Commissioner of Social Services of Onondaga County v. Lardeo

• Decision Date: 15 June 1979
• Parties: COMMISSIONER OF SOCIAL SERVICES OF ONONDAGA COUNTY, John Lascaris v. Robert LARDEO.
• Court: New York Family Court

Page 665

417 N.Y.S.2d 665

100 Misc.2d 220

COMMISSIONER OF SOCIAL SERVICES OF ONONDAGA COUNTY, John Lascaris v. Robert LARDEO.

Family Court, Onondaga County.

June 15, 1979.

Clifford LaBarge, Syracuse, for petitioner, Com'r of Social services.

John Parker, III, Syracuse, for respondent.

DECISION

EDWARD J. McLAUGHLIN, Judge.

The issue now before the court is whether or not the Department of Social Services should be required to pay for an HLA test of white blood cells in a paternity action. This court holds that when the respondent is financially unable to pay for the HLA test, the Department of Social Services must pay the cost of the test. Fam.Ct. Act § 532.

FACTS

A paternity petition was filed by the Onondaga County Commissioner of Social Services on July 17, 1978, alleging that the respondent was the father of a child born out of wedlock to a recipient of public assistance. The case came on on August 31, 1978, at which time the respondent did not appear. Counsel was assigned to the respondent and the matter was adjourned until October 2, 1978. In October, respondent denied the allegations of paternity and requested a blood test. The matter was adjourned, so as to permit the respondent to submit a financial statement to the court since he claimed that he did not have the ability to pay for the tests. Subsequently, it was determined by the court that the respondent was financially unable to pay for the costs of the tests and the Department of Social Services was ordered to "pay for any and all the blood grouping tests to be given to the respondent and the alleged child and mother" pursuant to section 532 of the Family Court Act. The standard red blood cell groupings were done. The respondent was not excluded.

Respondent then demanded that the Department of Social Services pay for additional blood work, namely, the HLA white blood cell test. The Department of Social Services maintained that it was not its responsibility to pay for such additional blood work. ¹

The court then heard expert testimony on the HLA (Human Leukocyte Antigen) test. The hearing was limited primarily to two questions: first, is the HLA test a "blood" test and, second, does the scientific community accept the results of the HLA test as reliable to the same degree that the reliability of the standard blood grouping test is presently accepted? Dr. John B. Henry, a professor of pathology and director of clinical pathology at the Upstate Medical Center in Syracuse, New York, who has carried out paternity testing in Syracuse since 1964, testified. He stated that for the last twenty years blood tests for paternity have been limited to red blood cells. In the last ten years, however, there has been an increasing awareness and application of white blood cells, "more specifically, lymphocyte blood cell markers" and their application to paternity. The literature in the field has been referring to these tests for five years, and Dr. Henry has personally been using the white blood cell count for paternity testing for approximately two years.

The test is accepted in the scientific community in both Europe and the United States. Dr. Henry stated his familiarity with the American Medical Association (AMA) and The American Bar Association (ABA) joint report on the use of blood tests in paternity suits. He stated that the report indicated that there was an exclusion rate of approximately sixty percent when the red cell or erythrocyte blood cell markers were tested and that the exclusion percentage was increased to approximately ninety percent when the HLA test was added. ² Dr. Henry testified that he agreed with the recommendations of the AMA-ABA report.

In the present case the erythrocyte antigens that were tested for included the ABO, MNSs, the Kell, the Duffy and the RH. The only erythrocyte red blood cell marker test that was not employed was the Kidd System test, since the anti-sera was not available at the time that the test was done. On the basis of the five tests done by Dr. Henry, it was not possible to exclude the respondent. In his report to the court, Dr. Henry recommended that further lymphocyte testing be done in this case. In his testimony Dr. Henry stated that he felt absolutely confident about the results of the HLA test, if the replicate was properly carried out.

Dr. Henry further testified that the present cost of the red cell test is $50 per person. The present cost of the white cell test is $100 per person. This cost differential is based upon the extra effort that has to be made to pull out the lymphocytes to test them and also upon the fact that it takes two and a half times as long to perform as does the red cell test.

