The question is whether "Father" is the actual father of D.P., because if he is, he's likely entitled to a lot more statutory and constitutional protections than he was given in this case. And there's some evidence that Father is indeed the actual biological father of D.P. since Mother -- who presumably has some clue as to who the father is -- "named father [I think that should read "Father"] as D.P.’s biological father . . . and told the court father was currently in federal prison in Victorville for illegally
entering the country." So Father wants to get a paternity test to figure out if he is, in fact, the father of D.P.
But the trial court denied him that right. The Court of Appeal affirms.
Justice Codrington says that there's simply no way that Father could actually be the father of D.P., so he had no right to paternity test. She says:
"The hospital discharge summary, dated May 20, 2013, attached to the
jurisdiction/disposition report filed May 31, 2013, states D.P. was born prematurely at 28
to 37 weeks. D.P. was thus conceived in late August 2012, after father was incarcerated
in July 2012. Taking into account D.P. was conceived after father was arrested and incarcerated on July 10, 2012, the juvenile court reasonably denied father paternity
testing, since father could not have fathered D.P. while father was incarcerated."
A couple of questions.
First, I'm pretty sure the hospital discharge report doesn't mean that D.P. "was thus conceived in late August 2012." I think that what Justice Codrington means to say is that if D.P. was born prematurely at 28 to 37 weeks, and if he was born around (say) May 15, 2013, then he must have been conceived no earlier than late August 2012, but could have been conceived as late as November 5, 2012. No reason to unnecessarily pin down a conception date that's not supported by the evidence.
Second, I might be a tiny less certain about the precision of a hospital discharge report than the Court of Appeal seems to be. When you're talking about a difference of a month or so (i.e., conception in maybe August 2012 versus incarceration in July 2012), and when the discharge report gives a huge range of 28 to 37 weeks for gestation, I'm not certain I'd rely on that much on a mathematical calculation to "prove" that someone who mother has identified as the father was definitely not, in fact, the father.
I'd instead probably rely less on the hospital discharge report than on simply the date of birth. If D.P. was born around May 15, 2013, and if Mother said that the last time she and Father had sex was prior to his incarceration on July 10, 2012, then that would require a gestation period of over 44 weeks (e.g., over 10 months). Which is not likely. Especially since D.P. was born prematurely. I'd rely more on the fact that a 10-month-plus pregnancy is pretty uncommon, especially for (as here) a meth-addicted mother, alongside the existence of a somewhat premature birth, rather than trying to precisely calculate a conception date based upon a hospital discharge report that wasn't trying to be precise and that included an exceptionally wide range.
Finally, as a practical matter, is it really impossible for Father to be the father just because he was in prison? Mother says he's the father. They definitely appear to have had a relationship. Now, I admit, it'd certainly be difficult to conceive a child while the father's in prison. But the Court of Appeal might have a slightly different perspective than I do on what conduct that in fact takes place in the visiting room of the Victorville prison. I recall one federal prison in California I visited in which an inmate convicted of murder pointed out an isolated area in the visiting room partially shielded by vending machines that he indicated was the place where inmates went to have sex on visitation days. I'm not saying that's necessarily the case here. But even if Father was in prison, I'm not sure I'd be confident that it would require another Immaculate Conception [* See Postscript] for Father to in fact be the biological father of D.P.
My money's admittedly on someone else given the underlying dates. But it definitely ain't a sure thing.
POSTSCRIPT - My reference to the immaculate conception demonstrates conclusively that I needed to pay far more attention in CCD than I apparently did. A reader correctly notes that the Immaculate Conception refers to conception free of original sin. I don't think D.P. needs that. (Though it wouldn't help.) I meant to refer to "virgin birth". My bad. (Doubly bad since I teach at a Catholic law school, no less.)
