State of Minnesota, County of St. Louis, Plaintiff, T.D.C., Appellant, vs. D.E.A., defendant and third-party plaintiff, Respondent, vs. J.S.C., Third-Party Defendant.

State of Minnesota, County of St. Louis, Plaintiff, T.D.C., Appellant, vs. D.E.A., defendant and third-party plaintiff, Respondent, vs. J.S.C., Third-Party Defendant. A06-2426, Court of Appeals Unpublished, June 26, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-2426

 

State of Minnesota,
County of St. Louis, Plaintiff,
T.D.C.,
Appellant,
 
vs.
 
D.E.A., defendant and third-party plaintiff,
Respondent,
 
vs.
 
J.S.C.,
Third-Party Defendant.

 

Filed June 26, 2007

Affirmed

Stoneburner, Judge

 

St. Louis County District Court

File No. 69DU-FA-06-264

 

Melanie S. Ford, St. Louis County Attorney, Benjamin M. Stromberg, Assistant County Attorney, Suite 403, 320 West Second Street, Duluth, MN 55802 (for plaintiff St. Louis County)

 

Richard W. Pins, Tracey Holmes Donesky, Leonard, Street and Deinard, P.A., Suite 2300, 150 South Fifth Street, Minneapolis, MN 55402 (for appellant)

 

Cheryl M. Prince, Catherine E. Martineau, Hanft Fride, P.A., 1000 U.S. Bank Place, 130 West Superior Street, Duluth, MN 55802-2094 (for respondent)

 

            Considered and decided by Stoneburner, Presiding Judge; Kalitowski, Judge; and Harten, Judge.*

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            In this matter involving a paternity adjudication between two presumptive fathers, appellant mother challenges summary judgment adjudicating paternity of third-party defendant rather than respondent.  Appellant also challenges the district court's denial of plaintiff-county's motion for an order requiring respondent to pay temporary child support based on genetic testing.  We affirm.

FACTS

 

            The relevant material facts in this case are undisputed.  Appellant T.D.C. (mother) gave birth to J.E.C. (child) in March 1996, less than 280 days after the dissolution of her marriage to third-party defendant J.S.C. (defendant).  Mother and defendant have two other children born of the marriage. 

            Before child's birth, mother informed respondent D.E.A., with whom she had been having a sexual relationship for several months, that she was pregnant with his child.  Respondent refused to have any involvement with or provide any support to child absent a legal determination of his paternity.  Mother asserts that she lacked the resources to pursue a paternity action against respondent and was also hesitant to bring such an action because of respondent's position as an elected official. 

            From immediately after child's birth in 1996 until February 2004, mother and child shared a household with defendant and the other children.  Frequently during the first year of child's life, and periodically thereafter, mother contacted respondent regarding his paternity, but child has been raised to believe that defendant is her biological father.  Mother and defendant did not resume an intimate relationship with each other after child's birth, but shared in household and parenting responsibilities and expenses until mother and the children left the household in February 2004.  Defendant cares for and supports child just as he cares for and supports his other two children and has continued a father-child relationship with all of the children since mother left the household.  Child is healthy, well-adjusted, and has a close relationship with defendant, whom she regards as her father.  Only a few individuals are aware that defendant is not child's genetic father. 

            After mother stopped sharing a household with defendant, she contacted respondent and, at his suggestion, pursued private DNA testing to determine paternity.  The test results showed a 99.99% probability that respondent is child's genetic father.  Nonetheless, respondent continued to insist on an adjudication of paternity before he would assume any responsibility for child.  In September 2005, mother applied for non-public assistance child-support services from St. Louis County.  The county required additional genetic testing, which again showed a 99.99% probability that respondent is child's genetic father.  Genetic testing also confirmed that defendant is not child's genetic father. 

            In January 2006, mother and the county brought a paternity action seeking adjudication of respondent's paternity.  The county also moved for an order compelling respondent to pay temporary child support.  Respondent brought a third-party action against defendant, asserting that it is in child's best interests for defendant to be adjudicated child's legal father.  Defendant answered, agreeing that it is in child's best interests for him to be adjudicated her legal father based on his having already assumed this role and his "unlimited capacity and disposition to continue to provide [child] with the appropriate love, affection and guidance necessary to properly educate and raise [child] appropriately to [child's] needs."  Defendant requested that his paternity be adjudicated and that he be ordered to provide past and future support "as the court deems just and equitable."

            After the parties were deposed, mother moved for summary judgment adjudicating respondent's paternity, and respondent moved for summary judgment adjudicating defendant's paternity.  The district court denied mother's motion and granted respondent's motion.  The district court also denied the county's motion for an order requiring respondent to pay temporary child support.  Mother's appeal followed.

