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Jerry C. v. April H.

California Court of Appeals, Fifth District
Feb 9, 2011
No. F059797 (Cal. Ct. App. Feb. 9, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Stanislaus County. J. Richard Distaso, Judge, Super. Ct. No. 435599.

April H., in propria persona, for Defendant and Appellant.

Law Offices of Lindsey A. Robbins and Lindsey A. Robbins for Plaintiff and Respondent.


OPINION

Gomes, Acting P.J.

Appellant April H. gave birth to a son in August 2009. She and Michael P. signed a declaration of paternity on August 12, 2009, in which Michael declared under penalty of perjury that he is the baby’s biological father, and April declared under penalty of perjury that she is the baby’s unmarried natural mother. April also certified that Michael is the baby’s only possible father.

On December 2, 2009, Jerry C. filed a petition in superior court, which is not included in the appellate record. On December 17, 2009, April, in propria persona as respondent on the petition, filed a responsive declaration for a December 23, 2009 hearing, in which she stated that she did not consent to custody or visitation because the baby “does not belong to Jerry C[].” Attached to the declaration is a copy of the declaration of paternity, as well as a February 5, 2009 estimate of fees from a medical group for the baby’s delivery, as well as copies of e-mail exchanges and a blog.

In addition to the required documents that the clerk automatically includes in the clerk’s transcript, i.e. the notice of appeal, notice designating the record on appeal, the judgment or order appealed from, and the register of actions, April designated only the following documents for inclusion in the clerk’s transcript: (1) findings and order after hearing filed on February 22, 2010, (2) order after hearing on the motion to set aside the voluntary declaration of paternity filed on February 22, 2010, and (3) the voluntary declaration of paternity admitted as an exhibit below.

Jerry, in propria persona, filed a declaration on December 17, 2009, for the December 23, 2009 hearing, responding to statements made in April’s response. Jerry explained that April’s claim that she was not in a relationship with him during the time of conception was not true, as the couple was together from before Thanksgiving through New Year’s, which he could prove through photographs that he would present at the hearing. Jerry stated that he also had e-mails from close family friends informing him that the baby is his son and that April met her current boyfriend long after New Year’s Day, as well as April’s blog, which he claimed confirmed those facts. According to Jerry, he had a very hard time locating April to serve her with court documents. When he tried to serve April at her place of business, someone there told him April no longer worked there. Jerry later found out “through investigation[] efforts” that she still worked there and she was served by the Modesto County sheriff’s office. Jerry further stated that he was not seeking a relationship with April, but only was trying to establish paternity of the baby because if the baby is his, he wanted visitation.

Jerry explained in his declaration that before filing with the court to request an order for a paternity test, he asked April to voluntarily submit to one, but she refused, even though he offered to pay for the test. Jerry understood that April told her boyfriend he was the father, but he was asking for a paternity test so he could find out the truth. Attached to the declaration are copies of April’s blog and the e-mail exchanges.

The court clerk’s register of actions shows that findings and orders were made after the December 23, 2009 hearing, but they are not part of the appellate record. The remaining documents in the appellate record pertain to orders made following a contested hearing on a motion to set aside the voluntary declaration of paternity and the resulting paternity judgment. There is a February 22, 2010, “Order After Hearing on Motion to Set Aside Voluntary Declaration of Paternity, ” which states that April, Jerry and Michael were all present at the February 22 hearing, and the trial court set aside the August 12, 2009 voluntary declaration of paternity on the ground that DNA testing revealed that the baby’s father is Jerry, not Michael. A minute order of the February 22, 2010, hearing states the order was made, “not pursuant to stipulation, ” and the court set aside the voluntary declaration of paternity signed by Michael pursuant to Family Code section 7575, subdivision (b)(1), as he was found not to be the father by DNA testing.

On our own motion, we augment the record on appeal with the following documents, which were filed in the trial court on February 22, 2010: (1) the “Findings and Order After Hearing” dated February 22, 2010 in which the court set aside the voluntary declaration of paternity; and (2) the six-page “Judgment of Paternity” dated February 22, 2010. These documents were omitted from the clerk’s transcript but attached to April’s civil case information sheet and certified copies were provided with the notice of appeal. (Cal. Rules of Court, rule 8.155(a)(1)(A).) We note that Jerry cites to these documents in his brief without objection.

