Department of Social Services on Behalf of Sandra C. v. Thomas J.S.

• Decision Date: 19 March 1984
• Citation: 474 N.Y.S.2d 322,100 A.D.2d 119
• Parties: In the Matter of The DEPARTMENT OF SOCIAL SERVICES, on Behalf of SANDRA C. (Anonymous), Respondent, v. THOMAS J.S. (Anonymous), Appellant.
• Court: New York Supreme Court — Appellate Division

Page 322

474 N.Y.S.2d 322

100 A.D.2d 119

In the Matter of The DEPARTMENT OF SOCIAL SERVICES, on Behalf of SANDRA C. (Anonymous), Respondent, v. THOMAS J.S. (Anonymous), Appellant.

Supreme Court, Appellate Division Second Department.

March 19, 1984.

Patrick Kevin Brosnahan, Jr., Babylon, for appellant.

David J. Gilmartin, County Atty., Hauppauge (Richard Epstein, Hauppauge, on the brief), for respondent.

Robert Abrams, Atty. Gen., Albany (Ronald Glickman, Asst. Atty. Gen., Hauppauge, of counsel), in support of the constitutionality of sections 517 and 532 of the Family Court Act.

Before LAZER, J.P., and BRACKEN, WEINSTEIN and RUBIN, JJ.

BRACKEN, Justice.

On this appeal we are called upon to determine the constitutionality of sections 517 and 532 of the Family Court Act.

In June of 1981, the Suffolk County Department of Social Services instituted a paternity proceeding pursuant to article 5 of the Family Court Act, on behalf of Sandra C., a recipient of public assistance, to adjudicate appellant Thomas J.S. to be the father of a female child born out of wedlock to Sandra C. on October 29, 1976.

After refusing to attend an appointment to undergo blood grouping tests, scheduled for December 10, 1981, appellant moved, inter alia, to vacate a demand that he submit to a human leucocyte antigen (HLA) test. Appellant's motion was premised on the ground that section 532 of the Family Court Act (as amd. by L.1981, ch. 9, § 2), to the extent that it authorizes the results of HLA testing to be used as affirmative proof of paternity, deprives a putative father of his Fourteenth Amendment right to due process of law and equal protection of the laws and his Fifth Amendment privilege against self-incrimination. Additionally, appellant sought an order dismissing the petition as time barred, upon the ground that the 1981 amendment to section 532 rendered section 517 of the Family Court Act, which provides for a 10-year Statute of Limitations where a public welfare official is the petitioner, violative of a putative father's right to due process of law. The Family Court denied appellant's motion, finding both sections to be constitutional. We agree.

FAMILY COURT ACT SECTION 532

In 1981, section 532 of the Family Court Act was amended by adding a provision that:

"[T]he results of the human leucocyte antigen blood tissue test may be received in evidence to aid in the determination of whether the alleged father is or is not the father except in cases where exclusion already has been established by other blood grouping tests" (L.1981, ch. 9, § 2, effective March 2, 1981, emphasis added).

Prior to this amendment, section 532 provided that blood grouping test results could be admitted in evidence "only in cases where definite exclusion is established" (see L.1962, ch. 686, as amd. by L.1976, ch. 665, § 6). The effect of the 1981 amendment was to create an exception to the foregoing rule with respect to the results of an HLA test (L.1981, ch. 9, § 2).

Due Process

Appellant contends that because the results of HLA testing may provide only a 90% chance of exclusion, the 1981 amendment, which allows the affirmative use of test results as evidence of paternity, will deprive 10% of the tested putative fathers of their constitutional right to due process of law. Furthermore, appellant maintains that, in the past, blood grouping tests could be used solely for exclusionary purposes, thereby protecting the alleged father from fraudulent claims, and that this amendment violates such long standing policy by authorizing the results to be used as direct evidence of paternity.

Initially, we note that prior to the 1981 amendment, section 532, which by its provisions precluded blood test results from being admitted in evidence as affirmative proof of paternity, was not an expression of an evidentiary rule that blood tests could be used only as a shield for the putative father's protection. Rather, the section was reflective of the fact that the only blood test available at the time of the original enactment of section 532 in 1962 (L.1962, ch. 686) and its amendment in 1976 (L.1976, ch. 665, § 6), was the Landsteiner blood grouping test, a test involving only the red blood cells. While the test was a reliable and accepted scientific procedure, it was and still is not sophisticated enough to exclude more than 60% of random males because such red blood cell testing involves only a limited number of variables (Matter of Pratt v. Victor B., 112 Misc.2d 487, 488, 448 N.Y.S.2d 351; Matter of Edward K. Marcy R., 106 Misc.2d 506, 434 N.Y.S.2d 108; Lascaris v. Lardeo, 100 Misc.2d 220, 222, 417 N.Y.S.2d 665; 1 Schatkin, Disputed Paternity Proceedings [4th ed., rev.], § 8.13 [Oct., 1983 Supp.] ). The Landsteiner test, therefore, could establish the fact of nonpaternity in a case where the putative father was excluded by the results; conversely, if a putative father was not so excluded, the test was not sufficiently reliable to establish the fact of paternity because there existed a 40% chance, more or less, that based upon untested genetic variables, the putative father might still be excluded. Thus the Landsteiner procedure simply was not precise enough to have probative value as affirmative proof of paternity. Consequently, former section 532 authorized the admission of test results only in a case where such test results excluded a putative father (Matter of Pratt v. Victor B., supra, 112 Misc.2d 488, 448 N.Y.S.2d 351; Matter of Jane L. v. Rodney B., 108 Misc.2d 709, 710, 438 N.Y.S.2d 726; Matter of Edward K. v. Marcy R., supra, 106 Misc.2d p. 509, 434 N.Y.S.2d 108; Matter of Goodrich v. Norman, 100 Misc.2d 33, 36, 421 N.Y.S.2d 285; mem of Assemblyman Saul Weprin, N.Y.Legis.Ann., 1981, pp. 43-44).

