In re Mollie U.

Filed 7/12/07 In re Mollie U. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

Appeal from an order of the Superior Court of San Diego County, Michael Imhoff, Commissioner. Affirmed.

Robert P. appeals the order denying his request for paternity testing in the juvenile dependency case of Mollie U. He contends the juvenile court abused its discretion by denying the request, which would have yielded information bearing on his right to move to set aside the paternity declaration executed by presumed father Michael U. Robert argues it is in Mollie's best interests for the court to resolve any competing claims of presumed fatherhood that might result if the declaration were set aside. We affirm.

BACKGROUND

Mollie was born in June 2004. On the day she was born, Michael executed a paternity declaration. More than two years later, in August 2006, the dependency petition in this case was filed and Robert requested paternity testing. During the interim, Mollie lived with Robert for a period of time, as discussed below.

The dependency petition alleged that Mollie was exposed to domestic violence between her parents, and her mother, Shah H., drank alcohol to excess and had a long history of drug and alcohol abuse. The petition listed Michael as Mollie's alleged father and did not mention Robert. Mollie was detained at the Polinsky Children's Center, and then in a foster home.^[1]

On August 29, 2006, Robert's mother, Judy P., told the social worker that a "mouth swab was taken and revealed that [Robert] is the father."^[2] Judy also said that Robert and Shah lived with her for the majority of Mollie's life.

On August 30, 2006, Michael filed a Statement Regarding Paternity. In the statement, he requested paternity testing saying he did not know if he was Mollie's father. He also filed a paternity questionnaire in which he said that Shah had told him he was Mollie's father, and he was listed as the father on her birth certificate, but he questioned whether he was the father because "mother sleeps around." The questionnaire stated that Mollie had lived with him "full time except 6 [months]."

Robert appeared at the August 30, 2006 detention hearing and requested appointed counsel. The court continued the hearing to August 31 to allow counsel to be present.

On August 31, 2006, Shah filed a paternity questionnaire stating that Michael was Mollie's father, he was listed on her birth certificate, he had signed a paternity declaration, and he had been ordered to pay child support. The paternity questionnaire said that Shah had sexual intercourse with Michael from 2000 to 2006 and with Robert during the same period. By Robert's name is the notation "9-2003." Shah said that Robert claimed to be the father, and Mollie lived with Michael from "6-3-04 to present[,] except for brief periodic times she lived w/ Robert P[.] over 8 months." According to the paternity questionnaire, Shah told Michael that he was not Mollie's father "because she looks like Robert P[.]"

On August 31, 2006, Robert filed a paternity questionnaire. It stated that he had sexual intercourse with Shah from September 2003 to May 2006 and that Mollie had lived with him from October 2005 to May 2006 "off and on." Robert said that Shah told him in October 2005 that he was the father.

At the August 31, 2006 hearing, Michael and Robert requested paternity tests.^[3]

The court appointed counsel for Robert and added his name to the petition as an alleged father. It deferred ruling on the requests for paternity tests pending receipt of Michael's voluntary paternity declaration. It set a paternity hearing for September 19, to coincide with the jurisdictional hearing.

On September 15, 2006, the court received a response to its August 31 paternity inquiry. The response, from the San Diego District Attorney's Office, stated that Mollie's parentage was established by voluntary declaration on June 26, 2004.

The paternity hearing and the jurisdictional hearing were continued several times. On October 23, 2006, the court ruled that Robert lacked standing to object to the admission of Michael's paternity declaration. Over Robert's objection, it received the paternity declaration that Michael executed on the day of Mollie's birth and found that he was her presumed father. The court requested briefing on Robert's request for a paternity test.

On November 9, 2006, the court reviewed the parties' briefing and listened to argument. It denied Robert's request for a paternity test as untimely under Family Code section 7575, subdivision (b)(3)(A)^[4] and struck his name from the petition. On November 29, it entered true findings on the petition, declared Mollie a dependent child, and ordered her placed in a foster home. On January 8, 2007, Robert filed a notice of appeal from the November 9, 2006 order.

DISCUSSION

Robert contends the juvenile court abused its discretion by denying his request for paternity testing. He argues that the test results would have determined whether he was entitled to challenge the paternity declaration executed by Michael, the presumed father. Robert claims it is in Mollie's best interests for the court to resolve any competing claims of presumed fatherhood that might result if the declaration were set aside.

