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M.B. v. Alaska (8/9/96), 922 P 2d 878
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Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the
attention of the Clerk of the Appellate Courts, 303 K Street,
Anchorage, Alaska 99501, phone (907) 264-0607, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
IN THE MATTER OF: )
) Supreme Court No. S-6388
J.B., )
) Superior Court No.
A Minor Under the Age of ) 3AN-S92-322 CP
Eighteen (18) Years. )
DOB: 01/07/92 )
) O P I N I O N
______________________________)
M.B., )
) [No. 4383 - August 9, 1996]
Appellant, )
)
v. )
)
STATE OF ALASKA, )
)
Appellee. )
______________________________)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Peter A. Michalski, Judge.
Appearances: Shelley K. Chaffin, Law Office
of Shelley K. Chaffin, Anchorage, for
Appellant. Dianne Olsen, Assistant Attorney
General, Anchorage, Bruce M. Botelho, Attorney
General, Juneau, for Appellee.
Before: Rabinowitz, Matthews, Compton and
Eastaugh, Justices. [Moore, Chief Justice,
not participating.]
MATTHEWS, Justice.
RABINOWITZ, Justice, dissenting.
Challenged in this case is an order determining that Mark
Bridge, (EN1) the presumptive father of Johnny Bridge, is not the
biological father of Johnny.
Mark and Melody Bridge were married in December of 1990.
They separated a year later. Johnny was born on January 7, 1992.
Melody and Mark were divorced in December of 1993.
In May of 1992, the State initiated an investigation
based on a number of complaints regarding the care which Johnny was
receiving from Melody and Melody's boyfriend, Kyle Restin, Sr. On
August 4, 1992, the State filed a non-emergency petition seeking
the adjudication of Johnny as a child in need of aid. In October
of 1992 the court appointed counsel for Mark, who was then living
in Oregon. In January of 1993, Melody gave birth to a child
fathered by Kyle Restin; Kyle, Jr. On March 4, 1993, the State
filed an amended petition for adjudication of Johnny and Kyle, Jr.,
as children in need of aid. The amended petition states that the
State took emergency custody of Johnny and Kyle, Jr., on March 3,
1993.
On August 2, 1993, Melody relinquished her parental
rights to Johnny and Kyle, Jr., and Kyle, Sr., relinquished his
parental rights to Kyle, Jr. Mark, on the same day, signed a
stipulation that Johnny was a child in need of aid "for the reason
that [Mark Bridge] is unable to care for [Johnny Bridge] for the
reason he is living out-of-state and the suitability of placement
with him is still being investigated through the Interstate Compact
for the Placement of Children." The stipulation further provided
that Johnny would remain in the temporary custody of the Department
of Health and Social Services "until disposition in this matter."
Pursuant to this stipulation the superior court entered an order
adjudicating Johnny to be a child in need of aid, set a disposition
hearing and dates for reports from the State and Johnny's guardian
ad litem.
In September of 1993, Mark came to Anchorage to visit his
son; he decided to stay in order to strengthen his relationship
with Johnny. A court-ordered report authored by a state social
worker raised the possibility that Mark might not be the biological
parent of Johnny, and recommended that the court require paternity
testing. The court, at a disposition hearing held November 1,
1993, ordered testing to determine whether Mark is Johnny's
biological father. In the same order the court committed Johnny to
the custody of the State "for a period of time not to exceed two
years,"noting that "[r]easonable efforts are being made to provide
remedial services to return the child to the parental home"and
that "[p]lacement in the parental home would be contrary to the
welfare of the child at this time."
The testing was performed, and on February 1, 1994, the
State received a copy of a letter from a physician with the
Memorial Blood Center of Minneapolis which concluded that "it is
possible to establish that [Mark Bridge] cannot be the biological
father of [Johnny Bridge]." Based upon this letter, the State
terminated Mark's visitation with Johnny.
Mark filed a motion "to review disposition and case plan"
which sought the continuation of Mark's visitation with Johnny and
challenged the standing of the State to deny Mark's paternity.
Mark sought oral argument and "an appropriate hearing"on an
expedited basis in connection with this motion.
The State filed a combined pleading which was both an
opposition to the motion for review of the disposition order and
case plan and a motion "for finding that [Mark Bridge] is not the
father of [Johnny Bridge]." This pleading was supported by an
affidavit of Philip Kaufman, the state social worker on the case,
to which was attached the letter from the director of the Memorial
Blood Center of Minneapolis and blood test results excluding Mark
as a biological parent of Johnny.
The guardian ad litem filed an opposition to Mark's
motion to review the disposition order. In addition, the guardian
filed a pleading supporting the State's motion for a finding that
Mark is not the father of Johnny: "It is in the minor's best
interest for the court to enter such finding."
