2013 VT 2


Columbia v.
Lawton (2011-151)
 
2013 VT 2
 
[Filed 18-Jan-2013]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by
mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont
05609-0801, of any errors in order that corrections may be made before this
opinion goes to press.
 
 

2013 VT 2

 

No. 2011-151

 

Bradley Columbia


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Orleans Unit,


 


Family Division


 


 


Buffy Lawton


March Term, 2012


 


 


 


 


Robert
  P. Gerety, Jr., J.


 

Bradley Columbia, Pro Se, Beattyville, Kentucky,
Plaintiff-Appellant.
 
James A. Valente of Costello Valente & Gentry, P.C,
Brattleboro, and Kathryn A.C. Kennedy of 
  Kennedy Law, PLLC, Randolph, in support of
Plaintiff-Appellant.
 
William H. Sorrell, Attorney General, Bridget C. Asay and
Jody A. Racht, Assistant Attorneys
  General, and Colin Hagan, Law Clerk (On the Brief),
Montpelier for Amicus Curiae Office of
  Attorney General.
 
 
PRESENT:  Reiber, C.J., Dooley, Skoglund, Burgess and
Robinson, JJ.
 
 
¶ 1.            
ROBINSON, J.  This case requires us to consider the
constitutional rights of a putative biological father who seeks an order of
parentage when a court has already issued a parentage order determining the
minor child’s parents.  We conclude that Vermont’s parentage statute does
not authorize a court to allow a second parentage action involving a particular
child brought by or against a different putative parent unless constitutional
considerations require the court to entertain the second parentage case. 
In this case, even if plaintiff is the genetic parent of the minor child, he
does not have constitutionally-protected parental rights.  Accordingly, we
affirm the trial court’s decision denying plaintiff’s motion for genetic testing
and dismissing his complaint for establishment of parentage. 
¶ 2.            
J.B. was born in July 2008.  On July 1, 2010, the Orleans Superior
Court, Family Division, entered a parentage order identifying Buffy Lawton and
Joshua Bacon as legal parents of J.B. and a second child, born in January
2010.  The parentage order was part of an action to establish child
support initiated by the Office of Child Support on behalf of mother.  The
court entered the parentage order based on a stipulation of the parties; the
record contains no evidence of any genetic testing or findings to support the
order other than the parties’ stipulation.  However, the associated June
16, 2010 child support order includes a finding that Ms. Lawton and Mr. Bacon
were “living together as an intact [f]amily.”[1]      
¶ 3.            
Plaintiff Bradley Columbia, representing himself, filed this parentage
action against mother in the Orleans Superior Court, Family Division, on August
4, 2010.  Plaintiff requested that the court order genetic testing to
determine whether plaintiff was the child’s biological father.  In his
sworn affidavit, plaintiff stated that he had a sexual relationship with mother
when she became pregnant with J.B., and that she had told him that he was
J.B.’s father.  In his affidavit, plaintiff also acknowledged that he did
not visit mother and child at the hospital during birth; was not present at the
birth of the child; did not offer to pay for an abortion or other medical expenses;
was not named on the birth certificate; had not acknowledged his parentage in
writing; had not provided food, clothing or financial support for the child;
had not lived with the child; had not visited the child; had not sent cards or
correspondence to the mother regarding the pregnancy and birth of the child;
had not claimed the child on his tax returns; and had not given any gifts to
the child.  Plaintiff circled “do not know” in response to the question of
whether and how the minor child resembled him. 
¶ 4.            
The trial court required plaintiff to join Mr. Bacon as a necessary
party before proceeding with the action and, once Mr. Bacon was joined, held a
hearing in April 2011.  At the hearing, plaintiff reiterated his request
for a genetic test.  Mr. Bacon took no position on plaintiff’s request,
and mother said, “I just want this to be over. . . . So whatever
will make it be over faster is what I want to happen.”  At the hearing,
mother testified that plaintiff had not had any contact with J.B.  Plaintiff
testified that he had a sexual relationship with mother at the time she got
pregnant; he did not contradict mother’s testimony that he had no contact with
the minor child, and did not offer any other evidence beyond the possible
genetic link to support his claim of parentage. 
¶ 5.            
The family court denied the motion for a genetic test and dismissed
plaintiff’s case.  The court found that “[t]here was no credible evidence
presented at the hearing from which this Court could find that it is reasonably
likely that the Plaintiff is the natural father of JB,” acknowledged the prior
parentage order establishing Mr. Bacon’s parental status, and noted that
plaintiff had had no contact with the minor child.  In its conclusions the
court stated:
The
Plaintiff does not have standing to proceed with this parentage
action. . . . Under [15 V.S.A. §] 302(a) a party does not have
standing to proceed with a parentage action in a case where the identity of the
child’s parent has been previously determined in an action under 15 V.S.A.
Section 301 et. seq.  
 