Dr. Henry also said that at this time the term blood test sometimes did and sometimes did not include in its meaning the white cell test. He himself would recommend that first a series of red cell tests be done. Then, if the respondent was not excluded, a series of white cell tests should then be done. Although the HLA tests can be done without the red cell tests first being done, because of the cost involved and the approximately sixty percent exclusion rate of the red cell tests, it is Dr. Henry's opinion that the white cell tests should only be conducted if the first series of tests do not establish an exclusion.

LAW

The Legislature when it enacted Article 5 of the Family Court Act establishing paternity proceedings as within the jurisdiction of the Family Court, recognized that "a principal purpose of the proceeding is to resolve problems of support." Report of the Joint Legislative Committee on Court Reorganization No. 2 The Family Court Act 1962 Session Laws of N.Y. 3446 McKinney's. See also, 1965 Op.Atty.Gen. 130 (Inf.). Recognizing that often a paternity proceeding was commenced to shift the burden of supporting the child from the State to the putative father, or at least reducing the amount of support for which the State is responsible, the Legislature enacted section 532 of the Family Court Act, ³ which, Inter alia, states that "(i)f the alleged father is financially unable to pay for the costs of a test, the court may direct any qualified public health officer to conduct such test," and, where the child is likely to be a public charge, "the court may direct payment . . . from the funds of the public welfare officer." In its report to the Legislature the Joint Committee on Court Reorganization proposed that "blood tests be required in every (paternity) case to be made by official authorities without direct cost to the parties." Joint Legislative Committee on Court Reorganization, Part II, The Family Court Act, p. 97 (1961). See also, Committee Comments, McKinney's Consolidated Laws, Book 29A, Part I § 532 (1975). While "(t)he proposal (of) the Committee was considerably broader in scope than the statutory provision which was ultimately adopted by the Legislature . . . its inclusion as a committee comment following the text of section 532 indicates the spirit with which this section should be interpreted." Commissioner of Social Services of the County of Onondaga v. Jay, 82 Misc.2d 1094, 371 N.Y.S.2d 611 (Fam.Ct. Onondaga Co. 1975).

It has long been the law in New York that the right to a blood test " should not be made dependent upon the financial resources of the defendant." People ex rel. Van Epps v. Doherty, 261 App.Div. 86, 24 N.Y.S.2d 821 (3d Dept. 1941). When a respondent requested a blood test and was denied an adjournment to obtain one, even though he admitted paternity, the appellate court ordered a new hearing, stating that he had been "denied fundamental rights to defend the charges." R.R. v. S.S., 40 App.Div.2d 908, 337 N.Y.S.2d 840 (3d Dept. 1972).

Trial courts have pointed out that the blood test not only protects the respondent from "a fake charge of paternity", Hansom v. Hansom, 75 Misc.2d 3, 346 N.Y.S.2d 996 (Fam.Ct. Richmond Co. 1973), but also that "the public (has) a right to know who is the father of the child or if a particular person is not the father." Matter of Schleimer v. Swann, 93 Misc.2d 520, 402 N.Y.S.2d 897 (Fam.Ct. Rockland Co. 1978). Thus, both the individual and the community are protected from fraud by the use of blood tests to exclude persons scientifically incapable of being the father of a particular child. "An exclusion does not merely impair the petitioner's credibility, nor does it merely disprove the charge. A blood test exclusion conclusively demonstrates non-paternity." Hansom v. Hansom, supra. See also, Larson, M., Blood Test Exclusion Procedures in Paternity Litigation; The Uniform Acts and Beyond, 13 J.Fam.L. 713 (1973-74).

Both children born out of wedlock and putative fathers have been found to possess substantive rights in recent years. For instance, the United States Supreme Court has held that under the equal protection clause of the Fourteenth Amendment a state may not discriminate against illegitimate children by denying them substantial benefits accorded to children generally. Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973). Also, a child born out of wedlock may recover from the wrongful death of its mother, Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968) and may not be discriminated against in payments under the Workmen's Compensation Law. Weber v. Aetna, 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972).

The rights of unwed fathers with regard to their children born out of wedlock are being recognized as increasingly significant. For instance, a father is entitled to a hearing on the subject of his child's custody. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). Recently the United States Supreme Court has held that section 111 of the New York Domestic Relations Law, which permits an unwed mother, but not an unwed father to block the adoption of their...