Preliminarily, the San Diego County Health and Human Services Agency (the Agency) asserts that Robert lacks standing to request genetic testing.^[5] We find it unnecessary to address this issue because we conclude his request for testing was untimely. Robert also claims that the juvenile court had the power to act as a court of equity, even if his request for testing was untimely. Because the record reflects the court took equitable factors into account when ruling on Robert's request for testing, we find it unnecessary to address this claim.^[6] We therefore assume, without deciding, that Robert had standing to request paternity testing and the juvenile court had the power to act as a court of equity in ruling on that request.^[7]

Section 7573 states: "Except as provided in Sections 7575 . . . , 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 voluntary declaration of paternity shall be recognized as a basis for the establishment of an order for child custody, visitation, or child support." ( 7573.) Section 7575, subdivision (b)(1) states: "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 . . . ." ( 7575, subd. (b)(1).) Section 7575, subdivision (b)(3)(A) provides: "The notice of motion for genetic tests under this section may be filed not later than two years from the date of the child's birth . . . ." ( 7575, subd. (b)(3)(A).)^[8]

Mollie was born in June 2004. Robert's paternity questionnaire stated that he had sexual intercourse with Shah from September 2003 to May 2006, and Shah told him in October 2005 that he was Mollie's father. Mollie lived with Robert from October 2005 to May 2006 "off and on." Thus, he knew of her existence and his possible paternity during the two-year period when he could have taken steps to obtain genetic testing. He did not request a paternity test until August 31, 2006, after the dependency petition was filed and more than two years two months after Mollie's birth. Although Robert had every opportunity to make a timely request, his request was late. In his reply brief, Robert does not contest the Agency's claim that his request was untimely.

Furthermore, while a voluntary declaration does not necessarily lead to a conclusive presumption of paternity ( 7573), we give it considerable weight for solid policy reasons ( 7570). One such critical reason is the child's relationship to the man who has executed a paternity declaration. Here, the court took these factors into account and concluded it would not be in Mollie's best interest to order testing. Substantial evidence supports this finding. The record shows that Mollie was bonded to Michael and viewed him as her father. She lived with Robert "off and on" for seven or eight months, but lived with Michael at all other times from her birth until her detention, a period of at least 19 months. Michael visited Mollie every week, and called her at least once a day. She was excited to see him at visits and cried at the close of visits. At the end of telephone calls, she sometimes cried, and then asked for Michael. During a visit with Robert in October 2006, she cried and screamed for "Daddy," referring to Michael. Michael was the only person she asked for between visits. Thus, her relationship with Michael was much stronger than her relationship with Robert.

For the above reasons, the court did not abuse its discretion by denying Robert's request for paternity testing.^[9]

DISPOSITION

The order is affirmed.

HALLER, J.

WE CONCUR:

BENKE, Acting P. J.

McDONALD, J.

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^[1] A petition was also filed for Shah and Michael's three-year-old son Michael U. II (Michael II), and he was detained with Mollie. Michael II is not a subject of this appeal.

^[2] There is no further information in the record about the "mouth swab."

^[3] Michael also asked for a test to determine whether he was the father of Michael II. Michael's counsel said that Michael "hope[d] to reunify with his children if it is determined that he is the father." At subsequent hearings, Michael's counsel objected to Robert's request for paternity testing, stating that it was not in Mollie's best interests to disrupt her bond with Michael. Michael reiterated his own status as Mollie's presumed father, joined in the Agency's request that Robert's name be stricken from the petition, and sought reunification with Mollie. There are other indications in the record that Michael wanted custody of Mollie even though he was unsure of her paternity.

^[4] All further statutory references are to the Family Code unless otherwise specified.

^[5] The Agency relies on section 7575, subdivision (b)(3)(A), which states, "[t]he notice of motion for genetic tests under this section 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."

^[6] Section 7575, subdivision (c)(4) provides: "[n]othing in this section is intended to restrict a court from acting as a court of equity." The Agency argues that this statement does not apply to section 7575 in its entirety, but rather applies only to section 7575, subdivision (c), which allows "either parent to file an action or motion to set aside the voluntary declaration of paternity" pursuant to Code of Civil Procedure, section 473. ( 7575, subd. (c)(1).)

^[7] Robert additionally asserts that the order he challenges is appealable although it preceded the dispositional hearing. He notes that once the court struck his name from the petition, he no longer had the right to participate in the proceedings and, as to him, there were no issues left for further consideration. He concludes that the November 9, 2006 order constitutes a final judgment as to him. Alternatively, he requests that this court treat this matter as a petition for writ of mandate. We need not decide this question, as all parties agree that Robert is aggrieved and has a right to have his contentions resolved now. Accordingly, we exercise our discretion to decide the case on the merits.

^[8] For the first time in his reply brief, Robert argues that section 7551 gave the juvenile court discretion to grant his request for genetic testing. That section states: "In a civil action or proceeding in which paternity is a relevant fact, the court may upon its own initiative or upon suggestion made by or on behalf of any person who is involved, and 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. If a party refuses to submit to the tests, the court may resolve the question of paternity against that party or enforce its order if the rights of others and the interests of justice so require. A party's refusal to submit to the tests is admissible in evidence in any proceeding to determine paternity. . . ." ( 7551.) This section cannot be read out of context. Here, the context includes Michael's paternity declaration, which requires us to consider section 7575, subdivision (b)(3)(A).

^[9] In light of our conclusion, we need not discuss the Agency's request that we declare Robert not to be Mollie's father.