                                                                                                          FILED
                                                                                                  CCHJRT OF APPEALS
                                                                                                        DIVISIONTT
                                                                                             2 f4 AUG -- 5
                                                                                                              AM 10 : 140
                                                                                             STATE OF WASHINGTON
                                                                                             BY




     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                         DIVISION II


In re the Matter of the Parentage of                                                   No. 44546 -8 -II


          A.M.C.


GREGORIO J. MERINO GONZALEZ,

                                          Petitioner,


           v.



SOCORRO CONTRERAS SALDIVAR,                                                      UNPUBLISHED OPINION


                                           Respondent.


           JOHANSON, C. J. — .             This case involves the efforts of Gregorio J. Merino Gonzalez

                                                                                 1
 Merino) to disestablish himself                  as   the father of A.M.C.          Merino appeals from the superior


court' s denial of his motion to revise the court commissioner' s order. The court commissioner' s

order denied Merino' s disestablishment petition and denied Merino' s motion to order genetic

                Merino               that ( 1)    he   was   defrauded into     believing    he   was   A. M.C.'   s   father, ( 2)
testing.                    argues




genetic testing was in the best interests of the child, and ( 3) the superior court' s denial infringed
on   A.M.C.'      s   due   process    rights.     We reject his claims. We hold that there was no fraud, and




1
    We   refer   to A.M. C.,    a minor,     by   his initials to   protect   his privacy.
No. 44546 -8 - II



therefore, Merino' s claims are time barred. We further hold that A.M.C.' s due process rights are


not at issue in this action. Accordingly, we affirm.

                                     FACTS AND PROCEDURAL HISTORY


         Because the record in this case is sealed, we recite the facts only as necessary to the

analysis.     A.M.C.'    s mother,       Socorro Contreras Saldivar ( Contreras), ended one relationship and .


began    a new      relationship    with   Merino.    Soon after, Contreras learned that she was pregnant and


informed Merino.            Merino did not ask who the father was, and at no time during Contreras' s

pregnancy      did the      couple       discuss A.M.C.'   s   parentage.     When A.M. C. was born, Merino


voluntarily    signed an affidavit of         paternity.   A valid acknowledgment of paternity was filed on

January 3, 2012.

         In    February,      Contreras told Merino that he          was     not   A.M.C.'   s   father.     Nevertheless,


Merino took no action until August 28, 2012, when he filed a petition challenging his prior

acknowledgment of paternity. He alleged that he had signed the acknowledgment on the basis of

fraud.


         On December 13, 2012, Merino moved to rescind his acknowledgment of paternity,

dismiss himself        as   the   alleged   father,   and remove   himself from A.M.C.'          s   birth   certificate.   A


court commissioner denied Merino' s motions. Merino moved to revise the court commissioner' s


order, and the Superior Court denied the motion for revision. This appeal timely followed.

                                                        ANALYSIS


          Merino argues that he is exempt from the 60 -day statutory time bar because Contreras

obtained      his    acknowledgment         of   paternity through fraud —she knew that there was another


possible    father    and   did    not   disclose that information to Merino.         The State argues that Merino


failed to     prove   fraud   by   clear and     convincing    evidence.    We agree with the State and hold that

                                                               2
No. 44546 -8 -II



Merino failed to prove the existence of any representation of existing fact, therefore his fraud

claim fails and the time bar controls.2

                                      I. STANDARD OF REVIEW AND RULES OF LAW


          This   case    primarily involves            interpreting   the Uniform Parentage Act                 of    2002 ( UPA),   ch.



26. 26 RCW. All          analysis as         to the meaning      of a statute      is de   novo.     In re Parentage of J.M.K.,

155 Wn.2d 374, 386, 119 P. 3d 840 ( 2005).                       This case also involves an allegation of civil fraud.


The party claiming fraud has the burden of proving every element of fraud by clear and

convincing evidence. Beckendorfv. Beckendorf, 76 Wn.2d 457, 462, 457 P. 2d 603 ( 1969).