D E C I S I O N

 

            Summary judgment is permissible in a paternity action.  Johnson v. Van Blaricom, 480 N.W.2d 138, 140 (Minn. App. 1992).  When reviewing a summary judgment, we determine whether there are any genuine issues of material fact and whether the trial court erred in applying the law."  Id.  We view the evidence in the light most favorable to the party against whom summary judgment was granted.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). 

            Interpretation of the Minnesota Parentage Act, Minn. Stat. §§ 257.51-.75 (2006), involves questions of law, which we review de novo.  State v. Thomas, 584 N.W.2d 421, 423 (Minn. App. 1998), review denied (Minn. Nov. 17, 1998).  Where paternity presumptions conflict, a district court's adjudication will be affirmed if, on the facts of the case, the district court's paternity adjudication is supported by policy and logic.  In re Paternity of B.J.H.,573 N.W.2d 99, 103-04 (Minn. App. 1998).

            In this case, both respondent and defendant are presumed to be child's biological father under the parentage act.  Defendant is presumed to be the biological father of child under two provisions in the statute: (1) because child was born less than 280 days after his marriage to mother was dissolved and (2) because he received child into his home and held her out as his own biological child.  See Minn. Stat § 257.55, subd. 1(a), (d) (stating that a man is presumed to be a child's biological father if the child is born within 280 days after the dissolution of his marriage to the biological mother or if he receives the child into his home and openly holds out the child as his own).[1]  Respondent is presumed to be child's biological father based on genetic testing indicating a 99.99% probability of his paternity.  See Minn. Stat. § 257.62, subd. 5(b) (stating that there is an evidentiary presumption that an alleged father is the child's biological father if genetic testing indicates more than a 99% likelihood of paternity).  Respondent does not deny that he is child's genetic father.

            In a case involving conflicting presumptions, the district court must determine, on the facts, which presumption controls in light of "the weightier considerations of policy and logic."  Minn. Stat. § 257.55, subd. 2.  "[A] child's best interests is a valid policy factor in resolving a conflict between competing paternity presumptions."  In re Welfare of C.M.G., 516 N.W.2d 555, 560 (Minn. App. 1994).  Mother argues that the district court erred in concluding that policy and logic weigh in favor of adjudicating paternity in defendant rather than respondent.  Mother asserts that policy, logic, and the statute favor adjudication of genetic fathers over other presumed fathers. 

            Mother argues that this case is controlled by State v. Thomas, in which we affirmed the district court's adjudication of paternity of a genetic father, rather than the man who was presumed to be the biological father due to (1) his marriage to the child's mother at the time of the child's birth and (2) his holding the child out as his own.  584 N.W.2d at 423, 425.  In Thomas, we stated that the genetic father could not "avoid the obligation to support his child by arguing that another man . . . ‘will be a better father.'"  Id. at 425. 

            Thomas is easily distinguished from this case, however, because in that case, neither man wanted to be adjudicated the child's father.  Id. at 424-25.  In this case, defendant, who has loved and cared for child for more than ten years, wants to be legally adjudicated her father and is willing to continue in his long-established role as the only father child has known.  A child's existing relationships is one of several considerations to be examined in resolving conflicting paternity presumptions.  B.J.H., 573 N.W.2d at 103 n.1.

            Mother argues that recent revisions to the parentage act are evidence of the legislature's intent to create an "elevated presumption in favor of genetic tests" and express "the legislature's policy preference in favor of the [genetic] presumption."  We disagree. 

            Effective August 1, 2006, the legislature removed genetic testing from the list of presumptions contained in Minn. Stat. § 257.55, subd. 1 (2004).  2006 Minn. Laws ch. 280, § 2, amended Minn. Stat. § 257.62, subd. 5(b) (2004), to provide that if blood or genetic testing indicates that the likelihood of an alleged father's paternity is 99% or greater "there is an evidentiary presumption that the alleged father is the biological father" and eliminated the words that such a person is "presumed to be the parent."  2006 Minn. Laws ch. 280, § 4.  The legislature simultaneously added a new provision that the presumption created by this section "does not preclude the adjudication of another man as the legal father under section 257.55, subdivision 2."  Id.;Minn. Stat. § 257.62, subd. 5(c) (2006).  The legislature did not change the provision that a "party opposing the establishment of the alleged father's paternity has the burden of proving by clear and convincing evidence that the alleged father is not the father of the child."  Id.  The legislature did not make any change in the manner in which competing presumptions of paternity are resolved, which remains governed by section 257.55, subd. 2.  We therefore find no merit in mother's argument that changes in the paternity statute indicate a preference for adjudication of a genetic father.

