Opinion
Case No. 117,326 Comp. w/ 117,459
06-20-2019
IN RE A.S., A.S., and J.S., Jr., minor children: State of Oklahoma, ex rel. Department of Human Services, Petitioner/Appellee, v. Amber Smith and Marc Smith, Respondents/Appellants, and Jarod Smith, Respondent/Appellee.
Robert Ravitz, OKLAHOMA COUNTY PUBLIC DEFENDER, Sean Chesley, ASSISTANT PUBLIC DEFENDER, Oklahoma City, Oklahoma, for minor children, David W. Prater, OKLAHOMA COUNTY DISTRICT ATTORNEY, Nonie Hawkins, ASSISTANT DISTRICT ATTORNEY, Oklahoma City, Oklahoma, for State of Oklahoma, David J. Batton, Norman, Oklahoma, for Respondent/Appellant Amber Smith, R. Kevin Butler, DENKER & BUTLER, PLLC, Oklahoma City, Oklahoma, for Respondent/Appellant Marc Smith, Roe T. Simmons, Nicholas E. Thurman, SMITH SIMMONS, PLLC, Oklahoma City, Oklahoma, for Respondent/Appellee Jarod Smith,
Robert Ravitz, OKLAHOMA COUNTY PUBLIC DEFENDER, Sean Chesley, ASSISTANT PUBLIC DEFENDER, Oklahoma City, Oklahoma, for minor children,
David W. Prater, OKLAHOMA COUNTY DISTRICT ATTORNEY, Nonie Hawkins, ASSISTANT DISTRICT ATTORNEY, Oklahoma City, Oklahoma, for State of Oklahoma,
David J. Batton, Norman, Oklahoma, for Respondent/Appellant Amber Smith,
R. Kevin Butler, DENKER & BUTLER, PLLC, Oklahoma City, Oklahoma, for Respondent/Appellant Marc Smith,
Roe T. Simmons, Nicholas E. Thurman, SMITH SIMMONS, PLLC, Oklahoma City, Oklahoma, for Respondent/Appellee Jarod Smith,
Opinion by Kenneth L. Buettner, Judge: ¶1 Amber Smith (Mother) appeals from an order granting a Motion to Deny Genetic Testing and Adjudicate Jarod Smith (Jarod) to be the Father of the minor child (J.S.). In the appealed order, the trial court determined that it was in the best interests of the child that the presumed father, Jarod, be adjudicated the legal father of J.S., and that any motions for genetic testing to determine paternity should be denied. Mother and Marc Smith (Marc)—the alleged biological father of J.S.—appeal, arguing that the court improperly granted the motion to deny any motions for genetic testing where no such motion for genetic testing was then before the court. Mother and Marc also argue that the trial court erred by not appointing a Guardian Ad Litem to J.S. We hold that the trial court did not err and affirm.
¶2 Mother and Jarod were married January 6, 2007. Two minor children were born to the marriage whose paternity is not challenged in this action. In 2015, Mother and Jarod separated. Mother filed for a protective order against Jarod April 14, 2015. Smith v. Smith , No. PO-2015-00070 (Pottawatomie Cty., Okla. dismissed September 10, 2015). During her separation from Jarod, Mother entered into a relationship with Marc and became pregnant with J.S. Later in 2015, however, Mother and Jarod reconciled. On September 10, 2015, Mother dismissed the protective order against Jarod, and filed for a protective order against Marc. Smith v. Smith, No. PO-2015-2109 (Okla. Cty., Okla. vacated July 23, 2018). In reconciling with Mother, Jarod recognized Marc as the biological father of J.S., but still chose to raise J.S. as his own child. J.S. was born November 29, 2015, and Jarod was present for the birth.
¶3 In March 2017, sixteen months after J.S.'s birth, Mother and Jarod again separated, at which point Mother removed herself and the three minor children from the marital home. Mother filed for a protective order against Jarod March 13, 2017. Smith v. Smith , No. PO-2017-442 (Okla. Cty., Okla. protective order issued April 20, 2017). Eight days later, on March 21, 2017, Mother filed a motion to vacate the protective order against Marc. Three days after that, Mother filed a Petition for Dissolution of Marriage and Application for Temporary Orders in which she requested genetic testing to determine the paternity of J.S. Smith v. Smith , No. FD-2017-980 (Okla. Cty., Okla. filed March 24, 2017). On the same day she filed for divorce, Mother also filed a paternity proceeding, naming Marc as the defendant. Smith v. Smith , No. FP-2017-304 (Okla. Cty., Okla. filed March 24, 2017).
The protective order against Marc was vacated July 23, 2018.
¶4 On May 12, 2017, the Department of Human Services (DHS) sought and was granted emergency custody of Mother's three minor children. In re A.S., A.S., & J.S., No. JD-2017-136 (Okla. Cty., Okla. filed May 12, 2017). DHS filed a petition alleging the children to be deprived May 31, 2017. The petition stated that the two school-aged children had not attended school in more than twenty days, that Mother had brainwashed the two older children, that Mother had fabricated allegations of sexual abuse by Jarod, that Mother had falsely alleged that the older children suffered from various mental deficiencies and disorders, and that Mother was unfit due to her own mental health issues. The petition also alleged that Jarod was unfit as a parent because of the allegations of domestic abuse against him. The petition stated that Marc was unfit as a parent to J.S. because he had not contributed to J.S.'s upbringing.
