El Dorado County v. Schneider

• Decision Date: 22 July 1986
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 183 Cal.App.3d 732 183 Cal.App.3d 732 COUNTY OF EL DORADO et al., Plaintiffs and Respondents, v. Robert Henry SCHNEIDER, Defendant and Appellant. Civ. 24669.

Page 531

228 Cal.Rptr. 531

Previously published at 183 Cal.App.3d 732

183 Cal.App.3d 732

COUNTY OF EL DORADO et al., Plaintiffs and Respondents, v. Robert Henry SCHNEIDER, Defendant and Appellant.

Civ. 24669.

Court of Appeal, Third District, California.

July 22, 1986.

Rehearing Granted August 21, 1986.

Certified for Partial Publication ^*

Rehearing Granted Aug. 21, 1986.

Robert H. Schneider, in pro. per.

John K. Van De Kamp, Atty. Gen., Joel Carey and Cynthia G. Besemer, Deputy Attys. Gen., Sacramento, for plaintiffs and respondents.

SIMS, Associate Justice.

Evidence Code section 892 is a part of the Uniform Act on Blood Tests to Determine Paternity. (Evid.Code, § 890 et seq.; all further nondescript statutory references are to the Evidence Code.) Section 892 allows a trial court to order a person to submit to blood tests in a civil action in which paternity is at issue, and, upon refusal, to resolve the question of paternity adversely to the person who refused. ¹ In this case involving an action to establish paternity for purposes of child support, we hold that the constitutional rights of a father who refused to submit to an order for blood tests were not violated when the trial court invoked section 892 and resolved the question of paternity against him.

FACTUAL AND PROCEDURAL BACKGROUND

On January 5, 1984, plaintiffs County of El Dorado and Angelina M., a minor, by her guardian ad litem, Alberta P.B. (hereafter collectively County), filed a complaint against defendant Robert Henry Schneider to establish paternity of Angelina M., to obtain child support payments, and to obtain reimbursement for public assistance paid by County. (See Civ.Code, § 248; Welf. & Inst.Code, § 11350; County of Yolo v. Francis (1986) 179 Cal.App.3d 647, 224 Cal.Rptr. 585.) Defendant, represented by counsel, thereafter filed an answer in which he denied paternity.

County then noticed a motion for an order for Human Leukocyte Antigen (HLA) blood tests of the child, the mother, and defendant. The motion was supported by an affidavit of a county investigator who reported that the child's mother had stated in county records that defendant was the child's father.

Unhappy with the representation of his retained counsel, defendant then substituted himself in pro per as attorney of record. ²

Defendant failed to appear at the hearing on the motion for blood tests, and the trial court entered an order requiring defendant to take the tests.

Defendant does not dispute that he received the order; however, he failed to appear for the test at the specified time and place.

County then noticed a motion to establish paternity pursuant to section 892. On the date of the hearing on the motion, May 31, 1984, defendant filed a document entitled "JUDICIAL NOTICE Re: Want of JURISDICTION." In the document defendant argued at length that the court had no jurisdiction over him. Defendant asserted the state had no interest in regulating his person outside of the substantive criminal law. Defendant argued that, in the absence of a contract between the state and him, the police power of the state could be exercised over him with respect to noncriminal conduct only with his consent. ³ He Defendant also appeared at the hearing on County's motion to establish paternity. He again asserted to the court that County had no jurisdiction to proceed with the action in the absence of a contract with him. The trial court asked defendant why he did not appear for the blood tests. Defendant's only reply was that "... I didn't comply to the warrant for a blood test under the First Amendment of the Constitution, under freedom of religion, so I didn't appear on the warrant for a blood test." Defendant has never indicated orally or in writing what religion he practices nor how the blood tests would have conflicted with his religious beliefs.

also alleged that application of section 892 would deny him rights under the First, Fourth, Fifth, Sixth, Eighth, Ninth, Tenth, Thirteenth, and Fourteenth Amendments.

The trial court ruled defendant was subject to its in personam jurisdiction because he had been served with the summons and complaint and had filed an answer. The court concluded County was authorized to bring the action by Welfare & Institutions Code section 11350. Having determined that section 892 authorized it to resolve the paternity issue adversely to defendant due to his failure to take the blood tests, the court ruled that paternity was established as a matter of law and entered an order declaring defendant to be the father of the child.

Thereafter, a court trial was held on the amount of child support and arrearages. Although defendant was notified of the trial, he did not appear. A judgment awarding child support and arrearages was filed, and defendant timely filed notice of appeal.