The court went on to state that it
was “unable to find that there is a reasonable probability that the Plaintiff
is the father of the minor child,” and that “it is not in the best interest of
the child to require that genetic testing occur.”  The court thus
concluded that good cause existed to exempt the parties and minor child from
any obligation to undergo genetic testing.  15 V.S.A. § 304. 
¶ 6.            
Plaintiff timely appealed.  In his brief, plaintiff argues that the
trial court’s rigid interpretation of 15 V.S.A. § 302(a) violates his
right to due process as a putative biological father.  Mother, also
representing herself, did not file a responsive brief.  
¶ 7.            
Amici for plaintiff argued that the parentage adjudication in Lawton
v. Bacon was conclusive only as to those parties; that the statute should
not be construed to require that the winner of a “race to the courthouse” be
deemed the legal parent in the face of competing claims; and that the trial
court’s dismissal of plaintiff’s parentage action violated his due process
rights under the United States Constitution.  
¶ 8.            
The Attorney General, as amicus, argued that the trial court was correct
in concluding that 15 V.S.A. § 302(a) does not permit a second parentage
action once a child’s parentage has been adjudicated, that the statute is
constitutional, and that in the exceptional case in which application of the
statutory prohibition against a second parentage action violates a putative
parent’s constitutional rights, Vermont Rule Civil Procedure 60(b) provides an
avenue for relief.
I.
¶ 9.            
The first question we consider on appeal is whether the trial court was
correct in concluding that 15 V.S.A. § 302(a), on its face, does not allow
a second parentage action when a court has already issued an parentage
order.  We review this legal question of statutory interpretation de
novo.  Chayer v. Ethan Allen, Inc., 2008 VT 45, ¶ 9, 183 Vt.
439, 954 A.2d 783.  Our review is nondeferential and plenary.  Benson
v. MVP Health Plan, Inc., 2009 VT 57, ¶ 4, 186 Vt. 97, 978 A.2d
33.  
¶ 10.        
In pertinent part, § 302(a) provides: “An action to establish
parentage in cases where parentage has not been previously determined either
by an action under this subchapter or by adoption, may be brought by . . .
a person alleged or alleging himself or herself to be the natural parent of a
child . . . .”  15 V.S.A. § 302(a) (emphasis
added).  “[W]e presume the Legislature intended the plain, ordinary
meaning of [the] statute.”  Benson, 2009 VT 57, ¶ 4 (quotation
omitted).  The language of § 302(a) is not ambiguous, and expressly
limits the court’s authority to establish parentage pursuant to subchapter 3A
of chapter 5 of Title 15 to cases “where parentage has not been previously
determined” in one of the listed ways.  Where the language of a statute is
clear, our inquiry in construing the statute is “at an end.”  LeClair
v. Reed ex rel. Reed, 2007 VT 89, ¶ 5, 182 Vt. 594, 939 A.2d 466
(mem.).
¶ 11.        
By limiting the availability of a parentage proceeding to cases in which
parentage has not previously been established through a separate parentage
action or adoption, the Legislature has cast its lot on the side of finality
and protection of established parent-child relationships.  As we noted in
a related context, “Whatever the interests of the presumed father in
ascertaining the genetic ‘truth’ of a child’s origins, they remain subsidiary
to the interests of the state, the family, and the child in maintaining the
continuity, financial support, and psychological security of an established
parent-child relationship.”  Godin v. Godin, 168 Vt. 514, 523, 725
A.2d 904, 910 (1998).  In Godin, this Court considered a case in
which, six years after a final divorce decree and associated adjudication of
parentage, a father sought to set aside the parentage finding and to disavow
parentage of a child born during the marriage and presumed for fourteen years
to be his.  Pointing to the “fundamental policy concerns that require
finality of paternity adjudications,” we concluded that the father had failed
to establish sufficient “special circumstances” to warrant setting aside the
judgment pursuant to V.R.C.P. 60(b).  Id. at 520-21, 725 A.2d at
908-09.  We held that “absent a clear and convincing showing that it would
serve the best interests of the child, a prior adjudication of paternity is
conclusive.”  Id. at
523-24, 725 A.2d at 910; see also Lerman v. Lerman, 148 Vt. 629, 528
A.2d 1121 (1987) (mem.) (determining final adjudication of parentage in divorce
order precluded father’s subsequent challenge to parentage in context of child
support enforcement proceedings because res judicata prohibits relitigation of
paternity).
¶ 12.        
In addition, the Legislature’s restriction on multiple parentage actions
reduces the risk of conflicting parentage orders involving the same minor
child.  In a related context, we have rejected an interpretation of the
family law statutes that would allow for competing parentage orders involving
