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County of San Diego v. Michel Mason

September 14, 2012


APPEAL from a judgment of the Superior Court of San Diego County, William Y. Wood, Commissioner. (Super. Ct. No. DF227343)

The opinion of the court was delivered by: Huffman, Acting P. J.



Michel Mason appeals a judgment of paternity issued by the San Diego County Superior Court based on Mason's failure to comply with an order to submit to a DNA paternity test at a county contracted laboratory. Mason contends that he has a constitutionally protected privacy interest in his DNA (deoxyribonucleic acid) that grants him the right to select a private facility to conduct the paternity test in place of the laboratory with which the San Diego County Department of Child Support Services*fn1 maintains an ongoing contractual relationship. Because Mason's privacy interests are protected by statute and the County has a compelling interest in selecting a laboratory to make an accurate paternity determination, we determine that the trial court's order was proper and affirm the judgment.


Ardella Muhammad is the mother of E.M., and at the time of the complaint was receiving public assistance from San Diego County on behalf of E.M. To offset public expense, the mother was obliged to assign to the County the right to any child support up to the amount of that assistance. (Wel. & Inst. Code, § 11477.) As assignee of the rights to child support owed to the mother, the County had an interest in determining the child's paternity.

The County filed a complaint against Michel Mason on April 27, 2010 to establish Mason as E.M.'s father and to establish the amount of child support Mason was to pay the County on E.M.'s behalf. Mason denied being the father and requested a paternity test. Mason also filed a declaration detailing the DNA collection process and chain of evidence for Genetic Profiles Corporation, a private paternity DNA testing laboratory in San Diego.

At the following two hearings, Mason requested the court order the testing be conducted by Genetic Profiles rather than the County's contracted laboratory, LabCorp. Mason stated concern about his DNA being collected and tested in a government building, by a government contracted company, under the auspices of a branch of the State of California. Mason said he did not know what would happen to his DNA once the County contracted company took his sample, and therefore claimed his constitutional right to privacy gave him the right to control who could take his DNA sample and what they could do with it. The County responded that it had an interest in using, and was statutorily required to use, its contracted laboratory to ensure the proper chain of custody and procedures were in place. The court agreed with the County, but decided to stay enforcement of its order to have testing done through the County contracted laboratory so that Mason could file a writ petition in the appellate court.

Mason filed writ petitions in the Fourth District Court of Appeal and the California Supreme Court, but both courts summarily denied the petitions. Mason also filed a memorandum of points and authorities claiming a right to privacy in his DNA under the First, Fourth, and Fourteenth Amendments to the United States Constitution and under article I, section 1 of the California Constitution. In the memorandum of points and authorities, Mason asserted that his right to privacy gave him the right to choose a private laboratory to conduct the paternity test.

On June 14, 2011, the court ordered Mason, E.M., and the mother to provide genetic samples to the court appointed laboratory, the same County contracted laboratory as had been the topic of dispute, by June 21 to complete a paternity test showing whether Mason was E.M.'s father. E.M. and the mother complied, but Mason did not submit a sample. Instead, at a July 19, 2011 hearing, Mason renewed his objection to the testing through the County contracted laboratory based on his constitutional privacy rights. The court again denied Mason's objection, and then entered a judgment of paternity in accordance with Family Code section 7551 based on Mason's refusal to submit to the paternity test. The court then ordered Mason to pay child support of $300 per month, provide E.M. with health insurance, and cover half of E.M.'s childcare and unreimbursed health care costs. Mason appealed, contending the order requiring him to submit to a paternity test at a County contracted facility violated his privacy rights under the Fourth Amendment to the United States Constitution and article I, section 1 of the California Constitution.


Mason does not directly appeal the statutory authority for the judgment or the process by which it was entered. Rather, his appeal centers on the order that he submit a DNA sample to a government contracted laboratory rather than a private laboratory of his choice for the purpose of conducting a paternity test. Because the judgment of paternity was based on default due to Mason's refusal to submit his sample to the specified lab, a finding in favor of Mason on appeal may be moot as it is no longer relevant whether or where he takes a paternity test. Even when an issue is moot, however, there are circumstances when a court may nonetheless grant review. (County of Fresno v. Shelton (1998) 66 Cal.App.4th 996, 1006.) One such time is where, as here, the issue presented is one of broad public interest that is likely to recur. (Ibid.) Because we affirm the superior court, we need not address whether a reversal would affect the final judgment of paternity based on Mason's refusal to submit to the County's paternity test.

The sole issue on appeal is whether, in a paternity determination proceeding where the government bears the burden of proof, an alleged father has a constitutional right to prevent a government contracted laboratory from conducting a paternity test and to instead select a private laboratory to conduct the test. Before analyzing this issue, it is helpful to recognize what is not being contested. Mason does not object to the physical intrusion of a DNA sample being taken from his person by buccal swab. Mason has consented to this by requesting a paternity test. Mason has also consented to the use of his DNA for the limited purpose of determining whether he is the father of E.M. Finally, the County does not contest Mason's right to have any private laboratory of his choice conduct a paternity test and, if the results differ from those of the County's laboratory, present them to the court as conflicting evidence in the paternity determination.

By now, it is well established that the analysis of a DNA sample is independent from the taking of that sample, and presents its own distinct privacy concerns. (Skinner v. Railway Labor Executives' Assn. (1989) 489 U.S. 602, 616-617; People v. Thomas (2011) 200 Cal.App.4th 338, 341.) Those concerns arise because a person has a privacy interest in his or her own DNA profile and genetic information, even if only obtained and used for identification purposes. (See People v. Robinson (2010) 47 Cal.4th 1104, 1121; United States v. Mitchell (3d Cir. 2011) 652 F.3d 387, 410.) Courts have also recognized that DNA contains an extensive amount of sensitive personal information beyond mere identifying information, and people therefore have a strong privacy interest in controlling the use of their DNA. (Id. at p. 407.) This privacy interest is not absolute, however, and can be abridged for a compelling opposing interest where laws are in place to limit use of the DNA to a specific purpose intended to satisfy that interest. (See Robinson, ...

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