L.R.F. v. A.A.
| Decision Date | 19 March 2014 |
| Docket Number | No. 13–CA–797.,13–CA–797. |
| Citation | 133 So.3d 716 |
| Parties | L.R.F. v. A.A. |
| Court | Court of Appeal of Louisiana — District of US |
OPINION TEXT STARTS HERE
William H. Daume, Attorney at Law, Gretna, Louisiana, Counsel for Appellee, L.R.F.
A.A., Marrero, Louisiana, Appellant in Proper Person.
Panel composed of Judges SUSAN M. CHEHARDY, STEPHEN J. WINDHORST, and HANS J. LILJEBERG.
This is the parties' second appeal.1 Here, A.A.2 challenges the trial court's ruling granting L.R.F.'s petition to revoke his acknowledgement of paternity of L.R.F., Jr. For the following reasons, we affirm.
On December 21, 2008, L.R.F., Jr. was born. Shortly after the child's birth, L.R.F. executed an authentic act acknowledging paternity of L.R.F., Jr.
On March 8, 2010, L.R.F. filed a Petition to Disavow Paternity of the minor child, which he later amended to reflect that he sought to revoke his acknowledgement of paternity under La. R.S. 9:406(B). On February 24, 2011, the child's mother, A.A., filed a Motion for Scientific Paternity Testing. On October 12, 2011, the trial judge heard and granted, inter alia, L.R.F.'s Petition to Revoke Acknowledgement of Paternity.3 A.A. appealed that ruling. On May 31, 2012, this Court, finding the record devoid of evidence required to establish paternity or lack thereof, vacated the trial court judgment and remanded for further proceedings.4
On November 28, 2012, L.R.F. moved for DNA testing at a facility that can provide admissible test results, which was granted. The trial court ordered A.A. to produce herself and the minor child for DNA testing on or before January 7, 2013. On February 11, 2013, the Paternity Report was filed in the record.
On February 25, 2013, A.A. filed a motion challenging the admissibility of the report on the basis that the record lacked documentation regarding chain of custody of the samples and an affidavit from the examiner, which was required by La. R.S. 9:397.2 et seq. On March 13, 2013, the trial judge heard and granted A.A.'s motion, ordering L.R.F. to provide the necessary affidavits.
On March 27, 2013, an “Affidavit of Relationship Testing Results” was filed by Vince Miller, Ph.D., Chief Technical Officer and Custodian of Records for Chromosomal Labs • Bode Technology in Phoenix, Arizona. In his affidavit, Dr. Miller attests that he is the Laboratory Director for Relationship Testing and his laboratory holds an accreditation to perform biological screening. Attached to Dr. Miller's affidavit is the “Chain of Custody” for the samples provided by A.A., L.R.F., and the minor child. The Chain of Custody form was signed by A.A. on January 4, 2013 and L.R.F. on January 23, 2013, when the biological samples were collected. Further, the Chain of Custody was signed by the sample collector, Anthony Jones, when he collected the samples and when he shipped the kit to the lab for testing.
On April 11, 2013, an Affidavit from Anthony Jones was filed into the record. In it, Jones attests that, pursuant to his employment with Innovative Risk Management Services, he obtained photographic identification from A.A. then collected “tissue samples” from A.A. and the minor child on January 4, 2013. He further attests that, on January 23, 2013, he obtained photographic identification from L.R.F. then collected a “tissue sample.” Finally, he forwarded all three tissue samples to Chromosomal Labs in Phoenix, Arizona for DNA testing.
On April 16, 2013, A.A. filed an Affidavit from K.H.A., who attests that his “complete review of the Court Record” reflects that the record is “devoid of any written scientific DNA Blood or Tissue Testing results evidence excluding, by a ninety-nine and nine-tenths percentage point threshold, the Plaintiff ... as the biological father of the minor child....” 5
On May 15, 2013, the trial court heard A.A.'s “Request for the Court to Correct Procedural Error” regarding failure to serve the DNA test results and accompanying affidavits on herself and the curator appointed to represent the minor child, as required by La. R.S. 9:406. The trial judge granted relief and ordered L.R.F. to properly serve the other parties with the necessary documentation.
On July 12, 2013, trial of L.R.F.'s Petition to Revoke Acknowledgment commenced.At trial, without objection, L.R.F. introduced into evidence the Paternity Report with accompanying affidavits from the sample collector and the sample tester, which states that there is 0% probability that L.R.F. is the biological father of the minor child. The trial judge thereafter found that L.R.F. had sufficiently proven that he was not the biological father of the minor child and granted his petition to revoke his acknowledgment. The trial judge signed the judgment to that effect on August 5, 2013.
