OrangeCounty Dept. of Child Support Services v. B.B.

Filed 9/30/08 Orange County Dept. of Child Support Services v. B.B. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Lon F. Hurwitz, Temporary Judge. (Pursuant to Cal. Const., art. VI,  21.) Reversed and remanded.

Edmund G. Brown, Jr., Attorney General, Douglas M. Press, Assistant Attorney General, Paul Reynaga and Linda M. Gonzalez, Deputy Attorneys General, for Plaintiff and Appellant.

No appearance for Respondent.

* * *

The Orange County Department of Child Support Services (the Department) appeals from the orders of the superior court (1) setting aside a voluntary declaration of paternity signed in 1997 and a paternity judgment entered in October 2001 declaring B.B to be the father of A.S., and (2) ordering genetic testing to determine paternity. The court found B.B. was entitled to genetic testing when he requested it at the 2001 hearing and that he was denied due process because he did not receive it. We find B.B. had no right to genetic testing; accordingly, we reverse the orders and remand the case for further proceedings.

FACTS

M.S. gave birth to A.S. on December 18, 1996. M.S. and B.B. appeared before Mauricio Cordero (Cordero), a bilingual family support officer, at Anaheim Regional Center on February 19, 1997, where they both signed a voluntary declaration of paternity (the Declaration) under penalty of perjury.^[1]

The Declaration was on a form developed by the Health and Welfare Agency of the State of California and the California Department of Social Services, pursuant to legislative directive. (Fam. Code,  7574.)^[2] The form was accompanied by written materials explaining that the Declaration would legally establish paternity, which resulted in certain rights and obligations, and would waive the fathers constitutional rights to have the issue of paternity decided by a court. ( 7572, subd. (b).) The form contained a statement by the father that he has read and understands the written materials . . . , that he understands that by signing the voluntary declaration of paternity he is waiving his rights as described in the written materials, that he is the biological father of the child, and that he consents to the establishment of paternity by signing [the Declaration]. ( 7574, subd. (b)(6).) The Declaration was filed with the Department.

In April 2001, the Department filed a Complaint Regarding Parental Obligations, seeking child support arrearages in the amount of $1206 for the period from A.S.s date of birth until February 2001. B.B. filed an answer in which he denied paternity and requested a blood test and a hearing. The Department made a motion for judgment, and a hearing was set for June 19, 2001.

B.B. appeared at the hearing in propia persona. The court purported to explain the proceedings to B.B., telling him that the Department was asking first to have the court determine whether or not you are the father of A[.] S[.], and then the court is going well go on and make a child support order and orders on health insurance. [] But, first of all, let me make sure you understand [that] you have the right to have an attorney represent you . . . . The court also told B.B. he had the right to have blood tests taken to see if his DNA. matched that of A.S. and that he had the right to testify, call witnesses, and cross-examine witnesses against him. An attorney was appointed for B.B., and the case was continued to July 17, 2001.

At the outset of the continued hearing, the Department advised the court that there was a voluntary declaration of paternity on file. The court asked counsel if the issue of paternity was being contested; B.B.s appointed counsel said yes, and the deputy district attorney said no. The court looked at the complaint and acknowledged that the Department was not asking to establish paternity. The Department proceeded with its action based on the Declaration. Although B.B. admitted he signed the Declaration, the court ruled the signatures of M.S. and the family support officer needed to be authenticated. The case was continued to August 30, then to September 25, 2001, to allow the Department time to subpoena witnesses.

At the continued hearing, the Department called witnesses to authenticate the Declaration. Cordero testified his job was to assist couples who wanted to establish paternity. He had the couples fill out the form in front of him. He then explained the exact nature of the form to them, including an explanation to the father that he would be responsible for the child until he or she turned 18 and if they separate, the District Attorneys Office will go after [him] for child support. The court admitted the Declaration into evidence and found it established B.B.s paternity of A.S. It then ordered B.B. to pay child support arrearages of $552 payable $25 per month starting November 1, 2001 and continuing until paid in full. The issue of current child support was reserved. Judgment was entered on October 4, 2001.