In this court, defendant has abandoned many of his arguments made to the trial court, including his principal assertion that County could not rely upon the police power in the absence of a contract with him. ⁴ Defendant now contends the trial court erred in declaring him the child's father because: (1) the district attorney was not empowered to bring this action; (2) defendant appeared specially for the purpose of challenging the trial court's jurisdiction and never made a general appearance; (3) section 892 did not authorize the trial court to resolve the question of paternity against him; (4) his religious beliefs precluded his submitting to a paternity blood test; (5) he was denied his constitutional rights to a jury trial on the paternity issue; (6) the order establishing paternity denied defendant his constitutional rights to due process of law, including his right to confront and cross-examine his accusers; and (7) the trial court erroneously relied on its order establishing paternity in issuing its order for child support and arrearages because (a) plaintiff's at-issue memorandum and certificate of readiness was filed when the trial court had no jurisdiction because plaintiff had appealed from a nonappealable order; (b) the order of paternity was void for reasons previously asserted and because affidavits used to obtain the order were not in proper form and contained hearsay; and (c) defendant was wrongfully denied a hearing on his motion to set aside the order establishing paternity.

In this published portion of our opinion, we reject defendant's constitutional claims. In an unpublished portion of the opinion, we conclude defendant's remaining contentions of error are unfounded. We shall therefore affirm the judgment.

DISCUSSION

I ^**

The County was authorized to bring the action.

II **

The trial court had jurisdiction over defendant.

III **

Section 892 authorized the trial court to establish paternity as a matter of law.

IV **

Defendant has waived any objection to the form of affidavits used to support the motion for the order for blood tests.

V **

Assuming County's at-issue memorandum was erroneously filed during defendant's appeal from a nonappealable order, the judgment need not be reversed.

VI **

The trial court did not err in failing to vacate or postpone the trial date.

VII **

Defendant did not notice a hearing on his "motion to set aside void order."

VIII **

The court did not erroneously rely on a void order of paternity in determining child support.

IX

Application of section 892 to determine paternity did not violate defendant's rights under the federal Constitution.

Defendant contends application of section 892 to determine paternity denied him various rights granted by the federal Constitution. We disagree.

A. Defendant made no showing that his first amendment rights were violated.

Defendant contends application of section 892 violated his first amendment right to practice his religion. However, "One who attacks a statute upon [a constitutional] ground has the burden of showing that his rights have been invaded by the actual or threatened application of the challenged law to him." (Brock v. Superior Court (1939) 12 Cal.2d 605, 613-"614, 86 P.2d 805.) Defendant has never shown how the order for blood tests would interfere with his religion. (Compare Thomas v. Review Bd., Ind. Empl. Sec. Div. (1981) 450 U.S. 707, 710-"711 [101 S.Ct. 1425, 1428-"1429, 67 L.Ed.2d 624, 629]; see also Bowen v. Roy (1986) -"-"-" U.S. -"-"-"-" [106 S.Ct. 2147, 90 L.Ed.2d 735].) Consequently, in the absence of such a showing, we must presume the statute was constitutionally applied to defendant.

B. The federal Constitution does not require a jury trial.

Defendant contends he was wrongfully denied a jury trial. However we conclude the federal Constitution provided no right to a trial by jury.

1. Sixth Amendment

The Sixth Amendment to the federal Constitution ⁶ guarantees a jury trial in "criminal prosecutions" of serious offenses and is made applicable to the states by the Fourteenth Amendment. (Duncan v. Louisiana (1968) 391 U.S. 145 [88 S.Ct. 1444, 20 L.Ed.2d 491].) The United States Supreme Court has construed the Sixth Amendment to require a jury only where a defendant is subject to a penal sanction in the action. (See Kennedy v. Mendoza-Martinez (1963) 372 U.S. 144, 166 [83 S.Ct. 554, 566, 9 L.Ed.2d 644, 659-"660].) Moreover, with the possible exception of Mendoza-Martinez, where loss of citizenship was at issue, the Supreme Court has interpreted the Sixth Amendment to require a jury trial only where the defendant faces a possible term of imprisonment of more than six months. (Baldwin v. New York (1970) In County of Los Angeles v. Soto (1984) 35 Cal.3d 483, 198 Cal.Rptr. 779, 674 P.2d 750, our Supreme Court held that a defendant stipulating to a judgment of paternity must understand the consequences of the stipulation and ensuing judgment and be aware of his right to a hearing at which the county is required to prove paternity and at which the defendant may present a defense with the assistance of counsel. (P. 490, 198 Cal.Rptr. 779, 674 P.2d 750.) The...