                   IN THE COURT OF APPEALS OF IOWA

                             No. 3-1174 / 13-0693
                             Filed February 5, 2014

ROBERTO LEDESMA,
    Petitioner-Appellant,

vs.

DANIELA ESTRADA GUTIERREZ
and JUAN ANTONIO CISNEROS,
      Respondents-Appellees.
________________________________________________________________

      Appeal from the Iowa District Court for Buena Vista County, Nancy L.

Whittenburg, Judge.



      The putative father of a child who was born into a marriage challenges the

denial of his petition to establish paternity. AFFIRMED.



      Nicholas J. Brown of Dan Connell, P.C., Storm Lake, for appellant.

      John M. Murray of Murray & Murray, P.L.C., Storm Lake, for appellees.



      Considered by Doyle, P.J., and Tabor and Bower, JJ.
                                          2



TABOR, J.

       At issue in this case is the paternity of A.C., who is now four years old.

A.C.’s biological father, Roberto Ledesma, challenges the district court’s denial of

his petition to establish paternity, custody, visitation, and support, and to

terminate the rights of A.C.’s legally established father, Juan Cisneros. Ledesma

contends the district court misapplied Iowa Code sections 600B.41 and

600B.41A (2009).

       Because the district court properly treated Ledesma’s petition as an action

to overcome paternity under section 600B.41A and followed the supreme court’s

interpretation of that provision in Callender v. Skiles, 591 N.W.2d 182 (Iowa

1999), we affirm.

I.     Factual and Procedural Background

       Daniela Estrada Gutierrez (Estrada) married Cisneros in February 2007.1

During the marriage, Estrada had an intimate relationship with Ledesma.

Ledesma was a family friend who emigrated from the same city in Mexico as

Estrada and Cisneros. A.C. was conceived as a result of Estrada’s extra-marital

affair with Ledesma. Cisneros was not aware of the affair and believed A.C. was

his child at the time of the birth in April 2009. Cisneros testified: “I saw him born.

It’s my child. . . . It was one of the biggest days of my life to see my child, to have

the privilege to see a child born.”

       Ledesma went to the hospital the day after A.C. was born, believing the

child was his, but did not say anything to Cisneros. During his occasional visits


1
 Estrada and Cisneros have a son who was born in 2002 and lives with relatives in
Mexico. Estrada and Cisneros both provide financially for that child.
                                        3



to Cisneros’s apartment during A.C.’s first year, Ledesma became convinced the

child resembled him.

       Cisneros did not learn of A.C.’s true parentage until May 2010 when his

wife took the child and left for Luverne, Minnesota, with Ledesma. Estrada was

only with Ledesma for a week before she called her husband and asked him to

come to Minnesota and bring her and A.C. back to Iowa. During the car ride

home, Estrada revealed to Cisneros that she had a sexual relationship with

Ledesma.      Cisneros and Estrada decided to stay together and raise A.C.

Cisneros testified they went to marriage counseling to help them “be stronger

and to deal with this issue.” Estrada and Cisneros had another child who was

born in 2012.

       On September 8, 2010, Ledesma filed his petition against Estrada seeking

“Declaration of Paternity, Custodial Rights, Support and Visitation.”      Estrada

answered, contending Ledesma waived his right to assert paternity because he

“has known that the child has been raised by the Defendant and her husband

since the child’s birth, has allowed them to raise the child for two years and five

months, and has not taken any action during that time to assert his alleged

paternity rights.”

       On November 29, 2010, Ledesma filed a “Paternity Assay Report,” to

which Estrada consented. The report showed a 99.99% probability Ledesma

was A.C.’s biological father.

       On July 20, 2012, Ledesma amended his petition to add Cisneros as a

party and to urge the court to terminate Cisneros’s parental rights to A.C.
                                        4



Estrada and Cisneros filed an amended answer and counterclaim, requesting

Cisneros’s parental rights to A.C. be preserved.

