State ex rel. J.E. v. State
| Decision Date | 20 January 2023 |
| Docket Number | 20210921-CA |
| Citation | 2023 UT App 3 |
| Parties | State of Utah, in the interest of J.E., a person under eighteen years of age. D.E., Appellant, v. State of Utah, Appellee. |
| Court | Utah Court of Appeals |
Third District Juvenile Court, Salt Lake Department The Honorable Annette Jan No. 1198329
D.E Appellant Pro Se
Sean D. Reyes, Carol L.C. Verdoia, and John M. Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem
Julie J. Nelson, Debra M. Nelson, Alexandra Mareschal, and Kirstin Norman, Attorneys for Amicus Curiae Utah Indigent Appellate Defense Division
¶1 D.E. (Father) obtained-at least for a while-parental rights regarding J.E. (Child) when he and Child's mother (Mother) duly signed and filed a voluntary declaration of paternity (the VDP). Later, however, genetic testing revealed that Father is not Child's biological father. Based on those test results the guardian ad litem (the GAL) appointed to represent Child raised a challenge to the VDP, which the juvenile court sustained, later issuing an order invalidating the VDP and declaring it "void."
¶2 Father now challenges that order, asserting that the GAL (on behalf of Child) had no right under applicable law to challenge the VDP. We first determine that we have jurisdiction to consider Father's appeal. And on the merits, we conclude that the juvenile court correctly determined that, under the circumstances presented here Child has statutory standing to challenge the VDP. On that basis, we affirm the court's decision to reach the merits of Child's challenge and to sustain that challenge. But the court should not have declared the VDP "void," and we remand for correction of the language used in the court's order and for such other proceedings as might be appropriate.
BACKGROUND[1]
¶3 In 2021, Father and Mother were residing together-but not married-with three children: then-one-year-old Child and his two older siblings. All three children are Mother's biological children, and Father's paternity had been established as to the older two children. At the time, both Mother and Father were uncertain whether Father was the biological father of Child, because they were both aware that Mother had engaged in sexual activity with both Father and another man in 2019, around the time Child had been conceived. But neither Father nor any other man had established paternity with regard to Child.
¶4 In early 2021, Father was arrested and charged with aggravated assault involving domestic violence, as well as commission of domestic violence in front of a child, related to an incident in which Mother accused him of attempting to smother her with a pillow in front of the children. The charging document labeled Father a "habitual violent offender," explaining that he had previously been convicted of domestic violence against Mother in connection with a 2019 incident. Father remained incarcerated on these new charges for several weeks. Mother also obtained a civil protective order against Father, which remained in effect for several months, until she asked for it to be dismissed.
¶5 A few weeks after Father's arrest, Mother was arrested and incarcerated on charges of drug possession. Mother later admitted that she had been using methamphetamine. At that point, the Department of Child and Family Services (DCFS) filed a petition seeking custody of the children, and the court granted that request at a subsequent shelter hearing.
¶6 A month later, in May 2021, Mother remained incarcerated-she was eventually released in August-but Father had been released from jail after the criminal charges against him were dismissed. The record before us does not disclose the reasons for the dismissal of the criminal case, but the dismissal occurred on the date set for preliminary hearing, and it was entered without prejudice. Neither the State nor the juvenile court viewed the dismissal of the criminal charges as an exoneration of Father; indeed, the court eventually scheduled an evidentiary hearing to consider whether Father had committed domestic violence against Mother and, at the conclusion of that hearing, found that all three children were "neglected by" Father.
¶7 After his release from jail, Father requested that the children be returned to his custody. The court denied that request, but did order that Father be allowed supervised visitation with at least some of the children.
¶8 At another hearing a couple of weeks later, the GAL first raised the issue of Child's paternity, and asked that the court order genetic testing to determine whether Father was indeed Child's biological father. Neither Father nor Mother opposed this request, and the court therefore ordered that genetic testing take place, an order that necessarily required that Father, Mother, and Child all separately submit to genetic testing.