Mark filed a timely opposition to the State's motion. In
the opposition Mark again challenged the authority of the State to
deny his parenthood of Johnny. He did not, however, question the
test results or ask for further proceedings to determine the
question of his biological paternity. (EN2) The court denied
Mark's motion for review of the disposition order and case plan and
granted the State's motion for a finding that Mark is not the
father of Johnny. The order concluded that "[Mark] is no longer
entitled to party status in this matter." The court added: "The
court finds proof which rebuts the presumption of paternity, i.e.
blood tests. Evidence does not support [Bridge's] claim on either
factual or legal grounds that he should be denominated as a
'psychological parent' or claim any other equitable rights to the
child."
From this order Mark appeals. On appeal he makes two
claims. First, he argues that the State does not have the
authority to challenge the presumption of paternity. Second, he
argues that his due process rights were violated because there was
no hearing and the evidence relied on was not properly admitted as
evidence. In our view, neither point has merit.
Johnny has been appropriately adjudicated as a child in
need of aid. Mark stipulated to this adjudication. Further action
in the case contemplated a range of possibilities, extending from
adoption of Johnny by his foster family to relinquishment of
custody of Johnny to Mark. For each of these possibilities a
threshold determination of Mark's paternity of Johnny was an
important consideration. The superior court, as the trial court of
general jurisdiction in the state, AS 22.10.020(a), had
jurisdiction to make this determination. (EN3) Given the critical
importance of the question of paternity, the State, as custodian of
the child, has the authority to seek a determination of paternity
when substantial questions concerning parentage are raised. See
J.W.F. v. Schoolcraft, 763 P.2d 1217, 1221 (Utah App. 1988), rev'd
on other grounds, 799 P.2d 710 (Utah 1990) (guardian ad litem "had
a responsibility as well as a right to raise the issue of [the
presumptive father's] paternity"and a juvenile court in a
"neglected child"proceeding had jurisdiction to decide the
question of paternity). In In re Lisa R., 532 P.2d 123, 127-28
(Cal.), cert. denied, 421 U.S. 1014 (1975), the Supreme Court of
California stated:
Notwithstanding the absence of specific
authorization to make particular determin-
ations, a juvenile court is nevertheless
vested with the authority to make such deter-
minations which are incidentally necessary to
the performance of those functions demanded of
it by the Legislature pursuant to the Juvenile
Court Law. That law is replete with
references to "parents." In some of such
instances the court is merely required to
respond to allegations of parentage without
first having actually to find the existence of
a parent-child relationship. However, in
other significant respects the law cannot be
judicially applied without a determination of
parentage when such question is placed in
issue. Thus wardship may initially depend, in
the circumstances of a particular case, on a
finding that a minor has no parent or
"persistently or habitually refuses to obey
the reasonable and proper orders or directions
of his parents." It is manifest that a
juvenile court cannot find that a minor has no
parent or that he refuses to obey a parent
without a contemporaneous determination of
parentage.
(Citations omitted.)
On his second claim, Mark argues that he "did not have an
opportunity to present any evidence"on the issue of paternity. In
addition he argues that the blood test was not accompanied by sworn
testimony that the test was a scientifically accepted one or that
procedures to make the test valid were followed.
Mark's first point is without merit, for in opposing the
State's motion he did not do so on the ground that he had evidence
which challenged the blood test or that he wished time to have an
opportunity to develop such evidence. In the absence of a
preliminary demonstration of the existence of relevant disputed
facts no hearing was required. Epperson v. Epperson, 835 P.2d 451,
453 (Alaska 1992). Cf., State v. Albert, 899 P.2d 103, 105 n.2
(Alaska 1995) ("Although the rule is silent as to the circumstances
under which a hearing must be held when opposition is filed, our
cases generally indicate the necessity for an evidentiary hearing
in any case in which there are factual disputes on material
issues."); Estate of Miner v. Commercial Fisheries Entry Comm'n,
635 P.2d 827, 834 (Alaska 1981) (quoting NLRB v. Bata Shoe Co., 377
F.2d 821, 826 (4th Cir.), cert. denied, 389 U.S. 917 (1967)
(holding that "there is no requirement, constitutionally or
otherwise, that there be a hearing in the absence of substantial
and material issues crucial to [the] determination")); Alaska R.
Civ. P. 56(c) (judgment for the summary judgment movant shall be
rendered if the pleadings and evidentiary materials show that there
is no genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law). (EN4)
Mark's second point lacks merit because he did not object
to the admissibility of the test report. Kvasnikoff v. Weaver
Bros., Inc., 405 P.2d 781, 784 (Alaska 1965) (inadmissible and
unauthenticated documents submitted in support of motion for
summary judgment may be considered where "the record does not show
that [they were] objected to or that the authenticity of the
[documents] was disputed"). (EN5)
For the above reasons the judgment of the superior court
is AFFIRMED.RABINOWITZ, Justice, dissenting.