       The district court held trial on October 11, 2012.      After the trial, the

guardian ad litem issued a report recommending preservation of Cisneros’s

paternity rights. The guardian ad litem observed that A.C. and Cisneros were

closely bonded:

       The undersigned has personally witnessed the strong feelings that
       Juan has toward A.C. and believes that was reflected during his
       testimony. The undersigned is aware of nothing which would
       indicate those feelings are not reciprocated by A.C. toward his
       father. Observations of A.C. by the undersigned reflect that A.C. is
       comfortable is his home, with his father and the rest of his family
       and appears to have a strong and positive relationship with Juan.

       Regarding Ledesma, the guardian ad litem pointed out he “did nothing

during Daniela’s pregnancy or the first year of A.C.’s life to establish his

paternity.”   See Iowa Code § 600B.41(2)(e) (requiring the consideration of

additional factors “relevant to the individual situation”). The guardian ad litem

also noted that after Ledesma’s brief foray to Minnesota with Estrada and A.C. in

May 2010, he waited an additional four months to file his petition and “has seen

A.C. on two brief occasions” since they were in Minnesota. The guardian ad

litem found Ledesma “has never acted as a father to A.C. or provided him with

anything.” The report concluded it was not in A.C.’s best interest to disestablish

Cisneros’s paternity.

       The district court denied Ledesma’s petition on February 22, 2013. The

court ruled Cisneros’s established paternity should be preserved: “The stability of
                                             5



A.C.’s life will be significantly affected by disestablishing Juan’s paternity and this

would not serve A.C.’s best interests.” Ledesma appeals.

II.     Standard of Review

        We review paternity actions under Iowa Code chapter 600B for errors at

law. Callender, 591 N.W.2d at 184. Likewise, we review the district court’s

interpretation of statutes for legal error. Id.

III.    Analysis

        Ledesma disputes the district court’s interpretation of sections 600B.412

and 600B.41A.3 He claims once the genetic testing showed a 99.99% probability

that he was the biological father, paternity was established in him and the burden

rested with Cisneros and Estrada to show he was not the father.                   Ledesma

misconstrues the statutory procedure.

        In Callender, our supreme court reviewed the raison d’etre of chapter

600B.     Id. at 185 (finding provisions allowed judicial enforcement of “the



2
  Iowa Code section 600B.41(1), (5)(b) states:
               In a proceeding to establish paternity . . . the court . . . upon
       request of a party shall, require the child, mother, and alleged father to
       submit to blood or genetic tests.
               ....
               If the expert concludes that the test results show that the alleged
       father is not excluded and that the probability of the alleged father's
       paternity is ninety-five percent or higher, there shall be a rebuttable
       presumption that the alleged father is the father, and this evidence must
       be admitted.
3
  Iowa Code section 600B.41A(1) states:
               Paternity which is legally established may be overcome as
       provided in this section if subsequent blood or genetic testing indicates
       that the previously established father of a child is not the biological father
       of the child. Unless otherwise provided in this section, this section applies
       to the overcoming of paternity which has been established . . . by
       operation of law when the established father and the mother of the child
       are or were married to each other . . . .
                                         6



recognized obligation of parents to support a child born out of wedlock and not

legitimized”).   The chapter anticipated enforcement proceedings could be

initiated by the mother, or other interested person, or state authorities.       Id.

(interpreting section 600B.8).   The legislature made blood tests available to

assist in the paternity proceedings. Id. (noting under section 600B.41(5), the

results of such tests can create a rebuttable presumption of paternity which can

only be overcome by clear and convincing evidence).

       In its 1999 decision, the Callender court also noted the legislature had

recently amended chapter 600B “to provide for the filing of a petition, not to

establish paternity, but to overcome paternity which has been previously

established.” Id. (citing section 600B.41A). As relevant here, the court explained

section 600B.41A(1) applied when paternity had been legally established by

operation of law based on marriage.          Id.    The Callender court defined

“established father” as the husband of the mother at the time of the child’s birth.

Id. The court also clarified that while blood tests can lead to the establishment of

paternity under section 600B.41, the tests do not establish paternity without a

subsequent court order. Id.

       Further, the Callender court concluded section 600B.41A violated the due

process clause of the Iowa Constitution to the extent it denied a putative father

the opportunity for a hearing in which he could try to overcome the paternity of

the established father.   Id. at 192.    But once the putative father had been

afforded procedural due process, the possibility remained that the district court

could make a “substantive choice” that infringed on the putative father’s
                                        7



parenthood interest. Id. The court instructed that the substantive claim should

be determined by looking to the best interests of the child. Id. (citing section

600B.41A(6)(a)(2)).

