V.D. v. L.R., Case No. 2010 RSR 1206

• Decision Date: 21 August 2015
• Docket Number: Case No. 2010 RSR 1206
• Parties: V.D. Petitioner v. L.R. Respondent.
• Court: D.C. Superior Court

V.D. Petitioner v. L.R. Respondent.

Case No. 2010 RSR 1206

SUPERIOR COURT OF THE DISTRICT OF COLUMBIA FAMILY COURT PATERNITY AND SUPPORT BRANCH

August 21, 2015

Judge Heidi M. Pasichow

No further dates

ORDER

This matter is before the Court based upon the Government's Motion for Review of Magistrate Judge's Order Pursuant to D.C. Super. Ct. Dom. Rel. Rule D, filed October 2, 2014. See D.C. Super. Ct. Gen. Fam. R. D(e)(1). For the foregoing reasons, the Motion for Review is GRANTED IN PART. This matter is reversed and remanded for further proceedings consistent with this opinion.

Procedural Posture

Initial proceedings

[Redacted] (hereinafter "minor child") was born on [Redacted] to V.D. ("Petitioner"). Respondent, L.R. is listed as the biological father on the birth certificate of the minor child, issued January 17, 2001. An Acknowledgment of Parentage, dated October 16, 2000, appears to show that the Respondent acknowledged before a notary public, and under oath, that he was the biological father of the minor child.¹

On May 21, 2010, the District of Columbia filed a child support petition under the Uniform Interstate Family Support Act (UIFSA) alleging that because the Respondent is the biological father of the minor child, it is seeking current and retroactive support for the child, then living in the state of Virginia.

On June 30, 2010, a Reciprocal Receiving (Support) Initial Hearing was held before Magistrate Judge Aida Melendez. The Respondent did not testify directly regarding his signature on the Acknowledgement of Parentage on June 30, 2010; rather, counsel for the Government indicated that he had spoken with the Respondent and the Respondent told the Government that he "is alleging that he, in fact, did not sign this acknowledgment of paternity." The Petitioner was not present at the hearing. Although not clear from the record, it appears that the Respondent presented to the Court private paternity test results from a previous paternity test performed by Orchid Labs² which excluded him as the biological father of the minor child. However because the private DNA testing presented by the Respondent had no chain of custody to establish that the test had, in fact, tested paternity of the minor child, Magistrate Judge Melendez entered an order for paternity testing over the Government's objection. The Government argued that no test was needed because the Government was not contesting the biological parentage of the minor child but rather asserting that the Respondent was the legal father of the minor child. The matter was continued to November 9, 2010, in order to review the results of the paternity test and, if contested, to proceed with an evidentiary hearing.

At the November 9, 2010, hearing, Magistrate Judge Melendez concluded that the court-ordered paternity test results excluded the Respondent as the minor child's biological father. The Government conceded that the Respondent had been excluded as the biological father of theminor child but again contended that the Respondent was the legal father as the Respondent had executed a valid Acknowledgement of Parentage regarding the minor child. Magistrate Judge Melendez also inquired of the Respondent about his allegation that the signature on the Acknowledgement of Parentage was not his signature.³ Although not clear from the record, the Respondent produced a number of handwriting samples⁴ to illustrate that the signature on the Acknowledgement of Parentage was not consistent with those on the handwriting samples. However, the Government maintained that the burden of proof was on the Respondent to disprove the authenticity of the Acknowledgment of Parentage because it was a self-authenticating document.⁵ Although the Respondent's mother represented that her son, the Respondent, had been shot multiple times in the head after the child was born, and that he was disabled⁶ due to the head trauma injury, no further inquiry was made about the relevance of his current mental capacity or whether the Respondent's handwriting had changed as a result of his head injury. The Petitioner was not present⁷ at the hearing, and the Government indicated that it had no information from the Petitioner regarding the Respondent's allegation that he did not sign the Acknowledgement of Parentage. The Government introduced three photographs⁸ of the Respondent and minor child taken in approximately 2002 or 2003, when the child was two or three years old. Magistrate Judge Melendez found and concluded that the two DNA testsexcluding the Respondent as the father of the minor were sufficient to establish that the Respondent was not the minor child's biological father. At the conclusion of the hearing, Magistrate Judge Melendez dismissed the Government's petition for support with prejudice over the Government's objection, finding that the Respondent had provided clear and convincing evidence that the he was not the father of the minor child.

On November 19, 2010, following Magistrate Judge Melendez's November 9, 2010, ruling, the Government filed a Motion for Review of Magistrate Judge's Order. On December 1, 2010, the Motior for Review was certified to Associate Judge John H. Bayly, Jr.

