Witso v. Overby

LANCASTER, Justice

(dissenting).

Because the majority has fundamentally misconstrued the Minnesota Parentage Act and reached a result not contemplated by the statute, I respectfully dissent. As I *70read Minn.Stat. § 257.57, subd. 1(a) (2000), Benjamin Witso has no standing to bring a cause of action to challenge James Over-by’s marital presumption of paternity. Furthermore, absent a presumption in Witso’s favor, he cannot bring suit to declare his own paternity under Minn.Stat. § 257.57, subd. 2(1) (2000). Neither Minn. Stat. § 257.60 (2000) (discussing who may be party to an action but not addressing who has standing to bring an action) nor Minn.Stat. § 257.62 (2000) (allowing a party to a paternity suit to request blood testing) changes the fact that Witso does not have standing to bring an action to establish a father and child relationship between himself and M.R.O.

Although Witso allegedly seeks only to declare the existence of his paternity under Minn.Stat. § 257.57, subd. 2, as opposed to challenging Overby’s presumption of paternity under section 257.57, subdivision 1, it is necessary to consider both subdivisions to clarify the error in the majority’s reading of the statute. Section 257.57, subdivision 1, reads in relevant part:

A child, the child’s biological mother, or a man presumed to be the child’s father under section 257.55, subdivision 1, paragraph (a), (b), or (c) may bring an action:
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(b) For the purpose of declaring the nonexistence of the father and child relationship presumed under section 257.55, subdivision 1, paragraph (a), (b), or (c) [only within certain time limitations].

As described by the majority, Minn.Stat. § 257.55, subd. l(a)-(c), discusses the presumptions of paternity based on marriage. Thus, section 257.57, subdivision 1, allows only “a man presumed to be the father” under a marital presumption to bring suit to declare the nonexistence of his own or another man’s marital presumption of paternity. Because Witso has no marital presumption in his favor, he has no standing under subdivision 1 to challenge James Overby’s marital presumption.

There is a very clear policy reason for this limitation on the ability to challenge a marital presumption; once a family unit has been established, it is very often in the best interests of the child to leave it undisturbed. See Michael H. v. Gerald D., 491 U.S. 110, 124, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989) (“[T]he institution of the family is deeply rooted in this Nation’s history and tradition.”); see also In re Marriage of Ross, 245 Kan. 591, 783 P.2d 331, 335 (1989) (recognizing, in a UPA state, “the ancient presumption of the legitimacy of a child born in wedlock is one of the strongest presumptions known to the law”); B.H. v. K.D., 506 N.W.2d 368, 376 (N.D.1993) (“[PJarenting and the family unit are important considerations worthy of constitutional protection.”). Even if, as the majority implies, an unmarried man like Witso could have a due process interest in a father-child relationship where there is already a presumed father in place, that interest would not arise when he has nothing more than a biological relationship. See generally Michael H., 491 U.S. at 133, 136, 157-58, 109 S.Ct. 2333 (Stevens, J., concurring in judgment; Brennan, J., with Marshall and Blackmun, JJ., dissenting; White, J., dissenting) (agreeing that a biological father might have a constitutionally-protected interest in his relationship with a child whose mother was married to another man at the time the child was born). Rather, “an unwed father’s biological link to his child does not, in and of itself, guarantee him a constitutional stake in his relationship with that child, [but] such a link combined with a substantial parent-child relationship will do so.” 491 U.S. at 142-43, 109 S.Ct. 2333 (Brennan, *71J., with Marshall and Blackmun, JJ., dissenting). Here, the record contains no evidence demonstrating the existence of a “substantial parent-child” relationship. In any event, Witso never raised a due process or equal protection argument and therefore conjecture like that engaged in by the majority today is fruitless.

Minnesota Statutes § 257.57, subd. 2, also does not give Witso standing to bring suit to declare the existence of his own father and child relationship with M.R.O. Subdivision 2 states:

The child, the mother, or ⅜ * * a man alleged or alleging himself to be the father * * * may bring an action:
(1) at any time for the purpose of declaring the existence of the father and child relationship presumed under section 257.55, subdivision 1, paragraph (d), (e),(f),(g),or(h)* * *.

