Opinion
2d Juv. No. B234373
01-31-2012
In re K.K., a Person Coming Under the Juvenile Court Law. SAN LUIS OBISPO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. J.Z., Defendant and Appellant.
Eliot Lee Grossman, under appointment by the Court of Appeal, for Defendant and Appellant. Warren R. Jensen, County Counsel, Leslie H. Kraut, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. JV-45591)
(San Luis Obispo County)
In this dependency action, the presumed father of the minor child signed a voluntary declaration of paternity (VDP) at the child's birth. After the juvenile court set the matter for a permanent plan hearing, and a short time beyond two years of the filing of the VDP, a man asserting biological paternity of the minor child requested genetic testing.
Statutes within the Family Code present a seeming conundrum. Under the facts here, a motion to set aside a VDP must be brought within two years. Yet the court must order genetic testing on the motion of a party in a proceeding in which paternity is a relevant factor. (Fam. Code, § 7551.)
Here the delay in filing the motion for genetic testing is attributable to misinformation given moving party by the Department of Social Services. Under these circumstances, we order remand so that moving party may receive genetic testing.
J.Z. appeals an order of the juvenile court denying his motion for a paternity test. We reverse the order denying testing and remand for immediate paternity testing.
FACTUAL AND PROCEDURAL HISTORY
Dependency Proceedings Concerning Infant J.
On January 12, 2007, the San Luis Obispo County Department of Social Services (DSS) filed a dependency petition on behalf of infant J. DSS alleged that H.G. (Mother) and presumed father J.Z. abused drugs, including opiates and methamphetamine. Mother was incarcerated and J.Z. was on felony probation. Infant J. was born addicted to opiates. (Welf. & Inst. Code, § 300, subd. (b).)
The juvenile court detained the infant and later sustained the allegations of the dependency petition. The court ordered that Mother and presumed father J.Z. receive family reunification services. Mother did not participate in her services plan, but presumed father J.Z. completed his plan successfully. On August 19, 2008, the court dismissed the dependency proceedings and granted full legal and physical custody of infant J. to J.Z. The court also granted Mother supervised visitation.
Dependency Proceedings Concerning Infant K.K.
In March 2009, Mother gave birth to K.K., who also was born addicted to opiates. Presumed father D.K. lived with Mother throughout the pregnancy, was present at the hospital for the birth, and signed a VDP at the hospital. On May 1, 2009, DSS filed a dependency petition alleging that Mother had abused opiates and other drugs for nine years and that D.K. had a history of substance abuse and domestic violence. DSS also alleged that in 2006, D.K. lost his parental rights to another child. (Welf. & Inst. Code, § 300, subd. (b).) The juvenile court later sustained the allegations of an amended dependency petition.
Initially, D.K. and the maternal grandmother cared for K.K., with DSS providing family maintenance services. Mother completed her services plan and she, D.K., and K.K. lived together. The family encountered financial difficulties, however, and Mother and K.K. moved to the home of the maternal grandmother. D.K. lost contact with DSS. In June 2010, Mother moved to an apartment with K.K.
By the summer of 2010, Mother had tested positive for methamphetamine and had missed other drug-testing appointments. In July 2010, D.K. pleaded nolo contendere to grand theft and was sentenced to 16 months imprisonment.
On July 19, 2010, DSS filed a supplemental dependency petition recommending that the juvenile court order that K.K be detained and placed with the maternal grandmother. The court then detained K.K. and later sustained the allegations of the supplemental dependency petition following a contested hearing. On the recommendation of DSS, the court also ordered that Mother and D.K. not receive further services and that the matter be set for a permanent plan hearing. (Welf. & Inst. Code, § 366.26.)
J.Z.'s Paternity Testing Motion
On April 7, 2011, J.Z. filed a request for paternity testing in the dependency proceeding to determine if he is the biological father of K.K. J.Z. attached a statement to the request stating that Mother had telephoned him six months prior and informed him that she had relapsed into substance abuse and D.K. was imprisoned. Mother asked J.Z. "to be 'a father'" to K.K. J.Z. then saw photographs of K.K. and believed that K.K. might be his child based on photographs and the age of the child. J.Z. stated that he knew Mother had given birth to K.K. but that she "continuously" stated D.K. was the father of the child. J.Z. also stated that he had contacted DSS on three occasions, and was informed on the third occasion that it was "too late" to assert paternity and that he had "no rights."