All further statutory references are to the Family Code, unless otherwise stated.

There is also a judgment of paternity, which states: (1) Jerry and April both appeared in propria persona, at a February 22, 2010 contested hearing in Department 13 before the Honorable J. Richard Distaso; (2) the court found that both Jerry and April had read and understood the attached advisement and waiver of rights, and gave up those rights and freely agreed that judgment may be entered; (3) the court found that Jerry is the baby’s parent; (4) the court entered the judgment of paternity based on the attached DNA test report confirming Jerry as the father; (5) the baby’s name shall be changed from Michael’s last name to a hyphenated last name comprised of April’s and Jerry’s last names; and (6) the baby’s birth certificate shall be changed to reflect the new name and to correct the father information by showing that Jerry is the father and removing Michael as the father.

Finally, there is a document entitled “Findings and Order After Hearing, ” which states that the proceeding was heard on February 22, 2010, in Department 13 before Judge Distaso “on the Notice of Motion filed by Petitioner on December 2, 2009 and mediated by Nancy Brison-Moll, ” and that both Jerry and April were present, who agreed to custody and visitation orders pertaining to the baby.

April appeals, contending the trial court’s order setting aside the voluntary declaration of paternity cannot stand because (1) Michael was not joined in the proceedings, (2) Jerry did not have standing to petition for genetic testing or to set aside the voluntary declaration of paternity, (3) the trial court abused its discretion in admitting the blood test results into evidence, and (4) the trial court failed to consider the baby’s best interest before setting aside the voluntary declaration of paternity. As we shall explain, we do not have a sufficient record to show error and therefore affirm the trial court’s order.

DISCUSSION

We reiterate some of the basic rules governing appellate review: As a general rule, “an appealed judgment or order is presumed to be correct. ‘All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.’” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2008) ¶ 8:15, p. 8-5 (Eisenberg), citing, among others, Denham v. Superior Court (1970) 2 Cal.3d 557, 564; State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.) Also, “[a]ppellant has the burden of overcoming the presumption of correctness and, for this purpose, must provide an adequate appellate record demonstrating the alleged error.” (Eisenberg, ¶ 8:17, p. 8-5; Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296.) “Appellant’s burden also includes the obligation to present argument and legal authority on each point raised. This requires more than simply stating a bare assertion that the judgment, or part of it, is erroneous and leaving it to the appellate court to figure out why; it is not the appellate court’s role to construct theories or arguments that would undermine the judgment and defeat the presumption of correctness.” (Eisenberg, ¶ 8:17.1, pp. 8-5 to 8-6.) “When appellant asserts a point but fails to support it with reasoned argument and citations to authority, the court may treat it as waived and pass it without consideration.” (Eisenberg, ¶ 8:17.1, p. 8-6.)

In this case, April and Michael executed a voluntary declaration of paternity (VDP) following the baby’s birth, which is a means by which a man may assert paternity when an unmarried natural mother identifies him as the natural father. (§ 7571.) A valid VDP must be signed by both the mother and the man she identifies as her child’s “only possible father.” (§ 7574, subd. (b)(5).) The VDP must contain, inter alia, the father’s statement “that he is the biological father of the child, and that he consents to the establishment of paternity” (§ 7574, subd. (b)(6)). 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.)

“Under specified circumstances, a voluntary declaration may be rescinded or set aside. Either parent may rescind the declaration within 60 days by filing a rescission form. (§ 7575, subd. (a).) In addition, ‘a court may set a declaration aside when court-ordered blood tests [citation] establish that the declarant is not the child’s father.’ (County of Los Angeles v. Sheldon P. (2002) 102 Cal.App.4th 1337, 1340 [(Sheldon P.)].) ‘The notice of motion for genetic tests under [section 7575] may be filed not later than two years from the date of the child’s birth by a local child support agency, the mother, the man who signed the voluntary declaration as the child’s father, 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 voluntary declaration of paternity.’ (§ 7575, subd. (b)(3)(A)); see also § 7551 [in action where paternity is relevant, court ‘shall upon motion of any party’ order the alleged father to submit to genetic tests].) Even when genetic tests show that a man who signed a declaration of paternity is not the child’s biological father, the court may decide that denying an action to set aside the declaration is in the child’s best interests, considering factors such as the child’s age and duration of relationship with the declarant, and the length of time since the declarant signed the declaration. (§ 7575, subd. (b)(1)(A), (B), (C).)” (Kevin Q. v. Lauren W. (2009) 175 Cal.App.4th 1119, 1131-1132.)

