Opinion
Christine S. (Christine), as guardian ad litem for her daughter Laurel, appeals an order denying a petition for heirship filed on behalf of Laurel in the probate of the estate of Laurel’s putative father, Raymond Denis Sanders (Sanders). The order also rejected a request by Christine that DNA (genetic) tests be ordered to establish Sanders was Laurel’s father.
Facts
In his will dated December 12, 1975, Sanders, an educator and filmmaker, bequeathed all of his property in equal shares to his three children:
Laurel was born September 4, 1978. Her mother, Christine, claims Laurel’s father was Sanders.
On March 24, 1989, Christine, as guardian ad litem for Laurel, filed a request for special notice in the probate proceeding. Subsequently, on May 10, 1989, Christine filed a petition for heirship and determination of entitlement to distribution of the estate under former section 1080,
On October 6, 1989, in connection with a status conference scheduled for October 13,1989, Christine filed the following documents: (1) a declaration by an expert in DNA testing; (2) a letter from her attorney to counsel for the
In the letter answering the 34 questions, Christine related, among other things, she and Sanders met in April 1977 when she was a student at UCLA film school. Christine said they had an intimate relationship from late July 1977 through January 1, 1978, and that he was the only person with whom she was having sexual relations from July 1977 through May 1978. Christine stated she believes Laurel was conceived on either the 8th or 9th of December 1977. Christine said to her knowledge Sanders did not know she was pregnant with Laurel as he did not rеturn her phone calls after they broke up in January 1978. Christine said that after Laurel was born Sanders admitted to her that he was Laurel’s father, but that “he did not want to make more emotional and time commitments to another child.” Christine said she did not ask Sanders for child support nor bring an action for paternity while he was alive because “I was afraid of possible reprisal from him regarding custody.” Christine said the only time she asked Sanders for money occurred around 1980 after she was injured during a mugging and out of work for a while; Sanders loaned her $100.
The executor responded by filing, on January 8,1990, a supplement to his objections to the petition for heirship filed on behalf of Laurel. In this filing, the exeсutor claimed (1) there was insufficient evidence to establish a parent and child relationship under section 6408 and (2) the requested DNA tests of Sanders’s surviving children and their mothers cannot fulfill and are not relevant to the requirements of section 6408.
On February 16,1990, the probate court heard the matter, rejecting an oral request by Christine for a continuance.
Discussion
I
Christine contends the trial court erred in failing to order DNA genetic testing.
At the outset we note there were two implicit
First, the trial court’s refusal to order DNA testing of Sanders’s surviving adult children along with their mothers clearly was correct. There can be no doubt the court lacked authority to order the mothers of Sanders’s surviving adult children to give blood samples. (See William M. v. Superior Court (1990)
With respect to Christine’s second proposal for DNA testing of Sanders’s surviving adult children, Christine argues on appeal it was proper under Code of Civil Procedure section 2032 because the surviving adult children are “interested parties” (§ 48) to the probate proceeding. The executor counters that Christine’s proposed DNA tests—whether or not they involve the mothers of Sanders’s adult children—are irrelevant in a probate proceeding under California’s statutory scheme.
The key statute at issue is section 6408, which at the relevant time
“(a) A relationship of parent and child is established for the purpose of determining intestate succession by, through, or from a person in the following circumstances:
“(1) Except as provided in Section 6408.5, the relationship of parent and child exists between a person and his or her natural parents, regardless of the marital status of the natural parents.
*470 «
“(c) For the purpose of determining whether a person is a ‘natural parent’ as that term is used in Section 6408 and 6408.5:
“(1) A natural parent and child relationship is established where that relationship is presumed and not rebutted pursuant to the Uniform Parentage Act, Part 7 (commencing with Section 7000) of Division 4 of the Civil Code.
“(2) A natural parent and child relationship may be established pursuant to any other provisions of the Uniform Parentage Act, except that the relationship may not be еstablished by an action under subdivision (c) of Section 7006 of the Civil Code unless either (A) a court order was entered during the father’s lifetime declaring paternity or (B) paternity is established by clear and convincing evidence that the father has openly and notoriously held out the child as his own. . . .” (Stats. 1985, ch. 982, § 21, p. 3118.)
