IN RE LISA R.

OPINION

WRIGHT, C.J.

Victor R. appeals from a juvenile court order entered upon the fourth annual review of the status of Lisa R., a minor, dependent ward of the court. Appellant particularly complains of rulings that he had no standing to offer evidence that he is Lisa's natural father and that he be excluded from the hearing. He seeks to establish his paternity in these proceedings as a basis to afford him visitation rights and eventually to effect a termination of Lisa's dependency status which was grounded on a finding that she is without a parent or guardian exercising parental care and control.1

We hold for reasons which follow that under the circumstances present in the instant case the juvenile court does have jurisdiction to determine parentage. We further hold that under the due process clause of the Fourteenth Amendment as enunciated by the United States Supreme Court in Stanley v. Illinois (1972) 405 U.S. 645 [31 L.Ed.2d 551, 92 S.Ct. 1208] (see also Cal. Const., art. I, § 13) appellant does have standing to offer evidence that he is the natural father of the minor child.

The initial petition seeking a dependency determination for Lisa was filed by a probation officer of the County of Sacramento when Lisa was two years old. The petition recites that Lisa's mother had been found in a drunken condition in her gas-filled home with Lisa and another minor child and that the mother had been in an intoxicated condition on numerous occasions in the presence of Lisa during a six-month period. The probation officer's report in support of the petition recites that the mother had previously pleaded guilty to a child-neglect charge and was then on probation, and that her husband had a record of narcotic violations and was then in custody. The report further recites that the mother had disclosed that Lisa was conceived during a casual relationship with appellant while she was separated from her husband. At the time of the initiation of the probation officer's investigations the mother resided in an alcoholic rehabilitation home. However, she was reported to be pregnant, was contemplating an abortion and had been asked to leave the home. At the time the report was filed she was incarcerated in the county jail for drunkenness.

The petition was sustained on July 3, 1969, and Lisa was adjudged to be a dependent child of the juvenile court under section 600, subdivision (a).2

The first annual hearing to consider Lisa's continued dependency status was held on June 30, 1970. A probation officer's report discloses that Lisa's mother had become addicted to heroin; that the whereabouts of Lisa's father, identified as appellant, remained unknown; and that Lisa had been in three different foster homes but was doing well in her current placement. The court, through a referee, ordered that Lisa be continued in the status of a dependent child. Although it made no direct finding of parentage, the court twice identified appellant as Lisa's father in the statement of its findings.

A probation officer's report submitted at the second annual review on June 29, 1971, discloses that the husband of Lisa's mother, identified as the "legal father" of Lisa, had died of an overdose of narcotics. The report also states that Lisa's mother continued to have drug-and alcohol-related problems which were affecting her emotional stability. Lisa is reported to have made good progress with her foster parents who wished to adopt her. Lisa's mother, however, had not given her consent to the adoption. The report also identifies appellant as the "father" of Lisa and sets forth an address for him. The court ordered that Lisa be continued in the status of a dependent child. Appellant was again identified twice in the court's findings as Lisa's father.

A third annual review of Lisa's status was conducted at a hearing on June 27, 1972. A probation officer reported that Lisa's mother continued to have the same alcohol and drug problems; that Lisa continued to do well in her foster home; and that her foster parents' efforts to adopt Lisa were unavailing because Lisa's mother had not given her consent although the mother had not seen Lisa for a year and a half.3 The court again ordered that Lisa be continued in the status of a dependent child.

