawing a “clear distinction between a mere biological relationship and an actual relationship of parental responsibility.” (Italics added.)].)

Here, Jerry has never had any personal relationship with Dawn’s child, only an alleged biological link with an attempt to negotiate an agreement for child support and visitation. As explained above, in Michael H. v. Gerald D., supra, 491 U.S. 110, the United States Supreme Court decided that a biological father’s mere desire to establish a personal relationship with the child is not a fundamental liberty interest protected by the due process clause. Accordingly, in this case Jerry’s claim must fail.

Contrary to our conclusion, the dissent maintains Jerry does have a protected liberty interest in establishing a relationship with Dawn’s child. It relies on two United States Supreme Court decisions, Michael H. v. Gerald D., supra, 491 U.S. 110 and Lehr v. Robertson, supra, 463 U.S. 248, and one of this court’s adoption cases, Kelsey S., supra, 1 Cal.4th 816. The dissent, however, fails to acknowledge the distinction the high court in Michael H. v. Gerald D., supra, 491 U.S. 110, drew between an unwed father’s interest in maintaining and preserving an existing parent-child relationship and the claim, rejected by at least seven justices, that an unwed father’s biological connection alone to a child bom to a married woman gives rise to a protected liberty interest in establishing a relationship with the child.⁶

As for Lehr v. Robertson, in that case an unwed mother, after her child’s birth, married another man who then adopted the child; the unwed father claimed due process entitled him to notice and a hearing before the adoption could occur. (Lehr v. Robertson, supra, 463 U.S. 248, 250 [103 S.Ct. 2985, 2987].) Like Kelsey S., supra, 1 Cal.4th 816, Lehr v. Robertson concerned a child bom to two unwed parents, not, as here, a child bom into a marriage. Thus, the adoption cases do not support protecting as a liberty interest Jerry’s desire to establish a relationship with Dawn’s child born into a marriage. Moreover, the high court in Lehr v. Robertson never clearly decided to what extent the unwed father in that case had a protected liberty interest in the opportunity to develop a relationship with his child, nor was it necessary for the court to do so. Rather, after deciding that an unwed father’s desire to establish a relationship with his child bom to an unwed mother was not entitled to the constitutional protection accorded to existing parent-child relationships, the court concluded the state had adequately protected any constitutional interest the father may have possessed by providing a means for unwed biological fathers to register with the state and receive notification of any adoption proceedings involving their children. (Lehr v. Robertson, supra, 463 U.S. 248, 261-265 [103 S.Ct. 2985, 2993-2995].) The high court’s subsequent decision in Michael H. v. Gerald D., supra, 491 U.S. 110, made clear that the biological father of a child bom to a woman married to another man has no liberty interest in establishing a relationship with the child.

The dissent further suggests Jerry is potentially liable for financial support of Dawn’s child, but the cases it cites in support of this startling assertion do not so hold. In Alicia R. v. Timothy M. (1994) 29 Cal.App.4th 1232, 1235-1238 [34 Cal.Rptr.2d 868], a biological father was ordered to pay support only after a judgment of nullity of the mother’s marriage with a finding there were no children of the marriage, and after blood tests had established his paternity. In County of Orange v. Leslie B. (1993) 14 Cal.App.4th 976, 980-983 [17 Cal.Rptr.2d 797], the Court of Appeal declined to apply the conclusive presumption of a husband’s paternity (former Evid. Code, § 621), noting: “Here there is no marital union to disrupt [by holding the biological father liable for child support]. [Wife] and [Husband’s] brief marriage ended well before [the child] was bom. The three never lived together as a family unit. [The child] knows [Husband] is not her father and [Husband] did not know about [the child] until he was brought into this action, 13 years later.” (14 Cal.App.4th at p. 982.) The dissent cites no authority remotely similar to this case, in which the child was bom into a validly existing marital family unit.⁷

Conclusion

Because Jerry cannot establish a constitutionally protected liberty interest in being allowed to form a parental relationship with Dawn’s child, application to this case of sections 7611 and 7630 does not deprive him of due process. The judgment of the Court of Appeal therefore is reversed, and the cause is remanded to that court with directions to issue a writ of mandate directing respondent Superior Court of Riverside County to vacate its order denying Dawn’s motion for judgment on the pleadings and to enter a new order granting the motion.

George, C. J., Kennard, J., Baxter, J., and Brown, J., concurred.

1 Family Code section 7611 provides: “A man is presumed to be the natural father of a child if he meets the conditions provided in Chapter 1 (commencing with section 7540) or Chapter 3 (commencing with section 7570 [establishment of paternity by voluntary declaration]) of Part 2 or in any of the following subdivisions: HQ (a) He and the child’s natural mother are or have been married to each other and the child is bom during the marriage, or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a judgment of separation is entered by a court. HQ (b) Before the child’s birth, he and the child’s natural mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and either of the following is true: HD (1) If the attempted marriage could be declared invalid only by a court, the child is born during the attempted marriage, or within 300 days after its termination by death, annulment, declaration of invalidity, or divorce. HO (2) If the attempted marriage is invalid without a court order, the child is bom within 300 days after the termination of cohabitation, HO (c) After the child’s birth, he and the child’s natural mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and either of the following is tme: [TO (1) With his consent, he is named as the child’s father on the child’s birth certificate. [ID (2) He is obligated to support the child under a written voluntary promise or by court order. HD (d) He receives the child into his home and openly holds out the child as his natural child. HD (e) If the child was bom and resides in a nation with which the United States engages in an Orderly Departure Program or successor program, he acknowledges that he is the child’s father in a declaration under penalty of perjury, as specified in Section 2015.5 of the Code of Civil Procedure. This subdivision shall remain in effect only until January 1, 1997, and on that date shall become inoperative.” (Italics added.)

