Angela B. v. Glenn D.

• Citation: 482 N.Y.S.2d 971,126 Misc.2d 646
• Parties: In the Matter of the Paternity Petition of ANGELA B., Petitioner, v. GLENN D., Respondent.
• Decision Date: 15 November 1984
• Court: New York Family Court

Page 971

482 N.Y.S.2d 971

126 Misc.2d 646

In the Matter of the Paternity Petition of ANGELA B., Petitioner, v. GLENN D., Respondent.

Family Court, New York County.

Nov. 15, 1984.

Frederick A.O. Schwarz, Jr., Corp. Counsel, New York City, for Com'r of Social Services; William Anshen, New York City, of counsel.

Clare L. Hogenauer, New York City, for petitioner.

Hittsman & Hoffman, P.C., New York City, for respondent.

DECISION AND ORDER

STANLEY GARTENSTEIN, Judge:

In the face of almost overwhelming acceptance of the so-called HLA (human leucocyte antigen) ¹ and other blood tests now mandated in filiation proceedings, ² the disturbing question presented in this protracted litigation was bound to arise sooner or later. Paraphrased: In a paternity proceeding, where a judge has carefully heard and weighed the evidence and has concluded that a petitioner's case is utterly devoid of merit, must this conclusion, representing an application of the aggregate skills and instincts of a trained jurist and the evolution of the judicial process over centuries of trial and error yield to the result of a laboratory test which flatly contradicts it? Paraphrased still further in the provocative title used by the author of a recent article in the Brooklyn Bar Association Barrister, HLA Paternity Testing: Who Needs Family Court Judges? (Brooklyn Barrister, # 143).

Translated with specificity to the proceedings now before us, the issue herein involves a petitioner who, the court concludes, cannot differentiate between fact and fiction, and whose testimony strongly suggests that it and other evidence was tailored specifically for this proceeding, as against the results of an HLA blood test which purport to establish respondent as the father of the subject child by a 99.7% plausibility of paternity.

Because of an inchoate malaise harbored increasingly over the years by the undersigned and numbers of his colleagues, unarticulated because this test is rarely challenged directly, the crystallization of this issue takes on major significance requiring reference to the underlying concepts at length.

Realizing full well that no degree of expert testimony can by itself impart to a court's holding that degree of expertise in medicine or statistics, or in their interface, which a definitive study would require, the court nevertheless believes it essential to make in-depth reference to the underlying medical and statistical concepts in the belief that, faced with a legislative enactment, the "... proper judicial role is to accept the plain letter of the statute and to engage in a continuing dialogue with the Legislature, particularly during this experimental period" (Smith v. Jones, 120 Misc.2d 834, 841, 460 N.Y.S.2d 643). This dialogue is made especially appropriate by the potential injustice caused by hundreds, possibly thousands of men across the state who admit paternity relying on the results of this test; courts which too often accept its results without reference to its hidden flaws; ³ and, in the final analysis, a Legislature which has mandated its use possibly without awareness of these flaws.

THE FACTS:

The within filiation proceeding to declare respondent the father of the infant Alexis D., was commenced on June 19, 1983, nine months after her birth. At the protracted trial before the undersigned, petitioner testified that the subject infant was born on September 27, 1982, as a result of a sexual liaison with respondent on January 11, 1982. The relationship between the parties began when petitioner met respondent, an accountant, at a time when they were both working in different capacities for the same accounting firm. After their initial meeting, a relationship ensued as a result of her overtures. This friendship included regular sexual intimacy which took place at respondent's apartment. Petitioner admitted that respondent terminated the relationship in June, 1981. Nevertheless, she claimed continued sporadic sexual relations with him until February 11, 1982. Petitioner also admitted regular sexual encounters with four other men between June, 1981 and February, 1982, yet denied intercourse with any male other than respondent during the critical period, December 1981 through February 11, 1982. Petitioner's specific claim was that she and respondent had sexual intercourse on January 11, 1982; that her last menstrual period was January 2-5, 1982; and that the subject infant was born as a result of this encounter.

