In re Parentage of J.M.K., 75563-9.

• Citation: 119 P.3d 840,155 Wn.2d 374
• Decision Date: 15 September 2005
• Docket Number: No. 75563-9.,75563-9.
• Court: United States State Supreme Court of Washington
• Parties: In the Matter of the PARENTAGE OF J.M.K and D.R.K. Teresa Brock, Petitioner, v. Michael J. Kepl, Respondent.

119 P.3d 840

155 Wn.2d 374

In the Matter of the PARENTAGE OF J.M.K and D.R.K.

Teresa Brock, Petitioner, v. Michael J. Kepl, Respondent.

No. 75563-9.

Supreme Court of Washington, En Banc.

Argued May 12, 2005.

Decided September 15, 2005.

Boyd Scott Wiley, Daniel W. Smith, Campbell Dille Barnett Smith & Wiley, Talis Merle Abolins, Campbell Dille Barnett, Puyallup, for Petitioner.

Christopher Martin Constantine of Counsel Inc. PS, Tacoma, Respondent.

MADSEN, J.

¶ 1 Petitioner Teresa Brock challenges the Court of Appeals' decision reversing the trial court's summary judgment determining the paternity of her two boys. Michael Kepl, the biological father, signed a paternity affidavit for the older child but not for the younger child. The trial court determined that the biological father was the legal (natural) father for both boys. The Court of Appeals reversed, agreeing with the biological father that, as a matter of law, the former artificial insemination statute shielded him from legal fatherhood status with regard to both boys. At issue is whether, under former parentage statutes,¹ a biological father is the legal father of two boys conceived by means of assisted reproductive technology by a woman to whom the man was not married. We hold that Kepl is the legal father for both boys and affirm the trial court's summary judgment determination of paternity.

FACTS

¶ 2 Michael Kepl, the respondent, had a long-term romantic relationship with Teresa Brock, the petitioner, while he was married to another woman. Brock was not married during her relationship with Kepl. The parties met in the late 1980s at work and shortly thereafter began a sexual relationship that continued for approximately one year, ending in 1990 or 1991. Kepl's wife gave birth to his daughter, AK, in 1991. The parties renewed their sexual relationship in the early-to mid-1990s (1992-1994) which lasted nearly 10 years. The parties dispute whether their sexual relationship ended by January or March 2001.

¶ 3 In 1995, the parties began to try actively to conceive a child. The parties first had unprotected sexual intercourse. Brock then sought help from doctors and fertility clinics in Tacoma and Seattle. Brock used fertility drugs and the parties timed intercourse. These processes were unsuccessful. Brock then asked Kepl to donate sperm which he did multiple times. Brock then underwent multiple artificial insemination procedures using Kepl's sperm when the parties were not able to time intercourse. Although the parties at times inaccurately refer to the fertility process as "artificial insemination," the record indicates that Brock eventually conceived her children using in vitro fertilization, a type of assisted reproduction involving the implantation of preembryos in Brock created with Kepl's sperm. Clerk's Papers (CP) at 30, 67, 147, 196; Report of Proceedings (RP) at 20-21 (May 21, 2002); RP at 13 (Aug. 27, 2001).² Currently, seven frozen preembryos owned by Kepl and Brock remain at a fertility clinic in Seattle.

¶ 4 Brock gave birth to her first son, JMK, on December 30, 1998. Apparently, Brock was induced a week earlier at Kepl's request so that he could attend the birth given his other commitments. When the first inducement was not successful, Brock was induced again and gave birth approximately one week later. Kepl was present at the hospital the day she gave birth and Kepl was the first person other than hospital staff to hold JMK.

¶ 5 Photographs in the record show Kepl at the hospital holding JMK and with Brock. Kepl gave Brock flowers and cards, including messages of "It's a Boy — Finally!" and "Bunches of love to you [Brock] and our bundle of joy" with Kepl signing with both his first name and as "Dad." CP at 155-59. At the hospital, Kepl completed and signed a paternity affidavit with Brock and Kepl's name was placed on JMK's birth certificate. A number of Brock's friends were present in the hospital room when Kepl and Brock completed and signed the paternity affidavit. The paternity affidavit provided at the top of the document:

This Document Establishes Paternity Pursuant to RCW 26.26.040

NOTE: Notarized signatures of the parents below establish legal paternity and the responsibility to support this child. This document becomes binding sixty (60) days after it is filed with the Department of Health. After 60 days, paternity can not be changed without a court order.

CP at 12. Both their signatures were notarized. Under former RCW 26.26.040(1)(e) (1997), after the 60-day period has passed, the acknowledgement of paternity may be challenged in court only on the basis of fraud, duress, or material mistake of fact, with the burden upon the challenger. Kepl did not challenge paternity of JMK within 60 days after the filing of the acknowledgment.