Christine argues the use of the word “may” in subdivision (c)(2) of the statute renders it a permissive provision rather than a restrictive one. In other words, Christine argues that the statute, while allowing for an action under Civil Code section 7006 to establish paternity and therefore heirship, does not preclude other ways of establishing heirship through paternity, such as DNA testing.
Using well-established principles of statutory сonstruction, we conclude Christine is wrong.
In People v. Wesley (1988)
“The fundamental rule of statutory construction is ascertaining the Legislature’s intent so as to effectuate the purpose of the law. (Select Base Materials v. Board of Equal. (1959)51 Cal.2d 640 , 645 . . . .) A court first turns to the words of the statute itself, giving significance to every word, phrase, sentence and part of an act in furtherance of the legislative purpose if possible. (People v. Black (1982)32 Cal.3d 1 , 5 . . . .) A construction which renders any part of a statute surplusage should be avoided. (People v. Gilbert (1969)1 Cal.3d 475 , 480 . . . .) The statutory language must be construed in context and the various parts of a statute ‘must be harmonized by considering the particular сlause or section in the context of the statutory framework as a whole.’ (People v. Black, supra, p. 5.) The legislative history as well as the historical circumstances of a statute’s enactment may be considered in ascertaining the Legislature’s intent.”
For purposes of intestate succession,
Our review of the legislative history of section 6408 supports this conclusion. Section 6408 was originally enacted in 1983 as part of a comprehensive redrafting of the Probate Code pursuant to recommendations of the California Law Revision Commission. (Stats. 1983, ch. 842, § 55, pp. 3083-3084, operative Jan. 1, 1985.) Section 6408 superseded sections 255
As originally introduced, the 1983 legislation (Assem. Bill No. 25) incorporated the recommendation of the California Law Revision Commission that section 6408 should read as follows:
*472 “(a) If, for purposes of intestate succession, a relationship of parent and child must be established to determine succession by, through, or from a person:
“(1) Except as provided in paragraph (3), the relationship of parent and child exists between a child and its natural parents, regardless of the marital status of the natural parents.
“(2) The relationshiр of parent and child exists between a child and its adoptive parents.
“(b) For purposes of intestate succession, a parent and child relationship exists where such relationship is (1) presumed and not rebutted pursuant to the Uniform Parentage Act, Part 7 (commencing with Section 7000) of Division 4 of the Civil Code, or (2) established pursuant to the Uniform Parentage Act. Nothing in this subdivision limits the methods by which the relationship of parent and child may be established.” (Tentative Recommendation Relating to Wills and Intestate Succession, supra, 16 Cal. Law Revision Com. Rep. pp. 2459-2460, italics added.) As the Law Revision Commission noted, this version of section 6408 is the same in substance as section 2-109 of the Uniform Probate Codе.12 (16 Cal. Law Revision Com. Rep., supra, p. 2460.) The commission also noted that in this version, section 6408, subdivision (b) continues the substance of subdivision (d) of former section 255. (Ibid.) Additionally, the commission stated the second sentence of this version of section 6408, subdivision (b) “makes clear that the parent and child relationship may be established in such other proceedings as a child support action.” (Ibid.)
However, during the legislative process, amendments were made to Assembly Bill No. 25, including one relevant to this case that rewrote the proposed section 6408, subdivision (b), as follows:
“(b) For purposes of intestate succession:
*473 “(1) A parent and child relationship is established where that relationship is presumed and not rebutted pursuant to the Uniform Parentage Act, Part 7 (commencing with Section 7000) of Division 4 of the Civil Code.
“(2) A parent and child relationship may be established pursuant to any other provisions of the Uniform Parentage Act, except that the relationship may not be established for the purposes of intestate succession by an action under subdivision (c) of Section 7006 of the Civil Code unless either (i) a court order was entered during the father’s lifetime declaring paternity or (ii) paternity is established by clear and convincing evidence that the father has openly and notoriously held out the child as his own.” This version of section 6408 was enacted. (Stats. 1983, ch. 842, § 55, pp. 3083-3084.)13
Whereas the original version of section 6408 as first proposed by the California Law Revision Commission continued the substance of former section 255, subdivision (d), the version enacted by the Legislature, by including the “except” clause of paragraph (2) of section 6408, subdivision (b) “restricts the rule of former Section 255 by requiring that if a court order establishing paternity under subdivision (c) of Section 7006 of the Civil Code is entered after the father’s death it must, for the purposes of intestate succession, be supported by clear and convincing evidence that the father has openly and notoriously held out the child as his own.” (See Sen. Com. on Judiciary Rep. on Assem. Bill No. 25, 3 Sen. J. (1983-1984 Reg. Sess.) p. 4883.)