To bolster her testimony, petitioner introduced her diary for the period in question which was received in evidence without objection. The entries therein tell more about petitioner than about her relationship with respondent. A partial list of sex partners for this limited period as culled from the diary includes the following impressive array: Larry W., Alfredo V., Darryl H., Tony P., and James C.,--not to mention one Charles W., with whom she shared an apartment and who she falsely listed as her husband (and the father of her three non-existent children) on an apparently perjured application for employment related benefits. Not only did petitioner keep a chronicle of her adventures (incomplete, by her own account) but the listings therein also utilize a rating system which evaluates the sexual prowess of each sex partner. On July 2, 1981, Darryl H., was rated "The best yet!" The following week, speaking of Larry W., the diary informs us that "The earth moved!!! ". Interestingly, on the very day that Darryl H.'s performance was rated "The best yet," petitioner confides to her diary her apparently irresistible attraction for yet another man, one Larry W., about whom she warns herself "If I had any sense at all I'd leave this man alone."

But she didn't. Petitioner's diary documents a relationship with this same Larry W., through and including January 26, 1982, in spite of denials thereof under oath. Moreover, the record further establishes that petitioner was in fact living with said Larry W., through February 22, 1982 at which time her diary establishes that she moved away into her own apartment. It is to be noted that the date of conception herein, January 11, 1982 was at a time when petitioner was still living with said Larry W., without benefit of clergy.

In her demeanor on the witness stand and in the courtroom during the trial, petitioner's demonstrated instability of temperament caused the court to admonish her on more than one occasion. She is currently under psychiatric treatment for emotional instability. When asked about her alleged use of mind distorting drugs, petitioner invoked her privilege against self-incrimination. Her appearance in court was often glassy-eyed and furtive. Her exaggerated sense of the dramatic produced a contradiction concerning sexual encounters between the parties as regards the limited listing in the bill of particulars compared with her claims on the witness stand of sex with respondent on "hundreds " of occasions.

Nor was petitioner's credibility improved by other evidence. In her sworn petition, she alleged a course of sexual relations with respondent commencing on October 22, 1980 and ending on January 20, 1982, flatly contradicting her own testimony which fixed the last act of intercourse as February 11, 1982.

Turning again to petitioner's diaries, it is significant to note that for each and every occasion on which respondent's name appears after June, 1981, the date when he broke off this relationship, it is in fact the very last entry for that particular date. Even more telling is the fact that her diary entry for August 3, 1981, already filled with a prior notation, squeezes respondent's name in sideways. The inference that these entries were made after the fact and in anticipation of litigation appears to be more than justified.

Further comparison of the diary with the bill of particulars leads to another interesting observation. The bill of particulars in listing dates of claimed intercourse between the parties, employs an asterisk to denote those dates wherein it is also claimed that respondent was listed in the diary. Conspicuously absent from this delineation (i.e., containing no asterisk in the bill of particulars) are the crucial dates of January 11, 1982 and February 11, 1982, again giving rise to a justifiable inference that these, possibly all entries,--were fabricated specifically for this litigation.

Respondent testified in his own defense. He confirmed a relationship with petitioner until June, 1981 but categorically denied any physical contact with her thereafter. He admits an innocuous contact with petitioner in January, 1982 in which he met her outside his place of employment for the purpose of lending her $300 for what she claimed to be "personal reasons". He denied sexual intercourse with her on that occasion or at any time subsequent to the date when he terminated their relationship in June, 1981.

In assessing credibility, a trial court which has seen the parties first hand is in an enviable position unattainable by any appellate court which has before it a lifeless transcript. To the court, the most dramatic moment in this protracted trial came during the testimony of Roxanne C., called as a witness by petitioner. On cross-examination, Ms. C. testified that in June, 1981, fully seven months before the conception of the child in issue, respondent had not only broken off this relationship with petitioner, but that petitioner had phoned her (C.), hysterically, seeking (unsuccessfully) her intervention with respondent to have him change his mind about not seeing her again. Not only is this testimony conclusive upon petitioner who called this witness, thereby vouching for her credibility, but its impact upon the atmosphere in the courtroom--on petitioner and her counsel, to the extent of an audible gasp, was the single most telling blow of these adversary proceedings.

As these and other contradictions mounted up, the court was reluctantly...