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LC v. MG

Supreme Court of Hawaii

October 4, 2018

LC, Petitioner-Appellant,
v.
MG and CHILD SUPPORT ENFORCEMENT AGENCY, STATE OF HAWAI'I, Respondents-Appellees.

          APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT (CAAP-16-0000837; FC-P NO. 16-1-6009)

          Rebecca A. Copeland for petitioner-appellant LC

          Peter C. Renn, pro hac vice, and Christopher D. Thomas for respondent-appellee MG

          Clyde J. Wadsworth for amicus curiae State of Hawai'i

          RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ. [1]

          OPINION OF THE COURT EXCEPT AS TO PART III(B) AND OPINION AS TO PART III(B) BY NAKAYAMA, J., IN WHICH RECKTENWALD, C.J., JOINS

         The Uniform Parentage Act (UPA) was adopted by the Hawai'i State Legislature in 1975 to "provide substantive legal equality for all children regardless of the marital status of their parents." H. Stand. Comm. Rep. No. 190, in 1975 House Journal, at 1019. To that end, the UPA presumes legal paternity in certain circumstances. One such presumption of paternity is the marital presumption, which presumes that a man is the natural father of a child when he and the child's mother are married to each other and the child is born during the marriage. The issue in this case is whether this presumption similarly applies in determining whether a woman married to the child's natural mother is the parent of that child.

         Petitioner-Appellant LC sought a divorce from her wife Respondent-Appellee MG in the Family Court of the First Circuit (family court) shortly after a child was born to MG through an artificial insemination procedure. While LC and MG were legally married at the time of the child's birth, LC is not biologically related to the child. After the child was born, LC subsequently sought an order in the family court to disestablish paternity. The family court denied LCs request, determining that under the UPA and Hawaii's Marriage Equality Act (MEA), LC was the child's legal parent. LC appealed, and the case was transferred to this court from the Intermediate Court of Appeals.

         For the reasons discussed below, we first hold that both the UPA and the MEA demonstrate that the UPA's marital presumption of paternity applies equally to both men and women. Therefore, because LC and MG were legally married at the time that the child was born, LC is presumed to be the legal mother of the child. Second, we hold that LC did not rebut the presumption of parentage.

         Accordingly, we conclude that LC is the legal parent of the child, and affirm the family court's November 1, 2016 Decision and Order denying her request to disestablish paternity.

         I. BACKGROUND

         LC and MG first met in 2010, and began a relationship in 2011. At that time, LC was a student at the Naval Academy in Annapolis, Maryland and MG lived in Silver Spring, Maryland. Also during that time, LC and MG began to discuss the possibility of having a child together. On October, 13, 2013, LC and MG were legally married in Washington, D.C. The day after, both parties visited Shady Grove Fertility Reproductive Science Center (Shady Grove) in Rockville, Maryland. There, they both signed Shady Grove's "Ovulation Induction, Monitoring and/or Insemination Treatment" form and a "Consent to Accept Donated Sperm from Anonymous Donor." The consent form read in part,

I/We, [MG] ("Sperm Recipient") and [LC] ("Recipient Partner", if applicable) each hereby jointly and individually elect to utilize donor sperm of an anonymous donor recruited by a Sperm Bank ("Donor") which may be used as part of my/our assisted reproductive technology treatments ....
I have read the "Information Packet for Use of Donor Sperm" as well as this Consent document in its entirety and have had ample time to reach my/our decision free from pressure and coercion, and agree to proceed with my/our participation in the use of donor sperm as stated above.

         The parties decided that MG should carry their first child, because she was older and LC was currently serving in the military.

         The parties relocated to O'ahu, Hawai'i pursuant to LC s military orders and assignment in October 2014. At that time, MG was not employed, and LC financially supported the couple.

         In December 2014, LC and MG jointly attended an appointment at the Fertility Institute of Hawai'i (FIH), met with a physician's assistant, and toured the facility.

