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Washington v. Fox

filed: March 22, 1996.

STATE OF WASHINGTON, ON BEHALF OF: NICOLE R. MCMICHAEL, A MINOR CHILD, RESPONDENT,
v.
LEON C. FOX, ALLEGED FATHER, APPELLANT, AND REBECCA MCMICHAEL, NATURAL MOTHER.



Superior Court of Mason County. Superior Court Docket No. 90-5-00021-9. Date Filed In Superior Court: October 20, 1993. Superior Court Judge Signing: James Sawyer.

Bridgewater, J., Seinfeld, C.j., Morgan, J.

Author: Bridgewater

BRIDGEWATER, J. -- We are asked by Leon C. Fox to review the action that determined him to be the father of a child under RCW 26.26. We hold that the State violated its duty as guardian ad litem by failing to test another possible father of whom it was aware or to provide an explanation of its failure to do so. Thus, we reverse and remand for the appointment of an independent guardian ad litem for the child and a new trial.

The State, as guardian ad litem for the minor child, Nicole R. McMichael, brought a successful action alleging that Fox was Nicole's natural father.

Nicole's mother, Rebecca McMichael, had intercourse

with Fox without birth control around July 4, 1986. The baby was born 10 months later on April 9, 1987, and was two weeks late. Fox does not assign error to the date of the child's birth, or to the blood test indicating the probability of Fox's paternity to be 99.41 percent,*fn1 but disputes having intercourse during the conception period. The trial court accepted the mother's version, used blood test results and photographic evidence for comparison, and determined Fox to be the father.

Rebecca revealed, that she had intercourse with another identified man, S.R., during the period of conception.

Without stating what efforts it made to locate S.R., the State simply said it could not find him, and therefore did not join him in the action. Pursuant to statute and case law, the trial court granted the State's motion in limine to exclude all reference to S.R.

I

Fox argues that the State failed as guardian to protect the child's due process interest in an accurate determination of paternity by failing to justify why it could not locate S.R. over the course of three years. The State agrees that, as guardian, it had a duty to make a reasonable inquiry to identify and locate other possible fathers, as stated in State ex rel. Henderson v. Woods, 72 Wash. App. 544, 865 P.2d 33 (1994). But, it argues that this duty does not require it to show diligent effort to find S.R.

The court in State v. Santos, 104 Wash. 2d 142, 147, 702 P.2d 1179 (1985) stated that a guardian ad litem represents a child's due process interests, which are to "establish a familial bond and protect himself from an erroneous ...


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