Child Support Enforcement Agency v. Doe, 23053.

• Decision Date: 25 April 2002
• Docket Number: No. 23053.,23053.
• Parties: CHILD SUPPORT ENFORCEMENT AGENCY, State of Hawai`i, Petitioner-Appellee, v. Jane DOE, Defendant-Appellant, and Jane Roe and John Roe, Defendants-Appellees.
• Court: Hawaii Court of Appeals

53 P.3d 277

99 Haw. 138

CHILD SUPPORT ENFORCEMENT AGENCY, State of Hawai`i, Petitioner-Appellee, v. Jane DOE, Defendant-Appellant, and Jane Roe and John Roe, Defendants-Appellees.

No. 23053.

Intermediate Court of Appeals of Hawai`i.

April 25, 2002.

Certiorari Granted June 7, 2002.

Ninia Stacia Parks for defendant-appellant (defendant-appellant, pro se, on the opening brief; and Nathan R. Brenner and Chris P. Bertelmann (law offices of Nathan R. Brenner) on the reply brief).

Rosemary McShane, Deputy Corporation Counsel, City and County of Honolulu, for petitioner-appellee (Mark G.S. Au and Amy Murakami, Deputies Corporation Counsel, with her on the brief).

John C. McLaren (Park Park Yu & Remillard) for defendants-appellees Lloyd Y. Asato, Special Administrator for the Estate of John Roe, Deceased, and Jane Roe (Arthur Y. Park and Laurent J. Remillard, Jr. with him on the brief).

BURNS, C.J., WATANABE, and FOLEY, JJ.

Opinion of the Court by WATANABE, J.

The dispositive issue in this appeal¹ is whether the Family Court of the First Circuit (the first circuit family court) abused its discretion when it denied a motion by Defendant-Appellant Jane Doe (Grandmother) that sought, among other relief, to: (1) set aside the paternity judgment (the Paternity Judgment) that determined, based on genetic test results stipulated into evidence by the parties, that her deceased son (Putative Father) was the biological father of Daughter, a child born to Defendant-Appellee Jane Roe (Mother) after Putative Father's death; (2) allow, based on newly discovered evidence, further discovery into the circumstances under which Putative Father's blood had been drawn for the genetic test; and (3) set the case for trial on the merits of the paternity issue.

The first circuit family court refused to set aside the Paternity Judgment, determining that even if there were problems with the genetic testing of Putative Father, Mother's oral statement that Putative Father was Daughter's biological father was sufficient evidence, in and of itself, to establish Putative Father's paternity. We conclude that the first circuit family court's denial of Grandmother's motion was based on an erroneous legal ruling. Accordingly, we vacate the order denying Grandmother's motion and remand this case for further proceedings consistent with this opinion.

BACKGROUND

A. The Original Paternity Action

On August 23, 1996, Putative Father died as a result of massive injuries he sustained in a multi-vehicle accident on the island of Hawai`i. On November 18, 1996, Mother gave birth to Daughter in Honolulu on the island of O`ahu. On July 2, 1997, the State of Hawai`i Child Support Enforcement Agency (CSEA) filed a Petition for Paternity in the first circuit family court, seeking to establish that Putative Father was Daughter's biological father and requesting that the "care, custody, and control of" Daughter be granted to Mother. The petition named Mother and Putative Father as defendants in the lawsuit, along with Grandmother, who was alleged in the petition to be Putative Father's mother and the "executor" of Putative Father's estate.²

Following an August 1, 1997 hearing, the parties³ agreed that genetic tests would be conducted to determine the paternity issue. Although blood and tissue samples were readily available from Mother and Daughter, it was not known at the time of the hearing whether any body tissue or fluids from Putative Father existed. On August 8, 1997, a "(Stipulated) Order Regarding Genetic Testing" was filed, which ordered, among other things, that: (1) if available, "[t]issue samples" of Putative Father shall be genetically tested; (2) Mother and Daughter shall submit to genetic testing; and (3) the results of the testing and the computation of probability statistics "shall be received into evidence at the trial ... without the need to lay a foundation, subject to the reservation by any party to call witnesses regarding the weight of evidence to be assigned or the procedures employed in conducting said tests[,]" provided the party calling the witnesses gives two weeks' notification to opposing counsel.

Subsequently, a blood sample from Putative Father was reportedly located at Hilo Hospital, and the parties stipulated⁴ "that the blood sample of [Putative Father] held by Hilo Hospital shall be released to Laboratory Corporation of America, Inc. [(the laboratory)] for the previously ordered genetic testing[.]" The record on appeal does not indicate whether Hilo Hospital received a copy of the stipulation or any other authorization to release the blood sample. Additionally, there is no chain-of-custody documentation in the record regarding: (1) the circumstances under which Putative Father's blood sample was obtained, (2) who collected the blood sample, (3) who transmitted the blood sample to the laboratory, and (4) how the blood sample was transmitted to the laboratory.⁵

Pursuant to Hawaii Revised Statutes (HRS) § 584-11 (Supp.2001), which is part of Hawai`i's Uniform Parentage Act, HRS chapter 584, genetic testing utilized in proceedings to determine paternity "must have a power of exclusion greater than ninety-nine point zero per cent (99.0%) and a minimum combined paternity index of five hundred to one, and shall be performed by an expert qualified as an examiner of genetic markers, appointed by the court."

