Boone v. Youngbar

Moylan, J. In looking at this case, we find ourselves in an improbable hall of mirrors in which the customary roles are eerily reversed. Maryland Code, Family Law Article, Sect. 5-1028 provides for an “Affidavit of parentage.” The appellant, Samantha Boone, however, invokes it to ask for a declaration of non-parentage. It is frequently the unwed mother who seeks to establish the paternity of the biological father in order to ensure child support. It is the unwed mother herein, however, who seeks to disenfranchise the legally established paternity of the appellee, John Youngbar.

Conversely, it is frequently the putative father who shrinks from a designation as the father. It is the unwed father herein, however, who is fighting to retain his legally established paternal status. Up is down and in is out. The topsy-turvy procedural posture of the case, however, does not begin to explain the flaws in the appellant’s argument.

The Factual Background Albeit without benefit of clergy, the appellant and the appellee cohabitated for approximately three years. It was during that period, on September 19, 2012, that the appellant gave birth to a daughter (hereinafter “N.”), At the time of N.’s conception, the appellant was, albeit briefly, engaging in a sexual relationship with someone other than the appellee. She nonetheless believed that the appellee was N.’s biological father, as did the appellee. The appellee is listed on N.’s birth certificate as biological and legal father, N., moreover, bears the appellee’s last name.

Pursuant to Family Law Article, Sect. 5-1028, both the appellant and the appellee executed an ²⁹² Affidavit of Parentage, attesting to the fact that the appellee was, indeed, N.’s biological father. In September of 2014, however, the appellant and the appellee separated. With respect to N., they agreed to a shared custodial arrangement (one week on and one week off). That arrangement continued until October 12, 2015, when the appellant filed the “Petition to Establish Paternity” (actually a Petition to Disestablish Paternity), which is the subject matter of this appeal.

In that petition, the appellant asserted that she had come to believe that the appellee was actually not N.’s biological father. Accordingly, she requested that the Circuit Court for Anne Arundel County order a DNA test to confirm the appellee’s non-paternity. On January 10, 2016, the appellant filed an Amended Petition, which she properly titled a “Petition to Disestablish Paternity.” In the Amended Petition, she further alleged that the appellee had, in fact, already taken a paternity test and had acknowledged that the test showed that he was not the biological father of N. The appellant further alleged that the actual biological father had also taken a paternity test that affirmatively established his paternity. Since N.’s birth, the appellee has been deeply involved in raising her.

In a case not directly involved in this appeal, he is currently litigating the issues of both custody and visitation. With respect to the appellant’s Amended Petition to Disestablish Paternity, the appellee has consistently maintained that the Petition should be dismissed. Following a full hearing on February 3, 2016 on the Amended Petition and on the appel-lee’s Motion to Dismiss, Judge Arthur M. Ahalt (as a visiting judge) granted the Motion to Dismiss. The appellant has taken this timely appeal from that dismissal.

The Contentions The appellant’s two contentions are framed as questions. She asks: 1. Was the Circuit Court’s grant of the Appellee’s Motion to Dismiss the Petition to Establish Paternity correct considering the factual allegations set forth in the Ap ²⁹³ pellant’s Petition to Establish Paternity, Opposition to Motion to Dismiss, and Amended Petition to Disestablish Paternity? 2. Did the Trial Court err by granting the Appellee’s Motion to Dismiss without taking any evidence or testimony or making a factual and legal determination under Family Law Article § 5-1028 that the Affidavit of Parentage executed by the parties in this case was not obtained by either fraud, duress, or material mistake of fact?

The Affidavit Of Parentage This case is controlled by Maryland Code, Family Law Article, Title 5 “Children,” Subtitle 10 “Paternity,” Sect. 5-1028, which provides for an “Affidavit of parentage.” The affidavit affords the unmarried parents of a child the opportunity to establish their legal parentage. Section (a) provides: (a) In general.—An unmarried father and mother shall be provided an opportunity to execute an affidavit of parentage in the manner provided under § 4-208 of the Health-General Article. (Emphasis supplied). Among the requirements for the filing of such an affidavit is that both the mother and the father be fully advised as to the legal significance of signing the affidavit.

Subsection (c)(2) provides: (2) Before completing an affidavit of parentage form, the unmarried mother and the father shall be advised orally and in writing of the legal consequences of executing the affidavit and of the benefit of seeking legal counsel. (Emphasis supplied). Subsection (d) alerts the signers that “Execution constitutes legal finding of paternity.” The appellant does not deny having been advised of both the legally determinative effect of executing the affidavit, and the benefit of retaining counsel prior to doing so. ²⁹⁴ Subsection (d) goes on to set forth the extremely limited circumstances under which the affidavit may be legally challenged. (1) An executed affidavit of parentage constitutes a legal finding of paternity, subject to the right of any signatory to rescind the affidavit: (i) in writing within 60 days after execution of the affidavit; or (ii) in a judicial proceeding relating to the child: 1. in which the signatory is a party; and 2. that occurs before the expiration of the 60-day period.