Here, the trial court set aside the VDP as provided in section 7575, subdivision (b)(1), based on the DNA test results showing the baby’s father is Jerry. April contends the trial court erred in doing so because the test results were entered without her and Michael’s consent and the court failed to consider the baby’s best interest. With respect to her first contention, April asserts that pursuant to section 621, subdivision (c)(1) of the Uniform Parentage Act, the test results were inadmissible to adjudicate parentage because the test was conducted without the consent of herself and Michael, as the baby’s presumed, acknowledged or adjudicated father. (See 9B West’s U. Laws Ann. (1001) U. Parentage Act (2000) § 621, p. 346.) But genetic testing ordered pursuant to section 7575 is governed not by the Uniform Parentage Act, but by the Uniform Act on Blood Tests to Determine Paternity, section 7550 et seq. (§ 7575, subd. (b)(1)), which permits the court to order the mother, child, and alleged father to submit to genetic tests (§ 7551), and states that genetic test results shall be admitted into evidence at the hearing or trial to establish paternity, unless a written objection is filed with the court and served on the other parties (§ 7552.5, subd. (b).) In this case, there is nothing in the record to show that April objected to the admission of the DNA test results. Accordingly, she has not shown the trial court erred by admitting the results into evidence.

The Uniform Parentage Act (2000) can be found in 9B West’s Uniform Laws Annotated (2001), §§ 101 et seq., pp. 299-376.

There is nothing in the record to support April’s assertion that the trial court failed to consider the baby’s best interest before setting aside the VDP. Section 7575, subdivision (b)(1) permits the trial court to set aside the VDP if genetic tests show the man who signed it is not the biological father unless the court determines it is in the child’s best interest after weighing the enumerated factors. The record is silent on whether the trial court was asked to consider these factors or whether it made any findings with respect to them. Apparently neither party requested a statement of decision. In the absence of such a statement, an appellate court will presume the trial court made all factual findings necessary to support the judgment for which substantial evidence exists in the record, i.e. the necessary findings of ultimate facts will be implied and the only appellate issue is whether substantial evidence supports the implied findings. (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 267.) We do not have a sufficient record, however, to determine whether substantial evidence supports a finding that it would not be in the baby’s best interest to deny the request to set aside the VDP. Neither the petition Jerry filed nor his supporting declaration is part of the clerk’s transcript. The register of actions also lists a notice of motion, along with a declaration, filed by Jerry, which April did not designate for inclusion in the clerk’s transcript. There was a contested hearing on February 22, 2010, but there is no reporter’s transcript of the hearing, as the parties apparently waived a court reporter. April has not provided an agreed statement or a settled statement of the proceedings. (Cal. Rules of Court, rules 8.130(g), 8.134, 8.137.) Without all of the evidence before the trial court, we cannot determine whether it erred in failing to find it would be in the baby’s best interest to decline to set aside the VDP.

The enumerated factors under section 7575, subdivision (b)(1) include: (A) the child’s age; (B) the length of time since the VDP was executed by the man who signed it; (C) the nature, duration and quality of any relationship between the man who signed the VDP and the child; (D) the request of the man who signed the VDP that the parent-child relationship continue; (E) notice by the biological father that he does not oppose preservation of the parent-child relationship between the man who signed the VDP and the child; (F) the benefit or detriment to the child in establishing the child’s biological parentage; (G) whether the conduct of the man who signed the VDP has impaired the ability to ascertain the identity of, or get support from, the biological father; and (H) additional factors the court deems relevant to its determination of the child’s best interest.