According to the genetic test results filed in the first circuit family court on November 18, 1997, Mother's and Daughter's blood samples were drawn on October 16, 1997, and Putative Father's blood sample was drawn on August 27, 1996. Additionally, the test results: (1) revealed a combined paternity index⁶ of 2,542 to 1; (2) concluded that Putative Father "cannot be excluded as the biological father of [Daughter], since they share genetic markers"; and (3) determined that "the probability of [Putative Father's] paternity is 99.96%, as compared to an untested, unrelated man."

The Affidavit of Genetic Testing Expert signed by Ruth P. Koester, Ph.D. (Dr. Koester) and attached to the test results did not contain a "chain of custody" recital regarding precisely how, when, and by whom the blood samples were received at the laboratory. Dr. Koester's affidavit declared only that "[s]pecimens were tested from [Mother], [Daughter], and [Putative Father,]" "[t]he samples were delivered to the laboratory by courier[,]" and "[u]pon receipt, all specimens were examined, found to be intact, were logged in, were assigned a unique identification number, and were taken to work stations for testing."

At a December 4, 1997 hearing held after the genetic test results were returned, First Circuit District Family Court Judge Darryl Choy (Judge Choy) and Mother engaged in the following dialogue:

THE COURT: Okay.

You understand the petition claims that you have a child named [Daughter] and that [Putative Father] is the father?

[MOTHER]: Yes.

THE COURT: Okay.

You dispute this at all?

[MOTHER]: Oh, no.

THE COURT: You knew that [Putative Father] was the father of your child?

[MOTHER]: Oh, yeah.

THE COURT: Okay. So this just confirms the-the paternity then.

All right. So, you don't wish to invoke your right to have a trial or to have an attorney regarding whether or not [Putative Father] is the father of your child?

[MOTHER]: Oh, no. The—the—his parents are the ones that saying that it's not his child.

THE COURT: Okay. Very well.

I just want to be certain because you're still named as a defendant in this case.

The first circuit family court thereafter engaged in the following dialogue with Thomas D. Farrell (Farrell or Mr. Farrell), who represented that he was the attorney for Grandmother, in her capacity as "executor" of Putative Father's estate:

THE COURT: ... Now, Mr. Farrell, regarding the 99.96 percentile? ... [Y]ou're the attorney for the estate.

MR. FARRELL: That's correct, your Honor.

THE COURT: The estate is no longer contesting the question of paternity?

MR. FARRELL: The estate no longer contests the question of paternity.

As a small technical matter, your Honor, I would—

THE COURT: Sure. Go ahead.

MR. FARRELL:—note that [Grandmother] is named as a Defendant. And I assume that is only in her capacity as the personal representative of the estate.

THE COURT: . . . [Y]eah. I think so. It is—[Grandmother] is [Putative Father's] mother and executor of estate. I think it's only in that capacity.

MR. FARRELL: All right, your Honor.

THE COURT: Okay.

MR. FARRELL: With—with that understanding and—and on behalf of the estate—and I've talked to my client, I've provided her with a copy of the DNA [(deoxyribonucleic acid)] testing results.⁷ You know, we have no basis at this point to contest paternity.

THE COURT: Very well.

This [c]ourt will then adjudicate the decedent, [Putative Father], as the biological father of [Daughter]. Order that his name be placed on the birth certificate.

(Footnote added.)

On December 9, 1997, Judge Choy entered a judgment decreeing that Putative Father is Daughter's biological father and directing that the State of Hawai`i, Department of Health "prepare a new Certificate of Live Birth for [Daughter] inserting [Putative Father's] name thereon as the father."

B. The Honolulu Advertiser Article and Grandmother's Subsequent Investigation

On August 29, 1999, an article about a just-completed criminal trial of a suspect accused of raping and murdering Dana Ireland (Ireland) appeared on the front page of The Honolulu Advertiser. Entitled "Is suspect missing in Ireland case?[,]" the article stated, in pertinent part:

While many people [in Hilo, Hawai`i] talked of "closure" with the conviction of Franklin Pauline Jr. [(Pauline)] on Friday for the murder of [Ireland], the guilty verdicts did not resolve some of the questions that continue to surround one of [Hawai`i's] most terrible crimes.

One of the most troubling is the question raised by the jury after it convicted Pauline: Was there a fourth person involved in Ireland's 199

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