On appeal, A.A., in proper person, lists six assignments of error: first, L.R.F. was not ordered by the trial court to submit to DNA testing and “the Record is totally void of any ... evidence showing [L.R.F.] actually took part in any DNA testing in this case;” second, Judge Miller “clearly tainted Plaintiff's ‘alleged Affidavit of Relationship Test Results;’ ” third, Anthony Jones' Affidavit is invalid as it was not properly notarized; fourth, the record does not contain a written report of DNA testing performed by a laboratory in Las Cruces, New Mexico; fifth, L.R.F. has not met his burden of proof by providing the Court with clear and convincing credible proof as required by statute; and finally, sixth, appellant alleges that the domestic hearing officer, commissioner, trial judge, and two attorneys violated her civil rights, Louisiana law and the Code of Judicial Conduct.
In her first assignment of error, A.A. alleges that L.R.F. was not ordered by the trial court to submit to DNA testing and “the Record is totally void of any ... evidence showing [L.R.F.] actually took part in any DNA testing in this case.” We agree that L.R.F. was not ordered to submit to DNA testing, which was not necessary, considering L.R.F. obtained DNA testing to exclude him as the biological father of the minor child. We disagree, however, that the record is devoid of evidence that L.R.F. submitted himself to DNA testing. The DNA test results from Chromosomal Labs filed in the record clearly reference L.R.F. as the donor of one of the samples tested by the laboratory. This argument is without merit.
In her second assignment of error, A.A. alleges that Judge Miller “clearly tainted Plaintiff's ‘alleged Affidavit of Relationship Test Results.’ ” Here, A.A. merely restates her allegation that the trial judge “tainted” the test results by instructing the attorneys regarding the form of affidavit necessary from the testing facility, without briefing in support thereof. “The court may consider as abandoned any specification or assignment of error which has not been briefed.” 6 Further, “[r]estating an assigned error in brief without argument or citation of authority does not constitute briefing.” 7 For this reason, this assignment of error is pretermitted.
In her third assignment of error, A.A. argues that Anthony Jones' Affidavit is invalid as it was not properly notarized. Although it is true that “[a]ny document notarized in this state on or after January 1, 2005, submitted for filing or recording ... in the office of any clerk of court ... may be refused by the clerk ... if the document fails to contain the notary identification or attorney bar roll number and the typed, printed, or stamped name of the notary and the witnesses,” La. R.S. 35:12(D)(1) further states that “documents filed in the civil ... suit records of any court shall not be subject to the provisions of this Subsection.” Thus, the Affidavit of Anthony Jones filed in this matter is not subject to the strict provisions of La. R.S. 35:12(D)(1).8 This argument is without merit.
In her fourth assignment of error, A.A. asserts that the record does not contain a written report of DNA testing performed by a laboratory in Las Cruces, New Mexico. We agree. While the trial judge's Reasons for Judgment do mention the New Mexico result, neither the transcript of the hearing nor the Judgment mention the purported result from the New Mexico facility. Appeals are taken from the judgment, not the reasons for judgment. 9 Courts of appeal are constrained to review judgments on appeal. 10 Accordingly, this assignment of error lacks merit.
In her fifth assignment of error, A.A. challenges the substance of the trial court's ruling in this case by alleging that L.R.F. “has not met his burden of proof by providing the Court with clear and convincing credible proof as required by statute.” We disagree.
Louisiana's law on revocation of an acknowledgment of paternity is found in La. R.S. 9:406, which reads in part:
A. (1) A person who executed an authentic act of acknowledgment may, without cause, revoke it within sixty days of the execution of the authentic act of acknowledgment [if certain specific criteria are met];
B. (1) If the notarial act of acknowledgment has not been revoked within sixty days in accordance with the provisions of Subsection A of this Section, a person who executed an authentic act of acknowledgment may petition the court to revoke such acknowledgment only upon proof, by clear and convincing evidence ... that the person is not the biological parent of the child.
(2) The mover shall institute the proceeding by ordinary process, within a two-year period commencing with the execution of the authentic act of acknowledgment of paternity, in a court of competent jurisdiction upon notice to the other party who executed the notarial act of acknowledgment and other necessary parties.... If the court finds based upon the evidence presented at the hearing that there is substantial likelihood that ... the person who executed the authentic act of acknowledgment is not the biological father, then, and only then, the court shall order...
To continue reading
Request your trial