the same child.  In Jones v. Murphy we considered a case in which
shortly following their final divorce order mother and ex-husband filed a
stipulation to amend the order to reflect that ex-husband was not the biological
father of the sixteen-month-old child born during the marriage, and to
expressly hold that ex-husband was not a legal parent.  172 Vt. 86, 772
A.2d 502 (2001).  The trial court amended the final divorce order to
reflect this stipulation, but did so after the nisi period ran. 
Accordingly, the amendment was ineffective and the divorce order assigning
parental status to ex-husband remained in effect.  Id. at 89, 772
A.2d at 504.  
¶ 13.        
In the meantime, mother filed a parentage action against the putative
father, who stipulated to his parentage subject to his right to appeal the
family court’s jurisdiction to entertain a parentage action at all in light of
the family court order providing that ex-husband was the legal parent.  Id.
at 87-88, 772 A.2d at 503-04.  On appeal in the parentage action, we set
aside the trial court’s order, explaining that “reversal is compelled not by
public interest in the finality of paternity determinations, but by the legal
complication occasioned by two conflicting family court determinations, each of
which establishes a different obligor-father to support the same child.”  Id.
at 91, 772 A.2d at 506.  Given the facts of the case—the ex-husband was
not seeking to avoid his longstanding obligations or to destroy the child’s
long-held assumptions, and the biological father’s parentage was ready for
adjudication—this Court was open to an order holding the putative father to be
the minor child’s parent.  Id. at 90, 772 A.2d at 505.  But we
insisted that the proper route to such a result required first that a party
move to set aside the divorce judgment pursuant to Rule 60(b).  We
rejected the notion that our insistence on a different case flow reflected an
emphasis on form over substance, noting that “the effect of the court’s
decision is to establish two conflicting family court determinations, each of
which establishes a different obligor-father to support the same child.”  Id.
at 91, 772 A.2d at 506.
¶ 14.        
One amicus for plaintiff argues that the Lawton v. Bacon judgment
is not conclusive against plaintiff because plaintiff had no notice of that
prior action and did not participate.  We do not disagree with amicus’s
conclusion that res judicata and collateral estoppel do not bar plaintiff’s
parentage action.  However, the impediment to plaintiff’s claim in this
case does not arise from these doctrines; it arises from the terms of the
statute itself.  Although considerations favoring finality of judgments
may underlie both § 302(a) and the judicially-crafted rules regarding
collateral attacks on final judgments, these two sources of legal authority are
distinct.  Nothing in the parentage statute purports to limit the effect
of the prohibition of a second parentage judgment concerning the same child to
parties who participated in the first proceeding.  
¶ 15.        
Amicus for plaintiff invokes our opinions in Godin and Jones
to support the position that the parentage statute allows a second action
involving different parties.  In Godin, when declining to set aside
the parentage judgment in a final divorce order pursuant to a rule 60(b)
motion, we noted in dicta that nothing in our order would “prevent an
interested child from later attempting to ascertain the identity of the child’s
biological father” by filing a parentage action.  168 Vt. at 526, 725 A.2d
at 912.  Amicus argues that this statement suggests that § 302(a)
does not bar parentage actions involving putative parents who were not parties
to the prior parentage action.  
¶ 16.        
Section 302(a) expressly bars a new parentage action when parentage of a
child has previously been established in a parentage action or adoption;
the provision is silent about the availability of a parentage action with
respect to a child whose parentage has been adjudicated in the context of a
divorce action, as in the Godin case.  As a consequence, in Godin,
we did not consider the impact of the limitation in § 302(a) on the minor
child’s possible future initiation of a parentage action.  Additionally,
although we need not reach the issue here, it is not clear that our remark in Godin
survives our decision in Jones.  In Jones, we expressly
rejected a framework that would allow a divorce order adjudicating
parentage to stand alongside a separate and inconsistent adjudication in a parentage
case, and we insisted on a case flow that ensured that a given child be subject
to one and only one court order adjudicating parentage.  
¶ 17.        
Moreover—and, again, we need not decide this question—a child, as
opposed to a parent or putative parent, may have independent constitutional
protections that require that the child be allowed to pursue an independent
parentage action if the child was not a party to the litigation establishing
the identity of his or her parents in the first place.  See, e.g., Johnson