Witso and the majority would have us believe that section 257.57, subdivision 2(1), gives Witso, a man “alleging himself to be the father,” standing to obtain blood tests and establish a section 257.55, subdivision 1(f), genetic testing presumption of paternity in himself. But this interpretation ignores the explicit language of section 257.57, subdivision 2, which allows any putative father to bring an action to declare the existence of “the father and child relationship presumed under section 257.55.” Minn.Stat. § 257.57, subd. 2(1) (emphasis added). The use of “the father and child relationship” instead of “a father and child relationship” indicates that the statute is referring to a specific preexisting presumed relationship. Section 257.57, subdivision 2, thereby requires that Wit-so’s genetic testing presumption must have existed before he could have standing to declare the existence of a father and child relationship based on that presumption. Because Witso does not have that preexisting presumption, he has no standing to bring the instant suit.1

The majority’s characterization of this plain reading interpretation as creating a “chicken-or-egg dilemma” not only glosses over the statutory significance of each section, but also usurps the legislature’s rightful role in setting public policy. The majority is wrong, I believe, in failing to acknowledge that important public policies are advanced by Minnesota’s legislative adaptation of the UPA. The North Dakota Supreme Court recognized those policies when interpreting North Dakota’s parentage statute, which is also based on the UPA and recognizes a paternity presumption based on genetic testing. B.H. v. K.D., 506 N.W.2d at 373-75. Like the present case, B.H. v. KD. involved a man who had no presumptions in his favor but alleged to be the father of a child who already had a presumed father based on a marital presumption. Id. at 370. The al*72leging father moved the district court to order blood tests in order to aid him in proving his paternity. Id. Interpreting statutory provisions strikingly similar to those now before this court, the North Dakota Supreme Court held:

There must be genetic tests already in existence which satisfy the statistical qualifications of the statute. Without the requisite test results, an individual like [the alleging father] cannot bring such an intrusive action, disrupting an established family, hoping that tests ordered by the court will subsequently vest him with standing to proceed. Too much irreparable damage will have occurred to the family in the meantime; the potential for abuse is too great.

Id. at 375.

The error of the majority’s decision is further shown by Minn.Stat. § 257.57, subd. 3 (2000). Subdivision three permits an action to determine the existence of a father and child relationship when the child has no presumed father. Under subdivision 3, a putative father would not attempt to “dedar [e ] the existence of the father and child relationship presumed under section 257.55” as in subdivisions one or two,. but would bring “[a]n action to determine the existence of the father and child relationship with respect to a child who has no presumed father under section 257.55.” Minn.Stat. § 257.57, subd. 3 (emphasis added). While making much of the difference between “presumed” and “alleged” in the MPA, the majority ignores the differences between “determine” and “declare” as used within section 257.57. A party bringing an action to “declare” the existence of a father and child relationship presumed in section 275.55 seeks to “make known clearly or officially” the preexisting factual presumption. Roget’s 21st Century Thesaurus 201 (2d ed.1999). In contrast, an action to “determine” the existence of a father and child relationship suggests a process of discovering whether such a relationship; and thus a presumption, exists.2 See id. at 222 (listing “discover” as synonym to “determine,” but not listing “declare”). In any event, Witso can bring neither action because in the first instance (under section 257.57, subd. 2(1)) he has no preexisting presumption in his favor, and in the second instance (under section 257.57, subd. 3) a presumed father already exists.3

Although the majority attempts to interpret sections 257.60 and 257.62 to support its holding, the majority’s reading is again in error. The Overbys accurately point out that the carefully constructed MPA *73sets forth in section 257.57 when a putative father has standing to bring suit; then in section 257.60 when a putative father maybe made party to a suit; and, finally, in section 257.62 when a party to a suit may seek genetic testing. The court looks to statutory sections as a whole in construing each part of the statute. See Lenz v. Coon Creek Watershed Dist., 278 Minn. 1, 11-12, 153 N.W.2d 209, 217-18 (1967) (noting that when construing a provision of a statute, courts should look beyond the words of the provision and look to section as a whole); In re J.A.V., 547 N.W.2d at 376 (stating that the adoption, parentage, and termination of parental rights statutes involve a common thread and must be interpreted consistently in conjunction with one another). Minnesota Statutes § 257.60, which states that “each man presumed to be the father under section 257.55, and each man alleged to be the biological father, shall be made parties,” does not independently enable putative fathers to single-handedly disrupt the family relationship. Rather, it must be read in conjunction with section 257.57, which limits the situations in which a man without any .presumptions in his favor has standing to bring a paternity suit in the first place. Taking sections 257.57 and 257.60 together, it is clear that a putative father, like Witso, could be a party to a suit under section 257.60 without having any presumptions of paternity in his favor,4 but it does not follow that the putative father automatically has standing to bring suit under section 257.57, subd. 2. As the MPA is written, a putative father must satisfy certain conditions before bringing suit that are not prerequisites for becoming a party to a suit.

