On Appeal from Superior Court, Orleans Unit, Family Division
The opinion of the court was delivered by: ¶ 1. Robinson, J.
Columbia v. Lawton (2011-151)
Robert P. Gerety, Jr., J.
PRESENT: Reiber, C.J., Dooley, Skoglund, Burgess and Robinson, JJ.
This case requires us to consider the constitutional rights of a putative biological father who seeks an order of parentage when a court has already issued a parentage order determining the minor child's parents. We conclude that Vermont's parentage statute does not authorize a court to allow a second parentage action involving a particular child brought by or against a different putative parent unless constitutional considerations require the court to entertain the second parentage case. In this case, even if plaintiff is the genetic parent of the minor child, he does not have constitutionally-protected parental rights. Accordingly, we affirm the trial court's decision denying plaintiff's motion for genetic testing and dismissing his complaint for establishment of parentage.
¶ 2. J.B. was born in July 2008. On July 1, 2010, the Orleans Superior Court, Family Division, entered a parentage order identifying Buffy Lawton and Joshua Bacon as legal parents of J.B. and a second child, born in January 2010. The parentage order was part of an action to establish child support initiated by the Office of Child Support on behalf of mother. The court entered the parentage order based on a stipulation of the parties; the record contains no evidence of any genetic testing or findings to support the order other than the parties' stipulation. However, the associated June 16, 2010 child support order includes a finding that Ms. Lawton and Mr. Bacon were "living together as an intact [f]amily."*fn1
¶ 3. Plaintiff Bradley Columbia, representing himself, filed this parentage action against mother in the Orleans Superior Court, Family Division, on August 4, 2010. Plaintiff requested that the court order genetic testing to determine whether plaintiff was the child's biological father. In his sworn affidavit, plaintiff stated that he had a sexual relationship with mother when she became pregnant with J.B., and that she had told him that he was J.B.'s father. In his affidavit, plaintiff also acknowledged that he did not visit mother and child at the hospital during birth; was not present at the birth of the child; did not offer to pay for an abortion or other medical expenses; was not named on the birth certificate; had not acknowledged his parentage in writing; had not provided food, clothing or financial support for the child; had not lived with the child; had not visited the child; had not sent cards or correspondence to the mother regarding the pregnancy and birth of the child; had not claimed the child on his tax returns; and had not given any gifts to the child. Plaintiff circled "do not know" in response to the question of whether and how the minor child resembled him.
¶ 4. The trial court required plaintiff to join Mr. Bacon as a necessary party before proceeding with the action and, once Mr. Bacon was joined, held a hearing in April 2011. At the hearing, plaintiff reiterated his request for a genetic test. Mr. Bacon took no position on plaintiff's request, and mother said, "I just want this to be over. . . . So whatever will make it be over faster is what I want to happen." At the hearing, mother testified that plaintiff had not had any contact with J.B. Plaintiff testified that he had a sexual relationship with mother at the time she got pregnant; he did not contradict mother's testimony that he had no contact with the minor child, and did not offer any other evidence beyond the possible genetic link to support his claim of parentage.
¶ 5. The family court denied the motion for a genetic test and dismissed plaintiff's case. The court found that "[t]here was no credible evidence presented at the hearing from which this Court could find that it is reasonably likely that the Plaintiff is the natural father of JB," acknowledged the prior parentage order establishing Mr. Bacon's parental status, and noted that plaintiff had had no contact with the minor child. In its conclusions the court stated:
The Plaintiff does not have standing to proceed with this parentage action. . . . Under [15 V.S.A. §] 302(a) a party does not have standing to proceed with a parentage action in a case where the identity of the child's parent has been previously determined in an action under 15 V.S.A. Section 301 et. seq.
The court went on to state that it was "unable to find that there is a reasonable probability that the Plaintiff is the father of the minor child," and that "it is not in the best interest of the child to require that genetic testing occur." The court thus concluded that good cause existed to exempt the parties and minor child from any obligation to undergo genetic testing. 15 V.S.A. § 304.
¶ 6. Plaintiff timely appealed. In his brief, plaintiff argues that the trial court's rigid interpretation of 15 V.S.A. § 302(a) violates his right to due process as a putative biological father. Mother, ...