Campbell v. Barrow, No. FA03 0634839 (CT 12/28/2004)

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Unpublished Opinion

Shakara Campbell v. Tyron M. Barrow

No. FA03 0634839

Superior Court of Connecticut

Judicial District of Hartford

Family Support Magistrate Division at Hartford

December 28, 2004

MEMORANDUM OF DECISION

BAIRD, MAGISTRATE.

The defendant filed a "Motion to Open Judgment" of the paternity of a minor child. The defendant had executed an acknowledgment of paternity on December 19, 2002, for the child Naviah Ke'ara Barrow, who was born on December 13, 2002.¹ In his motion the defendant requested a DNA test "because I have doubts that the child in this matter is mine." The plaintiff appeared, a guardian ad litem for the minor child was appointed and the court held a hearing on the issue.

The defendant testified that he was not told anything about his rights when he signed the paternity acknowledgment at St. Francis Hospital where the child was born. He said that "the lady at the records office" told him where to sign for paternity, that he was told he had to sign within ten days of the birth of the child, or else child support would be pursued. The defendant testified that he signed that acknowledgment because he wanted to keep things "civilized." The defendant testified that nothing was said about his rights when he signed the papers. The form was given to him, he signed it, he said that he did not know about his rights for DNA testing and that he did not read the form. He said if his rights had been explained that he would not have signed.

The defendant also testified that he signed papers for another child who was born the same day. He distinguished the signing for that child testifying "I was with . . . that woman," that he only had affairs with the plaintiff, and that their relationship was not "steady." The defendant claimed that he was not sure that he was the only person the plaintiff was with and that he has doubts whether he is the father. The defendant testified that he has no relationship, no bond with the child. He stated that he desires a relationship with the child if the paternity tests show that he is the father.

The plaintiff testified that the defendant signed the acknowledgment in her presence and that the person taking his oath read him the advisement which appears on the printed form before the oath.² She also testified generally that he was told his "rights." The defendant stated that he was not given a copy of the acknowledgment after he signed it. When questioned whether he read the back of the form, he said he didn't know there was a back. Upon questioning, the defendant specifically denied knowing about his right to rescind the acknowledgment. The plaintiff testified that she saw him put a copy in his wallet.

The plaintiff confirmed the testimony that he has no relationship with the child. The guardian ad litem expressed his opinion that it would be in the child's best interests to know for certain who her father is, noting the child is only two years old. He confirmed that there is no relationship between the defendant and the child. The plaintiff mother stated that she did not object to a paternity test.

The state of Connecticut argued that the acknowledgment of paternity was valid and that the defendant, had failed to properly rescind the acknowledgment within the sixty days or to allege fraud, duress or mistake, as provided pursuant to the General Statutes §46b-172(a)(2).

I

Under the claims of this case the court must determine whether the defendant's acknowledgment of paternity was executed properly in accordance with General Statutes §46b-172(a)(1). The statute provides, in pertinent part, that "[s]uch acknowledgment shall not be binding unless, prior to the signing of any affirmation or acknowledgment of paternity, the mother and the putative father are given oral and written notice of the legal consequences of, and the rights and responsibilities that arise from signing such affirmation or acknowledgment . . . The notice to the putative father shall include, but not be limited to notice that such father has the right to contest paternity, including the right to appointment of counsel, a genetic test to determine paternity and a trial by the superior court or a family support magistrate and that acknowledgment of paternity will make such father liable for the financial support of the child until the child's eighteenth birthday. In addition, the notice shall inform the mother and the father that DNA testing may be able to establish paternity with a high degree of accuracy and may under certain circumstances, be available at state expense. The notices shall also explain the right to rescind the acknowledgment as set forth in subdivision (2)³ of this subsection, including the address where such notice of recission should be sent, and shall explain that the acknowledgment cannot be challenged after sixty days, except in court upon a showing of fraud, duress or material mistake of fact which may include evidence he is not the father."

In defense against defendant's claim, the state of Connecticut offered a one-page facsimile of the acknowledgment of paternity executed by the defendant. The state did not provide the court a copy of the back of the acknowledgment form, only the front. The court takes judicial notice that the full rights for a signor of an acknowledgment of paternity are printed on the reverse side of the four-copy VS-56 form, which is the Connecticut Department of Health, Acknowledgment of Paternity form. The state claims that the defendant properly executed an acknowledgment of paternity and that the acknowledgment remains valid.