¶5 On July 18, 2017, Mother stipulated to the deprived petition and adopted an Individualized Service Plan (ISP) recommended by the court, which included Abuse-Mental Injury as one of the goals. Jarod also stipulated to the petition and adopted an ISP that mandated he participate in Compassionate Parenting classes. Summons and notice regarding the deprived child proceedings was mailed to Marc July 24, 2017, but was returned unclaimed August 22, 2017. Marc did not enter an appearance in the deprived child proceedings. DHS spoke with Marc October 9, 2018, at which time Marc stated that he was unsure whether he wanted to participate in the deprived child proceedings. Marc did not attend subsequent hearings in the deprived child matter.
Marc was successfully served with the Petition to Establish Paternity September 27, 2017. The paternity proceedings were stayed via court minute October 5, 2017, in deference to the deprived child proceedings. On July 13, 2018, Marc filed an answer and counter petition in the paternity action, in which he requested sole custody of J.S.
¶6 On May 14, 2018, as part of the deprived child proceedings, counsel for J.S. filed a Motion to Deny Genetic Testing and Adjudicate Jarod Smith to be the Father of J.S. Jarod filed a brief in support of child's motion June 5, 2018. Jarod also submitted an affidavit signed by Marc. The affidavit stated that Marc was fully aware of the paternity proceedings, that he supported Jarod's motion to deny genetic testing, that it was in J.S.'s best interest that Jarod be adjudicated J.S.'s father, and that Marc understood the affidavit's effect on his rights as a parent. Mother responded to Jarod's brief in support of child's motion to deny genetic testing June 14, 2018, and opposed the motion and Jarod's brief in support.
¶7 A hearing on child J.S.'s motion to deny genetic testing and adjudicate Jarod as the father was held July 3, 2018. At the hearing, Marc alleged that he had signed the affidavit in support of the motion to deny genetic testing while he was under duress because he felt pressured by Jarod's attorney, and that he had not actually read the affidavit. Marc agreed, however, that he picked the location at which he and Jarod's counsel met in order for Marc to sign the affidavit. Marc further testified that he never contacted Jarod to say Marc wanted nothing to do with J.S. Audio evidence presented by Jarod, however, controverted Marc's testimony and revealed that Marc had, in fact, called Jarod to apologize and indicate his disinterest in being a father to J.S.
During the July 3, 2018 hearing, the trial court ruled that it had jurisdiction over both the deprived child matter and the paternity action. The actions were properly joined according to 10 O.S. Supp. 2014 § 7700-610.
¶8 After hearing testimony from Mother, Jarod, Marc, and other witnesses, the trial court entered its order July 31, 2018. The trial court ruled that because Jarod is the presumed father of J.S., and because the requirements listed in 10 O.S. § 7700-608 were satisfied in this case, any future motions for genetic testing to determine the paternity of J.S. should be denied and Jarod should be adjudicated to be the father of J.S.
¶9 Mother and Marc appeal from the trial court's order granting child J.S.'s motion to deny genetic testing and adjudicate Jarod as the father. On appeal, Mother and Marc assert that the trial court erred by (1) ruling on the motion to deny genetic testing when no motion for genetic testing had been brought before the court, (2) failing to appoint a Guardian Ad Litem on behalf of J.S., and (3) ruling that it was in the best interest of the child to adjudicate Jarod as the father of J.S. The first and second issues on appeal require the "construction and application of ... statutes to the undisputed facts," which presents questions of law that we review de novo. Bates v. Copeland , 2015 OK CIV APP 30, ¶ 10, 347 P.3d 318. We review the court's ruling regarding the best interests of the child for abuse of discretion. Dunham v. Dunham, 1989 OK CIV APP 44, 777 P.2d 403.
¶10 Oklahoma has adopted the Uniform Parentage Act (UPA). 10 O.S. § 7700-101. According to the UPA, in a paternity action in which the child has a presumed or acknowledged father, a court shall deny a motion seeking genetic testing if (1) the conduct of the mother or the presumed/acknowledged father estops them from denying parentage, or (2) it would not be in the best interests of the child to disprove the paternity of the presumed/acknowledged father. Id. § 7700-608. Subsection 608(B) provides a list of factors to be considered in determining the child's best interests. Id.
¶11 Here, the parties do not dispute that Jarod is the presumed father of J.S. according to 10 O.S. 2011 § 7700-204, because Jarod and Mother were legally married when J.S. was born. Mother and Marc instead contend that the trial court erred in granting the child's motion to deny genetic testing because no motion for genetic testing had been made in the paternity action. The record indicates otherwise.