v. Hunter, 447 N.W.2d 871, 876 (Minn. 1989) (discussing child’s independent
constitutional rights concerning establishment and recognition of parent-child
relationships, and concluding that child was not bound by prior dismissal of
paternity action and was entitled to pursue parentage action even though such
action undermined finality and created potentially inconsistent judgments); R.B.
v. C.S., 536 N.W.2d 634 (Minn. Ct. App. 1995) (relying on Johnson v.
Hunter in holding that where parentage had been previously adjudicated,
different putative biological father, who had not made requisite connections
with child to establish constitutionally-protected parental rights, could not
file parentage action—but child, who was not party to original parentage
action, could).
¶ 18.        
We note that the Uniform Parentage Act (UPA), and states whose parentage
statutes follow the UPA, expressly allow for post-adjudication parentage
actions in some circumstances.  See U.L.A. Parentage Act § 609(b)
(2000) (“If a child has an acknowledged father or an adjudicated father, an
individual, other than the child, who is neither a signatory to the
acknowledgment of paternity nor a party to the adjudication and who seeks an
adjudication of paternity of the child must commence a proceeding not later
than two years after the effective date of the acknowledgment or
adjudication.”); see e.g., Wash. Rev. Code § 26.26.540(2) (same, except
requiring commencement of proceedings within four years); Tex. Fam. Code Ann.
§ 160.609(b) (same).  The Vermont Legislature has not included such
language in Vermont’s parentage law, and we presume it drafted the parentage
statute advisedly.  Vt. Human Rights Comm’n v. State, 2012 VT 45,
¶ 7, ___ Vt. ___, 49 A.3d 149.  
¶ 19.        
For the above reasons, absent a constitutional overlay or exception, we
agree that the trial court is not authorized to entertain a parentage action by
a putative parent in the face of an existing final judgment of parentage
arising from a prior parentage action. 
II.
¶ 20.        
The next question is whether this statutory bar to plaintiff’s parentage
action violates his due process rights.
¶ 21.        
The United States Supreme Court has recognized that “the rights to
conceive and to raise one’s children have been deemed ‘essential,’ ‘basic civil
rights’, and ‘rights far more precious than property rights.’ ”  Stanley
v. Illinois, 405 U.S. 645, 651 (1972) (citing Meyer v. Nebraska, 262
U.S. 390, 399 (1923) (alterations omitted)); Skinner v. Oklahoma, 316 U.S.
535, 541 (1942); May v. Anderson, 345 U.S. 528, 533 (1953)).  The
rights of a father are not diminished just because the father is not legally
married to the mother.  Stanley, 405 U.S. at 650-51.  In Stanley,
the United States Supreme Court considered the appeal of a father who had lived
with the mother of his children intermittently over the course of 18
years.  When the mother died, the State of Illinois instituted a
dependency proceeding, and the children were declared wards of the state and
placed with court-appointed guardians based on a statutory presumption of
dependency, without any showing that the father was unfit.  The Supreme
Court stated that Stanley’s interest in retaining custody of his children was
“cognizable and substantial,” id. at 652, and concluded that the State
could not terminate his parental rights without a hearing on his fitness to
parent.  Id. at 657-58; see also In re S.B.L., 150 Vt. 294,
303, 553 A.2d 1078, 1084 (1988) (“[T]he right of a parent to custody and the
liberty interest of parents and children to relate to one another in the
context of the family, free of governmental interference, are basic rights
protected by the United States Constitution.” (quotation omitted)).
¶ 22.        
The Supreme Court has also recognized that this due process protection
of parental rights does not arise solely by virtue of a genetic connection
between parent and child: “Parental rights do not spring full-blown from the
biological connection between parent and child.  They require
relationships more enduring.”  Lehr v. Robertson, 463 U.S. 248, 260
(1983) (quotation omitted).  In Lehr, the Court concluded that New
York courts did not violate the due process rights of Lehr, a putative
biological father, by approving an adoption of the minor child by the mother’s
husband without notice to Lehr.  Id. at 265.  The Court
explained that the constitutionally-protected rights afforded parents are “a
counterpart of the responsibilities they have assumed.”  Id. at
257.  Examining its own prior cases concerning the rights of unwed
fathers, the Court concluded:
When
an unwed father demonstrates a full commitment to the responsibilities of
parenthood by coming forward to participate in the rearing of his child, his
interest in personal contact with his child acquires substantial protection
under the due process clause.  At that point it may be said that he acts
as a father toward his children.  But the mere existence of a biological
link does not merit equivalent constitutional protection.  
 
