Sara H v. Bart D

• Decision Date: 17 October 1983
• Parties: In the Matter of the Paternity Petition of the Commissioner of Social Services as Assignee of SARA H, Petitioner, v. BART D, Respondent.
• Court: New York Family Court

Page 1001

467 N.Y.S.2d 1001

121 Misc.2d 425

In the Matter of the Paternity Petition of the Commissioner

of Social Services as Assignee of SARA H, Petitioner, v. BART D, Respondent.

Family Court,

Kings County.

Oct. 17, 1983.

Frederick A.O. Schwarz, Jr., Corp. Counsel by Michael Hampden, Brooklyn, for Com'r of Social Services.

H. Howard Friedman, New York City, for respondent.

DECISION

GEORGE L. JUROW, Judge:

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW

In this paternity proceeding, petitioner Department of Social Services is the assignee of Sara H and seeks to establish that respondent Bart D is the father of Ms. H's child, Alexandra, born August 26, 1981, and seeks to compel respondent to furnish support for the child. The respondent denied paternity. The court ordered a human leucocyte antigen blood test ("HLA" test), and the matter proceeded to a full hearing which was completed on August 15, 1983.

For the reasons summarized below, the court finds by evidence that is clear, convincing, and entirely satisfactory, if not overwhelming, that respondent is the father of the child Alexandra.

Petitioner's principal witness was Ms. H. She testified that she met the respondent, a police officer, at a restaurant in Manhattan. Ms. H further testified that she first had sexual relations with the respondent at a Manhattan motel on the afternoon of November 13, 1980, and on two subsequent occasions. About the beginning of 1981 she learned she was pregnant, and repeatedly contacted the respondent concerning her pregnancy and the later birth. She denied having had sexual relations during the period August 1980 through the end of December 1980 with anyone other than the respondent. Petitioner called one other witness who corroborated aspects of Ms. H's testimony.

In observing Ms. H's demeanor and in listening to her testimony the court found her to be a highly credible witness.

Petitioner introduced into evidence the results of the HLA test, which test was performed at the Lindsley F. Kimball Research Institute of The New York Blood Center. The test results calculated the "Plausibility of Paternity" at 99.2%, and that it was therefore "extremely likely" that the respondent was the father of the subject child.

Respondent's case consisted of respondent's testimony and the testimony of Mr. Joseph V. Respondent also called Dr. Leon Sussman, the Director of the facility that performed the HLA test. Respondent testified that he met Ms. H in the summer of 1980, and acknowledged in his direct testimony that he had sexual relations with Ms. H. Respondent testified however, that he had sexual relations with Ms. H only once, and that the date of the sexual act was sometime in late August or September of 1980. Respondent denied having had sexual relations with Ms. H other than on that one occasion, and categorically denied having had sexual relations on November 13, 1980 or thereafter. Respondent also introduced in evidence a so-called "command log" of the precinct where he was assigned in an attempt to cast doubt as to whether he could have had sexual relations with Ms. H at the time and place she so testified. Mr. V testified that he dated Ms. H and, contrary to Ms. H's testimony, had sexual intercourse with her. Although the respondent called Dr. Sussman as his witness, Dr. Sussman's testimony fully substantiated the accuracy and weight of the HLA test performed at his laboratory. The doctor explained the process by which the blood is drawn and tested for paternity. Dr. Sussman explained that although no blood test can determine paternity with an absolute 100% certainty, that in this case the odds were in effect highly certain that respondent was the father of the subject child. In addition, Dr. Sussman made it clear that in this case the race of the mother, or her racial ancestry, would make no difference in the degree of certainty in calculating the likelihood of paternity.

In observing the respondent's demeanor and in listening to his testimony, the court found his credibility to be low and disbelieves the essentials of his testimony. In addition, the court found Mr. V's testimony, based on both his demeanor and on the content of his testimony, including his business and personal connections with respondent, devoid of credibility. The court further finds the police precinct command logs introduced in evidence to be of little value in establishing respondent's whereabouts on November 13, 1980. With respect to the logs, respondent attempted to show that an entry was made in the November 13, 1980 10th Precinct log which would have placed him on duty at the precinct station at the time he was allegedly having sexual relations with Ms. H. However, not only was there scant testimony concerning the general accuracy of entries in logs of this type, but it is clear to the court that respondent had not only continuous access to the particular log in question, but also a substantial motive to control, if not distort or fabricate, such entries to his benefit.

Accordingly, the court resolves the disputed testimony between Ms. H and the respondent concerning the specific date the two had sexual relations in favor of Ms. H, and the court therefore finds as a fact that respondent had sexual relations with Ms. H at a time consistent with the resulting date of birth of the child.

In summary, Ms. H's credible testimony, the results of the HLA test, which the court gives substantial weight, and respondent's own admission of having met and had sexual relations with Ms. H, all combine to provide overwhelming evidence that respondent is the father of the child Alexandra. See Matter of Alicia C. v. Evaristo G., 93 A.D.2d 820, 460 N.Y.S.2d 616 (2nd Dept., 1983).

II. RESPONDENT'S ARGUMENT CONCERNING EVIDENTIARY VALUE OF HLA TESTS

Respondent requested and was granted an opportunity to submit a Memorandum to the court in lieu of closing oral argument. In his Memorandum respondent,inter alia, attacks HLA test results in general and in this specific instance as "meaningless". Because respondent sets forth a statistical argument that manages to combine both superficial plausibility with patent error, it is worth commenting upon. It appears that arguments similar to that contained in respondent's Memorandum are being raised with increasing frequency in paternity actions, as the frequency of HLA testing has correspondingly increased. See, NLJ 9/12/83 p. 1 "Paternity: The Final Word".

To quote from respondent's Memorandum:

"The submission of the results of the HLA test alone does not provide evidence to any degree whatsoever that the Respondent is in fact the father of the child. To accept the mere test results alone without some expert testimony correlating the test results with the existential evidence in the case is a meaningless exercise. In a paternity trial the fact finder is naturally tempted to seize upon statistical figures, like the probability of paternity, as lifelines of objective truth in a sea of lies. 'Soft' evidence involving difficult questions of credibility and other circumstantial matters may be submerged or lost because it appears unnecessary to resolve the questions in light of the hard, scientific, mathematical proof.

The paternity index, and the probability based upon it, can be easily misused. Taking the example of the man with a probability index of 99.5, it is clear that in a large population many men will have a phenotype compatible with fathering the child. If only one man in a thousand were to have the proper phenotype, there could be 1000 men who could have fathered the child in an urban population containing only one million men.* There is no way to tell which of these 1,000 men is the father. The most that the HLA evidence can tell is that, assuming paternity is limited to the men in this city and the Respondent is one of them, his probability of paternity is only one in a thousand, or .1%.

The HLA test results merely represents the likelihood that a man with the phenotype of the Respondent would contribute the required genes compared with the likelihood that a random man of the same ethnic group would do so. In order to convert this figure into the actual probability of paternity, the Court must also consider the probability that the Respondent had intercourse once at the right time to impregnate the Petitioner. If the Respondent had no intercourse at the right time, then, regardless of the test number, his probability of paternity is zero.

That is why when Dr. Sussman was asked to state whether the HLA test proved that Sergeant D was the father of the child he unequivocably stated that it absolutely did not. Furthermore, Dr. Sussman testified that the HLA test did not, nor could it prove that Sergeant D was the father of the child. All that the test could show was that the Respondent was 1 out of 125 men who had a similar phenotype. This is not evidence in a city where there are 5,000,000 men.

The Court should totally reject...