The juvenile court appointed counsel for J.Z. On May 25, 2011, the court held a hearing regarding the paternity testing request. J.Z. testified that Mother informed him that she was pregnant but stated that D.K. was the father. He knew of K.K.'s birth and that Mother and D.K. lived together at the time. When K.K. was one year old, Mother and the maternal grandmother stated that he, J.Z., was not the child's father. J.Z. stated that he telephoned DSS before Thanksgiving 2010 and spoke with a DSS social worker who informed him that he was too late. The social worker also stated that K.K.'s birth certificate stated D.K. as his father.
The juvenile court received evidence of the VDP signed by D.K. Counsel for DSS supported J.Z.'s request for a paternity test and stated: "[T]o be completely safe, [J.Z.] should be given an opportunity for [testing], and that's in terms of protecting any interest that he might have. . . . But I think we need to really take that first step and then go from there. So that's the Department's position at this time. I think it's the most prudent thing to do . . . ." Counsel for K.K. also supported J.Z.'s paternity testing request.
Following argument by the parties, the court submitted the matter. On June 2, 2011, the court denied J.Z.'s request for paternity testing, concluding that he did not seek to set aside the VDP and that he had waited more than two years to seek a paternity test. The court ruled that J.Z. had "no legal right to a paternity test at this stage of [K.K.'s] life or at this point in these proceedings."
Termination of Parental Rights
On June 15, 2011, the juvenile court held a permanent plan hearing. Counsel submitted the matter based upon the DSS permanent plan report. DSS reported, among other things, that K.K. was residing with his maternal grandparents who intended to adopt him. The court found by clear and convincing evidence that K.K. is adoptable, and it terminated parental rights.
J.Z. appeals and contends that the juvenile court erred by denying his request for paternity testing. (Fam. Code, § 7551; Cal. Rules of Court, rule 5.635(h).)
All further statutory references are to the Family Code unless stated otherwise.
DISCUSSION
J.Z. argues that the juvenile court had a mandatory duty to order paternity testing pursuant to section 7551. (Ibid. ["In a civil action or proceeding in which paternity is a relevant fact, the court . . . shall upon motion of any party to the action or proceeding made at a time so as not to delay the proceedings unduly, order the mother, child, and alleged father to submit to genetic tests"]; In re Vincent M. (2008) 161 Cal.App.4th 943, 959 ["The dependency court has a duty to determine the parentage of a child when a man appears at a hearing requesting a paternity finding"].) He points out that California Rules of Court, rule 5.635(h) requires the juvenile court to determine whether a person requesting a judgment of parentage is a biological parent. (Ibid. ["If a person appears at a hearing in [a] dependency matter . . . and requests a judgment of parentage on form JV-505, the court must determine: (1) Whether that person is the biological parent of the child; and (2) Whether that person is the presumed parent of the child, if that finding is requested"].)
DSS concedes that J.Z. may appeal and raise issues regarding his parental interest in K.K. (In re Paul H. (2003) 111 Cal.App.4th 753, 759 [an alleged father in a dependency proceeding becomes a party when he appears and asserts a position].) As well, DSS concedes that the juvenile court erred by not ordering a paternity test. We agree that under the circumstances here, section 7551 required the court to order a paternity test.
The Family Code sets forth several interrelated statutes that considered together inform the judicial determination of paternity. (Kevin Q. v. Lauren W. (2009) 175 Cal.App.4th 1119, 1130.) The statutes include the Uniform Parentage Act, section 7600 et seq., containing rebuttable paternity presumptions; the paternity judgment arising from a VDP, section 7570 et seq.; and a conclusive paternity presumption concerning the child of a marriage, section 7540 et seq. (Ibid.) Section 7611 integrates these statutes by stating that "[a] man is presumed to be the natural father of a child if he meets the conditions" (1) for a paternity judgment or conclusive presumption by filing a voluntary declaration of paternity, or (2) for a conclusive presumption of paternity over a child of a marriage, or (3) for a rebuttable presumption of fatherhood under any of section 7611's subdivisions. (Id. at p. 1131.)