          The UPA        controls all actions           to   establish or       disestablish paternity in Washington.                The


UPA       allows    a    man     to     become         the "   acknowledged          father"    of a child by signing an

acknowledgment           of    paternity.       RCW 26. 26. 011( 1), .            300.     Once an acknowledged father is


established, he only has a limited time to rescind the acknowledgment of paternity or otherwise

challenge    the paternity       of    the   child.    RCW 26. 26. 540. An acknowledged father must commence


     any proceeding seeking to rescind the acknowledgment or denial or challenge the paternity of

the child"       within   the time limits described in RCW 26. 26. 330                         or .   335.      RCW 26. 26. 540( 1)


 emphasis        added).        Normally, an acknowledged father has 60 days from the date his

acknowledgment            of   paternity became              effective     to   commence       the    court     proceeding.      RCW


26. 26. 330( 1)(   a).    After that time has passed, an acknowledged father may only challenge his

acknowledgment of              paternity "[     o] n   the   basis   of   fraud, duress,    or material mistake of           fact"   and




within    four   years after     the   acknowledgment           is filed. RCW 26. 26. 335( 1)(          a), (   b).




 2
     Because we hold that Merino' s action was time barred, we do not reach his arguments on the
 merits. However, we briefly raise and dismiss Merino' s constitutional issues.

                                                                      3
No. 44546 -8 - II



                                                          II. TIME BAR / FRAUD


         Merino admits that he did not commence this proceeding within the 60 -day time bar of

RCW 26. 26. 330.            Indeed, while his acknowledgment of paternity became effective on January 3,

2012, he did        not     challenge        his paternity        acknowledgment          until   August 28, 2012.                Instead he


argues that his paternity acknowledgment was obtained through Contreras' s fraud and, thus, his

action was     timely       under   RCW 26. 26. 335( 1)(            a).    For the following reasons, we disagree.

         As the State correctly              points out, civil        fraud has     nine elements: "`(        1) representation of an


existing fact; ( 2) materiality; ( 3)               falsity; ( 4)   the     speaker' s   knowledge      of   its   falsity; ( 5)    intent of


the   speaker   that   it   should      be   acted upon        by the     plaintiff; (6) plaintiff s   ignorance       of   its   falsity; ( 7)

plaintiff' s reliance on         the truth         of   the   representation; (    8) plaintiff' s right to rely upon it; and ( 9)

damages    suffered         by   the    plaintiff. ''     Adams v. King County, 164 Wn.2d 640, 662, 192 P. 3d 891

 2008) ( quoting       Stiley      v.   Block, 130 Wn.2d            486,    505, 925 P. 2d 194 ( 1996)).            Each element must


be    proven   by   clear and       convincing          evidence.       Beckendorf, 76     Wn.2d       at   462.    The absence of any

element of      fraud is fatal to recovery.                    Puget Sound Nat' l Bank v. McMahon, 53 Wn.2d 51, 54,


330 P. 2d 559 ( 1958).              Because Merino is challenging his paternity acknowledgment, it is his

burden to       prove       fraud.        RCW 26. 26. 335( 2).                 And because Merino cannot prove the first


element— representation                 of an      existing fact —we           reject his fraud claim without analyzing the

remaining elements.

                                          III. REPRESENTATION OF AN EXISTING FACT


          Generally, fraud              requires an affirmative representation.               Silence as to a material, fact does


not constitute       fraud       unless      the   alleged      defrauder is      under a special       duty       to disclose.      Kaas v.


Privette, 12 Wn.            App.   142, 147, 529 P. 2d 23 ( 1974);                Farmers' State Bank ofNewport v. Lamon,

 132 Wash. 369, 372, 231 P. 952 ( 1925).                          Such a duty to disclose may arise by statute. Kaas, 12

                                                                           4
No. 44546 -8 -II


Wn.    App.     at    149 -50.     More generally, a duty to disclose may be found when the parties have a

relationship "`          in which confidence is reposed, and in which dominion and influence resulting

from     such    confidence         may be   exercised     by   one   person over    another. "'   Salter v. Heiser, 36


Wn.2d 536, 550, 219 P. 2d 574 ( 1950) (                  quoting Zimmerman v. Bitner, 79 Md. 115, 28 A. 820,