I think that the State's motion "for a finding that [Mark
Bridge] is not the father of [Johnny Bridge]"must be analyzed as
a motion for summary judgment. Merely casting the subject motion
as one seeking a particular finding should not enable the State to
circumvent established procedures applicable to summary judgment
motions.
One should not lose sight of the fact that if Mark had
not opposed in any fashion the State's disguised summary judgment
motion, the State would still have no right to an automatic grant
of summary judgment, but rather would have the obligation of
establishing its entitlement to a judgment as a matter of law.
(EN1)
The following considerations lead me to the conclusion
that the superior court erred in granting summary judgment to the
State and in determining that Mark Bridge, the presumptive father
of Johnny Bridge, is not the biological father of the child.
In Smith v. Smith, 845 P.2d 1090, 1092 (Alaska 1993), we
said:
The longstanding common law rule is that
a child born to a married woman is presumed to
be the offspring of her husband. See, e.g.,
Lanford v. Lanford, 151 Colo. 211, 377 P.2d
115, 116 (1962) (en banc) (presumption dates
back to Roman Law); Alber v. Alber, 93 Idaho
755, 472 P.2d 321, 324 (1970). This
presumption of a husband's paternity can be
rebutted only by "clear and convincing
evidence." Lanford, 377 P.2d at 117; Alber,
472 P.2d at 327; Uniform Parentage Act  4(b),
9B U.L.A. 299 (1987). We adopt both the
presumption and the concomitant standard of
proof for rebutting it.[ (EN2)]
Since Johnny was born during Mark Bridge's marriage to Melody
Bridge, Mark is presumed to be the father of Johnny Bridge.
Of further significance is our decision in Mattox v.
State, 875 P.2d 763, 764-65 (Alaska 1994). There the superior
court granted summary judgment in favor of the State, establishing
that Bruce Mattox is the biological father of three children. In
Mattox we said:
Although evidence conflicted significantly as
to whether Bruce or his brother Richard was
the father of the children, the court granted
summary judgment based on paternity evaluation
reports which tested the DNA of the mother,
the children, and Bruce and Richard. The
reports of these tests concluded that, as to
Bruce, the probability of paternity was 99.99%
as compared to an untested random male of the
North American caucasian population, while
Richard was excluded as the biological father
of the children.
We reverse. The proffered DNA reports
were not accompanied by authenticating
affidavits. No sworn testimony was offered
that the tests reflected by the reports were
scientifically accepted, or that procedures
necessary to make the tests valid were
followed. Authentication is a requirement
generally applicable to documentary evidence,
Alaska R. Evid. 901, with exceptions not here
relevant. Alaska R. Evid. 902. General
scientific acceptance is a statutory
requirement for the admissibility of technical
tests in paternity cases. AS 25.20.050(d),
(e), as well as a common law requirement for
scientific evidence where no statute governs.
Contreras v. State, 718 P.2d 129, 135-36
(Alaska 1986); Pulakis v. State, 476 P.2d 474
(Alaska 1970) (adopting test of Frye v. United
States, 293 F. 1013 (D.C. Cir. 1923)). In DNA
tests, as in other scientific tests, assuming
general scientific acceptance, set procedures
must be followed to ensure the validity of the
tests. Compliance with these procedures must
be shown. See, e.g., United States v. Two
Bulls, 918 F.2d 56 (8th Cir. 1990) (reversible
error for the trial court to determine the
admissibility of DNA evidence without
determining whether the testing procedures
were properly performed); State v. Schwartz,
447 N.W.2d 422 (Minn. 1989) (DNA evidence is
generally admissible under the Frye test, but
results here excluded because lab did not
comply with established protocol); People v.
Castro, 144 Misc. 2d 956, 545 N.Y.S.2d 985
(1989) (although DNA evidence met Frye,
evidence excluded because the lab failed to
follow accepted scientific techniques);
Barbara A. v. Gerard J., 146 Misc. 2d 1001,
553 N.Y.S.2d 638 (Fam. Ct. 1990) (DNA test
results excluded because the particular test
was tainted). See also Keel v. State, 609
P.2d 555 (Alaska 1980) (breath test improperly
admitted because state did not establish that
calibration was performed by an "instructor"
as required by protocol adopted by
regulation).
(Footnotes omitted.) We concluded in Mattox that the State did not
meet its burden of establishing that there were no genuine issues
of material fact.
In the case at bar, the State's motion for summary
judgment (motion for a finding that Mark Bridge is not the father
of Johnny Bridge) was supported by an affidavit of Phillip Kaufman,
the state social worker in the case, to which was attached the
letter from the Director of the Memorial Blood Center of
Minneapolis and blood test results excluding Mark as a biological
parent of Johnny. (EN3) This showing by the State falls far short
of demonstrating that accepted protocols were followed. This
omission standing alone is, in my view, dispositive.
