L.I. v. E.T.R.

• Decision Date: 17 July 1992
• Parties: In the Matter of L.I., the mother and legal guardian of L.J.I., * Petitioner, v. E.T.R. a/k/a T., * Respondent.
• Court: New York Family Court

Page 65

588 N.Y.S.2d 65

155 Misc.2d 74

In the Matter of L.I., the mother and legal guardian of

L.J.I., ^* Petitioner, v. E.T.R. a/k/a T., ^* Respondent.

Family Court, City of New York,

New York County.

July 17, 1992.

Colin D. Bull, Legal Aid Soc. (Leah A. Hill, of counsel), for petitioner.

Virginia A. LoPreto, New York City, for respondent.

SHELDON M. RAND, Judge:

The interesting issue presented by respondent's motion to dismiss this paternity petition is whether petitioner should be permitted to challenge the results of HLA and DNA tests, which exclude respondent as the father, when the child was born with a genetic condition which she might have inherited from respondent.

FACTS

This paternity action was commenced by petitioner-mother on May 28, 1991, wherein she claims that respondent is the father of her daughter. The child was born on March 1, 1990. From the time of the child's birth until shortly before this proceeding, petitioner states that respondent supported the child. Thereafter, his support ceased. On July 12, 1991, respondent denied the allegations of paternity and obligations of financial support before Hearing Examiner Francine Seiden. Respondent, petitioner, and the child were ordered to submit to blood genetic marker tests. Both human leucocyte antigen (HLA) and deoxyribonucleic acid (DNA) probe analyses were conducted.

On December 3, 1991, the parties appeared in court and were given copies of the HLA and DNA test reports. Both reports excluded respondent as being the biological father of petitioner's child. Petitioner advised the hearing examiner that she sought to challenge the results of the tests. The case was then sent to an assignment part for trial. On April 8, 1992, the parties appeared before this court, and the case was adjourned until June 12, 1992. On June 12, petitioner was served with the instant motion to dismiss this paternity action pursuant to F.C.A. § 541 ¹ and CPLR § 3211 ².

CONTENTIONS OF THE PARTIES

Respondent argues that dismissal is appropriate because the conclusiveness of DNA and HLA test results excluding paternity cannot be overcome by petitioner's speculation that the test results are wrong. He claims that since both tests exclude paternity, there is simply no basis to challenge the results. While questions may exist surrounding the conclusiveness of blood test results regarding inclusiveness--that is--results which establish the probability of paternity, respondent argues that no questions exist regarding the conclusiveness of test results which exclude paternity.

Petitioner, however, alleges that objective evidence exists to support her claim that respondent is indeed the father of her child. According to an affidavit submitted by the child's pediatrician, the child was born with an inherited condition known as polydactyly. Polydactyly is defined as the presence of more than five digits on either hand or foot. (Steadman's Medical Dictionary, 22nd Ed., Williams and Williams Publishers, 1972). Upon consultation with the pediatrician, petitioner claims that she was told that polydactyly is genetic, and that it is typically seen in at least one parent of a child born with the condition. When petitioner informed respondent of the child's condition, he allegedly claimed that, he, too, was born with extra fingers and toes. According to petitioner, this information served as confirmation that the child was respondent's. Given these circumstances, petitioner argues that to dismiss the case at this juncture, in the absence of a fact finding hearing, would be error. She claims that such an order would preclude her from challenging the results of blood tests which are at odds with the genetic condition purportedly shared by the respondent and child.

LAW

(A) Background

Family Court Act § 532 provides for the admissibility of blood grouping tests in paternity proceedings to aid in ascertaining whether the alleged father is or is not the biological father of the child. The HLA test is a biochemical test which utilizes blood groups, serum proteins, and white and red blood cell enzymes to analyze the characteristics of a mother, child and putative father Matter of Beaudoin v. Tilley, 110 Misc.2d 696, 442 N.Y.S.2d 914 (Fam.Ct., 1981). Rather than being used solely for exclusionary purposes, HLA and related blood tests can increase the probability of exclusion to such a degree as to affirmatively prove paternity, Matter of A.T. v. M.K., 145 Misc.2d 525, 547 N.Y.S.2d 510 (Fam.Ct., 1989); Matter of Dept. of Social Services v. Thomas J.S., 100 A.D.2d 119, 474 N.Y.S.2d 322 (2nd Dept., 1984). ³