821 ( 1894)).            For example, silence may constitute a fraudulent misrepresentation when the

parties   have       a   fiduciary   relationship.      Liebergesell v. Evans, 93 Wn.2d 881, 889 -90, 613 P. 2d


1170 ( 1980).            Another example of a duty to disclose arises where one party relies on the other

         s superior       knowledge      or experience.    Boonstra     v.           Norton, Inc., 64 Wn.2d 621, 625,
                                                                             Stevens -
party'


393 P. 2d 287 ( 1964).

          Here, the record reveals no affirmative representation by Contreras that Merino was the

father.    Indeed, at no time during Contreras' s pregnancy did the couple discuss who A.M.C.' s

father might be. Rather, Merino argues that Contreras committed fraud when she failed to reveal

that there      was another potential         father.   But no Washington authority establishes a duty to reveal

one' s sexual         history. Nor can such a duty be inferred from the special nature of Merino and

Contreras'      s    relationship.      It is true that Merino and Contreras were not arm' s length actors; their


romantic relationship may have given them cause to trust each other to an extent. But the sealed

record clearly shows that it was Merino, not Contreras, who held the knowledge and influence in
the relationship.               While only Contreras could know with certainty whether there was another

possible father, Merino had much more life experience and experience with pregnancy than did

 Contreras.          The balance of power in the relationship strongly favored Merino, and Contreras was

 under    no     duty      to    make   special   disclosures to him.         Merino could not prove by clear and

 convincing          evidence     that Contreras   represented an     existing fact.
No. 44546 -8 -II



           Because a plaintiff must prove all of the elements of fraud, Merino' s failure to prove an

affirmative representation of an                existing fact      means      that   his fraud   claim   fails   at   the   outset.   We


do   not reach     the remaining        elements      of    fraud.       We hold that Merino' s petition to disestablish

paternity is time barred, and we do not reach the merits of Merino' s petition.

                                               IV. SUBSTANTIVE DUE PROCESS


           Merino    argues      that     the    court' s    adjudication            of   paternity   deprived A.M. C.           of his


 fundamental       right   to   an accurate       determination          of   paternity" and deprived the other potential


father    of parental rights.      Br.    of    Appellant     at   14.    The State argues that Merino cannot raise the


rights of the same .child he is attempting to disown. We agree with the State' s position, but for a

different     reason — the disestablishment of paternity does not implicate the rights of nonparties.

           First, it is unlikely that. Merino has standing to raise the issue of the other potential

father'   s   constitutional    rights.    See City of Seattle v. Montana, 129 Wn.2d 583, 598, 919 P. 2d

1218 ( 1996) (     citing Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S. Ct. 2908, 37 L. Ed. 2d 830

 1973)).       Second, a different division of this court has rejected the argument that a petition to


disestablish paternity implicates the child' s due process rights. In re Parentage of C.S., 134 Wn.

App.      141, 152, 139 P. 3d 366. (2006).            This is because the child is not a party and may bring his

own action to establish his father' s identity at any time. Parentage of C.S , 134 Wn. App. at 152

 citing RCW 26. 26. 505, . 530( 1)).




                                                                     6
No. 44546 -8 -II



           As in Parentage of C.S., A.M. C. is           not a    party to this   action.   If A.M.C.' s true father is

                                                                                  3
found, A.M. C. is free to       bring   an action   to   establish parentage.         The statute of limitations binds


only     parties " other   than the   child."   RCW 26. 26. 540( 2).      A.M.C.' s due process rights are not at


issue and we reject Merino' s constitutional arguments. We affirm.


           A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.




We concur:




 3
                                                                                                                 RCW
              may be bound by a " determination of parentage" in
     A   child                                                       certain                    circumstances.


 26. 26. 630( 2). But this action is not a determination of parentage. That  term is defined by the
 statute     as "   the establishment of the parent -child relationship by the signing of a valid
 acknowledgment of paternity under RCW 26.26. 300 through 26. 26. 375 or adjudication by the
 court."      RCW 26. 26. 011( 7).         An action to disestablish paternity does not implicate RCW
 26. 26. 630.
                                                              7