Id.
at 261 (quotations omitted). 
¶ 23.        
A biological connection thus creates the opportunity to establish
a parent-child relationship, but is not, by itself, tantamount to
parenthood.  As the Court went on to explain:
The
significance of the biological connection is that it offers the natural father
an opportunity that no other male possesses to develop a relationship with his
offspring.  If he grasps that opportunity and accepts some measure of
responsibility for the child’s future, he may enjoy the blessings of the
parent-child relationship and make uniquely valuable contributions to the
child’s development.  If
he fails to do so, the Federal Constitution
will not automatically compel a state to listen to his opinion of where the
child’s best interests lie. 
 
Id.
at 262.  Given that Lehr “never had any significant custodial, personal or
financial relationship” with the minor child, and did not seek to establish a
legal tie until after she was two years old, id., the Court concluded
that his interests were adequately protected by a statutory scheme that would
have provided him notice of the adoption proceedings if he had registered in
the “putative father registry.”  Id. at 264-65.  
¶ 24.        
Reviewing post-Lehr cases, we observed, “most courts and
commentators have concluded that the ‘opportunity interest’ [identified in Lehr]
must be grasped promptly, both before and after the child’s birth, or it will
be lost.”  In re C.L., 2005 VT 34, ¶ 10, 178 Vt. 558, 878 A.2d
207 (mem.).  We also noted that “where the biological [parent] is not only
unwed, but also for some period of time unknown, courts have not
hesitated to conclude that the [parent’s] ignorance will not excuse a belated
failure to act.”  Id. ¶ 11.  We cited approvingly a New
York Court of Appeals explanation for this seemingly harsh approach:
“Promptness is measured in terms of the baby’s life not by the onset of the
father’s awareness.  The demand for prompt action by the father at the
child’s birth is . . . a logical and necessary outgrowth of the State’s
legitimate interest in the child’s need for early permanence and
stability.”  Id.
¶ 25.        
In C.L., we upheld the termination of a biological father’s
parental rights where the trial court did not make an express finding that the
father was unfit to parent the child.  The father did not know about the
child’s existence for nine months after the child’s birth, had only had two
one-hour visits with the sixteen-month-old and her foster mother prior to the TPR
hearing, and was a “virtual stranger to the child, having established no
personal or emotional connection with her.”  Id. ¶¶ 5,
17.  Upon discovery of his paternity, father had not “[made] every
reasonable effort, at the earliest possible date, to seize the opportunity to
establish a parental relationship.”  Id. ¶ 16.  Although the
context of C.L. was different, we relied heavily on our analysis of Lehr
and its progeny “in helping to identify the unique concerns that arise in a
case where the State seeks to terminate the parental rights of a recently
discovered father whose only link to a child is biological.”  Id. ¶
15; cf. In re S.B.L., 150 Vt. at 307-08, 553 A.2d at 1087 (biological
father of child born out of wedlock, who also had requisite relationship
with minor child to be treated as “parent,” was entitled to presumption as
against third parties in guardianship proceeding involving minor child). 
¶ 26.        
Although Lehr involved the rights of a putative biological father
to challenge an existing adoption order through a parentage action, the Court’s
constitutional analysis applies with equal force in the context of a challenge
to an existing parentage order through a subsequent parentage action. 
See, e.g., R.B., 536 N.W.2d at 637 (where putative father’s claim was
based on biology alone, and he had not otherwise shown responsibility for or
formed relationship with minor child, his claim did not rise to level of
constitutional protection, and he could not bring paternity action in face of
existing adjudication).  As the Michigan Court of Appeals explained, “It
is true that both parents and children have a due process liberty interest in
their family life. The protected interest, however, is in the family life, not
in the mere biological link between parent and child.”  Hauser v.
Reilly, 536 N.W.2d 865, 868 (Mich. Ct. App. 1995) (putative father could
not overcome statutory bar to his standing to bring parentage action on basis
of biological link alone).
¶ 27.        
Applying these considerations to this case, we conclude that, even if
plaintiff were found by genetic testing to be the child’s biological father, he
would not have a constitutionally protected parental interest that trumps the
