                           IN THE SUPREME COURT OF MISSISSIPPI
                                    NO. 97-CA-00946-SCT
DEPARTMENT OF HUMAN SERVICES, STATE OF
MISSISSIPPI
v.
MELVIN GADDIS

DATE OF JUDGMENT:                                 05/23/97
TRIAL JUDGE:                                      HON. SEBE DALE, JR.
COURT FROM WHICH APPEALED:                        MARION COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:                           PAUL B. CASTON
ATTORNEY FOR APPELLEE:                            DEBORAH J. GAMBRELL
NATURE OF THE CASE:                               CIVIL - OTHER
DISPOSITION:                                      REVERSED AND REMANDED - 12/31/1998
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                   3/3/99




     BEFORE PRATHER, C.J., ROBERTS AND MILLS, JJ.


     PRATHER, CHIEF JUSTICE, FOR THE COURT:




                             STATEMENT OF THE FACTS AND CASE

¶1. On October 5, 1996, Denice Quinn applied for and later began receiving public assistance from the
Department of Human Services (" DHS") for herself and her three minor children. In applying for these
benefits, Quinn was required to identify the father of any children for whom the assistance was to be
received. Although she was married to Danny Quinn at the time of the birth of all three children, Quinn
identified Melvin Gaddis as the biological father of her three children.

¶2. Upon receiving this information, DHS filed a complaint to determine the paternity of the three minor
children and to establish a child support obligation for them. DHS's complaint named both Danny Quinn and
Melvin Gaddis as defendants and alleged that Melvin Gaddis was the true biological father of the children in
spite of Danny Quinn's legal presumption of paternity. DHS also filed a motion for genetic testing of Danny
Quinn, Denice Quinn, Melvin Gaddis, and the three children in order to establish paternity. All of the parties
except Gaddis complied with the judge's order granting these tests, and the results showed with high
probability that Danny Quinn could not be the biological father of the three minor children.
¶3. Gaddis filed a motion to dismiss, alleging that DHS lacked legal standing to bring an action to determine
paternity against him. The Chancellor agreed, dismissing DHS's suit and denying DHS's motion to
reconsider. DHS timely appealed to this Court.

                                                    ISSUE


      Where children are receiving public assistance from the Department of Human Services,
      does the Department of Human Services have legal standing to bring an action against an
      alleged father to determine the paternity of those children, where the children are presumed
      to be the legitimate children of their mother's husband by virtue of having been born to a
      lawful marriage. Stated differently, does the Department of Human Services have legal
      standing to challenge the presumption of legitimacy of children for whom it is providing
      support in order to establish support in order to establish paternity in one alleged to be their
      true biological father?

¶4. The present appeal presents solely a question of law, and it is well established that this Court reviews
questions of law on a de novo basis. The issue in the present case is whether or not DHS has legal standing
to bring a suit to determine the paternity of children born to an existing marriage. It is well settled that
children born within wedlock are legally presumed to be the natural children of the husband of the mother.
Stone v. Stone, 210 So.2d 672 (Miss. 1968). This presumption, while strong, is a rebuttable one, and
DHS asserts that it has legal standing to rebut this presumption through the establishment of paternity.

¶5. DHS's position is supported by Miss. Code. Ann. § 93-9-9(1), which provides that:

      (1) Paternity may be determined upon the petition of the mother, or father, the child or any public
      authority chargeable by law with the support of the child ...

In the view of this Court, DHS clearly constitutes a "public authority chargeable by law with the support of
the child," and case law indicates that this statute applies equally to cases in which the children are legally
presumed to be legitimate.

¶6. In Baker by Williams v. Williams, 503 So.2d 249, 252 (Miss. 1987), this Court, in discussing MCA
§ 93-9-9(1), noted that "it can be determined that the legislative intent for its passage was to provide a
method for determining paternity of illegitimate children to enforce support." Significantly, this Court in
Williams held that "the Court can find no prohibition for a presumed legitimate child's use of the statute to
establish the fact of paternity when, as here, (1)the child is properly before the Court through her next friend
and (2) alleges facts to support her claim." Williams, 503 So.2d at 252. This Court in Williams thus
concluded that a child, as one of the parties given a right to determine paternity under § 93-9-9(1), has the
right to establish paternity in spite of the existence of any legal presumption of legitimacy.

¶7. There is similarly no basis for this Court to conclude that the presumption of legitimacy should bar DHS
from utilizing the authority granted to it by § 93-9-9(1) to establish the true paternity of the children. As
noted in Williams, the Legislature's purpose in enacting the statute was to facilitate child support
enforcement, and it is apparent that DHS is attempting to utilize the statute for precisely this purpose.

¶8. The Chancellor stated in his ruling that:
      If the presumption (of paternity) is to be rebutted, that undertaking becomes the burden of the one
      who is the presumptive father, not some other party (DHS here). If DHS desires to recover moneys
      spent by it to support these children, it is obliged, as a matter of law, to proceed against that person
      or those persons who are legally liable for the support of the children - - in this case, Quinn, the lawful
      husband of Denice and the legally presumed father of her children. Quinn is the person who has the
      right to undertake to rebut the presumption of paternity, and that is not the business of DHS or any
      other party.

The Chancellor's view is not supported by § 93-9-9(1), which does in fact grant DHS the right to
determine the paternity of the three children. The Chancellor's conclusion that the paternity of the children is
"not the business of DHS" is unsupported by either statute or by considerations of sound public policy.
Given that Gaddis has, apparently, fathered three children by the wife of another, it is not at all unreasonable
to permit the DHS to recoup some or all of the public's cost of supporting these children from the children's
biological father. As such, determining the paternity of the children is very much the "business" of DHS. The
Chancellor's ruling was erroneous as a matter of law and is reversed.

¶9. REVERSED AND REMANDED.

BANKS, ROBERTS, SMITH, MILLS AND WALLER, JJ., CONCUR. McRAE, J., DISSENTS
WITH SEPARATE WRITTEN OPINION JOINED BY SULLIVAN AND PITTMAN, P.JJ.




      McRAE, JUSTICE, DISSENTING:




¶10. The majority misses the point at issue in this case. The majority grants DHS leave to challenge
paternity even where the presumed father, as here, does not challenge his assumed role. Such behavior by
DHS may lead to destruction of the presumption of Stone v. Stone, 210 So. 2d 672 (Miss. 1968), while
devastating the emotions and lives of the family members involved. Before DHS crumbles the foundation of
a family, it should test the presumed father and attain probable cause that someone else should be tested.

¶11. In the instant case, the married spouse at the time the children were born should have been tested.
Then, only after such spouse had been excluded as the father and upon probable cause, Gaddis should have
been tested. The suit should have only been brought against Gaddis. The lawsuit may have harmed family
relations and, regardless of other issues, there is solely probable cause to sue Gaddis. The father's test
results show him to likely not be the father while Gaddis failed to comply with the testing order.

¶12. Accordingly, I dissent.

SULLIVAN AND PITTMAN, P.JJ., JOIN THIS OPINION.