            Mother also argues that respondent has not, and cannot, meet the clear-and-convincing-evidence standard of rebutting the presumption created by genetic testing.  But respondent is not seeking to rebut any presumption created by the parentage act.  Respondent admits that he is child's genetic father.  Respondent's argument is that, in this case, the weightier considerations of policy and logic weigh in favor of defendant being adjudicated child's legal father. 

            Mother correctly notes that this court has previously observed the importance of maintaining blood relationships as a matter of policy.  E.g. B.J.H., 573 N.W.2d at 103-104 (stating that adjudicating a genetic father as a child's father "is consistent with the policy of not unnecessarily impairing blood relationships").  But this case is distinguishable, because in B.J.H., both the mother's husband and the genetic father wanted to be adjudicated the child's father.  Id. at 101.  The genetic father initiated the paternity action, had contact with the child shortly after the child's birth, introduced the child to his extended family, and wanted to maintain a relationship with and support the child.  Id.at 101, 103.  The record in that case contained a recommendation from an expert witness and the child's guardian ad litem supporting adjudication of the genetic father's paternity.  Id.at 103. 

            Furthermore, it is important to examine the holding in B.J.H. in light of our standard of review.  In that case, we affirmed the district court's decision because it was logically based on the facts of that case and policy.  Id. at 103-04.  B.J.H. does not stand for the proposition that a genetic relationship trumps other factors in the determination of competing paternity presumptions.  To the contrary, in B.J.H. we cited C.M.G., 516 N.W.2d at 561, in which we affirmed a paternity adjudication of a non-genetic father who was bonded with the child, was willing and able to support the child and be the child's father.  In B.J.H., the genetic father did not want a relationship with the child.  B.J.H., 573 N.W.2d at 103-104.

            In this case, the district court listed the undisputed facts as findings to support its conclusion.  Those undisputed facts include that (1) child has been raised by mother and defendant to believe that defendant is her biological and legal father; (2) mother and defendant "have gone to great lengths to ensure that this belief is maintained";[2] (3) defendant's extended family and child's siblings believe that he is child's biological and legal father; (4) child has a strong attachment to defendant; (5) defendant has provided child "with a stable and loving environment for over ten years"; and (6) defendant wants to continue having a relationship with child and is willing and financially able to support child. 

            The district court also noted the undisputed facts that respondent "has never had a relationship with [child] or provided any emotional or financial support for her well-being," and there is no evidence that respondent would choose to become involved in child's life or that his family would welcome her as his child.  The district court concluded that "it is unlikely that [child] would benefit from the sudden disruption in her already stable family life should [respondent] be adjudicated her father."  On these facts, we conclude that the district court's paternity adjudication is supported by policy and logic as required by the statute.

II.

            Mother argues that the district court erred in failing to consider all relevant facts in reaching its paternity decision, specifically respondent's rejection of her numerous attempts to involve him in child's life that "left [her] with no option" but to involve defendant in child's life.  But the history of mother's relationship with respondent is not relevant to the paternity determination.  The district court correctly focused on child's relationship with defendant, her position in the community as defendant's child, and the non-existence of any relationship between respondent and child. 

            Mother also asserts that defendant provided "almost no financial support" for child.  Although neither defendant nor respondent has provided court-ordered support for child, there is undisputed evidence in the record that defendant has always provided the same financial support for child as he has provided for his other children. 

            Mother argues that this decision sends a message, contrary to public policy, that if a man refuses to accept responsibility for a child for a long enough time, he can avoid being held accountable for his actions.  We disagree.  The statute provides the criteria for the determination in instances of competing presumptions, and the district court correctly applied the statute.

III.

            Mother also argues that the district court erred in denying the county's motion for an order directing respondent to pay temporary support under Minn. Stat. § 257.62, subd. 5(a) (2006), which provides that, on motion, the district court shall order an alleged father to pay temporary child support if test results indicate that the likelihood of his paternity is 92% or greater, and the alleged father must pay the support money to the public authority or to the court pending the results of the paternity proceeding.  But the county's motion for temporary support was heard at the same time as the parties' summary-judgment motions.  Because respondent was not adjudicated child's father, he was not obligated to provide support, and the district court did not err in denying the county's motion.

            Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

 

[1]  Each of the circumstances described leads to a presumption that a man is a "biological" father of a child.  This complicates a comparative discussion of multiple presumptions because in common usage, "biological father" usually means the man whose sperm fertilized the egg.  To avoid confusion we will refer to the latter presumed father as the "genetic father".

[2] Mother testified in her deposition that the reason she has shielded child from the knowledge that respondent is her genetic father is to prevent the child from experiencing rejection.