parentage statute’s bar against subsequent parentage cases.  Like the
father in Lehr, plaintiff did not seek to establish a legal tie to the
minor child until more than two years after the child’s birth.  Like the
father in Lehr, plaintiff “never had any significant custodial,
personal, or financial relationship” with the minor child.  463 U.S. at
262.  And like the father in Lehr, plaintiff had ample opportunity
to formally declare and pursue his assertion of parentage through a voluntary
acknowledgment of parentage pursuant to 15 V.S.A. § 307, or a parentage
action in court pursuant to 15 V.S.A. § 302.
¶ 28.        
At oral argument, plaintiff represented that he knew that mother was
pregnant, possibly with his child, before the minor child was born; that after
the child’s birth he had written mother from jail requesting photos of the
child; and that he had held back from pursuing his parentage claim sooner out
of fear for mother’s safety.  Although these statements are not supported
by plaintiff’s initial affidavit nor his hearing testimony, and thus are not
evidence, these facts would not change our conclusion.  If anything,
plaintiff’s acknowledgment that he knew of mother’s pregnancy before the child
was born reinforces our conclusion.  This is not a case in which a
putative parent did not know or have a way of knowing of the existence of the
child.  Plaintiff’s letters to mother asking for photos of the child
showed that plaintiff had an interest in the child, but the request for
pictures, without accompanying efforts to take responsibility for the child by
establishing a relationship, providing nurturing, offering support, or
asserting his legal rights was not enough.  And plaintiff’s explanation
for his inaction, while not unreasonable, does not change the fact that when he
did step forward, more than two years after the child’s birth, he could not
claim any indicia of parenthood other than, possibly, a genetic connection to
the child.  
¶ 29.        
The determination of an individual’s status, or potential status, as a
parent requires consideration of a host of factors, including but not limited
to a child’s genetic connection, or lack thereof, to a putative parent.[2]  Future cases may present closer
questions for courts to consider.  In this case, given that plaintiff had
had no contact or relationship with J.B.—who was nearly three-years old by the
time of the trial court’s hearing on plaintiff’s motion—he did not formally
assert or seek to determine his parentage for more than two years after the
child’s birth, he had not assumed any responsibility for the child’s emotional
or material well-being, and another legally-adjudicated father had lived in a
family relationship with the child, we do not find this to be a close case.
¶ 30.        
Unless the Legislature adopts the most recent version of the UPA, or
otherwise amends the parentage laws to allow a putative parent to seek to
establish parentage in the face of an existing parentage order, we recognize
that we are left with a situation in which some potential putative parents have
a constitutional right to pursue their parentage claims but no clear procedural
mechanism for doing so.  A party to the initial parentage case can seek to
set aside a parentage judgment pursuant to V.R.C.P. 60(b) (applicable in
parentage cases through V.R.F.P. 4(a)).  See, e.g., Godin, 168 Vt.
at 520-26, 725 A.2d at 908-12 (addressing motion to set aside divorce judgment
determining parentage on its merits); Jones, 172 Vt. at 90, 772 A.2d at
505 (requiring mother who filed parentage order against putative father to
first move to set aside finding of parentage in divorce order).  We
realize that this path is arguably not open to someone, like plaintiff, who was
not a party to the original action.  See V.R.C.P. 60(b) (“On motion and
upon such terms as are just, the court may relieve a party . . . from
a final judgment . . . .”).  But see Dunlop v. Pan Am.
World Airways, Inc., 672 F.2d 1044, 1052 (2d Cir. 1982) (“Although rule
60(b)(6) would not ordinarily be available to non-parties to modify final
judgments, we hold that on the facts of this case appellants were sufficiently
connected and identified with the Secretary’s suit to entitle them to standing
to invoke [the rule].”); In re Lawrence, 293 F.3d 615, 627 n.11 (2d Cir.
2002) (“[S]everal circuit courts have permitted a non-party to bring a Rule
60(b) motion or a direct appeal when its interests are strongly affected, and
we have permitted such a motion on at least one occasion.”).  We need not
resolve this question to decide this case, but refer the issue to the Family
Court Rules Committee in the hope that the Committee will recommend a course of
action to clarify the appropriate procedure.
Affirmed.