The fourth annual review of Lisa's status was conducted at hearings held on June 26 and July 19, 1973. The probation officer's report on this occasion identifies appellant as "Lisa's Putative Father" who had employed counsel to commence proceedings to have Lisa placed in his custody although he had "only seen Lisa approximately five times in the last five years and had had no visits with her during the last two years." Apparently this was brought about because appellant was of the opinion that he was not allowed to visit with the minor. The report further recites that appellant is a janitor; that he did not then live in a separate residence but lived with a sister; that he has twice been confined for emotional problems in a state hospital; that in 1970 in response to his application for aid to the totally disabled he was examined by a physician who concluded that appellant suffered from conditions from which cure was doubtful without "good intensive psychiatric care"; that in further response to the same application a case worker had reported that appellant's conduct had been deemed by appellant's common law wife to endanger the lives of appellant, his common law wife, and her four-year-old daughter whom appellant had physically abused. The probation officer also reported that Lisa's mother had died shortly before the hearing date for the fourth annual review.

At the hearing the court first entertained appellant's offer of proof that he is Lisa's natural father and, after the offer, ordered that he had no standing and that he be excluded from the courtroom (see fn. 1, supra). This is the order from which the instant appeal is taken.4

I

(1a) We consider first a threshold issue: is the juvenile court vested with jurisdiction to determine the paternity of a minor dependent?

(2) A superior court convened as and exercising the special powers of a juvenile court is vested with jurisdiction to make only those limited determinations authorized by the legislative grant of those special powers. (See §§ 500-945; see also People v. Superior Court (1930) 104 Cal.App. 276, 280 [285 P. 871].) Not specifically included within the jurisdictional grant is a power to determine the parentage of a juvenile. Generally the determination of parentage is within the broad jurisdiction of the superior court and is provided for in Civil Code section 231.

Notwithstanding the absence of specific authorization to make particular determinations, a juvenile court is nevertheless vested with the authority to make such determinations which are incidentally necessary to the performance of those functions demanded of it by the Legislature pursuant to the Juvenile Court Law.5 (1b) That law is replete with references to "parents." In some of such instances the court is merely required to respond to allegations of parentage without first having actually to find the existence of a parent-child relationship.6 However, in other significant respects the law cannot be judically applied without a determination of parentage when such question is placed in issue. Thus wardship may initially depend, in the circumstances of a particular case, on a finding that a minor has no parent (§ 600, subd. (a))7 or "persistently or habitually refuses to obey the reasonable and proper orders or directions of his parents." (§ 601.) It is manifest that a juvenile court cannot find that a minor has no parent or that he refuses to obey a parent without a contemporaneous determination of parentage. (See also, § 726 (ordering limited control by parent), § 778 (petition by parent to modify or terminate dependency status).)

The finding of facts which constitute parentage as surely lie within the jurisdiction of the juvenile court as does the finding of facts which are necessary in order to hold that a minor has violated a law.8 In neither instance is the court specifically or expressly authorized or required to make such findings. The resolution of the question whether a minor is within the jurisdiction of the juvenile court because he has violated a law is to be made by that court independently of proceedings, if any, which may be had within the superior court in the exercise of its general jurisdiction. (See In re Johnson (1964) 227 Cal.App.2d 37, 39 [38 Cal.Rptr. 405]; see also People v. Silverstein (1953) 121 Cal.App.2d 140 [262 P.2d 656].) If a juvenile court has jurisdiction to find the fact of a commission of an offense by a minor in order to make a determination whether to impose dependency status because a juvenile has violated any law, then it follows that it must have jurisdiction to find the fact of parentage in reaching its determination whether to impose dependency status because a juvenile who needs care has no parent.

We accordingly conclude that a juvenile court is vested with jurisdiction to determine parentage of a minor when that finding is necessary to any ultimate determination with which it is charged. The juvenile court, accordingly, erred when it concluded that it lacked jurisdiction to make that determination in the instant case.9

II

(3) Appellant next contends that Lisa and the county are estopped to deny his paternity (1) because of the many references to him as Lisa's father in pleadings, reports and other representations made to him and to the juvenile court by county agents, and (2) because the issue of parentage was necessarily made in his favor in collateral proceedings under Civil Code section 232, subdivision (a), in which the parties were the identical parties now before the court.

