K.E.N. by Shasky v. R.C.

• Decision Date: 30 March 1994
• Docket Number: No. 930178,930178
• Citation: 513 N.W.2d 892
• Parties: In the Interest of K.E.N., a minor child, by her guardian ad litem, Rosemary SHASKY; Stutsman County, by and through the Stutsman County Social Service Board, as assignee of G.N.; and G.N., Mother, Plaintiffs and Appellees, v. R.C., Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 892

513 N.W.2d 892

In the Interest of K.E.N., a minor child, by her guardian ad

litem, Rosemary SHASKY; Stutsman County, by and through the

Stutsman County Social Service Board, as assignee of G.N.; and G.N., Mother, Plaintiffs and Appellees, v. R.C., Defendant and Appellant.

Civ. No. 930178.

Supreme Court of North Dakota.

March 30, 1994.

Glenn M. Fenske (argued), South Central Child Support Enforcement Unit, Jamestown, for plaintiffs and appellees.

Mackenzie, Jungroth, Mackenzie & Reisnour, Jamestown, for defendant and appellant; argued by James A. Reisnour.

MESCHKE, Justice.

R.C. appeals from a judgment declaring his paternity of K.E.N. and ordering him to pay child support. We affirm, but remand for correction of apparent computational errors.

K.E.N. was born out of wedlock to G.N. on April 24, 1987. G.N. has periodically received AFDC benefits since June 1988, and each time assigned her rights of support to the Social Service Board. In 1990, the Board and G.N. sued R.C. to establish his paternity, to obtain child support for K.E.N., and for reimbursement of medical assistance and AFDC benefits. After a trial without a jury, the trial court held that R.C. was K.E.N.'s father, awarded arrears to G.N. and the Board, and ordered R.C. to pay monthly child support for K.E.N. R.C. appeals.

We conclude the trial court properly found that R.C. is K.E.N.'s father and correctly recognized the full amount of AFDC benefits as assistance for K.E.N. However, the trial court erred in computing R.C.'s arrears, and we remand for correction of the errors.

I.

The evaluation of the blood tests of R.C., G.N., and K.E.N. reported that R.C. "cannot be excluded as the biological father of" K.E.N., and that "the probability of paternity is 99.40% as compared to an untested random man of the North American Caucasian population." R.C. argues that this verified report of genetic test results was inadmissible because the Board failed to establish a foundational chain of custody over the blood samples tested. We conclude that R.C. waived this objection by failing to properly raise it before trial.

The evidentiary use of genetic test results in a paternity case is regulated by NDCC 14-17-11(3). This subsection allows the use of genetic test results as evidence of paternity and is patterned after Section 12 of the Uniform Parentage Act, 9B U.L.A. 317 (1973). However, in 1983 the State Legislature added two non-uniform clauses to subsection 3:

Verified documentation of the chain of custody of the blood specimens is competent evidence to establish the chain of custody. A verified report obtained from an examiner appointed pursuant to section 14-17-10 shall be admitted at trial unless a challenge to the testing procedures or the results of blood analysis has been made before trial.

1983 N.D.Laws ch. 183 Sec. 1. ¹ Together, the clauses ease the burden of evidencing genetic test results at the trial by allowing the use of verified documents in lieu of lengthy testimony. Like other statutory exceptions to save similar tests from the rule against hearsay, verified documentation balances "procedural efficiency and scientific reliability." State v. Jordheim, 508 N.W.2d 878, 881 (N.D.1993). See also NDREv 802 and 901(b)(10). This amendment also aids trial efficiency by requiring that objections to genetic test procedures and results be made before trial.

The report containing the results of R.C.'s paternity test was verified as required by the statute. Although the report was available to R.C. at the pretrial hearing in July 1992, no challenge was made to it before trial in January 1993. ² Therefore, any objections R.C. had to the testing procedures or results were waived. However, R.C. argues that an objection to the chain of custody over the blood samples is not a challenge to the testing procedures or results that needs to be raised before trial. We disagree.

Documentary evidence must be authenticated by connecting it with a person, place or thing. R & D Amusement Corp. v. Christianson, 392 N.W.2d 385, 386 (N.D.1986); NDREv 901(a). Authentication ensures the exhibit is trustworthy enough to be probative on the existence of a fact. NDREv 401. To connect the genetic test results to the parties, a chain of custody for their blood samples must show that the samples tested are the same ones drawn from the parties and in substantially the same condition as when they were drawn. State v. Jordheim, 508 N.W.2d at 883. Thus, an objection to the chain of custody of blood samples is a challenge to the reliability of the genetic test results and, under NDCC 14-17-11(3), must be made before trial.