¶12 In her Petition to Establish Paternity, Mother requested that the trial court "order the putative father, Marc Smith, to genetic testing in order to determine parentage of this child." On appeal, Mother argues the request in her petition did not amount to a request for "an order for genetic testing of the mother, the child, and the presumed or acknowledged father," as referenced by the statute, because she only specifically requested testing of Marc. Id. § 7700-608. This argument is nonsensical. Because Mother requested genetic testing of Marc in order to establish his paternity of J.S., genetic testing of the child would also be necessary in order to confirm genetic similarity. As such, we hold that Mother's request for genetic testing in her petition falls within the category of motions which can be denied according to the standards in Subsection 608.
¶13 We similarly reject Mother's argument that the trial court was required to appoint a Guardian Ad Litem (GAL) for J.S. Subsection 7700-608(C) states that a GAL shall be appointed in a proceeding to disprove that paternity of a presumed/acknowledged father when the child is over two years of age. Id. § 7700-608(C). Where the child is under two years old, however, the court's appointment of a GAL is discretionary. Id. Here, child J.S. was approximately 16 months old at the time Mother filed for divorce and paternity proceedings. As such, it was within the trial court's discretion to appoint a GAL for J.S. in the paternity proceeding. There is nothing in the record to suggest an abuse of discretion in the trial court's determination not to appoint a GAL, and we therefore hold that the trial court did not err by not appointing a GAL in this matter.
At the July 3, 2018 hearing the trial court initially ordered that child J.S.'s counsel should be appointed as the child's GAL, but then retracted its initial ruling and took the matter under further advisement. In its July 31, 2018 order, the trial court held it was not required by statute to appoint a GAL because the child was under two years of age when the action was filed.
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¶14 Lastly, Mother and Marc argue that the trial court abused its discretion by ruling that it was in the best interests of the child, J.S., that Mother's request for genetic testing be denied and that Jarod be adjudicated the father of J.S. We disagree. Subsection 7700-608(B) of the UPA lists nine factors to be considered in determining the best interest of the child in ruling on a motion seeking genetic testing in a paternity action where there is a presumed or acknowledged father:
1. The length of time between the proceeding to adjudicate parentage and the time that the presumed or acknowledged father was placed on notice that he might not be the genetic father;
2. The length of time during which the presumed or acknowledged father has assumed the role of father of the child;
3. The facts surrounding the presumed or acknowledged father's discovery of his possible nonpaternity;
4. The nature of the relationship between the child and the presumed or acknowledged father;
5. The age of the child;
6. The harm that may result to the child if presumed or acknowledged paternity is successfully disproved;
7. The nature of the relationship between the child and any alleged father;
8. The extent to which the passage of time reduces the chances of establishing the paternity of another man and a child-support obligation in favor of the child; and
9. Other factors that may affect the equities arising from the disruption of the father-child relationship between the child and the presumed or acknowledged father or the chance of other harm to the child.
10 O.S. Supp. 2014 § 7700-608(B).
¶15 In its July 31, 2018 order, the trial court explained at length its application of the § 7700-608(B) factors. First, the court considered that the presumed father, Jarod, had been on notice that he was not the biological father from the time he and Mother reconciled—i.e. , for the duration of J.S.'s life (16 months when Mother filed for paternity, and nearly three years at the time of the trial court's order). Second, the court acknowledged that Jarod had taken on the role of J.S.'s father for the duration of the child's life. Third, the court stated that Jarod knew of the child's biological paternity since before the child was born. Fourth, the trial court particularly emphasized the strength of the relationship between Jarod and J.S., noting that Marc had not participated in the proceedings prior to the July 31, 2018 hearing and had filed an affidavit agreeing that Jarod should be adjudicated J.S.'s father. On the other hand, the court noted that Jarod had been following his court ordered ISP in order to reunite with J.S. and his siblings. Fifth, the court noted J.S.'s age at the time of the court order, 2.6 years old. Sixth, the court noted that J.S. could be traumatized by the disproving of Jarod as J.S.'s father, where Jarod is the only father the child had ever known and Marc had previously failed to demonstrate an interest in being a father to J.S. Seventh, the court again noted the nonexistence of a relationship between Marc and J.S., and the fact that Marc had largely failed to participate in the paternity proceedings. The court did not deem the eighth factor largely important. Ninth, the court determined that, overall, the equities were in favor of the adjudication of Jarod as J.S.'s father.
¶16 In determining the best interests of the child, the trial court examined the facts and applied the relevant statutory factors. We give deference to the trial court's determination and will not disturb the ruling unless it is found to be against the clear weight of the evidence or an abuse of discretion. We hold that the trial court's determination that it was in J.S.'s best interests that Mother's request for genetic testing be denied and Jarod be adjudicated J.S.'s father was not against the weight of the evidence or an abuse of discretion. Further, we hold that Mother's request for genetic testing was properly before the court such that the court did not err in ruling upon J.S.'s motion to deny genetic testing, and that the court did not err by not appointing a GAL to J.S. in this matter. Accordingly, we affirm.
¶17 AFFIRMED.
GOREE, C.J., concurs.
JOPLIN, P.J., dissents.