State ex rel. Human Services Dept. v. Coleman, No. 8725

• Docket Nº: No. 8725
• Citation: 1986 NMCA 74, 723 P.2d 971, 104 N.M. 500
• Case Date: July 29, 1986
• Court: Court of Appeals of New Mexico

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723 P.2d 971 104 N.M. 500 STATE of New Mexico, ex rel. HUMAN SERVICES DEPARTMENT,
Petitioner-Appellant,
v.
Edward COLEMAN, a/k/a Eddie Coleman, Respondent-Appellee. No. 8725. Court of Appeals of New Mexico. July 29, 1986.

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[104 NM 501] Richard J. Rubin, Gen. Counsel, Patricia E. Bustamante, Asst. Gen. Counsel, John Petoskey, Sp. Asst. Atty. Gen., Human Services Dept., Santa Fe, for petitioner-appellant.

C. Barry Crutchfield, Templeman & Crutchfield, Lovington, for respondent-appellee.

OPINION

DONNELLY, Judge.

The Human Services Department (HSD) appeals from a judgment denying relief under its petition for adjudication of paternity. Two issues are raised on appeal: (1) whether the trial court erred in failing to consider evidence of paternity serologic testing; and (2) whether the trial court erred in refusing to admit evidence relating to the results of paternity blood testing. We reverse and remand.

FACTS

HSD filed a petition seeking a determination of paternity, and alleging that respondent was the natural father and responsible for the support of a minor daughter born to Yolanda Hernandez. The child and her mother are receiving state support for dependent children.

During its case-in-chief, HSD sought to establish that respondent was the father of the child, both through the testimony of the natural mother and the respondent, who was called as an adverse witness. Respondent admitted that he paid some medical expenses and other bills for the child, but denied that he was the child's father. HSD also presented testimony of Dr. Ronnie Garner, a medical doctor and expert in blood testing. At time of trial, Dr. Garner served as the medical director of the blood

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[104 NM 502] bank at Presbyterian Hospital, in Albuquerque, and as the chief of the paternity testing division of the hospital.

HSD called Dr. Garner to testify concerning the results of the paternity testing performed at Presbyterian Hospital. Respondent stipulated to the qualifications of Dr. Garner, and the trial court ruled that the doctor would be recognized as an expert witness. Dr. Garner testified that the blood tests of respondent, the natural mother, and the child were made under his supervision and that based upon the tests, he had prepared a written report to the HSD, Child Support Enforcement Bureau, detailing his conclusions concerning the issue of paternity.

In describing the tests, Dr. Garner testified that the ABO, Rh, MNSs, Kell, Duffy and Kidd red blood cell tests were used and that additionally, the Human Leukocyte Antigen (HLA) test for white blood cells was utilized in testing respondent, the mother and the child. The doctor also testified that the tests were performed in conformity with proper testing procedures.

The trial court initially permitted Dr. Garner to state his opinion that based on the paternity tests performed "the probability that the alleged father, Edward Coleman, is the true father of the child * * * is calculated to be 99.5 percent." Thereafter, counsel for HSD sought to introduce into evidence the written report prepared by Dr. Garner summarizing the result of the serologic testing and which listed the test procedures. Respondent's counsel objected to the tender on the basis of insufficient foundation and lack of relevancy. The trial court sustained the objection. Subsequently, HSD again attempted to elicit additional oral testimony from Dr. Garner concerning the results of the paternity testing and the trial court sustained both general and specific objections to this testimony.

SEROLOGIC TESTING

HSD asserts that the trial court erred both in failing to admit into evidence Dr. Garner's written opinion testimony as to the paternity testing, and in refusing to consider Dr. Garner's oral testimony relating to the probability of respondent's paternity based upon the tests performed under his supervision.

