Opinion
LLIFA144015048S
11-09-2015
Christine Bassett v. Travis Zarnetski
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Elizabeth A. Gallagher, Judge Trial Referee.
This is an appeal from the decision of the Family Magistrate's dismissal of the State's Verified Support Petition brought against the Respondent putative father. In its Verified Support Petition, brought pursuant to Connecticut General Statutes sec. 17-324, 46b-215, and/or 46b-172, the State asserted that the Respondent refused or neglected to support his minor child with the Petitioner mother who was receiving Temporary Family Assistance and medical assistance through the Department of Social Services. Respondent received abode service of the Verified Support Petition at 55 Thompson Street, Apartment 2E, East Haven, Connecticut November 14, 2014.
The Petitioner, child, and Respondent are now Connecticut residents, but the child was born in 2011 in Massachusetts where Respondent and the Petitioner lived together as a family. The child therefore has a Massachusetts birth certificate.
The matter was first before the Family Support Magistrate on January 12, 2015, when the Respondent appeared and testified under oath that he had admitted paternity by signing a document at the hospital in Springfield, Massachusetts where the child was born. He did not recall what it was that he had signed. He maintained, however, that he had acknowledged paternity at the hospital. He said that he caused his name to be put on the child's birth certificate by acknowledging paternity at the hospital. He did not have a copy of the acknowledgment. When the Magistrate expressed concern that the acknowledgment was not provided, Respondent indicated that he wanted to proceed on that day because of his job and the time and distance undertaken to travel from New Haven to Litchfield. The Magistrate would not proceed with the matter or make a finding of obligation for support on that date, stating that he needed " something to show that there's a judgment, and an affirmation or an acknowledgment is the equivalent of a judgment of paternity." He continued the matter until April 13th so that the State or Petitioner mother could produce the acknowledgment.
Respondent did not appear on April 13th. Neither the Petitioner nor the State produced an acknowledgment of paternity. Stephanie Smith from the Department of Social Services testified that she had attempted to obtain a certified copy of acknowledgment of paternity from the Commonwealth of Massachusetts Department of Public Health, but she was told that the fee was more than $40. She stated that the Department of Social Services would not pay. Petitioner mother testified that she was with Respondent when he signed the acknowledgment of paternity for the minor child, and that the acknowledgment was never rescinded. She said that she could not afford to pay the fee for a copy of the acknowledgment. The child's birth certificate was entered into evidence.
The Family Support Magistrate dismissed the Petition without prejudice on the grounds that the State and/or mother failed to produce the necessary acknowledgment and the court did not want to go forward based only on the birth certificate. The State has appealed claiming that the Family Support Magistrate erred in dismissing the petition for the reasons that the findings and decision are:
(a) in violation of constitutional or statutory provisions;
(b) in excess of the statutory authority of the Family Support Magistrate;
(c) made upon unlawful procedure;
(d) affected by other error of law;
(e) clearly erroneous in view of the reliable probative and substantial evidence on the whole record; and
(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
Discussion
Any person aggrieved by a final decision of a family support magistrate may appeal to the superior court. The appeal shall be instituted by filing a petition which shall include the reasons for the appeal. Connecticut General Statutes § 46b-231(n); Practice Book § 25a-29.
The establishment of paternity in Connecticut is governed by two statutes. General Statutes § 46b-160 provides, in relevant part: " Proceedings to establish paternity of a child born or conceived out of lawful wedlock, including one born to, or conceived by, a married woman but begotten by a man other than her husband, shall be commenced by the service on the putative father of a verified petition of the mother or expectant mother . . . in cases involving public assistance recipients, the petition shall also be served upon the Attorney General who shall be and remain a party to any paternity proceeding and to any proceedings after judgment in such action . . . If the putative father fails to appear in court at such time and place, the court or family support magistrate shall hear the petitioner and, upon a finding that process was served on the putative father, shall enter a default judgment of paternity against such father and such other orders as the facts may warrant. Such court or family support magistrate may order continuance of such hearing; and if such mother or expectant mother continues constant in her accusation, it shall be evidence that the respondent is the father of such child. The court or family support magistrate shall, upon motion by a party, issue an order for temporary support of the child by the respondent pending a final judgment of the issue of paternity if such court or magistrate finds that there is clear and convincing evidence of paternity which evidence shall include, but not be limited to, genetic test results indicating a ninety-nine per cent or greater probability that such respondent is the father of the child."
General Statutes § 46b-172(a)(1) provides in relevant part: " In lieu of or in conclusion of proceedings under section 46b-160, a written acknowledgment of paternity executed and sworn to by the putative father of the child when accompanied by (A) an attested waiver of the right to a blood test, the right to a trial and the right to an attorney, and (B) a written affirmation of paternity executed and sworn to by the mother of the child shall have the same force and effect as a judgment of the Superior Court. It shall be considered a legal finding of paternity without requiring or permitting judicial ratification . . ."