R.C. argues "[t]he fact that NDCC 14-17-11 mandates expert's blood test results receipt into evidence does not eliminate the necessary evidentiary underpinning of the chain of custody of the blood samples in order to establish the relevancy of the expert's evidence. In re Paternity of J.S.C., 135 Wis.2d 280, 400 N.W.2d 48 (1986)." We agree, but R.C. misunderstands the effect of the 1983 amendment to NDCC 14-17-11(3). The amendment does not remove the obligation of a party to timely object to the erroneous admission of evidence for lack of foundation. NDREv 103(a). The amendment simply advances the time when the objection must be made. If a timely objection is made before trial, the party offering the test results would have time to correct documentation, establish further foundation, or repeat and document the blood tests properly.

R.C. directs our attention to a nearly identical statute and two related decisions in Iowa for his argument. ³ In State ex rel. Wegman v. Schulz, the Iowa Court of Appeals said that test results can "be accepted in evidence only with verified documentation of the chain of custody." 417 N.W.2d 228, 230 (Iowa App.1987), citing State ex rel. Buechler v. Vinsand, 318 N.W.2d 208, 210 (Iowa 1982) (authorization of verified report is statutory exception to hearsay rule). This language by itself appears to support R.C.'s argument. However, the Iowa Supreme Court decision cited in Wegman held that an objection to chain of custody is a challenge to the trustworthiness of the results and must be raised before trial to avoid waiver. State ex rel. Buechler, 318 N.W.2d at 210. See also People in Interest of J.M.A., 803 P.2d 187 (Colo.1990). These decisions, read together, confirm our conclusion that proof of a chain of custody must accompany the verified report of test results, if the objection to the results is made before trial. If not made before trial, the objection is waived.

R.C. also cites State ex rel. Hodges v. Fitzpatrick, 342 N.W.2d 870 (Iowa App.1983). In that case, the blood examiner's report was not verified and therefore was inadmissible hearsay. Id. at 873. If a report does not comply with NDCC 14-17-11(3), the statutory exception to NDREv 802 does not apply, and a foundation for the exhibit must be made under NDREv 901. In this case, unlike Hodges, R.C. does not dispute the report itself was verified, even though the chain-of-custody attachments were not.

Even if a party has not timely objected in the trial court, the erroneous admission of evidence may provide a basis for reversal if it affects substantial rights. NDREv 103(d). A chain-of-custody foundation was clearly lacking for this verified report. The document accompanying R.C.'s blood sample was certified but not verified by the technician drawing the blood. The technician did not testify at trial to overcome this omission. No testimony or verified documentation was presented at all regarding the chain of custody for the tests performed on G.N. and K.E.N. Had R.C. objected before trial, the admission of this report without curative evidence would have been an abuse of discretion.

However, we will reverse for obvious error "only in exceptional situations where the defendant has suffered serious injustice." State v. Dymowski, 459 N.W.2d 777, 780 (N.D.1990). We are not convinced R.C. has been seriously prejudiced by the admission of the test results. R.C. did not request an independent blood test under NDCC 14-17-10, nor did he introduce any evidence that the analysis of the blood samples was flawed or unreliable. Given the 99.40% probability outcome of the tests, it is unlikely that R.C. has suffered any injustice. We conclude that the admission of the verified report in this case was not obvious error.

II.

R.C. argues that the trial court's finding, that "[a]nother party with whom the plaintiff ... was having sexual intercourse was previously excluded by paternity testing," was clearly erroneous. G.N.'s testimony at the pretrial hearing is the only evidence in the record for this finding. R.C. argues pretrial testimony cannot support a trial court's finding unless put into evidence during the trial. See NDCC 14-17-09(1) ("Rules of evidence need not be observed" at the informal pretrial hearing). R.C. argues that the court's finding about another party is unsupported by admissible evidence and is clearly erroneous.

The Board suggests any error is harmless in light of the genetic test results. We agree.

For reversal, an error must affect the substantial rights of a party. NDRCivP 61. Here, the genetic test results were properly admitted into evidence. These results showed a 99.40% probability that R.C. is the father of K.E.N. and raised a presumption that R.C. is K.E.N.'s father. NDCC 14-17-04(f). Once R.C. is presumed to be the father, he has the burden of rebutting the presumption, and the claimant is under no obligation to exclude another man. See Murillo v. Perez, 206 N.J.Super. 196, 502 A.2d 54, 58 (A.D.1985). R.C. did not attempt to rebut this presumption with evidence that genetic tests did not exclude the other man. Therefore, R.C.'s rights were not prejudiced by the court's finding that genetic tests excluded another man from paternity of K.E.N.

III.

R.C. argues that the trial court should not have considered the full amount of AFDC...