Otsego County Dept. of Social Services on Behalf of Randi F v. Raymond G

• Decision Date: 12 July 1984
• Citation: 478 N.Y.S.2d 161,103 A.D.2d 919
• Parties: In the Matter of OTSEGO COUNTY DEPARTMENT OF SOCIAL SERVICES, on Behalf of RANDI "F" 1 , Appellant, v. RAYMOND G",1 Respondent.
• Court: New York Supreme Court — Appellate Division

Page 161

478 N.Y.S.2d 161

103 A.D.2d 919

In the Matter of OTSEGO COUNTY DEPARTMENT OF SOCIAL SERVICES, on Behalf of RANDI "F" ¹ Appellant, v. RAYMOND G",1 Respondent.

Supreme Court, Appellate Division Third Department.

July 12, 1984.

Michael V. Coccoma, Cooperstown, for appellant.

Norman Shapiro, Middletown, for respondent.

Before MAHONEY, P.J., and KANE, CASEY, WEISS and LEVINE, JJ.

MEMORANDUM DECISION.

Appeal from an order of the Family Court of Otsego County, entered May 19, 1983, which dismissed a petition to adjudicate respondent the father of petitioner's child.

Petitioner, the mother of the seven-year-old child who is the subject of this paternity proceeding, receives public assistance from the Otsego County Department of Social Services. The department filed a petition on her behalf on September 9, 1982, alleging that respondent is the father of the child.

At the hearing, petitioner testified that she had sexual intercourse with respondent on at least three occasions during October of 1976. She also testified that, from September of 1976 to November of 1976, she had sexual relations with no other men. Petitioner stated that when she became aware that she was pregnant, she informed respondent and he requested that she have an abortion, which request she refused. She also stated that respondent told her he would not marry her and asked her not to give the child his name. Petitioner had no further contact with respondent. The child was born on August 14, 1977. A human leucocyte antigen (HLA) test was introduced into evidence which demonstrated a 93.63% probability that respondent was the father of the child. Respondent appeared at the hearing, but offered no proof.

Family Court found that petitioner failed to set forth clear and convincing evidence of paternity and dismissed the petition. This appeal by petitioner ensued. We reverse.

It appears that Family Court was primarily concerned with the fact that, accepting petitioner's proof, the gestation period varied substantially from the norm. If the child was conceived in mid-October of 1976, a normal 38-week gestation period would have resulted in a birth in mid-July of 1977. Petitioner sought to explain this discrepancy by testifying that the child was born postmature. In support, she offered hospital records indicating that the child was born three to four weeks postmature. Family Court rejected this contention because it was not supported by expert medical testimony. While this may have once been the rule (see Matter of Joanne O. v. Andrew H.W., 87 A.D.2d 615, 448 N.Y.S.2d 32; Matter of Karen K. v. Christopher D., 86 A.D.2d 633, 634, 446 N.Y.S.2d 346), the Court of Appeals, in a decision rendered subsequent to that of Family Court, held that in the absence of contradictory evidence, entries on hospital records indicating that a child was born prematurely are sufficient to permit, though not require, the trier of fact to find in accordance with the records, thus corroborating by expert evidence the mother's testimony of prematurity ( Matter of Commissioner of Social Servs., v. Philip De G., 59 N.Y.2d 137, 139-140, 463 N.Y.S.2d 761, 450 N.E.2d 681). The same reasoning should apply to proof of a postmature birth.

In the instant case, the hospital records indicating that the child was born three to four weeks postmature corroborate petitioner's testimony regarding that fact as well as the time of conception. While the trier of fact is not required to accept this evidence (id. at 140, 463 N.Y.S.2d 761, 450 N.E.2d 681), since, in this case, there was...