         In January 2015, LC deployed overseas and MG remained on O'ahu. While LC was deployed, she continued to communicate with MG regarding MG's plans to become pregnant. On February 23, 2015, MG sent a text message to LC:

I do have to tell you something... I'm so worried about IUI [intrauterine insemination]... I have been checking the PO box every single day waiting for my refund and nothing! My menses is here and I'm supposed to order out [sic] vial on Monday morning. I'm so upset and depressed be I don't have the extra money right now. . .

         The next day, MG texted LC that" it looks like everything is all good. I start clomid[2] tonight and come back in a week. And I'm so happy that I do have Atime' to order our vial!" LC responded, "I'm glad everything went ok."

         On February 25, 2015, LC (still overseas) and MG discussed their relationship through text messages. When MG asked whether LC was having second thoughts about having a child, LC responded that she "want[ed] to make sure we are truly good before we start a family," and "want[ed] a child more than anything but [wanted] them to have parents that adore each other as well as them." MG asked LC whether she was "backing out." LC responded, "What are you talking about backing out? I have always wanted a child[.]" LC stated that she was "concerned about us. I want a loving family that respects each other[.]" The text message exchange ended when MG responded:

[MG:] The way (from our previous convos), I'd stres [sic] taking the pills for he [sic] past few days per doctor's orders
[MG:] I have been taking the pills since Monday to prepare [ . ]
[MG:] I forgot to tell you that.
[MG:] Night!

         The next day, LC responded, "K @ pills."

         On March 2, 2015, a cryobank sent a sperm sample to FIH and billed it to MG. After an ultrasound appointment, MG texted LC about the results of the ultrasound, and stated that FIH would "call [her] later [that day] to let [her] know if we can get IUI tomorrow or Wednesday." After several other texts were sent by MG, LC responded, "Hi honey. Ok. [Talk to you] after my flight. I love you[.]"

         On March 4, 2015, MG signed FIH's "Consent for Intrauterine Insemination." Because LC was overseas, she did not sign the consent form. The IUI procedure also took place on March 4, 2015.

         On March 19, 2015, MG informed LC via text message that she was pregnant. Five hours later, LC responded, "I'sa pregnant!! I love you baby!!! [. . .] [Good morning] honey that's great news to awaken to! [. . .] I get to rub your tummy and feel our baby[.]" When MG asked LC when they should tell people about the pregnancy, LC responded, "You tell me when. I'm telling my mom and brother whenever we do[.]"

         Around Mother's Day 2015, while LC was still deployed, she wrote a "Future Mother's Day Card" to MG. Enclosed in the card was a note to "The Future Mother" from "The Future Momma/Papa." The note also contained a poem which referenced MG's pregnancy and stated that "[y]ou will cry, you will smile, you will look into our child[']s eyes, and w§_ will love you through it all." (Emphasis in original.) The note was signed by LC and after the signature, LC further wrote "I will always be here for our family!" Similarly, on June 8, 2015, LC addressed a postcard to "[MG] & Future Son/Daughter," which stated that LC had gotten MG "a spa kit to let [her] pamper [herself] and for my future child I bought you the softest/coolest Iceland bear I could find. I love you both! Hope you enjoy your gifts!" (Formatting altered.)

         When LC returned to Hawai'i in September 2015, she attended both an ultrasound appointment and a lamaze class with MG.

         On October 7, 2015, LC filed a motion for divorce from MG in the family court. On November 11, 2015, MG gave birth to the child at Castle Medical Center on O'ahu. The child's birth certificate lists MG as the "mother" and LC as the "co-parent". At the time that the child was born, LC and MG were not legally divorced; divorce proceedings were pending.

         A. Family Court Trial

         On January 11, 2016, LC sought an order in the family court to disestablish parentage.[3] LC also submitted a declaration with her petition that stated that she "did not sign any documents stating that she consented to the alleged in vitro fertilization that lead [sic] to the pregnancy," that the child born to MG was not hers, "genetically or otherwise," and that she "never held [the] child out to be her own." (Emphasis in original).