The VDP is a means by which a man who is identified as the natural father by the unmarried natural mother may assert paternity. (§ 7571; In re William K. (2008) 161 Cal.App.4th 1, 8.) Once signed and filed with the Department of Child Support Services, the VDP has the effect of a judgment and is a conclusive presumption of paternity. (§§ 7573, 7611, 7612.) Section 7573 provides: "Except as provided in Sections 7575, 7576, 7577, and 7612, a completed voluntary declaration of paternity, as described in Section 7574, that has been filed with the Department of Child Support Services shall establish the paternity of a child and shall have the same force and effect as a judgment for paternity issued by a court of competent jurisdiction."
The VDP may be challenged in several ways, however. (Seiser & Kumli, Cal. Juvenile Courts Practice & Procedure (2011) § 2.60[5][d], pp. 2.108-2.110.) Either parent may rescind the VDP within 60 days of execution, "unless a court order for custody, visitation, or child support has been entered in an action in which the signatory seeking to rescind was a party." (§ 7575, subd. (a).) The juvenile court may also set aside a VDP on a motion brought by either parent, pursuant to the requirements and time frame of Code of Civil Procedure section 473. (§ 7575, subd. (c); In re William K., supra, 161 Cal.App.4th 1, 8.)
In addition, the court may act as a court of equity in determining paternity issues, and may set aside a VDP on the ground of extrinsic fraud. (§ 7575, subd. (c)(4) ["Nothing in this section is intended to restrict a court from acting as a court of equity"]; In re William K., supra, 161 Cal.App.4th 1, 10.) "'Extrinsic fraud occurs when a party is deprived of the opportunity to present his claim or defense to the court; where he was kept ignorant or, other than from his own negligence, fraudulently prevented from fully participating in the proceeding. [Citation] . . . The essence of extrinsic fraud is one party's preventing the other from having his day in court.'" (County of Orange v. Superior Court (2007) 155 Cal.App.4th 1253, 1261 [party seeking genetic testing to set aside a VDP more than two years after child's birth must establish extrinsic fraud.)
Important here, genetic testing that establishes biological paternity in a man other than the man who signed the VDP may provide a basis for the court to set aside the VDP. (§ 7575, subd. (b).) A motion for genetic testing must be filed within two years from the date of the child's birth and may be filed by the local child support agency, the mother, the man who signed the VDP, or "in an action to determine the existence or nonexistence of the father and child relationship pursuant to Section 7630 or in any action to establish an order for child custody, visitation, or child support based upon the [VDP]." (Id., subd. (b)(3)(A).) Judicial decisions disagree whether section 7575, subdivision (b)(3)(A) permits a claimed biological father to challenge a VDP. (In re J.L. (2008) 159 Cal.App.4th 1010, 1020-1022 [section 7575 allows biological father to challenge VDP]; In re Christopher M. (2003) 113 Cal.App.4th 155, 164 [section 7575 does not allow alleged father to request genetic testing to set aside a VDP].
Genetic testing that conclusively establishes that the man who signed the VDP is not the child's biological father does not automatically set aside the VDP. The court may set the VDP aside unless it determines that it is not in the child's best interest to do so, based upon enumerated statutory factors. (§ 7575, subd. (b)(1)(A)-(H); In re William K., supra, 161 Cal.App.4th 1, 9-10 [juvenile court did not abuse its discretion by denying biological father's motion to set aside VDP].)
Here DSS and the minor's counsel supported J.Z.'s request for paternity testing. Recognizing that he requested testing a little more than two years after K.K.'s birth, J.Z. explained that the DSS social worker had misinformed him many months before that it was too late to act and that he had no rights.
Upon remand, the juvenile court shall order paternity testing forthwith. In the event that paternity testing proves J.Z. to be the biological father of K.K., the court shall consider and rule upon any further motions brought by any party regarding the matter. We do not suggest how the court shall decide the motions.
In view of our discussion, we do not discuss J.Z.'s remaining arguments regarding the juvenile court's discretion to order paternity testing, or J.Z.'s constitutional right to establish presumed father status.
The order denying paternity testing is reversed. The matter is remanded for further proceedings.
NOT TO BE PUBLISHED.
GILBERT, P.J. We concur:
YEGAN, J.
COFFEE, J.
Ginger E. Garrett, Judge
Superior Court County of San Luis Obispo
Eliot Lee Grossman, under appointment by the Court of Appeal, for Defendant and Appellant.
Warren R. Jensen, County Counsel, Leslie H. Kraut, Deputy County Counsel, for Plaintiff and Respondent.