On December 27, 2006, the Department filed a motion for orders to establish child support and health insurance coverage because M.S. had applied for public assistance. B.B. responded to the motion, claiming hardship deductions because he did not have health insurance available at a reasonable cost, he had one child at home, and he paid support for two others.

The hearing was held on May 31, 2007. On its own motion, the court set aside the paternity judgment entered in September 2001 as void ab [i]nitio because the failure to afford B.B. genetic testing was a violation of his due process. The court explained, [B]ecause the county chose to file a complaint to determine parentage, Mr. B[.] is entitled to be advised of his rights to genetic testing under Family Code section 7635.5. So since the county chose to proceed via complaint to establish parentage as opposed to simply utilizing the paternity declaration as a vehicle to obtain a child support order, this court finds that the county made an election as to its procedural avenue and Mr. B[.] was entitled to genetic testing on that basis. The court set aside the Declaration and ordered B.B., M.S., and A.S. to undergo genetic testing within 30 days.

DISCUSSION

The Department contends the trial court erred in setting aside the judgment of paternity because it was a final judgment and B.B.s due process rights were not violated. We agree.

The Declaration that B.B. signed in 1997 was effectively a final judgment of paternity. Section 7573 provides that a completed voluntary declaration of paternity, made on the form adopted by the California Department of Health Services, 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 form met all the statutory requirements and was filed with the Department.

The final judgment effect of a voluntary declaration of paternity can be avoided if either parent rescinds it within 60 days of its execution ( 7575, subd. (a)) or requests genetic testing within two years of the childs birth and the tests show the man who signed the voluntary declaration is not the childs biological father ( 7575, subd. (b)(3)(A)). B.B. did neither of these things. He requested genetic testing for the first time in his answer to the Departments complaint for child support arrearages in 2001. This was more than four years after A.S.s birth and B.B.s execution of the Declaration.

A final judgment of paternity, like any other final judgment, can be set aside under Code of Civil Procedure section 473, subdivision (b) for mistake, inadvertence, surprise, or excusable neglect. But this relief must be requested within a reasonable time, in no case exceeding six months, after the judgment . . . was taken. (Code Civ. Proc.,  473, subd. (b).) No such relief was requested at any time, let alone within six months of the execution of the Declaration.

The trial court found B.B.s right to due process had been violated in the 2001 proceeding, thus the judgment of paternity was void. A final judgment can be collaterally attacked if it was rendered without due process. (Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 488.) But the trial court was wrong here on several grounds.

First, the judgment of paternity was a result of the Declaration, not the judgment of the court in 2001. Contrary to the trial courts statement, the Departments action in 2001 was not an action to determine parentage but one to recover child support arrearages. Thus, as discussed above, B.B.s request for genetic testing was untimely. Second, B.B. was afforded due process in the 2001 proceeding. He was present at the hearing and represented by counsel, who cross-examined the witnesses against him. Third, even if the 2001 proceeding had been one to establish parentage, an alleged fathers statutory right to be advised of his right to have genetic testing in such an action was not enacted until 2004. ( 7635.5, added by Stats. 2004, ch. 849,  3.) Thus, the trial courts conclusion that B.B. had such a right in 2001 was erroneous.

DISPOSITION

The judgment setting aside the Declaration and the 2001 judgment and ordering genetic testing is reversed. The case is remanded for further proceedings on the Departments motion for orders to establish child support and health insurance coverage.

SILLS, P. J.

WE CONCUR:

RYLAARSDAM, J.

OLEARY, J.

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^[1] The Department has requested judicial notice of a certified copy of the Declaration and reporters transcripts from the 2001 proceedings. We grant the request. (Evid. Code,  452, subd. (d).)

^[2] All subsequent statutory references are to the Family Code unless otherwise indicated.