         At trial, MG first called two witnesses to testify as to LC s involvement in MG's medical appointments on O'ahu. First, Robin Washowsky (Washowsky), the business manager of FIH, testified about MG's medical records and LCs consent to MG's IUI procedure. On cross-examination, after being asked to confirm that there is a line for a partner's initials on the "Consent to Receive Cryopreserved Sperm" form, Washowsky was asked how the absence of a spouse's signature on a consent form would affect the patient's procedure.[4] Washowsky responded that "[i]f there's a spouse here, we can have them sign. But in the absence of a spouse, we would still go through with the procedure." Washowsky further testified that there were no signatures or initials from LC anywhere in MG's FIH medical file. Nevertheless, Washowsky testified on redirect examination that if FIH received a withdrawal of consent to an artificial insemination procedure, the clinic would have a duty to inform the patient of that withdrawal. Washowsky further stated that there was no evidence in MG's medical record that MG was notified of any withdrawal of consent.

         Dr. Emilie Stickley (Dr. Stickley), an OB/GYN at Pali Women's Health Center (PWHC), also testified. Dr. Stickley testified that LC attended a July 2015 medical appointment via video conference with MG and herself. Regarding the topics discussed during the appointment, Dr. Stickley stated that neither LC nor MG expressed to her that they no longer wanted to go through with the pregnancy. After the July 2015 appointment, Dr. Stickley did not recall any further contact with LC.

         MG also testified. On direct examination, when asked whether she received any documents from FIH before the birth of the child indicating that LC was trying to withdraw consent, MG responded "no." However, when asked on cross-examination whether she emailed LC copies of the consent to receive sperm that she herself initialed and signed, MG also testified that she did not.

         On the second day of trial, LC testified. LC first testified that she had no involvement in using FIH or choosing a sperm donor. While LC admitted that she and MG discussed the possibility that MG become pregnant by assisted reproduction, LC also testified that she told MG "several times" beginning in March 2014 that she did not want to go forward with assisted reproduction. LC specifically testified:

And before we left - before I left in January [2015], for our anniversary we had this big argument where [MG] said that we should not have children, and I agreed. And then she brought it back up while I was on deployment, and I specifically called her and told her this was not the right time as well as - she hung up, and that's how the whole text message chain started, where again [. . .] I stated that this was not the right time for us to - to have a child.

         LC also believed that her text to MG, which read, "I want to make sure that we are truly good before we start a family" and the following exchange, "specifically" demonstrated that LC did not want to go forward with the pregnancy.

         LC also explained that when she received MG's texts about taking Clomid pills, she knew that because she was eight thousand miles away, there "was nothing [she could] do" to stop MG from taking them. Therefore, LC testified that she just responded "K at pills." LC also stated that it was her understanding that MG was taking the pills "to get ready for the process." LC later testified that when MG sent the text telling her that she was taking Clomid pills, she "called [MG] immediately and told her to -- to pause." LC stated that this was the second time she told MG to stop taking Clomid.

         Similarly, regarding MG's "I'm pregnant" text and LCs response, LC testified that she felt there was nothing she could do to stop MG's pregnancy:

[LC'S COUNSEL:] What did you mean by "our baby"? What's going through your mind when that's happening?
[. - - - ]
[LC:] Oh I believe it was in - so March. So again, after [MG] had already done the IUI and it's confirmed that she is pregnant - I mean, like, at this point there's absolutely nothing that I knew at that time that I can do. [. . .] So I mean, I'm stuck, and she's my wife. So I - I guess it's "our baby."
[LC S COUNSEL: ] I see.
So did you ever tell your mom and brother that - that you were having a baby with - with [MG] or that [MG's] having a baby for you?
[LC:] I - I told my mother and brother that despite my wishes, [MG] is pregnant.

