Petition of Bruce, 93-1109

• Decision Date: 21 September 1994
• Docket Number: No. 93-1109,93-1109
• Citation: 522 N.W.2d 67
• Parties: Upon the Petition of Douglas G. BRUCE, Appellee, and Concerning Elizabeth Sarver, Appellant.
• Court: Iowa Supreme Court

Page 67

522 N.W.2d 67

Upon the Petition of Douglas G. BRUCE, Appellee,

and

Concerning Elizabeth Sarver, Appellant.

No. 93-1109.

Supreme Court of Iowa.

Sept. 21, 1994.

Kathy P. Ryman of Legal Aid Soc. of Story County, Nevada, for appellant.

Luis Herrara of Herrara Law Office, P.C., Des Moines, for appellee.

David J. Welu of Welu & Welu Law Office, Redfield, for minor child.

Considered by McGIVERIN, C.J., and LARSON, CARTER, SNELL, and ANDREASEN, JJ.

ANDREASEN, Justice.

In this case the petitioner seeks visitation or custody of a child born out of wedlock. The respondent mother moved to dismiss because the petitioner is not the father of the child. The district court granted her motion.

On appeal, we transferred the case to the Iowa Court of Appeals who then reversed and remanded the case to the district court. Bruce v. Sarver, 472 N.W.2d 631, 632 (Iowa App.1991). On remand the district court found that although the blood test results establish petitioner is not the biological father of the child, the mother is estopped from denying his paternity. The court awarded custody of the child to the mother with visitation rights to the petitioner. Because we find the petitioner had no legally cognizable relationship to the child, we reverse and remand.

I. Background.

In January 1982, Elizabeth Sarver (Elizabeth), age twenty-one, was living in an apartment with her two daughters of a dissolved marriage. She was receiving ADC and Title XIX benefits for the children, then ages three and five. Douglas Bruce (Douglas), age thirty-three, was unmarried, employed in his family's business, and living in his home. Elizabeth and Douglas engaged in a sexual relationship in early 1982. Elizabeth became pregnant. When Douglas asked if the child was his, Elizabeth said she was not sure. Ayla Rachel Elizabeth Repp (Ayla) was born in October 1982. Because they believed Douglas could be the father, he was treated as the father of the child. Douglas did not want Ayla on ADC and he voluntarily provided medical insurance and child support for Ayla.

Douglas wanted to know if Ayla was his daughter, so he arranged for blood tests to be conducted. Approximately six months after Ayla's birth, a blood test was conducted by the Minneapolis War Memorial Blood Bank. The test results, dated June 30, 1983, concluded that Douglas was not a biological parent of Ayla.

Apparently the parties decided the test might be in error, so they continued acting as if Douglas were the father. Although the intimate relationship between Douglas and Elizabeth ended in 1984, Douglas continued to have regular visitation with Ayla, including holidays and vacation trips with his family. He continued to provide child support and other financial assistance for Ayla. A father-daughter relationship developed.

In 1987 Douglas married a woman with two children. He adopted one of her daughters. He also asked Elizabeth for permission to adopt Ayla. Although permission to adopt was denied, Douglas continued to enjoy visitation with Ayla.

In the summer of 1990, Elizabeth stopped visitation for a thirty-day "cooling off" period in an attempt to encourage changes she believed were necessary. Douglas was providing clothing and gifts for Ayla's use when she was with him and his family. She was called Rachel Bruce by Douglas and his family. Elizabeth learned of these facts when she attended a swimming meet where Ayla was entered as Rachel Bruce and was wearing a jacket with this name on it.

When Elizabeth stopped visitation, Douglas instituted this suit by filing a petition for visitation. Later the petition was amended to request custody, child support, and to change her last name to Bruce. Douglas alleged in the petition that he was the natural father of Ayla.

Upon remand the district court bifurcated the proceedings; the first phase was solely to make a finding on paternity of the child, the second was to address issues of custody and visitation. Over the objection of Douglas, the court ordered another blood test. A second blood test report dated September 10, 1992, conducted by Memorial Blood Center of Minneapolis, was returned prior to the second phase of the trial.