      In this case, Iowa law deems Cisneros to be A.C.’s father by virtue of his

marriage to Estrada.    See Iowa Code § 252A.3(4).         Contrary to Ledesma’s

argument, because A.C. has an established father, the blood tests do not place

the presumption of paternity with Ledesma or the burden on Cisneros and

Estrada. See Callender, 591 N.W.2d at 185.

      The district court properly viewed Ledesma’s action as one to overcome

Cisneros’s paternity under section 600B.41A, as that provision was explained in

Callender. When genetic testing established Ledesma as the biological father,

the district court could dismiss his action and preserve paternity in Cisneros only

if: (1) Cisneros requested his paternity be preserved; (2) preserving paternity was

in A.C.’s best interests; and (3) Cisneros requested, and the court decided,

Ledesma’s rights should be terminated.      See Iowa Code § 600B.41A(6).        All

three steps were completed in the instant case.

      The district court also appropriately examined the best-interest factors

under section 600B.41A.6(a)(2):

             (a) The age of the child.
             (b) The length of time since the establishment of paternity.
             (c) The previous relationship between the child and the
      established father, including but not limited to the duration and
      frequency of any time periods during which the child and
      established father resided in the same household or engaged in a
      parent-child relationship as defined in section 600A.2.
             (d) The possibility that the child could benefit by establishing
      the child's actual paternity.
                                             8



               (e) Additional factors which the court determines are relevant
       to the individual situation.

       A.C. was three years old at the time of the trial and had only known

Cisneros as his father. The child had little contact with Ledesma, living with him

for only one week in May 2010.             The district court found nothing to show

Ledesma had interacted with A.C. or developed any relationship with the child

during that short custodial period.

       The court next considered Ledesma’s timing in asserting his paternity.

Although Ledesma realized he might be the biological father during Estrada’s

pregnancy, Ledesma chose not to assert his legal rights until September 2010.

The court also noted Ledesma was “slow to correct the deficiencies in this action

to proceed with the law.” In addition, the court pointed out Ledesma did not try to

establish a relationship with the child.

       As for the third factor, the court emphasized Cisneros provided for the

child’s prenatal care and has provided financial and emotional support since

A.C.’s birth—even after Cisneros learned Ledesma was the biological father.

The court found: “Since A.C.’s birth, Juan has executed all the duties, rights and

privileges that are attendant to a parent-child relationship.”

       Turning to the fourth factor, the court relied on the opinion of the guardian

ad litem in finding no benefit to upsetting the stability in A.C.’s life by establishing

paternity in Ledesma and disestablishing Cisneros’s paternity. The court found

Cisneros had a strong and positive relationship with A.C., while Ledesma had

waited too long and did too little to forge a bond with his biological son. Finally,
                                         9



the court found it relevant that Ledesma did not offer a nurturing environment for

a young child in his current living arrangements.

      We find no error of law in the district court’s analysis of the statutory

factors necessary for overcoming paternity in Cisneros, the established father.

Outside of biology, Ledesma offered no convincing claim that disestablishing

Cisneros’s paternity would be in A.C.’s best interests. See generally Callender,

591 N.W.2d at 193 (Harris, J., dissenting) (“Family relationships do not rest

exclusively on shared genes. A child puts down its family roots on the basis of

environment, and the resulting ties deserve the law’s protection.”).

      Finally, we decline to separately analyze Ledesma’s claim concerning the

doctrine of equitable parenting and the possibility of “dual fatherhood” based on

his reading of In re Marriage of Gallagher, 539 N.W.2d 479 (Iowa 1995). The

Callender court cited Gallagher for the proposition: “[W]e do not recognize any

separate equitable parenting principles which would give a person outside a

marriage the right to establish paternity.” Id. at 186 (making clear equity only

comes into play once the right to relief existed).      Any separate analysis of

equitable principles concerning the best interests of A.C. would be redundant of

the district court’s consideration of the factors listed in Iowa Code section

600B.41A.6(a)(2).

      AFFIRMED.