Here, the Legislature rejected the original version of what was then designated section 6408, subdivision (b)(2), which would hаve allowed establishment of the parent and child relationship largely without restriction. In its place, the Legislature substituted—and eventually enacted—a different provision, which significantly restricted the methods of establishing paternity in probate proceedings. “The rejection by the Legislature of a specific provision contained in an act as originally introduced is most persuasive to the conclusion that the act should not be construed to include
Another aspect of the legislative history bolsters our conclusion. Since 1983, when the Legislature adopted this restrictive view of establishing paternity in probate proceedings effective January 1, 1985, the Legislature has revisited section 6408 on three occasions, and has not altered its substantive position on the issue. (See fns. 9 and 13, ante.) Clearly, it has continued to be the intent of the Legislature to discourage dubious paternity claims made after a father’s death for the sole purpose of inheritance.
Christine argues against this restrictive approach by relying on section 1000, which provides: “Except to the extent that this code provides applicable rules, the rules of practice applicable to civil actions apply to, and constitute the rules of practice in, proceedings under this code.” According to Christine, section 1000, is authority for applying Code of Civil Procedure section 2032 to this proceeding. We disagree. Section 6408 provides the rules for determining parent-child relationships for purposes of intestate succession. (See § 6400 as discussed in fn. 10, ante.) Thus, section 1000 by its very terms supports our conclusion that the rules of section 6408 are the operative ones here, regardless of their restrictive nature. Not only does section 1000 state “[e]xcept to the extent that this code provides applicable rules . . . ,” but there also is an established rule of statutory construction that “a specific statutory provision relating to a particular subject will govern, as against a general provision, in matters cоncerning that subject.” (County of San Diego v. Bouchard (1987)
In her reply brief and at oral argument, Christine argues section 11700
We are fully cognizant that the restrictive nature of section 6408, subdivision (c)(2), in establishing rules for proof of paternity in probate proceedings has a harsh effect on children born out of wedlock. At least, in part, the statute invokes a sanction against the child for the laches of the mother in not securing a court decree of paternity timing the lifetime of the father. We also are fully cognizant of a host of United States Supreme Court decisions over the past two decades that have consistently mandated equal legal treatment of legitimate and illegitimate children in a broad range of substantive areas.
As stated above, our task in construing any law is to ascertain the legislative intent. (Metromedia, Inc. v. City of San Diego (1982) 32 Cal.3d
Christine argues that scientific advances, particularly with genetic testing, have rendered our construction of section 6408, subdivision (c)(2), obsolete because these advancements have removed the uncertainty of proving paternity in probate proceedings, which is the justification for the restrictive nature of the statute. Toward this end, Christine has referred us to a wealth of material concerning the efficacy of DNA testing in determining paternity as well as its usefulness in other forensic endeavors, such as identification of criminal suspects. While perhaps only the proverbial ostrich with its head in the sand would dispute the fact remarkable progress has been made in these areas in recent years, we need not dwell on these аdvances.
To the extent that Christine asks us to strike down section 6408 as violative of the principle of equal protection, we decline to do so on the basis of Lalli v. Lalli (1978)
Finally, we note that Christine has cited a number of out-of-state authorities that allow DNA testing in paternity cases, including one involving a probate case. (Alexander v. Alexander (1988)
In sum, under section 6408, which was the operative statute, the trial court did not have authority to order DNA tests to determine the paternity issue. In light of the nonexistence of a court decree issued during Sanders’s lifetime declaring paternity, there was only one method to establish paternity here. That was to show by clear and convincing evidеnce that Sanders openly and notoriously held out Laurel as his child. DNA testing has
II
The record shows the trial court correctly ruled the evidence did not satisfy any of the requirements of section 6408 to establish paternity.