(Emphasis supplied). Subsection (d)(2) emphasizes the severe limitation on any legal challenge. (2)(i) After the expiration of the 60-day period, an executed affidavit of parentage may be challenged in court only on the basis of fraud, duress, or material mistake of fact. (Emphasis supplied).

It was shortly after the birth of N. that the appellant and the appellee executed the Affidavit of Parentage pursuant to Sect. 5-1028. That affidavit fully complied with all legal requirements. That executed Affidavit of Parentage was not rescinded or challenged in any way within the 60-day period following its execution. By the very wording of the statute, it now constitutes a “legal finding of [the appellee’s] paternity” of N. The appellant challenges that legal finding. “The Road Not Taken” Robert Frost’s “The Road Not Taken” concludes: Two roads diverged in a wood, and I— I took the one less traveled by, And that has made all the difference.

The anomaly of this paternity dispute’s not following the stereotypical script and its disputants’ not playing their ster ²⁹⁵ eotypical roles “has made all the difference.” The road more heavily travelled, whose troubled course we have been spared, has turned out, for the moment at least, to be intractable terrain. If, as in the more typical scenario, it were the appellee herein who, based upon genetic evidence, was attempting to repudiate his status as legal father notwithstanding his earlier affidavit of parentage, we would find the controlling law to be at the moment in a state of turbulent uncertainty. The opinion of this Court in Davis v. Wicomico County Bureau of Support Enforcement, 222 Md.App. 230 , 112 A.3d 1024 (2015), had held that the status of paternity, once established by an affidavit of parentage, enjoys an enhanced invulnerability to subsequent challenge by the “father” not enjoyed by the more tentative status of “father” established by judicial declaration in a typical paternity case. The latter status could be attacked by genetic evidence challenging it.

The former status, that established by an affidavit of parentage, could be attacked, after a period of 60 days from the signing of the affidavit, only by a showing that the original affidavit had been the result of “fraud, duress, or material mistake of fact.” This Court’s opinion clearly articulated this hierarchical supremacy of an affidavit of parentage over a judicial declaration of paternity. We agree with the trial court that the plain language of the statute[ ] shows that the only way for appellant to set aside the finding of paternity established by his affidavit of parentage under FL § 5-1028 is fraud, duress, or material mistake of fact, and not by a blood test as requested by appellant. 222 Md.App. at 244 , 112 A.3d 1024 (emphasis supplied). The opinion of this Court left no doubt as to its unequivocal holding. Here, the paternity challenged by appellant was established by an affidavit of parentage, pursuant to FL § 5-1028, and not by a judicial determination.

FL § 5-1038 can be used only to set aside a declaration of paternity, not ²⁹⁶ paternity established by an affidavit of parentage under FL § 5-1028. 222 Md.App. at 245-46 , 112 A.3d 1024 (emphasis supplied). Certiorari, however, was granted by the Court of Appeals. It initially appeared that Davis v. Wicomico County Bureau, 447 Md. 302, 318-19 , 135 A.3d 419 (2016), had affirmed the holding of this Court. Both appellate courts had, to be sure, affirmed the ruling of the trial court that the putative father, established as such by an affidavit of parentage, could no longer challenge that status.

Judge Battaglia’s majority/plurality opinion for the Court of Appeals based that decision, as had the earlier decision of this Court, on two separate grounds. The first ground was res judicata, an issue not here pertinent. At the Court of Appeals level, however, there was a dissenting opinion filed by Judge McDonald and joined by Chief Judge Barbera and Judge Watts. It dissented from both grounds for decision articulated by Judge Battaglia’s opinion for the Court.

There was, in addition, a lone concurring opinion by Judge Adkins. The concurrence agreed with the opinion of the Court on res judicata. On that issue, therefore, Judge Battaglia’s opinion, commanding four votes, is the unquestioned majority opinion of the Court. The status of the Court’s opinion on the second issue, however, is far more problematic.

Judge Battaglia’s opinion agreed with this Court that paternity established by an affidavit of parentage enjoyed an enhanced invulnerability from subsequent challenge by the “father” not enjoyed by paternity status established by a judicial declaration of paternity. The plain language of Sections 5-1028 and 5-1038 differs significantly. Most importantly, Section 5-1028 permits rescission of the affidavit of parentage only “on the basis of fraud, duress, or material mistake of fact.” To permit Mr. Davis to pursue blood or genetic testing in the face of the self-limiting language totally eviscerates the word “only.” 447 Md. at 318-19 , 135 A.3d 419 (emphasis supplied). Citing with approval the earlier opinion of this Court in Burden v. Burden, 179 Md.App. 348 , 945 A.2d 656 (2008), ²⁹⁷ Judge Battaglia’s opinion reiterated that, since 1997, a paternity status established by an affidavit of parentage enjoys essential immunity from a challenge based on genetic evidence.