"It is well established that [i]n a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony . . . [The Supreme Court,] afford[s] great weight to the trial court's findings because of its function to weigh the evidence and determine credibility. e.g., Drabik v. East Lyme, 234 Conn. 390, 394-95, 662 A.2d 118 (1995); De La Concha of Hartford, Inc. v. Aetna Life Ins. Co., 269 Conn. 424, 431-32 (2004).

The court has the right to accept part and disregard part of the testimony of any witness. Barrila v. Blake, 190 Conn. 631, 639, 461 A.2d 1375 (1983); Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981); Rood v. Russo, 161 Conn. 1, 3, 283 A.2d 220 (1971) . . ." (Citations omitted.)

The court finds credible the plaintiff's specific testimony that the section before the signature line was read to the defendant and that he was given a copy which she observed him place in his wallet. However, the court cannot find that he was given anything more than what is in evidence, a facsimile copy of the executed front side of the VS-56. The court does not find credible the plaintiff's vague testimony that the defendant was told his rights. The court finds credible the defendant's testimony that he was not told his full rights including the right to rescind the acknowledgment and the specifics how to do it. Based upon the evidence, the court finds that the entire document was not read to him, and that his entire rights were neither explained to him or read to him.

The court additionally finds that a reading of the paragraph before a putative father's signature is not adequate notice pursuant to General Statutes §46b-172(a)(1). The defendant testified and it was not controverted that he did not read anything he just signed. Said paragraph does not include a notice about the signor's specific right to contest, only the right to counsel, DNA testing and trial. There is no advisement as to rescission rights, and the address to which the rescission is to be sent. The statement does not provide notice that there is a high degree of accuracy to DNA testing and of the availability "under certain circumstances" of the state to pay for the cost of the testing.

Based upon the foregoing the court finds that the defendant has not validly waived his rights pursuant to §§46b-172(a)(1) and (2). In Delgado v. Martinez, 25 Conn.App. 155, 157, 593 A.2d 518 (1991),⁴ the court held that a statute of limitations does not run against a person who has not "validly waived his procedural due process rights." That case involved a defendant whose acknowledgment form did not properly include the clear advisement of rights and a provision for the waiver of those rights mandated by Stone v. Maher, supra, 527 F.Sup. 10 (D.Conn. 1980). "A waiver can only be effective if one knows one has a specific right and voluntarily and intelligently relinquishes it." State v. Patterson, 31 Conn.App. 278, 294, 624 A.2d 1146 (1993), rev'd on other grounds, 230 Conn. 385, 674 A.2d 416 (1994), quoting, Delgado v. Martinez, 25 Conn.App. 155, 158, 593 A.2d 518 (1991).

"[W]aiver involves `an intentional relinquishment of a known right . . . Whether conduct constitutes a waiver is a question of fact.' " Ford v. Ford, 72 Conn.App. 137, 142, 804 A.2d 215 (2002). "Waiver is an intentional relinquishment or abandonment of a known right or privilege. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); McClain v. Manson, 183 Conn. 418, 428, 439 A.2d 430 (1981). It involves the idea of assent, and assent is an act of understanding . . . The rule is applicable that no one shall be permitted to deny that he intended the natural consequences of his acts and conduct. (Internal quotation marks omitted.) MacKay v. Aetna Life Ins. Co., 118 Conn. 538, 547-48, 173 A. 783 (1934); General Accident Ins. Co. of America. v. Powers, Belles, Houlihan & Hartline, Inc., 50 Conn.App. 701, 711-12, 719 A.2d 77 (1998), aff'd, 251 Conn. 56, 738 A.2d 168 (1999). In order to waive a claim of law it is not necessary . . . that a party be certain of the correctness of the claim and its legal efficacy. It is enough if he knows of the existence of the claim and of its reasonably possible efficacy. Jenkins v. Indemnity Ins. Co. of North America, 152 Conn. 249, 257-58, 205 A.2d 780 (1964)." (...