Paternity was not established under section 6408, subdivision (c)(1), because there was no evidence to establish the parent-child relationship by presumption of marriage, attempted marriage or Sanders having received Laurel into his home and openly acknowledging the child as his own. (See Civ. Code, § 7004.) Having failed to establish this last factor—and there being no court order declaring paternity issued during Sanders’s lifetime— paternity could not be established under section 6408, subdivision (c)(2), either.
Disposition
Affirmed.
Kremer, P. J., and Wiener, J., concurred.
Appellant’s petition for review by the Supreme Court was denied April 2, 1992. Mosk, J., and Arabian, J., were of the opinion that the petition should be granted.
Notes
A11 statutory references are to the Probate Code unless otherwise specified.
As of July 1, 1989, sections 1080-1082 were repealed and replaced with sections 11700-11705. (Stats. 1988, ch. 1199, §§ 56.5, 91.5, pp. 3906,3974-3985.) In the most recent revision of the Probate Code, section 11700 was repealed and reenacted without change, operative July 1, 1991. (Stats. 1990, ch. 79, §§ 13,14, operative July 1, 1991.) Under section 3 the new lаw governs here.
Also, on May 10, 1989, Christine filed a second document in which she objected to the executor’s second account and report as well as other filings by the executor in the probate proceeding. On May 23, 1989, the probate court heard and ordered settlement of the executor’s second account and report, approving an agreement concerning distribution of the estate in settlement of the claims of Sander’s surviving spouse and for partial distribution. The court order, filed June 22, 1989, required the estate to remain open pending the determination of the rights of Laurel.
In addition to requesting a continuance, on February 16, 1990, Christine filed a declarаtion by another expert, Dr. Jeffrey Morris, stating he could determine if Sanders was the father of Laurel by DNA analysis of blood samples taken from Laurel, Christine and the three children of Sanders. In other words, according to this second expert’s declaration, it was not necessary to take blood samples from the mothers of Sanders’s children in order to determine if Sanders was the father of Laurel.
Our review of the record does not disclose any formal request or motion by Christine for DNA testing. However, the petition for heirship filed May 10, 1989, prays for “subsequent discovery orders necessary to prove the paternity of Laurel ... by the deceased.” Subsequently, Christine filed declarations by twо DNA experts. We infer from these declarations in conjunction with the prayer from the petition for heirship that Christine proposed DNA testing on two occasions.
Code of Civil Procedure section 2032, subdivision (a), provides in pertinent part: “Any party may obtain discovery, subject to the restrictions set forth in Section 2019, by means of a physical or mental examination of (1) a party to the action, (2) an agent of any party, or (3) a natural person in the custody or under the legal control of a party, in any action in which the mental or physical condition (including the blood group) of that party or other person is in controversy in the action.”
Evidence Code section 892 reads: “In a civil action in which paternity is a relevant fact, the court may upon its own initiative or upon suggestion made by or on behalf of any person whose blood is involved, and shall upon motion of any party to the action made at a time so as not to delay the proceedings unduly, order the mother, child and alleged father to submit to blood tests. . . .”
On appeal, it appears Christine has conceded that blood samples from the mothers of Sanders’s adult children could not have been legally ordered.
In 1990, the Legislature repealed and reenacted the Probate Code, including section 6408, effective July 1, 1991. (Stats. 1990, ch. 79, §§ 13, 14.) This legislation did not make any substantive сhanges to section 6408 that affect this case. Subdivisions (a) and (c) of former section 6408 are now designated as subdivisions (a) and (f), respectively, of the new section 6408. All subsequent references to section 6408 are to the operative statute at the time of this proceeding (Stats. 1985, ch. 982, § 21, p. 3118) unless otherwise specified.
Section 6400 provides: “Any part of the estate of a decedent not effectively disposed of by will passes to the decedent’s heirs as prescribed in this part.” Section 6400 is the first section of part 2 (entitled “Intestate Succession”) of division 6 (entitled “Wills and Intestate Succession”) of the Probate Code. Section 6408 is also contained in part 2 of division 6 of the Probate Code.
