Opinion
G056264
07-26-2018
MARK O., Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; ORANGE COUNTY SOCIAL SERVICES AGENCY et al., Real Parties in Interest.
Law Office of Cara Bender and Donna P. Chirco for Petitioner. Leon J. Page, County Counsel and Karen L. Christensen, Deputy County Counsel for Real Party in Interest Orange County Social Services Agency. Sharon Petrosino, Public Defender, Kenneth Norelli and Brian Okamoto Deputy Public Defenders for Real Party in Interest Megan V. Law Office of Harold LaFlamme and Linda O'Neil for the Minor.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18DP0083) OPINION Original proceedings; petition for a writ of mandate/prohibition to challenge an order of the Superior Court of Orange County, Antony C. Ufland, Judge. Petition denied. Law Office of Cara Bender and Donna P. Chirco for Petitioner. Leon J. Page, County Counsel and Karen L. Christensen, Deputy County Counsel for Real Party in Interest Orange County Social Services Agency. Sharon Petrosino, Public Defender, Kenneth Norelli and Brian Okamoto Deputy Public Defenders for Real Party in Interest Megan V. Law Office of Harold LaFlamme and Linda O'Neil for the Minor.
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I. INTRODUCTION
In this writ proceeding we conclude the trial court correctly applied what is known as the "disentitlement doctrine" to a man claiming to be a dependent child's biological father who flouted a court order to take a paternity test. Someone claiming to be a child's biological father cannot seek the assistance of the court to protect his paternal rights and at the same time deny the court the information it needs to ascertain his paternity, even if he and the child's mother have already signed a voluntary declaration of paternity, sometimes known as a "VDP." Accordingly we deny the requested petition to vacate the trial court's decision denying the petitioner presumed father status.
II. BACKGROUND
Marilynn V. was born in January 2018 with three different drugs in her system: heroin, methamphetamine and marijuana. At the time of her birth, her mother, Megan V., and petitioner Mark O. signed a declaration of paternity (see Fam. Code, § 7571 et seq.) attesting to Mark being the biological father of Marilynn. Mark was also listed as the father on Marilynn's birth certificate.
All further statutory references are to the Family Code.
But at the detention hearing held later that month, Megan was adamant Mark had pressured her into signing the declaration of paternity. She denied the two had been in any sexual relationship at the time of Marilynn's conception in April 2017 and said she was "absolutely a hundred percent sure he's not the father" Megan further said she would "like to rescind" the declaration of paternity she had signed (the 60-day deadline to rescind such a declaration expired sometime in March 2018). (See § 7575, subd. (a) [60-day deadline for rescission unless there is a court order for child support].)
More specifically, she testified Mark was "verbally abusive," and told her, as she put it, "I'm a piece of shit and all the other stuff and that I better let him be a part of her life."
Mark testified to the contrary. He testified that he and Megan were in a sexual relationship at the time of the conception and that Megan had told him he was the father on "countless occasions." The parties agreed that for a period of about eight months in 2017, Mark had allowed Megan to share his tent at a riverbed homeless encampment.
The matter of a paternity test came up at the detention hearing. At the time of the birth, Megan had planned to put her baby up for adoption, and the adoption agency had arranged for Mark to take a paternity test. He took the test, but said he learned from an agency employee the test showed he wasn't the father. Mark asserted, however, that there had been problems with the chain of custody involving the agency's test. He said he believed the test materials were tampered with by someone from the agency taking them home overnight.
It appears the prospective adoptive parent or parents backed out when Mark asserted he was the father.
The trial court continued the detention hearing several times so that Mark could take another test. In the period from late January to mid-April when the last hearing was held, Mark missed no less than four scheduled paternity tests, including two in Hemet where he was living at the time. At the final continued hearing in April 2018, Mark made it very clear he wasn't going to take another test. He said that since the declaration of paternity was signed under penalty of perjury, he didn't think he should have to take a test, even though there was "small chance" Marilynn was not his child. In fact, he candidly admitted he didn't want to take the test because it might exclude him as the father.
The trial court thought the test important enough that Mark's failure to take it was its rationale for concluding that Mark did not have presumed father status. Explicitly citing the disentitlement doctrine (and also alluding to the law of extrinsic fraud), the trial court denied Mark presumed father status and excluded him from further proceedings in the courtroom. His counsel then timely filed this petition for a writ of mandate.
III. DISCUSSION
Disentitlement is an equitable doctrine that forbids a party from seeking the assistance of the court when that party is in contempt of a court order bearing directly on the assistance being sought. (See In re Claudia S. (2005) 131 Cal.App.4th 236, 244 (Claudia S.), citing and quoting MacPherson v. MacPherson (1939) 13 Cal.2d 271, 277 (MacPherson) [father removed children to Mexico in divorce case].) The doctrine has been nicely summarized for the juvenile dependency context in In re Z.K. (2011) 201 Cal.App.4th 51: "In dependency cases, the doctrine has been applied only in cases of the most egregious conduct by the appellant that frustrates the purpose of dependency law and makes it impossible for the court to protect the child or act in the child's best interests." (Id. at p. 63, italics added.)
It is true, as Mark points out, that in domestic cases the doctrine is usually applied to such egregious situations as actual child abduction, removal, or concealment. (See, e.g., In re Kamelia S. (2000) 82 Cal.App.4th 1224, 1229; Guardianship of Melissa W. (2002) 96 Cal.App.4th 1293, 1299; Adoption of Jacob C. (1994) 25 Cal.App.4th 617, 623-624; see also MacPherson, supra, 13 Cal.2d at p. 27; cf. Claudia S., supra, 131 Cal.App.4th at pp. 244-245 [refusing to apply doctrine because of inadequate notice and also because mother left with children at time when there were no court orders].)