The DNA probe, as a genetic blood marker test, is likewise admissible in paternity proceedings under F.C.A. § 532. Matter of A.T. v. M.K., supra., Matter of Baby Girl S., 140 Misc.2d 299, 532 N.Y.S.2d 634 (Surr.Ct., N.Y.Co., 1988). DNA testing is founded on the premise that each individual possesses his own genetic signature. People v. Wesley, 140 Misc.2d 306, 533 N.Y.S.2d 643 (Co.Ct., 1988). The DNA chain of every person is comprised of breaks, or "stutters" which exist in a repetitive pattern throughout the DNA molecule. 1 Schatkin, Disputed Paternity Proceeding, 4th Ed., Revised Jan. 1992 Suppl. § 5.11, pp. 5-8. In DNA fingerprinting, a small sample of blood is taken from the mother, putative father and child. Cells containing the DNA are then extracted. An enzyme is added to fragment the DNA ⁴, and the result of the process is a DNA fingerprint, much like a bar code appearing on retail products. 1 Schatkin, supra., at § 5.11, pp. 5-8. Each bar in the child's code is attributable to either the biological mother or biological father. "[T]he examination begins with a comparison of the child's DNA fingerprint with the mother's, and the location of all bars which match the mother's code. The man will then be positively identified as the father if every remaining code of the child matches with a code of the putative father. If he is not the father, very few of the bars will match". 1 Schatkin, supra., at § 5.11, pp. 5-8. By permitting blood genetic marker tests as inclusory evidence pursuant to F.C.A. § 532, courts have acknowledged the accuracy of such tests and their probative value in paternity cases. ⁵ Matter of A.T. v. M.K., supra., 145 Misc.2d at 529, 547 N.Y.S.2d 510.

(B) Analysis

Petitioner's ultimate burden is to establish paternity by clear and convincing evidence, which is entirely satisfactory, and which creates a genuine belief that respondent is the biological father. Social Services v. Philip DeG., 59 N.Y.2d 137, 141-142, 463 N.Y.S.2d 761, 450 N.E.2d 681 (1983); Matter of Jane P.P. v. Paul Q.Q., 65 N.Y.2d 994, 494 N.Y.S.2d 93, 484 N.E.2d 122 (1985); Kimiecik v. Jesse U., 111 A.D.2d 976, 490 N.Y.S.2d 284 (3rd Dept., 1985). Notwithstanding the weight accorded blood grouping tests in meeting that burden, it has been consistently held that such tests are not dispositive, and cannot be the sole basis for establishing paternity. Matter of Julie U.U. v. Joseph V.V., 108 A.D.2d 1038, 491 N.Y.S.2d 278 (3rd Dept., 1985); Matter of Beaudoin v. William H.H., 157 A.D.2d 995, 550 N.Y.S.2d 475 (3rd Dept., 1990). Such tests are but one factor to be considered. Matter of A.T. v. M.K., supra., 145 Misc.2d at 530, 547 N.Y.S.2d 510; Dept. of Social Services v. Thomas J.S., supra., 100 A.D.2d at 124, 474 N.Y.S.2d 322. The court must weigh blood grouping evidence along with all other evidence in the case to arrive at the finding of paternity. Sara H. v. Bart D., 121 Misc.2d 425, 467 N.Y.S.2d 1001 (Fam.Ct., Kings Co., 1983); Matter of Shirley R. v. Ricardo B., 144 A.D.2d 472, 534 N.Y.S.2d 199 (2nd Dept., 1988).

Respondent claims that, while there may be arguable issues surrounding the conclusiveness of HLA and DNA results establishing the probability of paternity, such questions do not arise when the test results exclude paternity. When the result is exclusion in respondent's view, the tests are conclusive and the results should not be challenged.

It is not disputed that the positive result of a blood test excluding paternity is accepted as final, provided that required safeguards have been followed. Gilpin v. Gilpin, 197 Misc. 319, 94 N.Y.S.2d 706 (Dom.Rel.Ct., 1950). Concededly, if the only evidence before this court were the HLA and DNA tests excluding respondent as the father, then dismissal would be warranted, since this court is unaware of any paternity case where a trial was held in the face of such evidence. At the same time, however, this court is also unaware of any case where, despite the blood test results, it is alleged that the child was born with a genetic condition which was shared by the putative father. Such unique factor clearly distinguishes this case from the typical one of exclusion. The question is whether this element is sufficient to defeat a motion to dismiss the paternity action. In this court's view, it is sufficient.

It is appropriate, in reaching this determination, to be mindful of the main purpose of paternity proceedings, which is to "secure the health, welfare, and happiness of the child born out of wedlock". Ettore I. v. Angela D., 127 A.D.2d 6, 14, 513 N.Y.S.2d 733, 739 (2nd Dept., 1987). Given that goal, if evidence before the court is sufficient to raise a question of fact on a point vital to the mother's case, that question should be resolved at a hearing, and not exclusively on the papers.

Obviously, petitioner's task of attacking the accuracy of both the HLA and DNA tests, and of establishing the paternity of respondent by clear and convincing evidence, will surely be monumental. Yet, although the task is formidable, a hearing should not be precluded. Under these facts, it is necessary for the court, as the trier of fact, to have as complete a record as possible, including the benefit of assessing the veracity of the parties and their witnesses, when resolving the issue of paternity. (see Matter of Beaudoin v. William H.H., supra, 157...