The court's decision in the paternity phase of the trial was entered on December 30, 1992. Evidence of the first blood test results were admitted by the court to show its effect on the parties' later conduct, and evidence relating to the second blood test was admitted over the objection of Douglas. Although the blood tests showed no possibility that Douglas is the father of Ayla, the court estopped Elizabeth from denying Douglas' paternity. The court ordered that Douglas have temporary visitation and that he pay temporary child support of $750 per month pending resolution of the custody phase of the trial. Elizabeth's motion to vacate the order of temporary visitation and support was denied by the court and a guardian ad litem was appointed. Ayla refused to cooperate with visitation apparently because Douglas was challenging her mother's right to custody.

In the custody and visitation phase of the bifurcated trial, the court determined that Elizabeth should retain custody of Ayla and Douglas should continue to have visitation rights. The court's decree entered in June 1993 ordered Douglas to pay child support of $675 per month and ordered Elizabeth to seek counseling for Ayla to assist in reestablishing the relationship with Douglas. When Douglas failed to make a support payment, Elizabeth sought to enforce the court ordered support by asking that he be cited in contempt. Before hearing on the charge, Douglas made the required child support payments and Elizabeth dismissed her application for contempt.

Elizabeth appeals the court's decision estopping her from denying Douglas' paternity, granting him visitation with the child, and the ordering of counseling. Douglas cross-appeals the trial court's award of custody to Elizabeth and seeks custody of Ayla for himself. He argues that Elizabeth waived her right to appeal by seeking to enforce the court's decree and by accepting child support payments. The guardian ad litem filed a brief requesting that the court make a determination of paternity and urging that it is in the child's best interest to remain in the physical custody of her mother with reestablishment of regular visitation with Douglas.

II. Scope of Review.

Upon remand to the district court, this case was tried in equity. Therefore, our review is de novo. Iowa R.App.P. 4. Under de novo review we are not bound by the factual findings of the trial court, but do give them weight. Iowa R.App.P. 14(f)(7).

III. Blood Tests.

Douglas argues that testimony relating to the second blood test was improperly admitted into evidence by the court. He claims that the blood tests were ordered pursuant to what is now Iowa Code section 600B.41 (1993) (formerly section 675.41). This section allows a trial judge to order parties to a paternity action to submit to blood testing for paternity and provides for admission of the test results into evidence. This statute states in part:

600B.41 Blood and Genetic Tests.

1. In a proceeding to establish paternity in law or in equity the court may on its own motion, and upon request of a party shall, require the child, mother, and alleged father to submit to blood or genetic tests.

2. If a blood or genetic test is required, the court shall direct that inherited characteristics, including but not limited to blood types, be determined by appropriate testing procedures, and shall appoint an expert qualified as an examiner of genetic markers to analyze and interpret the results and to report to the court.

3. Verified documentation of the chain of custody of the blood specimen is competent evidence to establish the chain of custody. The testimony of the court-appointed expert at trial is not required.

4. A verified expert's report shall be admitted at trial.

Douglas argues that the testimony relating to the blood test is inadmissible because the results of the blood tests were not sent to the court or properly verified. He contends that the chain of custody of the blood samples was not properly demonstrated.

Section 600B.41 was intended by the legislature as an aid to permit parties in a paternity suit to admit reports of blood test results into evidence without requiring the testimony of the court-appointed expert. State ex rel. Buechler v. Vinsand, 318 N.W.2d 208, 210 (Iowa 1982) ("The provision for pretrial objections to the test procedures and validity is intended to allow the trustworthiness of the evidence to be determined before trial to obviate the necessity of personal testimony by the blood analyst.") (emphasis added). Douglas cites State ex rel. Hodges v. Fitzpatrick, 342 N.W.2d 870 (Iowa App.1983), in support of his proposition that the results of the blood test are not admissible unless the test results are reported to the court and documentation of the chain of custody is verified. In Hodges, the court found the expert's report was inadmissible because the statute requires the expert to "report to the court" the results of the examination. Id. at 873. Because section 600B.41 was intended as a vehicle for admitting blood tests without testimony of the expert, the reporting and verification requirements must be satisfied if the blood test report is to be admitted at trial. Id.

However, section 600B.41 does not impose additional foundational requirements for the admission of expert testimony at trial. Dr. Polesky, director of the Memorial Blood Center of Minneapolis (previously Minneapolis War Memorial Blood Bank), an undisputed expert in paternity testing, testified at trial via telephone. When testimony of an expert is offered at trial, the statutory reporting and verification requirements are not applicable. When a proper foundation is established, the court may admit expert testimony and reports of the blood test results.

We find sufficient foundation...