¶ 6 Kepl visited JMK weekly. Kepl took Brock and JMK on vacation and participated in holiday events with Brock and JMK. The record contains numerous photographs of Kepl holding and playing with JMK including Kepl and JMK at Woodland Park Zoo in 2000, at Mount Rainer Park in 2001, and at his home and at Brock's home. Photographs also show Kepl attending JMK's first and second birthday parties. The record also contains professional photographs of Kepl, Brock and JMK posed as a traditional family taken in April 1999.

¶ 7 In April 1999, when JMK was four months old, Kepl applied for a $100,000 life insurance policy identifying JMK as his son and primary beneficiary and identifying Brock as his significant other and contingent beneficiary. Kepl had a separate life insurance policy in effect for his daughter, AK, for $500,000. Kepl's insurance policy application was approved in May 1999 for $100,000 coverage requiring annual payments of $749 for 20 years.

¶ 8 In February 2001, Brock conceived a second child, again using in vitro fertilization. Brock claims that having a second child, a sibling for JMK, was Kepl's idea and that Kepl paid Brock $700 to help pay for the medical procedure. Kepl claims that he had no input into the decision to conceive a second child. Brock gave birth to a second son, DRK, on October 27, 2001. Kepl visited the hospital while Brock was in labor and the day after DRK was born. However, Kepl did not sign a paternity affidavit for DRK.

¶ 9 Prior to the first child's birth, Kepl and Brock set up a joint savings account for JMK. Kepl paid approximately $400-600 a month, which was briefly increased to $1,000 after the second child was born. The record contains bank records indicating that Kepl made child support payments until January 2002, when JMK was three years old and DRK was three months old. According to both parties, Kepl stopped making the payments after Kepl's wife found out about his extramarital affair in January 2002.

¶ 10 Kepl claims he paid child support payments in order to continue his sexual relationship with Brock and due to blackmail, to keep Brock from telling his wife about their relationship. Kepl also claims that he was under a lot of stress during the time Brock gave birth to her first child and signed the paternity affidavit under blackmail, duress and/or fraud. Additionally, Kepl claimed he donated sperm only as a friend, and did not intend to be a parent. In contrast, Brock claims that Kepl voluntarily made child support payments and purchased the life insurance policy for JMK, consistent with his involvement and visitation with her first son, and voluntarily signed the paternity affidavit.

PROCEDURAL HISTORY

¶ 11 On February 20, 2002, Brock filed a petition to establish JMK's and DRK's parentage in the Superior Court of Pierce County. In the petition, Brock requested the court enter an order and judgment that (1) Kepl be declared the natural father of JMK and DRK, (2) the birth certificate of DRK be amended to identify Kepl as the father, (3) child support be determined pursuant to the Washington State Support Schedule, (4) Kepl pay past support (being credited for earlier payments), (5) a parenting plan be adopted, and (6) court costs, blood tests, guardian ad litem and attorney fees be awarded by the court. Brock also moved the court for an order appointing a guardian ad litem for the two boys, which the court granted that same day, appointing John Brooks as guardian ad litem for JMK and DRK.

¶ 12 Kepl responded to Brock's parentage petition by requesting paternity blood testing, claiming he was not necessarily the biological father of the two boys. Kepl urged the court not to enter child support or a parenting plan until paternity was established using blood tests.

¶ 13 Kepl's counsel sent letters and subpoena duces tecum to two fertility clinics and three doctors, requesting all medical records and documentation from 1990 to 2002 relating to Kepl and Brock. Brock moved for a protective order protecting her medical records. On April 12, 2002, Judge Larkin granted the protective order and urged Kepl and the boys to complete the blood testing promptly as suggested by the guardian ad litem.³

¶ 14 On May 3, 2002, Brock filed a motion to require Kepl to submit to paternity blood testing. Kepl opposed the motion, arguing that under former RCW 26.26.050(2) (1976), he cannot be the natural father of either child because he did not sign a written agreement in advance of impregnation as provided under the artificial insemination statute.⁴ Additionally, Kepl argued that the court lacked authority to require blood testing because under former RCW 26.26.100(1) (1997) a court may order blood testing only when there is a reasonable possibility that the "requisite sexual contact" occurred. Kepl asserted that because these children were conceived using artificial reproduction, the "requisite sexual contact" could not have occurred. Thus, even though Kepl and Brock were in a sexual relationship, the children were not conceived from natural sexual contact.

¶ 15 On May 21, 2001, Commissioner Johnson ordered that Kepl and the two boys submit to...