Former Probate Code section 255 read in pertinent part: “(d) For purposes of this division, a parent and child relationship exists where such relationship is (1) presumed and not rebutted pursuant to, or (2) established pursuant to, Part 7 (commencing with Section 7000) of Division 4 of the Civil Code.” (Stats. 1975, ch. 1244, § 25, p. 3204.)
Section 2-109 of the Uniform Probate Code provided, at the relevant time: “If, for purposes of intestate succession, a relationship of parent and child must be established to determine succession by, through, or from a person,
“(1) an adopted person is the child of an adopting parent and not of the natural parents except that adoption of a child by the spouse of a natural parent has no effect on the relationship between the child and either natural parent.
“(2) In cases not covered by Paragraph (1), a person is the child of its parents regardless of the marital status of its parents and the parent and child relationship may be established under the [Uniform Parentage Act].”
Section 6408 was amended in 1984 (Stats. 1984, ch. 892, § 41.5, p. 3000) and in 1985 (Stats. 1985, ch. 982, § 21, p. 3118) without substantive change to the issues involved here. (17 Cal. Law Revision Com. Rep. (1984) p. 537; 18 Cal. Law Revision Com. Rep. (1985) p. 289.) The 1985 amendment redesignated section 6408, subdivision (b) as subdivision (c).
“Statements in Legislative committee reports concerning statutory objects and purposes which are in аccord with a reasonable interpretation of the statute serve as legitimate aids in determining Legislative intent.” (Curtis v. County of Los Angeles (1985)
Material included with correspondence by Assemblyman Alister McAlister, the author of Assembly Bill No. 25, to Governor Deukmejian seeking the Governor’s approval of the legislation indicates that the purpose of the restrictive language in section 6408, subdivision (b)(2), as amended, was “to discourage dubious paternity claims from being made after the father’s death for the sole purpose of inheritance.” (See Sept. 6, 1983, letter from Assemblyman A. McAlister to Gov. Deukmejian and enclosures.) Statements of authoring legislators that cast light on the history of the measure and the аrguments before the Legislature when it considered the matter—as opposed to the personal beliefs of the legislator (which may not reflect the collective view of the enacting legislative body)—are indicia of legislative intent. (County of San Diego v. Superior Court (1986)
Section 11700 provides: “At any time after letters are first issued to a general personal representative and before an order for final distribution is made, the personal representative, or any person claiming to be a beneficiary or otherwise entitled to distribution of a share of
See, e.g., Clark v. Jeter (1988)
We do note, however, that in California the appropriate method of validating new scientific methodology is the Kelly-Frye test. (Frye v. United States (D.C. Cir. 1923)
As such, the New York statute was more restrictive than section 6408, subdivision (c)(2).
The plurality opinion made the following observation, which we find also has relevance to section 6408, subdivision (c)(2): “We do not question that there will be some illegitimate children who would be able to establish their relationship to their deceased fathers without serious disruption of the administrаtion of estates and that, as applied to such individuals, [the New York statute] appears to operate unfairly. But few statutory classifications are entirely free from the criticism that they sometimes produce inequitable results. Our inquiry under the Equal Protection Clause does not focus on the abstract ‘fairness’ of a state law, but on whether the statute’s relation to the state interests it is intended to promote is so tenuous that it lacks the rationality contemplated by the Fourteenth Amendment.” (Lalli, supra, 439 U.S. at pp. 272-273 [58 L.Ed.2d at pp. 513-515].)
This statute provides in pertinent part: “Subdivision 1. Blood tests required. The court may, and upon request of a party shall, require the child, mother, or alleged father to submit to blood tests. If the alleged father is dead, the court may, and upon request of a party shall, require the decedent’s parents or brothers or sisters or both to submit to blood tests. However, in a case involving these relatives of an alleged father, who is deceased, the court may refuse to order blood tests if the court makes an express finding that submitting to the tests presents a danger to the health of one or more of these relatives that outweighs the child’s interest in having the tests performed. Unless the person gives consent to the use, the results of any blood tests of the decedent’s parents, brothers or sisters may be used only to establish the right of the child to public assistance including but not limited to social security and veterans’ benefits. The tests shall be performed by a qualified expert appointed by the court.” (Minn. Stat. § 257.62 (1991).)
As the court in Alexander, supra,