In short, review of the record convinces me that the
State has failed to show that there is no genuine issue as to any
material fact relating to Mark's parentage of Johnny and that the
State is entitled to a judgment as a matter of law that Mark is not
the father of Johnny. (EN4)
ENDNOTES:
1. All names of parties used in this opinion are pseudonyms.
2. He did, however, request a hearing concerning various legal
theories:
A hearing is required to determine which
legal standard the court should first apply to
reach a just and fair result in this matter;
shouldn't this court still consider Mr.
[Bridge] a parent, based on the presumption of
the legitimacy of children born in to a
marriage? Even if not, serious questions of
fact exist as to the Best Interests of
[Johnny] as [Mark Bridge] retains legitimate
residual parental rights, such, for example,
the right to have his son retain the [Bridge]
name or the right of a presumptive father to
claim a child born of a legitimate marriage as
his son, as there is no other parent asserting
a contrary or superior right to this child.
3. For example, under the child in need of aid statute, the court
is authorized to find a child in need of aid based on parental
conduct, and to terminate parental rights based on parental
conduct. AS 47.10.010(a)(2); AS 47.10.080(c)(3). A threshold
question in such cases may be whether a person claiming the rights
of a parent is a parent. Under Rule 2(l) of the Child in Need of
Aid Rules, "parent"means a biological or adoptive parent.
4. There is a presumption, rebuttable by clear and convincing
evidence, that Mark is Johnny's father. Smith v. Smith, 845 P.2d
1090, 1092 (Alaska 1993). The effect of this presumption was to
shift to the State the burden of going forward with the
presentation of evidence. Evidence Rule 301(a). This duplicates
the burden that was already imposed on the State as the party
moving for relief in the nature of summary judgment. As such, the
presumption does not prevent such relief from being entered if, in
consideration of all the evidence including the basic fact giving
rise to the presumption -- Mark's marriage to Melody at the time of
Johnny's birth -- it could not be reasonably concluded that Mark
was Johnny's father. On this record a conclusion that Mark was
Johnny's father would be unreasonable. The fact that the
presumption is rebuttable only by clear and convincing evidence
does not change this conclusion. If there were any evidence
sufficient to raise a genuine issue of material fact on the
question whether Mark was Johnny's father, such evidence would
suffice to prevent relief in the nature of summary judgment
regardless of the standard of proof to be used at trial. See
Moffatt v. Brown, 751 P.2d 939, 943 (Alaska 1988) ("We decline to
incorporate the applicable substantive evidentiary standard into
this state's summary judgment practice.").
5. In Mattox v. State, 875 P.2d 763, 764 (Alaska 1994), we
reversed the grant of summary judgment establishing paternity based
on DNA reports which were not accompanied by authenticating
affidavits, noting that the party who had moved for summary
judgment had not met its burden of showing the absence of genuine
issues of material fact. Id. at 765. Our decision in this case is
consistent with Mattox as the DNA reports in Mattox were objected
to and the test procedures challenged. The requirement that one
opposing the use of proffered evidence on lack of authenticity
grounds is not an arduous one. The opponent is "required to do no
more than raise a timely objection based on the authentication
requirement in order to preserve his evidentiary objection and
compel compliance by the [movant]." Murat v. F/V Shelikof Strait,
793 P.2d 69, 75-76 (Alaska 1990).
ENDNOTES (Dissent):
1. Civil Rule 56(c) provides in relevant part:
Judgment shall be rendered forthwith if the
pleadings, depositions, answers to
interrogatories, and admissions on file,
together with the affidavits, show that there
is no genuine issue as to any material fact
and that any party is entitled to a judgment
as a matter of law.
2. In Smith, we also noted that our Legislature has created a
similar presumption regarding paternity blood tests. Alaska
Statute 25.20.050(d) provides in part:
The results of a blood test . . . shall be
admitted and weighed in conjunction with other
evidence in determining the statistical
probability that the putative parent is a
legal parent of the child in question.
However, a scientifically accepted procedure
that establishes a probability of parentage at
95 percent or higher creates a presumption of
parentage that may be rebutted only by clear
and convincing evidence.
3. Is the letterhead, in itself, definitely clear and convincing
evidence that a doctor is properly qualified and that the test
results are accurate?
4. It bears reiteration that the law presumes that Mark is the
father of Johnny. It is the State's obligation to overcome this
presumption and demonstrate that it is entitled to judgment as a
matter of law. Here the State's showing did not meet the explicit
standards regarding authentication and proper protocols we
articulated in Mattox. (Compare Civil Rule 56(e): "Supporting and
opposing affidavits shall be made on personal knowledge, shall set
forth such facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the
matters stated therein.")
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