Evidence Code section 623 provides that "Whenever a party has, by his own statement or conduct, intentionally and deliberately led another to believe a particular thing true and to act upon such belief, he is not, in any litigation arising out of such statement or conduct, permitted to contradict it." The essence of an estoppel, if it is applicable at all in these circumstances, is that the party to be estopped has by false language or conduct led another to do that which he would not otherwise have done and as a result thereof that he has suffered injury. (El Rio Oils v. Pacific Coast Asphalt Co. (1949) 95 Cal.App.2d 186 [213 P.2d 1]; 4 Witkin, Summary of Cal. Law (7th ed. 1960) pp. 2870-2871.) It is manifest that neither the county nor Lisa by representing that appellant is her natural father or that the county recognized appellant as such has induced appellant to his detriment to act in any manner he would not otherwise have acted in these proceedings. Appellant's burden in establishing his paternity is not affected by representations thus made as he has suffered no injury or detriment thereby and neither the county nor Lisa is estopped to deny her parentage.

(4) Appellant's claim that Lisa and the county are collaterally estopped to deny her parentage by reason of the proceedings in the superior court pursuant to Civil Code section 232, subdivision (a), is equally without merit. Code of Civil Procedure section 1908 provides that the effect of a judgment is conclusive in respect to a determination of "the personal ... or legal condition or relation of a particular person." It is claimed that because the superior court has determined that Lisa has not been abandoned by her parents it necessarily determined that appellant was a parent.10

The record in the instant case includes the filings in the abandonment action. Although not a part of the record on this appeal (see People v. St. Martin (1969) 1 Cal.3d 524, 537-538 [83 Cal.Rptr. 166, 463 P.2d 390]), we nevertheless take judicial notice of the documents filed in that action. (Evid. Code, § 452, subd. (d).) The effect of a prior adjudication between the same parties operates as a conclusive adjudication as to any issue "which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto." (Code Civ. Proc., § 1911.) Those findings which might have been made but were not necessary to the judgment are not conclusive. (Guardianship of Leach (1947) 30 Cal.2d 297, 310-311 [182 P.2d 529].)

The petition to have Lisa declared free from the custody and control of her parents alleges that she is the natural child of her mother and appellant; that she is a person within the provisions of Civil Code section 232, subdivision (a); that neither natural parent has had control of Lisa for over two years; and that neither natural parent has made any provisions for her support.11 The record does not disclose what evidence was received, what findings, other than the ultimate finding, were made or what rationale was adopted by the court. The record discloses only that "the evidence fails to show that [Lisa] is a person defined within the provisions of Section 232 of the Civil Code...."

It is apparent that on the record available the court might have found that Lisa had not been abandoned by both of the persons alleged to be her natural parents. (See In re Edwards (1930) 208 Cal. 725 [284 P. 916].) It would have been necessary for the court to have found that both of such persons had left Lisa in the care and custody of another within the meaning of Civil Code section 232, subdivision (a), as it then provided. A child taken from a parent by judicial order was not then deemed to have been left in the care and custody of another within the meaning of the statutory provision relied upon. (In re Conrich (1963) 221 Cal.App.2d 662 [34 Cal.Rptr. 658]; In re Barton (1959) 168 Cal.App.2d 584 [336 P.2d 210].) It also would have been necessary for the court to have found that both of Lisa's parents intended to abandon her, but to the contrary both parents had manifested an intention to maintain or reestablish their relationship with her. In any event it is clear that the court could have concluded that Lisa had not been abandoned as alleged, without having found that the persons alleged to have abandoned her were in fact her parents. Under such circumstances the finding that Lisa was not a "person defined within the provisions" of Civil Code section 232 was warranted, and the court could have concluded its inquiry without making a finding as to parentage. Findings which might have been made but which were not necessary to the judgment are not conclusive on the parties within the meaning of Code of Civil Procedure section 1911. (Guardianship of Leach, supra, 30 Cal.2d 297, 310-311.) Lisa and the county are thus not collaterally estopped to deny that appellant is Lisa's natural father.

