Metropolitan News-Enterprise

 

Wednesday, April 14, 2021

 

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C.A.: Judge Had No Authority to Order Genetic Testing in Probate Case

Panel Grants Writ to Man Claiming to Be Grandson of Charles Manson

 

By a MetNews Staff Writer

 

The Court of Appeal for this district yesterday directed the Los Angeles Superior Court to vacate its order that a man claiming to be the grandson of slayer Charles Manson, and entitled by intestate succession to his estate, submit to DNA testing.

Justice Judith Ashmann-Gerst wrote for Div. Two in declaring that there is no statutory basis for the order for DNA testing.

The petition of the alleged grandson, Jason L. Freeman, is contested by a purported longtime friend, Michael A. Channels, who is named as executor in a will, which Freeman contends is a forgery.

Freeman contends his father, Charles Manson Jr., also known as Charles While, was the son of Charles Manson, born during a marriage in the 1950s to Rosalie Handley. An Ohio court, in a default judgment, determined that Manson Jr. was the natural father of Freeman.

Manson—the cult leader who was convicted on nine counts of murder including that of actress Sharon Tate—died in 2017. Manson Jr. committed suicide in 1993.

A Kern Superior Court judge on March 12, 2018, found that Freeman was entitled to Manson’s remains.

Klein Presides

Presiding over the probate proceeding in Los Angeles is Judge Clifford L. Klein. He found that the Ohio judgment was not binding on him because Manson Jr. did not have notice of the proceeding and the Kern judgment was not binding because paternity was not determined.

In making his order, Klein pointed to Probate Code §6453 which says that a parent-child relationship may be determined, for purpose of a probate proceeding, where “[i]t was impossible for the parent to hold out the child as that parent’s own and parentage is established by clear and convincing evidence, which may include genetic DNA evidence acquired during the parent’s lifetime.”

He reasoned:

“The recently enacted California Family Code sections refer only to DNA testing to establish a parent-child relationship, rather than establishing a grandparent-grandchild relationship. Although there is no explicit legal authority to require DNA testing with grandparents, the DNA of Mr. Freeman’s purported father. Charles Manson Jr., is not available. It is also impossible to consider evidence that either Manson as the grandparent or Charles White as the parent held out the child as that parents own due to the grandfathers life imprisonment and Charles White’s death in 1993.”

Broad Construction

Klein continued:

“Technically speaking, parentage of Freeman could be established by genetic DNA evidence acquired during the parent’s lifetime, as such evidence from the decedent Charles Manson most likely would have been acquired during the lifetime of Charles White. If one considers a broader definition of ‘parentage’, the word is defined in American College Dictionary, Third Edition, as ‘descent from parents; lineage’, and lineage is the precise issue in this probate case. However, this technical construction should not be required as the legislative intent to permit DNA testing to determine the identity of a parent would logically be expanded to include grandparents.”

Div. Two disagreed. Ashmann-Gerst said, in the unpublished opinion:

“There is no reference to genetic testing in section 6453. While section 6453, subdivision (b)(3) refers to genetic evidence, that is only with respect to evidence offered during an action under Family Code section 7630, subdivision (c) to determine parentage. Section 6453, subdivision (b)(3) does not authorize a probate court to order genetic testing; rather, it specifies a condition allowing an action under Family Code section 7630, subdivision (c) to establish a natural parent/child relationship for purposes of intestate succession. We conclude that the trial court erred as a matter of law when it ordered genetic testing under the auspices of section 6453.”

She added:

“It bears pointing out that any civil court has the power to order genetic testing under Family Code section 7551, but that power is limited. The statute provides, ‘[I]n a civil action or proceeding in which parentage is a relevant fact, the court may. upon its own initiative or upon suggestion made by or on behalf of any person who is involved,...order the woman who gave  birth, the child, and the alleged genetic parent to submit to genetic testing….It does not authorize a civil court to order genetic testing of a person and the remains of another to prove or disprove a grandparent-grandchild relationship.”

Freeman had appealed Klein’s order. Ashmann-Gerst said the order was not appealable, but opted to treat the appeal as a writ petition, which was granted. She explained:

“[B]ecause the matter at issue is an order compelling a genetic test, and because that test will involve an invasion of Freeman’s privacy that cannot be undone, we exercise our discretion to treat this appeal as a de facto petition for writ of mandate.”

The case is Estate of Manson, B303594.

Alan S. Yockelson represented Freeman and Timothy L. Lyons acted for Channels.

 

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