First Remand

On April 13, 2012, Judge Bayly issued a Memorandum Opinion Order and Vacatur granting the Government's Motion for Review in part and remanding the matter for further proceedings to "evaluate [the] [R]espondent's burden of proceeding and proof, and the authenticity, admissibility, and evidentiary weight of the Acknowledge of Parentage." Memorandum Opinion Order and Vacatur at 12.

Judge Bayly noted that the Respondent's burden pursuant to D.C. Code 16-909(a) "requires him to sustain his challenge to the Acknowledgement of Parentage...by coming forward, first, with a clear and precise proffer of the fraud he alleges and, if preliminarily successful, With a convincing evidentiary demonstration of the alleged fraud." Memorandum Opinion Order and Vacatur at 9 (citing D.C. Super. Dom. Rel. R. 9(b) and Hercules & Co. v. Shama Restaurant Corp., 566 A.2d 31, 39 n.16 (D.C. 1981) ("fraud is never presumed, and must be alleged with particularity and proved by clear and convincing evidence.")). Judge Bayly further noted that "in the District of Columbia," the "well-established rule" is that "to overcome the presumption arising from a [notarized] certificate there must be proof of gross concurrent mistake or fraud,through strong and disinterested evidence." Memorandum Opinion Order and Vacatur at 10 (citing Marden v. Hopkins, 47 App. D.C. 202, 206-07 (D.C. Cir. 1918)).

Judge Bayly remanded the proceedings "to afford pro se respondent an opportunity to particularize his assertion of fraud or forgery, and, if satisfactorily pleaded, to present his clear and convincing proof at hearing." Memorandum Opinion Order and Vacatur at 11. Judge Bayly further ordered that the Petitioner be "accorded recognition of her statutory right to rely on the Acknowledgement of Parentage as her sole evidence of paternity" and "afforded reasonable opportunity to testify without appearing in propria persona in open court." Memorandum Opinion Order and Vacatur at 11.

Post-remand

On September 10, 2012, a remand hearing scheduled before Magistrate Judge Brenneman⁹ was continued until January 30, 2013, in order for the Respondent to seek legal representation. On January 30, 2013, the Respondent was represented by legal counsel Ashley McDowell of the Legal Aid Society in a "temporary appearance."¹⁰ At the Court's direction, counsel questioned her client regarding the circumstances of the minor child's birth. Hr'g 13:12:59, January 30, 2013.The Respondent was the only witness to testify. The entirety of the Respondent's testimony during the hearing is as follows:

Respondent's Counsel: Mr [Redacted] were you at the hospital for the birth of [Redacted] the child in this matter?

Respondent: Yes.

Counsel: And, why did you go to the hospital for the birth?

Respondent: Just, um, I picked her up and she called and said that the baby was ready, so I dropped her off...[unintelligible]Counsel: Who is, who is "she"? That you...

Respondent: V.D.

Counsel: At the time o [Redacted] birth, did you believe you wore [Redacted] father?

Respondent: Yes.

Counsel: Ok. And why did you believe that you were the father?

Respondent: Well, I just, I thought she was...I...[unintelligible]

Counsel: Did Ms. D [Redacted] ever tell you that you were the father?

Respondent: Yes.

Counsel: And when did she tell you that?

Respondent: She, just, I guess, those months...

Counsel: Which months?

Respondent: Prior.

Counsel: Did you believe that you were in an exclusive relationship with Ms. D [Redacted] ?

Respondent: Uh, yes.

Counsel: So, do you remember receiving any paperwork at the hospital?

Respondent: Uh, not really.

Counsel: Do you remember signing anything at the hospital?

Respondent: No.

Counsel: Were you given any discharge records? Or, sorry, I withdraw that. Were you given any documents to discharge [Redacted]

Respondent: No. I don't think so, no.

Counsel: And, did there ever come a time when you questioned if you were [Redacted] father?

Respondent: Uh, yes.

Counsel: Ok. when was that?

Respondent: Uh, I guess 2002. But...

Counsel: Do you currently have a relationship with [Redacted]

Respondent: No.

Counsel: When was the last time you saw [Redacted]

Respondent: Uh, I believe 2002, in December 2002, I believe? Or January, beginning of January, 2003, I can't remember, it's kinda foggy.

Counsel: What year is that?

Respondent: 2002, 2003 I guess.

Counsel: Has Ms. [Redacted] [sic], did she ever tell you you were not [Redacted] father?

Respondent: No.

Counsel: Are you aware of another man who may be [Redacted] father?

Respondent: No.

Counsel: And do you provide any support, money for support of [Redacted]

Respondent: No.Counsel: Do you remember when you learned that you were considered to b [Redacted] legal father?

Respondent: Uh, January 3, 2003.

Counsel: And how did you find that out?

Respondent: I had a DNA test

...