We first address the threshold issue concerning the admissibility and evidentiary weight of evidence of serologic testing in paternity actions. The use of opinion testimony, based upon blood testing to show that an alleged father may be properly excluded as the natural father of a child, has been generally accepted in most jurisdictions. See Annot., 46 A.L.R.2d 1000, 1019 (1956). Conversely, recent advancements in the field of serology and genetics have resulted in the development of scientific procedures for blood and tissue testing, providing scientific evidence from which statistical probabilities may be calculated to indicate whether an individual is the father of a certain child. See Abbott, Joint AMA-ABA Guidelines: Present Status of Serologic Testing in Problems of Disputed Parentage, 10 Fam.L.Q. 247 (1976).

The most commonly utilized paternity tests are the: ABO, MNSs, Rh, Kell, Duffy, and Kidd (for red blood cells); and the Human Leukocyte Antigen or HLA (for white blood cells or other tissue). Butts & Schwartz, Serological Testing in Disputed Parentage Cases: Removing the Blindfolds on the Triers of Fact, 48 Tex.B.J. 754 (1985).

As observed in Annot., 37 A.L.R. 4th 167, 170 (1985):

HLA testing is a recent scientific development which has advanced the role of blood and tissue type testing in paternity cases. When used in conjunction with standard serologic testing, HLA test results can produce a high degree of discrimination either excluding or including a given male as the father of a particular child.

The HLA test for paternity is a scientific procedure which compares genetic antigens identified in the child, the natural mother and the alleged father. The HLA test is based upon the identification and type of antigen markers found in white blood cells

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[104 NM 503] and other tissues of the body. After first identifying the antigen markers of a child and the mother, together with the child's antigen genetic markers which could only have been inherited from the father, the results are then compared with the frequency with which these antigens appear in the random population at large. See Sterlek & Jacobson, Paternity Testing with the Human Leukocyte Antigen System: A Medicolegal Breakthrough, 20 Santa Clara L.Rev. 511 (1980); Lee, Current Status of Paternity Testing, 9 Fam.L.Q. 615 (1975).

In the jurisdictions which have considered the use of HLA blood testing in paternity proceedings, the test, when properly administered, has been generally accepted as reliable and probative in both the scientific community and the courts.¹ See Little v. Streater, 452 U.S. 1, 101 S.Ct. 2202, 68 L.Ed.2d 627 (1981); State ex rel. Munoz v. Bravo, 139 Ariz. 393, 678 P.2d 974 (1984); Chandler v. Baker, 16 Ark.App. 253, 700 S.W.2d 378 (1985); Cramer v. Morrison, 88 Cal.App.3d 873, 153 Cal.Rptr. 865 (1979); Carlyon v. Weeks, 387 So.2d 465 (Fla.App.1980); Crain v. Crain, 104 Idaho 666, 662 P.2d 538 (1983); State ex rel. Hausner v. Blackman, 233 Kan. 223, 662 P.2d 1183 (1983); Tice v. Richardson, 7 Kan.App.2d 509, 644 P.2d 490 (1982); Haines v. Shanholtz, 57 Md.App. 92, 468 A.2d 1365 (1984); Commonwealth v. Blazo, 10 Mass.App. 324, 406 N.E.2d 1323 (1980); Imms v. Clarke, 654 S.W.2d 281 (Mo.App.1983); Malvasi v. Malvasi, 167 N.J.Super. 513, 401 A.2d 279 (1979); Callison v. Callison, 687 P.2d 106 (Okla.1984); State ex rel. Pershall v. Woolsey, 32 Or.App. 257, 573 P.2d 771 (1978); Miller v. Kriner, 341 Pa.Super. 293, 491 A.2d 270 (Pa.Super.1985); Phillips v. Jackson, 615 P.2d 1228 (Utah 1980); see also Abbott, Joint AMA-ABA Guidelines: Present Status of Serologic Testing in Problems of Disputed Parentage.

Based upon the above authorities, we conclude that the HLA and red blood cell test procedures, together with the evidence of statistical probabilities drawn therefrom, are admissible as evidence in disputed paternity actions...