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 





[1]
 At oral argument, mother represented that Mr. Bacon had signed an
acknowledgment of parentage at the hospital when J.B. was born, that she and
Mr. Bacon had lived together and co-parented J.B. for several years following
J.B.’s birth until several months before the December 2011 oral argument, and
that she and Mr. Bacon shared contact with their children, including J.B., on a
fifty-fifty basis.  We cannot treat these statements as evidence, but do
take notice of the findings in the June 2010 child support order.


[2]
 Because father in this case hangs his hat on a potential genetic link to
the minor child, our analysis focuses on the insufficiency of such a link, by
itself, to trigger the constitutional rights associated with parenthood. 
We do not mean to suggest that a genetic link is necessary to a claim of
parenthood.  We have affirmed a trial court’s refusal to set aside a
divorce order affirming husband’s parentage of the minor child presumed to be
his for fourteen years, even in the face of a claim that he was not the
biological parent.  Godin, 168 Vt. at 524, 725 A.2d at 911 (“It is
thus readily apparent that a parent-child relationship was formed, and it is
that relationship, and not the results of a genetic test, that must
control.”).  Likewise, we affirmed the parentage of a biological mother’s
same-sex partner in the absence of any biological connection on the basis of a
host of other factors, including: (1) the legal union between the biological
and non-biological mother at the time of the child’s birth; (2) the partners’
“expectation and intent” that both would be the child’s parents; (3) the
non-biological mother’s participation in the decision that the biological
mother would rely upon donor insemination to enable her to bear the child; (4)
the non-biological parent’s active participation in the prenatal care and birth;
(5) the fact that both partners treated the child as a child of the
non-biological parent during the time they lived together; and (6) the absence
of “any other claimant to the status of parent.”  Miller-Jenkins v.
Miller-Jenkins, 2006 VT 78, ¶ 56, 180 Vt. 441, 912 A.2d 951; see e.g.,
Matter of Welfare of C.M.G., 516 N.W.2d 555, 561 (Minn. Ct. App. 1994)
(affirming trial court’s order assigning parentage to putative father who
signed acknowledgment of parentage, had established bond with child, wanted to
continue to parent child, and was willing and able to support child over
putative father who was found by blood tests to be child’s genetic father but
who had no interest in developing relationship with child).
 



