Chandler v. Baker
| Decision Date | 11 December 1985 |
| Docket Number | No. CA,CA |
| Citation | 700 S.W.2d 378,16 Ark.App. 253 |
| Parties | Teresa CHANDLER, Appellant, v. James BAKER, Appellee. 85-239. |
| Court | Arkansas Court of Appeals |
East Arkansas Legal Services, Inc. by James O'Connor, Helena, for appellant.
Henry J. Swift, Osceola, for appellee.
This is an appeal from a decision of the circuit court, sitting without a jury, which held that appellee, James Baker, was not the father of appellant's children, Stanley and Ebony. We affirm.
Without detailing the evidence introduced, we think it sufficient to say that appellant testified that appellee was the father of the children; that there was some evidence to corroborate that possibility; and that appellee admitted a sexual relationship with appellant but testified that this relationship had ended more than a year before her first child was born.
Pursuant to an order of the court, appellant, appellee, and the two children were given blood tests to determine the likelihood of appellee's being the father. Through arrangements made by the Child Support Enforcement Unit, blood samples were drawn in Blytheville, Arkansas, and sent to the National Paternity Laboratories, Inc., in Dayton, Ohio, for testing. The lab report stated that the test results indicated that appellee could not be excluded as a possible father of the children, and it was calculated that the likelihood he was Stanley's father was 190 to 1, and for Ebony the likelihood was 101 to 1.
When this lab report was offered into evidence by appellant, the appellee objected unless the expert making the blood test was present for cross-examination. Appellant declined the option to seek a continuance so that the witness could be present and the court reserved ruling on the report's admissibility until briefs were filed after trial. After considering the briefs, the court ruled the report inadmissible and found for the appellee on the basis that appellant had failed to meet her burden of proof. The appellant argues that under Ark.Stat.Ann. § 34-705.1 (Supp.1985), the report was admissible. That statute, which is the first section of Act 127 of 1955, as amended in 1981 and 1983, provides as follows:
Whenever it shall be relevant to the prosecution or the defense in an illegitimacy action, the trial court may direct that the defendant, complainant and child submit to one (1) or more blood tests or other scientific examinations or tests, to determine whether or not the defendant can be excluded as being the father of the child, and to establish the probability of paternity if the test does not exclude the father [defendant]. The results of the tests shall be receivable in evidence. The tests shall be made by a duly qualified physician, or physicians, or by another duly qualified person, or persons, not to exceed three (3), to be appointed by the court. The costs of the test shall be taxed as other costs in the case or, in the court's discretion, may be taxed against the county. Such experts shall be subject to cross-examination by both parties after the court has caused them to disclose their findings.
We do not agree with appellant's argument that this statute makes the results of the tests admissible and that it simply permits the persons who performed the tests to be cross-examined after the court has caused them to disclose their findings. To the contrary, the statute clearly states that these experts shall be subject to cross-examination. Thus, we think the trial court was correct in ruling that the lab report was not admissible since the persons who performed the blood tests at the laboratory in Dayton, Ohio, were not available for cross-examination.
We also note that this statute may not even apply in this case since the appellant's abstract does not indicate that the persons (or person) who made the tests were appointed by the court. Furthermore, we are not unmindful of the fact that the second section of the 1955 Act was amended by the 1985 General Assembly to provide that a written report of the test results by a duly qualified expert performing the tests, certified by an affidavit duly subscribed and sworn to by him before a notary public, may be introduced in illegitimacy actions without calling such expert as a witness; and if either party desires to question the expert, the party shall have him...
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