All further statutory citations are to the Family Code unless otherwise specified.

2 Section 7630, subdivision (a), provides: “A child, the child’s natural mother, or a man presumed to be the child’s father under subdivision (a), (b), or (c) of Section 7611, may bring an action as follows: HD (1) At any time for the purpose of declaring the existence of the father and child relationship presumed under subdivision (a), (b), or (c) of Section 7611. [ID (2) For the purpose of declaring the nonexistence of the father and child relationship presumed under subdivision (a), (b), or (c) of Section 7611 only if the action is brought within a reasonable time after obtaining knowledge of relevant facts. After the presumption has been rebutted, paternity of the child by another man may be determined in the same action, if he has been made a party.”

3 Section 7540 provides: “Except as provided in Section 7541, the child of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage.”

4 Had Frank and Dawn been cohabiting at the time of the child’s conception (see, e.g., Steven W. v. Matthew S., supra, 33 Cal.App.4th 1108; City and County of San Francisco v. Strahlendorf, supra, 7 Cal.App.4th 1911), Frank’s paternity would be “conclusively” presumed (§ 7540). Although the presumption arising from the birth of a child to a wife cohabiting with her husband is denominated “conclusive,” in fact the presumption is subject to challenge under certain circumstances not relevant here. (See §§ 7540, 7541, subds. (b), (c).)

5 As noted (see fn. 2, ante), section 7630, subdivision (a), grants standing only to the child, the child’s mother, or a man presumed to be the child’s father as a result of his marriage to the child’s mother to bring an action to declare the existence or nonexistence of the father and child relationship presumed as a result of the mother’s marriage to the presumed father. Thus, even if Jerry had himself become a presumed father under subdivision (d) of section 7611 by receiving and acknowledging the child, subdivision (a) of section 7630 would not confer on him standing to challenge the paternity of another whose presumed fatherhood was based on marriage to the child’s mother at the time the child was born.

Section 7630, subdivision (b), by contrast, allows “[a]ny interested party” to bring an action to determine the existence or nonexistence of the father and child relationship presumed under subdivision (d) of section 7611. No reported cases have interpreted this provision in light df facts similar to those present here. Arguably, Jerry would qualify as an “interested party” for purposes of bringing an action to establish Frank’s nonpaternity under subdivision (d) of section 7611. Such an action, however, whatever its outcome, would appear neither to affect Frank’s status as a presumed father under subdivision (a) of section 7611 nor to confer on Jerry presumed father status. (See also § 7635, subd. (b) [in an action to determine the paternity of a presumed father, the mother, each presumed father, and any alleged natural father must receive notice and an opportunity to be heard, and may be made parties].)

Section 7631 provides in pertinent part: “Except as to cases coming within [the conclusive presumption of section 7540], a man not a presumed father may bring an action for the purpose of declaring that he is the natural father of a child having a presumed father under Section 7611, if the mother relinquishes for, consents to, or proposes to relinquish for or consent to, the adoption of the child.” Because Dawn is not relinquishing for or consenting to her child’s adoption, section 7631 has no relevance to this case.

6 Contrary to the dissent in the present case, that dissenting Justice Brennan in Michael H. v. Gerald D., supra, 491 U.S. 110, 136 [109 S.Ct. 2333, 2348-2349], would find the mother’s marital status “not decisive” (id. at p. 144 [109 S.Ct. at p. 2353]) on the question whether the Constitution protects a biological father’s interest in establishing a relationship with the child does not mean her marital status is irrelevant, especially where, as here, the child was bom into the marital family and the alleged biological father has no actual relationship with the child. Nor, contrary to the dissent, is Justice Brennan’s apparent conclusion that the duration of the biological parent-child relationship is irrelevant to its constitutional status (id. at p. 144, fn. 3 [109 S.Ct. at p. 2353]) the equivalent of a conclusion that its very existence is likewise irrelevant. Indeed, as we have seen, in a passage ignored by the dissent in this case, Justice Brennan found a mere biological connection insufficient to create a constitutionally protected liberty interest on the part of the biological father. (Id. at p. 143, fn. 2 [109 S.Ct. at p. 2352] (dis. opn. of Brennan, J.).) We do not find Justice Brennan’s conclusion in this regard necessarily inconsistent with the dissent of Justice White, which Justice Brennan joined; even if it were, however, we believe Justice Brennan’s opinion best reflects his own views.

7 Citing Salas v. Cortez (1979) 24 Cal.3d 22, 34 [154 Cal.Rptr. 529, 593 P.2d 226] (Salas), Jerry argues the state has an interest in an accurate determination of biological paternity. He takes that decision out of context. In Salas we concluded procedural due process requires the appointment of counsel for indigent defendants in paternity actions prosecuted by the state, balancing the state’s largely financial interest in denying counsel against the profound emotional, financial and legal implications of an erroneous paternity judgment. (Id. at pp. 29-34.) Salas did not address the situation in the present case, where a man is actively seeking to establish his paternity of a child bom to a married woman whose husband is statutorily presumed to be the child’s father and is fulfilling that role. (See § 7611, subds. (a), (d).)