III

(5) We now confront the critical issue — can appellant offer proof in an appropriate judicial proceeding that he is Lisa's natural father notwithstanding a statutory presumption which, on its face, precludes him from doing so? Evidence Code section 661 provides that the child of a married woman is presumed to be the legitimate issue of that marriage and that the presumption can be disputed only by the woman, her husband, the descendants of one or both of them or the State of California in circumstances not here relevant.12 Accordingly, as to appellant the presumption purports to be conclusive. (See Kusior v. Silver (1960) 54 Cal.2d 603, 618-619 [7 Cal.Rptr. 129, 354 P.2d 657].) He contends that contrary to due process requirements he is thus denied the opportunity to be heard in protection of a basic right.

Issues similar to those now urged by appellant were considered by the United States Supreme Court in Stanley v. Illinois, supra, 405 U.S. 645. The court on equal protection and due process grounds declared unconstitutional an Illinois statute which, upon the death of an unwed mother, made her children wards of the state without the father's right to be heard. In Stanley the father had physical custody of the children at the time of the mother's death, but the court purported to go beyond the precise facts of that case and held that the state was required to afford a hearing to all unwed fathers who desire and claim that they are fit to care for their children when the mother cannot or will not provide that care. (Id., at p. 657, fn. 9 [31 L.Ed.2d at p. 562]; see also State v. Lutheran Soc. Serv. of Wis. & Upper Mich. (1970) 47 Wis.2d 420 [178 N.W.2d 56], vacated sub nom. Rothstein v. Lutheran Social Services (1972) 405 U.S. 1051 [31 L.Ed.2d 786, 92 S.Ct. 1488]; Rich, Plight of the Putative Father in California Child Custody Proceedings: A Problem of Equal Protection (1973) 6 U.C. Davis L.Rev. 1, 2-3.) The court premised its holding on "rights to conceive and to raise one's children,"13 and held that such rights could not be taken from a father of a child born to a woman to whom he was not wed by operation of a statutory presumption of the father's unfitness.

In broad terms Stanley states that the interest of an unwed father in his children is not only cognizable but also of sufficient substance to warrant deference except when the deprivation comports with equal protection and due process requirements. "[T]he guarantee of due process, as has often been held, demands only that the law shall not be unreasonable, arbitrary or capricious, and that the means selected shall have a real and substantial relation to the objects sought to be attained." (Nebbia v. New York (1934) 291 U.S. 502, 525 [78 L.Ed. 940, 950, 54 S.Ct. 505, 89 A.L.R. 1469].) The question whether appellant, as one claiming to be Lisa's natural father, can rebut the presumption that Lisa is the issue of her mother's marriage must thus be resolved by weighing the competing private and state interests.14

The private interests which appellant seeks to preserve in the instant case as in Stanley arose from more than the mere biological fact that he is Lisa's natural father.15 Lisa was not conceived as the result of a casual relationship. Appellant resided with Lisa's mother both before and after Lisa's birth and contributed to her support. The mother used appellant's name during this period, and he appears as Lisa's father on her birth certificate. Appellant lived with Lisa and her mother as a family for four or five months and was deprived of Lisa's custody only because Lisa's mother, over appellant's wishes, elected to take Lisa with her when she returned to her husband. Appellant's then wife was aware of his living arrangements with Lisa's mother and gave her permission and encouragement for appellant's acknowledgment of Lisa as his child. (See Civ. Code, § 230.) Appellant first discovered that Lisa had been adjudged a dependent ward of the court when she was three years of age and visited with her when he was able to do so. He thereafter has consistently sought to assert his rights as her father.

It further appears that appellant has no alternate remedy by which he can protect his interest as Lisa's natural father. As in Stanley, appellant has no favored standing to petition for either the adoption or guardianship of the minor because under the applicable section of the Evidence Code he is not treated as a parent but as a stranger to the child. (See Stanley v. Illinois, supra, 405 U.S. 645, 647-649 [31 L.Ed.2d 551, 556-558].)

