Franceschi v. Pernia (Child Custody) ( 2015 )

 nonexistence of the father and child relationship in a trial and whether a
judicial declaration of the relationship would be in the best interest of the
child." Based on that evaluation, 'an appropriate recommendation for
settlement must be made to the parties." 2 Id. (emphasis added). If the
parties refuse to accept the district court's settlement recommendation,
"the action must be set for trial." NRS 126.141(3) (emphasis added).
Here, the district court was advised that another man, Chad
Davis, had signed a Voluntary Acknowledgment of Paternity (VAP). The
VAP is not part of the record on appeal. Despite Franceschi providing
DNA test results ostensibly establishing that Franceschi is the biological
father of the child, and despite ordering that both Davis and the child be
made parties to the suit, with a guardian ad litem appointed for the child,
the district court never proceeded through the steps prescribed in NRS
126.141. Instead, the case was dismissed, without a settlement
2 NRS 126.141(1) states in relevant part:
On the basis of the [district court's pretrial]
evaluation, an appropriate recommendation for
settlement must be made to the parties, which
may include any of the following:
(a) That the action be dismissed with or without
prejudice.
(b) That the matter be compromised by an
agreement among the alleged father, the mother
and the child . . .
(c) That the alleged father voluntarily
acknowledge his paternity of the child.
(Emphasis added).
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recommendation or trial or meaningful input from the child's guardian ad
litem.
On remand, the district court should ensure that Davis and
the child both appear and have the opportunity to be heard. We recognize
that NRS 126.101(1) gives the district court discretion whether to join the
child as a party and appoint a guardian ad litem for the child. But here,
the district court orally ordered Franceschi to "amend his complaint to
name the child; name Mr. Davis as an indispensable party and find an
independent person, whoever that is, to act as guardian ad litem."
Franceschi amended his complaint to add Davis but he did not include the
child, and the child did not receive a guardian ad litem until moments
before the district court dismissed the case without holding a trial. As a
result, meaningful input from Davis and the child, through his guardian
ad litem, was not received.
We conclude that the district court erred in dismissing
Franceschi's complaint without making a final settlement
recommendation and without meaningful participation of all interested
parties, including, especially, the child. 3 By dismissing the case as it did,
3 Although
we agree with our dissenting colleagues that this case
presents an important legal issue, we decline to address the merits of this
case because of our concern of the lack of record facts and developed
arguments. This court cannot consider matters that do not properly
appear in the record on appeal. See Carson Ready Mix, Inc. v. First Nat'l
Bank of Nev., 97 Nev. 474, 476, 635 P.2d 276, 277 (1981). We disagree
with the dissent's interpretation that DNA proof automatically invalidates
the parentage established by the VAP. Would this be the rule if the child
was 15 and the VAP had been in place since the child was an infant? Are
there limits to this doctrine? The interpretation of this important issue
has great implications for the VAP and the child. As such, we find it
inappropriate to address the merits of this issue on an incomplete record.
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the district court deprived the parties, including Franceschi, of the
opportunity to consider settlement and, if appropriate, to refuse the
settlement recommendation, which would have required that the matter
be set for trial, see NRS 126.141(3), with full briefing and argument of the
significant legal, factual, and equitable issues potentially involved.
Without a complete record, developed with the meaningful participation of
all affected persons, it is premature to reach the legal issues on the merits,
as those issues may be affected by facts and arguments as yet unknown.
For these reasons, the district court's decision to dismiss Franceschi's
complaint is hereby reversed and remanded. On remand, the district
court must join the child as a party, appoint a guardian ad litem, and
process this case in accordance with NRS Chapter 126. Accordingly, we
ORDER the judgment of the district court REVERSED AND
REMAND this matter to the district court for proceedings consistent with
this order.
02,-ac , C.J.
Hardesty
ass%
Parraguirre
, J.
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cc: Hon. Sandra L. Pomrenze, District Judge, Family Court Division
McFarling Law Group
Schwab Law Group
Eighth District Court Clerk
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CHERRY, J., SAITTA, J., and GIBBONS, J., concurring in part and
dissenting in part:
We concur in part and dissent in part. We agree with the
majority that the district court erred in dismissing this paternity case
without following the procedures outlined in NRS Chapter 126. However,
the majority ignores that the district court dismissed this case based
primarily on the legal conclusion that under NRS 126.053 voluntary
acknowledgments of paternity (VAPs) control the designation of paternity
over court-ordered genetic tests. The majority does not address this issue
because the signed VAP is not included in the record. Its concern is
misplaced. Despite the absence of the exact VAP at issue in this case, any
YAP developed pursuant to NRS 440.283 would require anyone signing
the form to declare, under penalty of perjury, that the man signing the
form is the father of the child. NRS 440.283(1)(a) (directing the Nevada
State Board of Health to "[d]evelop a declaration to be signed under
penalty of perjury for the voluntary acknowledgment of paternity in this
State"). Further any YAP developed pursuant to NRS 440.283 must be
subject to invalidation for fraud, duress, or mistake of fact under NRS
126.053(3). NRS 126.053(1) (noting the statute applies to any YAP
developed pursuant to NRS 440.283). Thus, the absence of the exact YAP
at issue in this case does not preclude this court from addressing the legal
question of whether a valid genetic test that creates a conclusive
presumption of paternity under NRS 126.051(2) is sufficient to invalidate
a signed YAP that has the "same effect as a judgment or order of a court."