Ignoring this distinction, the majority concludes that because Witso is a proper party under its reading of section 257.57, subdivision 2(1), he can seek genetic testing under section 257.62. Section 257.62 states in pertinent part: “The court or public authority may, and upon request of a party shall, require the child, mother, or alleged father to submit to blood or genetic tests.” Minn. Stat § 257.62, subd. 1(a) (emphasis added). I agree with the majority that only a party to a suit may seek genetic tests, but I cannot agree that Witso is a proper party to the instant suit. Because Witso did not have standing under section 257.57 to bring this suit and because he has not been made a party to a suit brought by another, section 257.62 does not give Witso the right to seek blood testing.

Furthermore, the majority denies that its holding creates the potential for abuse by “open[ing] the door to unfettered challenges to the sanctity of marriage” and asserts that baseless and intrusive paternity challenges will not follow from its holding because section 257.62, subdivision 1, requires a putative father who is requesting genetic tests to file an affidavit alleging facts regarding sexual contact with the mother at the relevant time. Contrary to the majority’s assertions, section 257.62 does not provide an adequate safeguard against the very real potential for abuse of today’s holding. Any man with an affidavit claiming that he had sexual contact with the mother during the period of conception may, after today’s opinion, intrude upon an established family unit. Minn. Stat. § 257.62, subd. 1(a) (“A mother or alleged father requesting the tests shall file with the court an affidavit either alleging or denying paternity and setting forth *74facts that establish the reasonable possibility that there was, or was not, the requisite sexual contact between the parties.”). Although the majority emphasizes that in this case Mary Overby admitted the sexual contact, it is irrelevant under section 257.62 whether the mother admits or denies the contact. Id.

Finally, even if the mother admits the sexual contact, the majority’s reading, taken to its logical conclusion, would give any man who raped the mother standing to obtain blood tests and therefore assert his paternity of the resulting child.5 See Minn.Stat. § 257.62, subd. 1(a). If the legislature had meant for this statute to create such an intrusive and extreme result, surely it would have stated so explicitly. See In re J.A.V., 547 N.W.2d at 377 (stating that, if the legislature had intended to radically change the parent-child relationship, “it surely would have done so in language of greater clarity than we find here.”). See generally Michael H., 491 U.S. at 124 n. 4, 109 S.Ct. 2333 (recognizing the grave problems with giving a rapist a liberty interest in establishing a father and child relationship with a child potentially begotten by rape). Because I cannot see that the legislature intended the result at which the majority arrives, I must dissent.

. This is not to say that a putative father would never have standing to declare the existence of his, or another’s, paternity. Section 257.57, subdivision 2, gives any putative father standing to declare the existence or nonexistence of his own paternity if there are preexisting facts — such as a signed recognition of parentage or evidence that the putative father received the child into his home and held the child out as his biological child— indicating the putative father was a presumed father. A putative father without a presumption in his favor could also bring suit if he were seeking to declare the nonexistence of another man’s presumption of paternity based on that man’s blood tests or recognition of parentage. Other portions of the MPA also confirm that a putative father will have standing to bring a paternity suit in certain circumstances. Minn.Stat. § 257.60 (2000) ("The child shall be made a party whenever * * * (3) an action to declare the existence of the father and child relationship is brought by a man presumed to be the father under section 257.55, or a man who alleges to be the father * ⅝ The facts 0f ⅛⅛ case (j0 not present one of those circumstances.

. This distinction is highlighted in other states’ parentage acts. In Colorado, tor instance, "[ajny interested party ⅜ * ⅜ may bring an action at any time for the purpose of determining the existence or nonexistence of the father and child relationship” under the nonmarital presumptions. Colo.Rev.Slat. § 19-4-107, subd. 2 (2000) (emphasis added). However, only the mother, child, or presumed father may bring an action to “deciar [e ] the existence” or nonexistence of a father-child relationship under the marital presumptions. Id., subd. l(a)-(b) (2000).

. Another Daw in the majority’s analysis is that it finds no difference between section 257.57, subd. 2(1), and subd. 3; a putative father with no presumpLions in his favor and facing no presumptions in another could, without limitation on time or circumstance, bring an action to obtain genetic testing under either subdivision. The problem with this interpretation is, of course, that it renders either subdivision 2(1) or subdivision 3 superfluous in this circumstance despite this court’s well-settled practice of assuming that statutes are not extraneous. See In re Paternity of J.A.V., 547 N.W.2d 374, 376 (Minn.1996) ("We are guided by the principle that [statutes governing the parent and child relationship] must be applied in a manner that is internally consistent * * ⅜ and assuming that each statutory provision has a purpose.”).

. The statute could not be otherwise, of course; if men alleged to be the father could not be parties, no mother or child could ever seek to prove the alleged father's paternity or ensure that, upon determination of a biological relationship, the responsibilities of fatherhood were enforced.

. This point was conceded at oral argument.