The countervailing interests of the state are not insignificant.16 The state has a legitimate interest in Lisa's welfare and it is apparent on this record that the traumas already visited on the child may make it difficult for her to cope with new relationships. But the balance to be struck is not obtained by measuring the minor's welfare against appellant's interests. We measure instead the state's narrower interest in precluding appellant from offering evidence of parentage against his interest in establishing that fact, and the question of the child's welfare lies beyond the question of her parentage. (See fn. 14, supra.)

The state's interest in maintaining the presumption of section 661 as a means of accomplishing the purposes of the Juvenile Court Law (§ 502; fn. 16, supra) is a consequence which cannot be controlling; in fact, the presumption may well defeat that purpose if the natural father, after establishing his paternity, is able to render proper parental care and control. (See Stanley v. Illinois, supra, 405 U.S. 645, 652-653, 654-655 [31 L.Ed.2d 551, 559-561].)

Nor does the state's interest in relieving a child of the stigma of illegitimacy (see Estate of Lund, supra, 26 Cal.2d 472) warrant the conclusiveness of the presumption. In fact, a natural father seeking to establish his paternity would undoubtedly intend to legitimatize the child as his own. (See fn. 14, supra.)

Although a state has a legitimate interest in promoting marriage, and in furtherance of that policy of not impugning a family unit (see Kusior v. Silver, supra, 54 Cal.2d 603, 619), that policy cannot be served when the family unit has been dissolved as here by the death not only of the mother but of the presumed father.

A possible legitimate interest which the state might assert in support of the conclusiveness of the presumption is speed and efficiency of judicial inquiry in circumstances where such inquiry might seldom be productive. In Stanley it was stated that it may be argued that unwed fathers are seldom fit parents. It was nevertheless concluded that due process precluded the conclusiveness of the presumption of unfitness. "The establishment of prompt efficacious procedures to achieve legitimate state ends is a proper state interest worthy of cognizance.... But the Constitution recognizes higher values than speed and efficiency. Indeed, one might fairly say of the Bill of Rights in general, and the Due Process Clause in particular, that they were designed to protect the fragile values of a vulnerable citizenry from overbearing concern for efficiency and efficacy...." (Stanley v. Illinois, supra, 405 U.S. 645, 656 [31 L.Ed.2d 551, 561-562].) The state "insists on presuming rather than proving Stanley's unfitness solely because it is more convenient to presume than prove. Under the Due Process Clause that advantage is insufficient to justify refusing a father a hearing when the issue at stake is the dismemberment of his family." (Id., at p. 658 [31 L.Ed.2d at p. 562].) "Procedure by presumption is always cheaper and easier than individualized determination." (Id., at pp. 656-657 [31 L.Ed.2d at p. 562].)

The court in Stanley thus conceded as arguable the proposition that an unwed father was unfit but rejected for due process reasons the conclusiveness of a presumption to that effect. We do not in the instant case concede as reasonably arguable a proposition that a claim of fatherhood is more generally without than with merit as, certainly, that claim would rarely, if ever, be made by a stranger. We hold, for reasons at least as compelling as those in Stanley, that a presumption which precludes to appellant in the instant circumstances a right to offer evidence to prove that he is the father of the minor child is unreasonable, arbitrary and capricious, and a denial of due process. (See Nebbia v. New York, supra, 291 U.S. 502, 525 [78 L.Ed. 940, 949-950].)17

The order is reversed insofar as it holds that the juvenile court lacks jurisdiction to determine parentage and that appellant has no standing to offer proof that he is the minor's father.18 The judgment is affirmed in all other respects. Appellant is to recover his costs on appeal.

McComb, J., Tobriner, J., Mosk, J., Sullivan, J., Clark, J., and Burke, J.,* concurred.