But usually is not always. There is at least one dependency case that does not fit the abduction, removal or concealment paradigm Mark argues for: In re C.C. (2003) 111 Cal.App.4th 76 (C.C.). Mark's petition acknowledges (in passing, in a string cite) the C.C. decision, but otherwise makes no attempt to distinguish it. As it turns out, C.C. applies a fortiori to the case at hand.
In C.C., the minor appealed from a dispositional order when the court granted reunification services to the mother despite evidence the mother's mental illness "might make her incapable" of reunification. (Id. at p. 80, italics added.) The trial court thought its hands were tied because the mother had refused to submit to a psychological evaluation.
Noting the backdrop of the cases which had applied the disentitlement doctrine to instances of child abduction, removal or concealment, the C.C. court declared: "Although the above decisions involved abduction of children, the principle they articulate extends to other kinds of conduct. In particular, it extends to conduct that, as in this case, frustrates the ability of another party to obtain information it needs to protect its own legal rights." (C.C., supra, 111 Cal.App.4th at p. 85, italics added.) The C.C. court pointed out that by refusing to undergo a psychological evaluation, the mother there was frustrating, in the event the mother proved incapable of utilizing reunification services, the minor's right to have the case advance to the permanency planning stage without the delay of a futile period of reunification. (Ibid.)
The psychological evaluation in C.C. carried the potential for a greater invasion of privacy than a simple cheek swab would here. As in C.C., Mark has shown, as the court nicely put it in In re L.J. (2013) 216 Cal.App.4th 1125, 1136, that "'he will only accept a decision in his favor.'" (Quoting Polanski v. Superior Court (2009) 180 Cal.App.4th 507, 532 [famous movie director would not return home and submit to jurisdiction of the court unless guaranteed earlier criminal prosecution would be dropped].) Mark's position can be characterized as "I win as long as I refuse to comply with the court's order."
As was the case in In re Adoption of G.K.T. (Pa. Super. Ct. 2013) 75 A.3d 521 where simple swabs from a man and the child showed paternity.
Because disentitlement is an equitable doctrine based on the inherent power of the court to enforce a court order, it is discretionary with the trial court and the standard of review is abuse of discretion. (See In re Marriage of Shimkus (2016) 244 Cal.App.4th 1262, 1272.) The question we now face is whether the trial court abused its discretion in applying the disentitlement doctrine to Mark in light of the undisputed facts (1) he signed a VDP and (2) Megan did not rescind it within 60 days (though she certainly expressed the desire to have done so at the final detention hearing).
A VDP has "the same force and effect as a judgment for paternity issued by a court of competent jurisdiction." (§ 7573, italics added.) But what precisely do those words mean? The extent of a VDP to bind the court was explored in In re Jovanni B. (2013) 221 Cal.App.4th 1482 (Jovanni B.), and the answer is: In a dependency case where the issue itself is paternity (as distinct from the more common issue of whether a man is obligated to pay child support as a child's father), a VDP only "gives rise to an evidentiary presumption that the declarant is the child's biological father, it does not entitle him to presumed father status." (Id. at p. 1492, italics omitted.) In fact, the Jovanni court's heading for its discussion of the matter is: "A Completed Voluntary Declaration of Paternity Is Not Dispositive of Presumed Father Status in a Dependency Proceeding." (Id. at p. 1491.)
Jovanni B.'s holding rests on sound statutory ground, given that under subdivision (b)(1) of section 7575, a court may set aside a VDP if genetic tests show a man is not the biological father, subject to a list of factors that might show the man has such a relationship with the child that it would not be in the child's best interest to set aside the VDP. (And Mark here makes no argument on this record that any of the factors favoring not setting aside the VDP would apply to him.)
Subdivision (b)(1) provides:
"(b)(1) Notwithstanding Section 7573, if the court finds that the conclusions of all of the experts based upon the results of the genetic tests performed pursuant to Chapter 2 (commencing with Section 7550) are that the man who signed the voluntary declaration is not the father of the child, the court may set aside the voluntary declaration of paternity unless the court determines that denial of the action to set aside the voluntary declaration of paternity is in the best interest of the child, after consideration of all of the following factors:
"(A) The age of the child.
"(B) The length of time since the execution of the voluntary declaration of paternity by the man who signed the voluntary declaration.
"(C) The nature, duration, and quality of any relationship between the man who signed the voluntary declaration and the child, including the duration and frequency of any time periods during which the child and the man who signed the voluntary declaration resided in the same household or enjoyed a parent-child relationship.
"(D) The request of the man who signed the voluntary declaration that the parent-child relationship continue.
"(E) Notice by the biological father of the child that he does not oppose preservation of the relationship between the man who signed the voluntary declaration and the child.
"(F) The benefit or detriment to the child in establishing the biological parentage of the child.
"(G) Whether the conduct of the man who signed the voluntary declaration has impaired the ability to ascertain the identity of, or get support from, the biological father.
"(H) Additional factors deemed by the court to be relevant to its determination of the best interest of the child."
We think it inherent in the logic of section 7575 that if the results of genetic tests show a man is not a child's biological father and can override a VDP, the refusal of a man to even take such a test can also override a VDP. Accordingly, we conclude the trial judge did not abuse his discretion in applying the disentitlement doctrine to Mark in this case.
We caution here, of course, that our thinking might not apply to a case of "VDP father" who had, under the factors enumerated in section 7575, subdivision (b)(1) in the previous footnote, a relationship with a child favoring acknowledgment of his paternity.
Because the trial court's application of the disentitlement doctrine was not an abuse of discretion, we have no need to consider whether the trial court's order might also be upheld on an extrinsic fraud theory.
IV. DISPOSITION
The petition is denied.
BEDSWORTH, ACTING P. J. WE CONCUR: MOORE, J. GOETHALS, J.