¶9 On August 5, 2021, Father submitted a biological sample for genetic testing. Mother and Child, however, did not submit biological samples until August 19. On August 18, the day before Mother and Child submitted their samples, Father and Mother signed and filed the VDP. On that form, they both swore that they "believe[d]" that Father was Child's biological father. And Father answered "no" to a question asking whether "the birth mother, child, and biological father" had "submitted to genetic testing." The Utah Office of Vital Records and Statistics accepted the VDP as valid, and that same day issued an amended birth certificate for Child, listing Father as Child's father.
¶10 Following the filing of the VDP, Father (through counsel) filed a motion seeking visitation with Child, alleging that DCFS had been "not allowing" him to have visitation because the GAL "is opposed to the visits." The GAL filed a response that asked the court to postpone its decision on visitation with Child until the results of the genetic testing were known. In that same opposition memorandum, the GAL raised a challenge to the VDP, specifically invoking sections 78B-15-302 and -307 of the Utah Code. In particular, the GAL asserted that Father had fraudulently answered some of the questions on the VDP, and asserted that, if the pending genetic testing excluded Father as Child's biological father, the VDP could also be challenged on the ground that there had been a material mistake of fact. In reply, Father asserted that the VDP, which had been accepted by the Office of Vital Records and Statistics, gave him parental rights as Child's father, and that he was therefore entitled to visitation. He also requested a hearing regarding the GAL's challenge to the VDP.
¶11 In late September 2021, while Father's motion for visitation was pending, the genetic test results came back and demonstrated that Father is not Child's biological father.
¶12 Eventually, the court held an evidentiary hearing to consider Father's motion for visitation. At that hearing, the court heard brief testimony, under oath, from both Father and Mother. After their testimony, the GAL asserted that Father should be denied visitation because, among other reasons, Father was not Child's biological father. In connection with that argument, the GAL pressed the challenge to the VDP that she had raised in her opposition brief and asked for the VDP to "be declared void and be rescinded," specifically asking for that relief to be "entered pursuant to [section] 78B-15-623" of the Utah Code (referred to herein as "Section 623"), a statutory provision the GAL had not mentioned in her opposition brief. Section 623 provides, in relevant part, that "[a] child is not bound by a determination of parentage" unless "the determination was based on an unrescinded declaration of paternity and the declaration is consistent with the results of genetic testing." See Utah Code Ann. § 78B-15-623 (LexisNexis 2018). The GAL asserted that the VDP was subject to a challenge by Child because the results of the genetic testing indicated that Father was not Child's biological father. In addition, the GAL pressed the arguments that had been raised in her brief, asserting that the VDP was fraudulent because Father had allegedly been less than candid when he stated that he "believe[d]" that he was Child's father and when he answered "no" to the question on the form about genetic testing.
¶13 At the conclusion of the hearing, and after a brief recess, the court in an oral ruling granted the GAL's request to invalidate the VDP, relying on Section 623 and on the fact that the genetic testing had conclusively determined that there was no biological relationship between Father and Child. Addressing Father, the court stated, "[Y]ou are not the father of [Child] at this point." And the court declined Father's invitation to order that he receive visitation with Child but, given Father's established biological relationship with the other two children and given the fact that Father was "probably the only parental figure on the male side that [Child] has know[n]," the court nevertheless left the door open for DCFS to "allow" Father to have visitation with Child if DCFS believed that visitation would serve Child's best interest. The court later signed a minute entry reflecting its oral ruling, therein declaring that the VDP "is void."
¶14 Father appeals the juvenile court's decision to invalidate the VDP and to declare it void. At the center of Father's challenge is his assertion that Child, by and through the GAL, does not possess statutory standing to challenge the VDP. This question is one of statutory interpretation, and on such matters we afford no deference to trial courts' decisions. See State v....
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