NRS 126.053(1).
We would reverse and provide further instruction to the
district court on how to address the important legal issue that this case
presents. That is, what happens when one putative father signed a YAP
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at the child's birth, but a genetic test later establishes that a second man
is the child's biological father?
A genetic test establishing that one man is a child's biological father is
sufficient evidence to invalidate a second man's VAP
Under NRS Chapter 126, there are two ways to establish
paternity: (1) through statutory presumptions under NRS 126.051, and (2)
through a voluntary acknowledgment of paternity under NRS 126.053.
Under NRS 126.051, there are several presumptions for
establishing a man's paternity. NRS 126.051(2) states in relevant part:
A conclusive presumption that a man is the
natural father of a child is established if tests for
the typing of blood or tests for genetic
identification made pursuant to NRS 126.121
show a probability of 99 percent or more that he is
the father. . . .
In contrast to NRS 126.051's paternity presumptions, NRS
126.053 creates a mechanism by which a putative father can voluntarily
acknowledge his paternity. This is accomplished when the mother and
father sign a VAP form after the child's birth. NRS 126.053(1). In
signing the YAP form, the mother declares under penalty of perjury that
the man signing the form is the only possible father of the child.' See NRS
440.283(1)(a) (requiring that a YAP "be signed under penalty of perjury");
State of Nev., Declaration of Paternity, Section C, available at
http ://dpbh.nv.gov/uploadedFiles/dpbhnvgov/content/Programs/BirthDeath
/Docs/Declaration%20of%20Paternity.pdf (stating that, in signing, the
mother declares "under the penalty of perjury that . Nile man signing
'The parties do not dispute that Davis signed an acknowledgment of
paternity, and the district court's order dismissing the case states that
dismissal was warranted because Davis "executed an Acknowledgment of
Paternity of Application for Birth Certificate at the time of birth."
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this form is the only possible father of this child"). Signed VAPs "have the
same effect as a judgment or order of a court determining the existence of
the relationship of parent and child." NRS 126.053(1). A person can
rescind his acknowledgment within 60 days of signing. NRS 126.053(2).
Outside of 60 days, a YAP can only be "challenged" on "grounds of fraud,
duress or material mistake of fact." 2 NRS 126.053(3).
We would conclude that a valid genetic test, which creates a
conclusive presumption of paternity under NRS 126.051(2), is grounds for
invalidating a YAP executed pursuant to NRS 126.053. Although VAPs
act as an adjudication of paternity, NRS 126.053(3) states that VAPs can
be challenged and invalidated with a showing of either (1) material
mistake of fact or (2) fraud. We would hold that a valid genetic test that
gives rise to a conclusive presumption of paternity based on the
requirements in NRS 126.051(2) is, in and of itself, sufficient evidence to
invalidate a VAP on grounds of either (1) material mistake of fact or (2)
fraud, because the mother either (1) mistakenly believed that the man
signing the form was the child's only possible biological father, or (2) knew
that another man could possibly be the child's biological father, yet still
2 Nothing in the statute's language prevents a third party from
challenging a VAP's validity on the same grounds.
Further, NRS 126.161(1) states that "[a] judgment or order of a
court, or a judgment or order entered pursuant to an expedited process,
determining the existence or nonexistence of the relationship of parent
and child is determinative for all purposes." NRS 126.161(6) further
states that the term "expedited process" includes VAPs. Accordingly,
when a YAP is invalidated pursuant to NRS 126.053(3), it no longer has
the legal effect of a court order and is no longer "determinative" under
NRS 126.161(1).
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signed the VAP. 3 In either case, when a genetic test establishes that a
third-party is the child's biological father, the obviously incorrect
declarations in the YAP form cannot control the designation of paternity.
Once the VAP has been invalidated, the district court is free to consider
the totality of the circumstances to determine paternity based on the
presumptions of paternity in NRS 126.051 and the best interest of the
child. 4
, J.
, J.
Gibbons
3 Thislegal conclusion only applies when a third-party putative
father uses a genetic test to challenge another man's YAP based on
material mistake of fact or fraud under NRS 126.053(3). This conclusion
does not alter our recent holding in St. Mary v. Damon, 129 Nev., Adv. Op.
68, 309 P.3d 1027, 1032 (2013), that nonbiological factors can be important
in determining parentage under NRS Chapter 126.
4 Thislegal conclusion does not change the fact that under current
law, a third party may challenge the validity of a YAP based on fraud or
mistake of fact years after the YAP was signed and they could introduce a
valid genetic test to support their challenge. We would merely hold that
the conclusive legal presumption of paternity resulting from a valid
genetic test under NRS 126.051 is sufficient to invalidate a signed YAP
under NRS 126.053(3). Thereafter, the court is still free to consider the
totality of the circumstances based on the presumptions of paternity in
NRS 126.051 and the best interest of the child in making its
determinations.
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