In contrast to previously employed blood grouping tests, however, the HLA test is far more comprehensive because it is based upon tissue typing of the white blood cells and involves a much greater number of variables (Matter of Beaudoin v. Tilley, 110 Misc.2d 696, 698, 442 N.Y.S.2d 914; Matter of Goodrich v. Norman, supra, 100 Misc.2d p. 37, 421 N.Y.S.2d 285). The HLA test has been described as follows:

"HLA is a super-system as compared with all the others. It involves many antigens on the lymphocytes (one of the varieties of white cells). These antigens are controlled by several close-linked genetic loci (A,B,C,D...) Presently useful for paternity testing are about 40 antigens of the A and B loci, and these determine a very large number of different types, the most common of which has a frequency of less than 1 percent in the population. These antigens of the A and B series demonstrate exclusion in over 95 percent of cases in which the man is not the father. * * * There is no doubt that the percentage of exclusion by HLA will soon reach 99 percent, and 99.99 percent is not a wild guess" (1 Schatkin, Disputed Paternity Proceedings [4th ed., rev.], § 8.08).

The accuracy of the test is also widely accepted in scientific communities, as evidenced by its use in matching donors and recipients in cases involving organ transplants (Matter of Goodrich v. Norman, supra, p. 37, 421 N.Y.S.2d 285).

Like other blood grouping tests, the HLA test is an exclusionary one, the purpose and effect of which is to establish nonpaternity. However, utilization of the HLA and associated sophisticated tests can increase the probability of exclusion to such a high degree as to affirmatively prove paternity where a putative father is not excluded by the test results. When all test are utilized, including all blood typing tests, and no exclusion results, the average theoretical degree of probability of actual paternity or actual nonpaternity will be 99.999999999% (1 Schatkin, Disputed Paternity Proceedings [4th ed., rev.], § 8.13 [Oct. 1983 Supp., p. 71]; Sussman & Gilja, Blood Grouping Tests for Paternity and Non-Paternity, Table III, Usefulness of Blood Typing in Paternity Cases, N.Y. J. of Med., Mar. 1981, p. 343). The difference in the percentage depends upon the blood type of the particular individuals tested and the number of related blood group systems which are used in addition to the HLA test (Matter of Jane L. v. Rodney B., 108 Misc.2d 709, 712, 438 N.Y.S.2d 726, supra, citing Miale, Jennings, Rettberg, Sell & Krause, Joint AMA-ABA Guidelines: Present Status of Serologic Testing in Problems of Disputed Parentage, 10 Fam.L.Q. 247, 257). ¹

It is clear then that HLA test interpretations are not based upon arbitrarily assigned numerical probability values or upon a statistical theory unsupported by the evidence, but are based upon objectively ascertainable data and a statistical theory based upon research and experiment (Cramer v. Morrison, 88 Cal.App.3d 873, 884, 153 Cal.Rptr. 865). Cognizance of the high degree of probative value of the HLA test on the issue of paternity has been taken (Michaella M.M. v. Abdel Monem El G., 98 A.D.2d 464, 470 N.Y.S.2d 659 [2d Dept., 1984]; Merrill v. Ralston, 95 A.D.2d 177, 181-182, 465 N.Y.S.2d 507; Matter of Commissioner of Social Servs. of County of Erie v. Stephen H., 94 A.D.2d 936, 464 N.Y.S.2d 66; Matter of Bowling v. Coney, 91 A.D.2d 1195, 459 N.Y.S.2d 183; Matter of Sherry K. v. Carpenter, 90 A.D.2d 687, 688, 455 N.Y.S.2d 863; Matter of Joanne O. v. Andrew H.W., 87 A.D.2d 615, 448 N.Y.S.2d 32; Matter of Kimiecik v. Daryl E., 87 A.D.2d 284, 452 N.Y.S.2d 717; Matter of Karen K. v. Christopher D., 86 A.D.2d 633, 446 N.Y.S.2d 346). Moreover, prior to the enactment of the 1981 amendment of section 532 of the Family Court Act, several courts in this State had urged passage of a statute allowing the admissibility of the HLA test results as inclusionary evidence (Matter of Edward K. v. Marcy R., 106 Misc.2d 506, 509, 434 N.Y.S.2d 108, supra; Jane L. v. Rodney B., 103 Misc.2d 9, 12, 425 N.Y.S.2d 235; Matter of Goodrich v. Norman, 100 Misc.2d 33, 38-39, 421 N.Y.S.2d 285, supra ). By its enactment of the 1981 amendment, the...