Department of Social Services v. Kenneth S.N.

• Decision Date: 25 July 1983
• Citation: 466 N.Y.S.2d 147,120 Misc.2d 453
• Parties: DEPARTMENT OF SOCIAL SERVICES on Behalf of Janet R., Petitioner, v. KENNETH S. N., Respondent. * Family Court, Suffolk County
• Court: New York Family Court

Page 147

466 N.Y.S.2d 147

120 Misc.2d 453

DEPARTMENT OF SOCIAL SERVICES on Behalf of Janet R., Petitioner, v. KENNETH S. N., Respondent. ^*

Family Court, Suffolk County.

July 25, 1983.

County Attorney's Office, Hauppauge, for petitioner; Martin Marks, Smithtown, of counsel.

Legal Aid Society, Hauppauge, for respondent; Thomas Sartain, Southampton, of counsel.

MEMORANDUM

ARTHUR J. ABRAMS, Judge.

On January 21, 1982, the Suffolk County Department of Social Services filed a paternity petition on behalf of Janet R. seeking (1) an order declaring respondent, Kenneth N., to be the father of a male child, Mark R., born out of wedlock to Ms. R. on January 9, 1973, and, (2) an appropriate order of support for the said child. The respondent interposed a denial and demanded an ABO (red cell) blood grouping test. That test was held, no exclusion found and the matter then calendared for trial on December 2, 1981. Subsequently, the respondent requested a human leucocyte antigen (HLA) test, the request was granted and the test conducted on April 20, 1982 by the Lindsley E. Kimball Research Institute of the New York Blood Center. Upon the respondent's failure to appear on the scheduled trial date, the matter proceeded to inquest (before another judge of this court) and a filiation order entered on June 29, 1982.

Thereafter, on consent of both parties and upon a showing of excuse for the default, the matter was reopened for trial and transferred to the undersigned. The matter was adjourned several times for various reasons, finally testimony was taken on January 11, 1983, January 17, 1983, March 7, 1983, March 8, 1983 and May 20, 1983. Decision was then reserved.

Based upon the credible evidence adduced during the trial, the court makes the following findings:

1. The subject child, Mark R., was born January 9, 1973 in Bay Shore, New York.

2. That such birth was the product of a full-term pregnancy of the natural mother, Janet R.

3. That the respondent, Kenneth N., engaged in sexual intercourse with Ms. R. at the time of probable conception.

4. That the natural mother also engaged in sexual intercourse with a third party, to wit: a Mr. H., at the time of the child's probable conception.

5. That no evidence has been offered that Ms. R. engaged in sexual intercourse with any other male, other than the two others alluded to aforesaid, at the time of the child's conception.

The court does not hesitate to state that if the above were the only findings that we could make in this proceeding, the instant petition would be dismissed. Indeed, considering the relatively undisputed fact that the natural mother had access to and did engage in sex with a third party at the time of conception, the court would be hard put to be clearly convinced that the respondent, and not the third party, was the father of this out of wedlock child. However, the above findings are not the only facts that the court will be called upon to determine in this matter, for the petitioner introduced into evidence the results of the parties' April 20, 1982 HLA blood test. The said test results were received into evidence as a business record under CPLR 4518 upon the testimony of an employee of the Lindsley E. Kimball Research Institute of the New York Blood Center see, e.g. Rosemary W. v. Bruce A., 113 Misc.2d 745, 449 N.Y.S.2d 886. The written HLA blood test results included, rather than excluded, the respondent, Kenneth N., as being the probable father of the child born out of wedlock to Janet R. on January 9, 1973. Nonetheless, the respondent urges that the HLA test result is insufficient to bolster petitioner's evidence to a clear, convincing and entirely satisfactory degree.

There is no dispute that in a proceeding such as this, a properly administered human leucocyte antigen test may be utilized as affirmative proof of paternity. Alicia C. v. Evaristo G., 93 A.D.2d 820, 460 N.Y.S.2d 616, Appellate Division, 2nd Department. The test is widely accepted and has been afforded legislative approval and the results may give rise to prima facie evidence of the facts contained in the said report. Family Court Act § 532, CPLR § 4518(c); Pratt v. Victor B., 112 Misc.2d 487, 448 N.Y.S.2d 351; Catherine H. v. James S., 112 Misc.2d 429, 447 N.Y.S.2d 109. While the respondent does not question the scientific validity of the HLA test or otherwise attack its fundamental basis, his dispute is with the interpretation of the results proffered in this particular case.

The first page of the HLA report states that there are no contraindications to the laws of the theoretical expectancy, (the respondent's) paternity therefore cannot be excluded (see exhibit P). The test report further indicates that there is a "combined paternity index of 38.6 and that the plausibility of the respondent's paternity in this case is .976." While the latter figure is further explained by an attachment to the test result known as Hummel's Predicate wherein such .976 figure is suggested to mean that paternity is "very likely",...