April also contends that Jerry did not have standing to request genetic testing or to move to set aside the VDP, citing In re Christopher M. (2003) 113 Cal.App.4th 155. There, the Court of Appeal rejected an alleged father’s contention that the juvenile court in a dependency proceeding was required to serve him with a form by which he could compel the court to determine whether he was the minor’s biological father even though another man previously had executed a VDP. (Id. at pp. 163-164.) In reaching its decision, the appellate court noted the only statutory provision in the Family Code permitting an alleged father to request genetic testing to set aside a voluntary declaration of paternity is section 7575, which the court stated, “with limited exceptions not applicable here, ” allowed a motion for testing to be brought only by a child support agency, the child’s mother, or the man who signed the VDP. (Christopher M., supra, 113 Cal.App.4th at p. 164.)

In subsequent decisions, however, it has been held that a man may have a constitutional right to contest a VDP if he can show he qualifies as a presumed father under Adoption of Kelsey S. (1992) 1 Cal.4th 816, 838 (Kelsey S.). (In re J.L. (2008) 159 Cal.App.4th 1010, 1022-1025; see also Gabriel P. v. Suedi D. (2006) 141 Cal.App.4th 850, 860 (Gabriel P.).) Under Kelsey S., if a mother unilaterally precludes her child’s biological father from becoming a presumed father under section 7611, subdivision (d), a court may nevertheless grant presumed father status to an unwed biological father who promptly comes forward and demonstrates a full commitment to his parental responsibilities - emotional, financial, and otherwise. (In re Zacharia D. (1993) 6 Cal.4th 435, 450, citing Kelsey S., supra, 1 Cal.4th at p. 849.) If a man has status as a Kelsey S. father, he has standing to file a paternity action. (In re J.L., supra, 159 Cal.App.4th at p. 1025.)

Under these authorities, Jerry had standing to request genetic testing and move to set aside the VDP if he could establish himself as a Kelsey S. father. The appellate record April provided, however, is inadequate to determine whether there is sufficient evidence to support such a finding. Without an adequate record, we cannot determine whether the court erred in this respect and we presume it did not.

Finally, April contends the trial court erred in failing to join Michael as a party before setting aside the VDP. Generally, a man who signs a VDP is a necessary party in a proceeding to set aside the VDP, who the trial court should join as a party to the proceedings because he has an interest in the proceedings as a presumed father. (Gabriel P., supra, 141 Cal.App.4th at pp. 864-865; Sheldon P., supra, 102 Cal.App.4th at p. 1345 [“the voluntary declarant must be made a party to any proceeding to set a voluntary declaration aside”].) When the trial court fails to do so and sets aside the VDP without (1) providing notice or opportunity to be heard (Sheldon P., supra, 102 Cal.App.4th at p. 1344), or (2) considering the declarant’s claim as a presumed father although he appeared during the proceedings (Gabriel P., supra, 141 Cal.App.4th at p. 865), remand is required so the trial court may join the declarant and consider his claim.

Here, the record shows that Michael was present at the February 22, 2010 hearing on the motion to set aside the VDP. The record is silent, however, on whether he or April attempted to assert a claim for presumed father status apart from the VDP and whether the court considered such a claim. While April claims that she made verbal motions before the trial court asking that Michael be made a party to the action and take part in the mediation, and the trial court refused to allow Michael to approach the bench, the record does not show that any motions were made or denied, or the court refused to allow Michael to assert his claim. As stated above, we have no record of the February 22, 2010 proceedings. Without that, we cannot determine whether the trial court erred on this issue. Accordingly, April has failed to show error.

In sum, the record April provided is patently inadequate to support any claim of error. In such circumstances, we must uphold the order. We acknowledge that April is representing herself on appeal. While under the law one may act as her own attorney, when a litigant does so, she is held to the same restrictive rules of procedure and evidence as an attorney. (Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638-639; Monastero v. Los Angeles Transit Co. (1955) 131 Cal.App.2d 156, 160-161.)

DISPOSITION

The judgment is affirmed. Respondent is awarded his costs on appeal.

WE CONCUR: Dawson, J., Franson, J.


Summaries of

Jerry C. v. April H.

California Court of Appeals, Fifth District
Feb 9, 2011
No. F059797 (Cal. Ct. App. Feb. 9, 2011)
Case details for

Jerry C. v. April H.

Case Details

Full title:JERRY C., Plaintiff and Respondent, v. APRIL H., Defendant and Appellant.

Court:California Court of Appeals, Fifth District

Date published: Feb 9, 2011

Citations

No. F059797 (Cal. Ct. App. Feb. 9, 2011)