The State argues that where both parties have stated that they signed an acknowledgment of paternity under Massachusetts law, and they were not contesting the facts alleged in the petition, there is no need for any additional evidence on the issue of paternity. The State cites Comm'r of Soc. Servs. v. Smith, 265 Conn. 723, 830 A.2d 228 (2003) for its proposition that an acknowledgment of paternity as required by C.G.S. Section 46b-172 is not necessary where the putative obligor testifies that he signed an acknowledgment of paternity and caused his name to be placed on the child's birth certificate. While it is true that the holding of Commissioner of Social Services v. Smith, provides that the entry of a default in proceedings before the Family Support Magistrate, constitutes an admission by the defendant of the truth of the facts alleged in the complaint, it does not address the situation that is presented here.
The facts in this case are similar to those in Colbert v. Carr, 140 Conn.App. 229, 57 A.3d 878 (2013), a case brought to the Superior Court, wherein both parties appeared, and the undisputed facts established that the defendant, who is named in the birth certificate, acknowledged paternity orally and in writing. The trial court noted that the plaintiff brought the action pursuant to Connecticut General Statutes § 46b-160. The court stated, however, that it had not been necessary to proceed under that statutory scheme because paternity of the child was already established where the defendant had acknowledged paternity at the time of, or very close to, the birth of the child and has continuously acknowledged that paternity . . . In its decision, delivered from the bench, the trial court stated: " This is the kind of action that usually commences in a [family support] magistrate's court; . . . usually a petitioner goes to the support enforcement bureau and asks that another party be required to pay child support . . . Based on the evidence that I've heard, I've heard no suggestion that [the defendant] was unwilling or unable to sign an acknowledgment of paternity [in accordance with General Statutes § 46b-172], making this entire proceeding unnecessary except to establish support, and there was another avenue available to do that, namely, the [family support] magistrate's court as I've indicated." 140 Conn.App. at 233-34. The Appellate Court agreed, stating: " Under the circumstances of this case, paternity was never an issue and the court did not establish paternity. The court found that the defendant was the father of the child on the basis of the defendant's own admissions, which he made before the trial commenced and, in fact, at the time of the child's birth. The amount of child support, including any retroactive support, was the issue to be determined by the court." 140 Conn.App. at 238.
In the instant case, both Respondent and Petitioner testified under oath that Respondent had signed an acknowledgment of paternity. Neither party has rescinded that acknowledgment. Therefore, as in Colbert v. Carr, the Family Support Magistrate could have found that paternity has been established on the basis of the father's own admissions had an acknowledgment been executed in Connecticut pursuant to the procedures outlined in C.G.S. Section 46b-172.
The requirements for an acknowledgment of paternity to be accepted in lieu of a judgment of paternity by the court are set out in C.G.S. sec 46b-172(a): (A) an attested waiver of the right to a blood test, the right to a trial and the right to an attorney, (B) a written affirmation of paternity executed and sworn to by the mother of the child, and (C) if the person subject to the acknowledgment of paternity is an adult eighteen years of age or older, a notarized affidavit affirming consent to the voluntary acknowledgment of paternity, shall have the same force and effect as a judgment of the Superior Court. It shall be considered a legal finding of paternity without requiring or permitting judicial ratification . . .
There is, however, a difference between this case and the Colbert case. The acknowledgment in Colbert was, in the absence of evidence to the contrary, executed in Connecticut. Here, the acknowledgment was signed in Massachusetts. Therefore, although the case was not brought under the Uniform Interstate Family Support Act, the fact is that the acknowledgment was signed in another State. It is not filed in a paternity registry maintained by the Department of Public Health in Connecticut as required for all acknowledgments executed in Connecticut pursuant to C.G.S. Section 46b-172(a)(3); C.G.S. Section 19a-42a. An acknowledgment of paternity signed in any other state according to its procedures shall be given full faith and credit by Connecticut pursuant to C.G.S. Section 46b-172(a)(4). Here, no written acknowledgment was produced, and the Magistrate had no information concerning the procedures governing the execution of paternity acknowledgment in Massachusetts. Moreover, in Ragin v. Lee, 78 Conn.App. 848, 863 A.2d 93 (2003), the court held that " [a] child who is subject of a paternity action has a fundamental interest in an accurate determination of paternity that is independent of the state's interest in establishing paternity for the benefit of obtaining payment for the child's care and any interest that the parents may have in the child." (Emphasis added.)
The Assistant Attorney General attached to his brief, Section 1 of Chapter 46 and Section 2 of Chapter 209C of the General Laws of the Commonwealth of Massachusetts which provides the conditions under which the father's name may be recorded on a birth certificate. According to the transcript of proceeding of January 12, 2015 and April 13, 2015, these documents were not offered into evidence in the hearing before the Family Support Magistrate.
Under the particular circumstances of this case, the Family Support Magistrate did not abuse his discretion or act contrary to the law in requiring that the Respondent's acknowledgment of paternity be entered into evidence before proceeding with a support hearing. Accordingly, the appeal is dismissed.