         With respect to the postcard to "[MG] & Future Son/Daughter," LC first denied that she had ever sent the postcard. Instead, LC testified that the postcard, along with the spa kit, was actually in a box of belongings that remained in LCs possession until she returned from deployment. LC testified that she only gave MG these items when she returned home. Specifically, LC stated:

[LC:] So this is - again, this was part of my journal, and there were more entries in my journal of me just expressing everything. [. . .] I've always wanted a child, and I always thought it would be with [MG]. So I'm just expressing everything that I want to do, that I want to actually be able to do. Like - like, she's pregnant, and if it were mine, like, I would be doing all these things. [. . . ]
So I'm just, in this point, trying to figure out - like, hey, this is what I want and, like, you are going to be so loved, and I'm going to get you the best thing from all the places of the world that I will ever possibly go. [.
.] So I grabbed - so bears. I grabbed toiletries. I grabbed as much stuff as I could from this place as well as other places in the world that I went.
THE COURT: Can I interrupt for a second. I just want to clarify something. [. . .] [Y]our testimony is that you were referring to not the child that [MG] was pregnant with, but possibly a future child you'd have with [MG]?
[LC: ] Yes.
THE COURT: At that point, if I understood your testimony correctly - your testimony was that you had told [MG], "Don't go through with this procedure till I'm back."
[LC:] Yes.
THE COURT: And she -- your testimony is that she ignored your - your statements and went ahead and got pregnant anyway. [. . .]
[LC]: Yes .
[. - - - ]
THE COURT: So can you - can you explain to me why you're still considering having a child with [MG] in the future?
[LC:] Again, like, this is - this is my wife, and I was trying to reconcile, like things with her. [. . .] And at this point in time, I'm like, okay, like, yeah, she's done all this bad stuff, but [. . .] maybe there's a chance that we can fix this and everything will be all right, even despite all of this. But more things happened after this date that was just - like, "You care nothing about me, and it's only about you." So yeah, this - this isn't going to work .

         Regarding the ultrasound appointment and the lamaze class that she attended with MG after she returned from deployment, LC testified that because MG did not have a car, she needed to take her. Specifically, because MG requested a ride to her lamaze class, LC testified that she drove her to the class and accompanied her inside.

         Finally, LC attempted to enter into evidence two faxes she sent to Shady Grove and FIH withdrawing consent to an IUI.[5] The fax to Shady Grove is dated January 1, 2014 and LC testified that it was written and sent to the facility a couple of weeks after LC and MG returned from their honeymoon that same month. According to the date stamp on the fax, Shady Grove received the fax on December 9, 2015 (after the child was born).

         B. The Family Court Decision and Order

         On November 1, 2016, the family court entered a decision and order concluding that a legal parent/child relationship existed between LC and the child. The family court therefore denied LC s request for an order that she be disestablished as legal parent of the child.

         In its order, the family court began by describing what it believed to be the fundamental issue in this case: "Does a legal parent/child relationship exist between Petitioner and the Child?" In order to answer that question, the family court looked to the UPA, which lists several circumstances in which a man would presumptively be the "natural father" of a child. Hawai'i Revised Statutes (HRS) § 584-4 (a) (2006).[6] Furthermore, the family court noted that HRS § 584-21 (2006) provides that in actions to declare a mother and child relationship, "[i]nsofar as practicable, the provisions of [the UPA] applicable to the father and child relationship," i.e. provisions like HRS § 584-4 (a), "shall apply."

         The family court also noted that Hawaii's MEA intended that "there be no legal distinction between same-sex married couples and opposite-sex married couples with respect to marriage [ .]"[7]

         Applying these statutory provisions to this case, the family court first determined that HRS § 584-4(a)(1) presumes that a man is the natural father of a child if "he and the child's natural mother are or have been married to each other and the child is born during the marriage." Applying that provision in a gender-neutral fashion as required by HRS § 584-21, the family court determined that because LC and MG, the child's natural ...


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