Albany County Dept. of Social Services on Behalf of Sousis v. Seeberger

• Decision Date: 25 July 1985
• Citation: 112 A.D.2d 674,492 N.Y.S.2d 182
• Parties: In the Matter of ALBANY COUNTY DEPARTMENT OF SOCIAL SERVICES, on Behalf of Marietta P. SOUSIS, Respondent, v. Thomas SEEBERGER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 182

492 N.Y.S.2d 182

112 A.D.2d 674

In the Matter of ALBANY COUNTY DEPARTMENT OF SOCIAL SERVICES, on Behalf of Marietta P. SOUSIS, Respondent, v. Thomas SEEBERGER, Appellant.

Supreme Court, Appellate Division Third Department.

July 25, 1985.

Philip R. Murray, Albany (Albert F. Dingley, Albany, of counsel), for respondent.

Robert W. Kahn, P.C., Albany (Florence M. Richardson, Albany, of counsel), for appellant.

Before CASE, J.P., and WEISS, MIKOLL, LEVINE and HARVEY, JJ.

WEISS, Justice.

Appeal from an order of the Family Court of Albany County, entered May 8, 1984, which directed that respondent submit to a human leucocyte antigen blood-grouping test pursuant to Family Court Act § 532(a).

On this appeal, we are required to decide (1) whether to accept or reject an appeal from a nonfinal order of Family Court, and (2) if we do accept the appeal, whether an order made in a paternity proceeding requiring that respondent submit to a human leucocyte antigen (HLA) blood-grouping test is violative of respondent's privilege not to testify under Family Court Act § 531, his 5th Amendment privilege against self-incrimination, his 4th Amendment protection against unreasonable searches and seizures, or his constitutional right to privacy.

Since the subject order is not an order of disposition, permission from this court to appeal is required (Family Court Act § 1112). Due to the importance of the issue presented, we will consider the appeal as including an application for leave to appeal and grant same nunc pro tunc (see Bohen v. Averbach, 51 A.D.2d 542, 378 N.Y.S.2d 620). For the reasons stated, we conclude that Family Court's order requiring respondent to submit to the HLA blood test was correct.

Initially, we note that this court has held that no conflict exists between Family Court Act § 532, which permits a court to order parties in a paternity proceeding to submit to one or more blood-grouping tests, and § 531, which states that "the respondent shall not be compelled to testify" (Matter of Leromain v. Venduro, 95 A.D.2d 80, 81, 466 N.Y.S.2d 729; see Matter of Department of Social Servs. v. Thomas J.S., 100 A.D.2d 119, 128, 474 N.Y.S.2d 322, appeal dismissed 63 N.Y.2d 675 see also Matter of Pratt v. Schryver, 103 A.D.2d 1016, 1017, 478 N.Y.S.2d 416).

Equally unpersuasive is respondent's argument that his 5th Amendment privilege against self-incrimination would be violated by requiring him to submit to the HLA test. That privilege only protects someone from being compelled to provide evidence of a testimonial or communicative nature. There is no proscription against the withdrawal of blood and use of the analysis as evidence (see Schmerber v. California, supra, 384 U.S. pp. 761-763, 86 S.Ct. at pp. 1830-1831; Matter of Pratt v. Schryver, supra; Matter of Department of Social Services v. Thomas J.S., supra ).

Respondent's argument that his 4th Amendment protection against unreasonable searches and seizures would be violated by compulsory submission to an HLA blood test, while lacking merit, presents a novel contention predicated upon his fear and concern for his health. Our courts have held that upon " 'a prima facie showing of the mother's sexual intercourse with the alleged father during the period when conception must have occurred' ", an order requiring a blood test in a paternity proceeding will withstand constitutional scrutiny against the individual's right to be secure in his person against unreasonable searches and seizures in violation of the 4th Amendment (Matter of Commissioner of Social Servs. of County of Erie v. O'Neil, 94 A.D.2d 480, 482, 464 N.Y.S.2d 889, quoting Matter of Jane L. v. Rodney B., 108 Misc.2d 709, 713-714, 438 N.Y.S.2d 726; see also Schmerber v. California, supra ). In Winston v. Davis, 470 U.S. 753, 105 S.Ct. 1611, 84 L.Ed.2d 662, the United States Supreme Court stated that the 4th Amendment neither forbids nor permits all intrusions, and noted that its function is to constrain against intrusions which are not justified in the particular circumstances or which are made in an improper manner. The Winston court, citing Schmerber v. California (supra), found that "a search for evidence of a crime may be unjustifiable if it endangers the life or health of the suspect" (id. at ----, 105 S.Ct. at 1617). Numerous courts have recognized the crucial importance of this factor (e.g., People v. Smith, 80 Misc.2d 210, 362 N.Y.S.2d 909 Bowden v. State, 256 Ark. 820, 823, 510 S.W.2d 879, 882; State v. Allen, 277 S.C. 595, ...