The General Assembly ... amended Section 5-1028 in 1997 to eviscerate the rebuttable presumption and replace it with the more constricting “legal finding of paternity” after the father executes an affidavit of parentage, thereby strengthening the finality of the affidavit of parentage. The basis of the latter was to comport with federal funding mandates, and most importantly, to limit the ability of a father who voluntarily acknowledged his paternity to thereafter, possibly years later, as in the instant case, obtain post-judgment blood or genetic testing. The limitations of a father’s ability to challenge an affidavit of paternity only on the grounds of fraud, duress, or material mistake of fact was recognized by the Court of Special Appeals in Burden v. Burden, 179 Md.App. 348 , 945 A.2d 656 (2008). Our intermediate appellate court held that the father could not disestablish paternity when his signing of the Affidavit did not involve fraud, duress, or material mistake of fact. 447 Md. at 334-35 , 135 A.3d 419 (emphasis supplied).

Three members of the Court of Appeals, however, expressly dissented from that argument that paternity based on an affidavit of parentage enjoys an enhanced immunity from challenge not enjoyed by paternity based on a judicial declaration in a paternity case. Meticulously examining both the statutory context and the legislative history of the law establishing the affidavit of parentage, Judge McDonald concluded that the affidavit of parentage did not, in fact, enjoy an enhanced invulnerability to subsequent challenge. The bottom line is evident: an affidavit of parentage is not meant to conclusively prove that which is false. Rather, an affidavit of parentage is meant to correctly establish paternity by a formal acknowledgement so that unwed fathers provide financial, emotional, and social support to ²⁹⁸ their biological children. ...

Thus, when an alleged father is not the biological father of the children, using an affidavit of parentage to establish paternity incorrectly over the protest of the alleged father not only unfairly saddles an individual with responsibility for children unrelated to that individual, but also deprives the children of the connection with their biological father that the affidavit of parentage was supposed to encourage and protect. 447 Md. at 349 , 135 A.3d 419 (dissenting opinion by McDonald, J.) (emphasis supplied). The affidavit of parentage, according to the dissenting opinion, was simply an alternative modality, along with the paternity test, for establishing paternity in the first instance. At that point, the resultant status of paternity was the same, regardless of the modality by which it was established. [A]s the statutory text explains and the legislative history confirms, when an alleged father signs an affidavit of parentage on the basis of a genuine but incorrect belief that he is the father of the children, and he later requests a genetic test to show whether is in fact the father of the children, he is entitled to one. Then, if the test conclusively shows that he is not the father of the children, he no longer has the legal responsibilities that a father must have.

Id. (emphasis supplied). At that point, the camera of judicial interpretation zooms in on the concurring opinion of Judge Adkins as it contemplates the three-to-three deadlock looming before it. After having gone the other way on the res judicata question, Judge Adkins came down solidly in favor of Judge McDonald’s dissent on the substantive issue.

I would be joining the Dissent, in its analysis on the merits of how to interpret the relevant statutes, were this case an appeal from the 2011 judgment that Davis was not entitled to genetic testing. At that point, I would have reversed on grounds that he was so entitled. My decision would rest on the careful and thoughtful interpretation of the legislation ²⁹⁹ that is delineated in the Dissent. This would surely be the equitable result. 447 Md. at 336 , 136 A.3d 419 (concurring opinion by Adkins, J.) (emphasis supplied).

For the careful reader, of course, that concurring endorsement by Judge Adkins sublimates the dissent of Judge McDonald into the majority voice of the Court of Appeals and the controlling law of Maryland on this issue. Four votes beats three votes. That judicial package nonetheless creates quite an obstacle course for the hasty reader, for those who approach appellate opinions without their slide rules in hand. If, arguendo, the appellee here had been challenging his status as the legal father of N., would he, notwithstanding his affidavit of parentage, have been entitled to challenge that paternal status via a genetic test?

Mercifully, we are not called upon to decide. The precedential snares and pitfalls are all along the more heavily traveled route, “the road not taken” by the case before us. On our “less traveled” road, the appellee has not challenged, questioned, or in any way sought to negate his freely accepted status of paternity. The appellant, of course, may not do for him what he has chosen not to do for himself and what, in fact, he sternly opposes.

His is an easy road to follow. “And that has made all the difference.” Perhaps instead of mulling with Robert Frost over the possibilities of “two roads diverging] in a wood,” we should simply heed the more prosaic advice of Yogi Berra, “When you come to a fork in the road, take it.” In her brief and essentially cursory legal argument, the appellant does not challenge the proposition that this case is controlled by Sect. 5-1028. She argues rather that she is entitled to Sect. 5-1028(d)(2)’s exemption from the otherwise foreclosing effect of the Affidavit of Parentage because of “fraud, duress, or material mistake of fact.” ³⁰⁰ A Material Mistake Of Fact: Whose Mistake? That argument by the appellant, however, is even more tightly focused. She makes no contention that there was fraud or duress.

Her plea for exemption from the foreclosing effect of the Affidavit of Parentage is based exclusively on “material mistake of fact.” The appellant contends: Samantha’s Petition(s) and preliminary arguments by Counsel during the February 3, 2016 hearing clearly set forth a factual