Bain v. State

Tommy BAIN v. STATE of Arkansas, Child
Support Enforcement Unit, and Tina Lawrence

CA 96-363                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division IV
               Opinion delivered January 29, 1997


1.   Parent & child -- paternity test -- certification of report -- statutory
     requirement for introduction. -- Arkansas statutory law required,
     during the relevant period, that a blood-test report be
     certified by the duly qualified expert who either conducted
     the test or supervised or directed the test and analysis if
     the report is to be introduced without calling the expert as
     a witness; here, the genetic-testing expert who signed the
     report submitted by the court-appointed genetic-testing
     company certified under oath only that she had "read the
     foregoing report" and "that the facts and results therein are
     true and correct as I verily believe"; in a separate
     affidavit, which set forth her qualifications as an expert in
     genetic testing, she simply stated that she was an associate
     director of the genetic-testing company. 

2.   Parent & child -- paternity test -- notice requirement. -- The appellate
     court held that appellant was not required to give thirty
     days' notice in order to object to admission of the blood-test
     report because such notice was required only where the chain
     of custody, test procedures, or results were contested.
3.   Parent & child -- paternity test -- expert must attest that he or she
     personally performed or directed test. -- The genetic-testing
     expert's certification and affidavit did not constitute strict
     compliance with the statutory requirement; under the relevant
     statutory provision, the expert was required to attest that he
     or she personally either performed or directed the performance
     of the test.

4.   Parent & child -- paternity test -- rationale for strict adherence to
     statutory foundational requirements. -- The purpose of  Ark. Code
     Ann.  9-10-108 is to relax the foundational requirements and
     make it less difficult to introduce paternity-testing results
     into evidence; however, to insure the reliability of this type
     of testing, the foundational prerequisites in the statute must
     be met; in light of the fact that genetic testing can, with a
     high degree of certainty, identify the father of a child and
     thus be viewed as conclusive by the fact-finder in paternity
     suits, strict adherence to the statutory prerequisites is not
     unreasonable.

5.   Parent & child -- paternity test -- trial court abused discretion in
     admitting second blood test. -- The appellate court held that the
     trial court abused its discretion in admitting the second
     blood test performed by the genetic-testing company.

6.   Appeal & error -- de novo review of chancery cases -- chancellor's finding
     may be affirmed if right conclusion reached for wrong reason. -- In
     reviewing chancery cases, the appellate court considers the
     evidence de novo on the record; accordingly, it could consider
     the first blood-test report, if properly admitted, in
     determining whether the chancellor's finding of paternity was
     clearly against the preponderance of the evidence and could
     affirm if the chancellor reached the right conclusion for the
     wrong reason.

7.   Parent & child -- paternity test -- appellant did not show prejudice in
     substitution of genetic-testing laboratory in first blood test. --
     Although appellant argued that the first blood-test report,
     which had been prepared by a genetic-testing laboratory other
     than the court-appointed expert, was erroneously admitted
     because of failure to observe strict compliance with the
     statutory directive that the expert be appointed by the court,
     appellant neither challenged the test procedures or results
     nor argued that the laboratory was not an expert qualifed to
     perform paternity blood tests or that he would have objected
     to its appointment; in short, appellant did not suggest that
     he was in any way prejudicied by the substitution of the
     laboratory in the first blood test.

8.   Parent & child -- paternity test -- trial court did not err in admitting
     first blood-test report. -- Where the first blood-test report was
     properly certified by a director who set forth his expert
     qualifications and attested that he had supervised and
     directed the test, and neither the holdings nor the rationale
     in earlier case law pertaining to the foundational
     requirements of the report mandated the exclusion of the
     report, the appellate court could not say, under the
     circumstances of the case, that the trial court erred in
     admitting the report. 

9.   Parent & child -- paternity test -- paternity established by prima facie
     case -- chancellor's finding of paternity not clearly erroneous. -- The
     appellate court held that the first blood-test report and the
     corroborating testimony of the child's mother constituted a
     prima facie case of establishment of paternity; appellant did
     not meet the burden of rebutting the proof; moreover, in a
     review of chancery court findings, the appellate court will
     not reverse a finding of fact made by the chancellor unless it
     is clearly erroneous; the appellate court could not say that
     the trial courtþs finding of paternity was clearly against the
     preponderance of the evidence.

10.  Appeal & error -- unsupported assignments of error not considered on
     appeal. -- Assignments of error unsupported by convincing
     argument or authority will not be considered on appeal. 

11.  Parent & child -- paternity proceedings -- welfare of child paramount. --
     The welfare of the child is paramount even in paternity
     proceedings, for the major purpose of Arkansas's filiation law
     is to identify the putative father so that he may assume his
     equitable share of the responsibility to his child.


     Appeal from Independence Chancery Court; Stephen Choate,
Chancellor; affirmed.
     Thaxton, Hout & Howard, by: Marvin D. Thaxton, for appellant.
     Vickie A. Warner, for appellee.

     Andree Layton Roaf, Judge.
     This is the second appeal by Tommy Bain in this paternity
case.  We dismissed Bain's first appeal in an unpublished opinion
issued December 8, 1994,  under Ark. R. Civ. P. 54(b), because the
judgment of paternity did not provide for child support and was
thus not a final, appealable order.  The trial court entered an
order for regular and back support on February 6, 1996, and Bain
again appeals the adjudication of paternity.  He asserts that the
chancellor erred in admitting into evidence reports of two blood
tests performed on him; that the testimonial evidence does not
support a finding of paternity without the erroneously admitted
blood-test reports; that the decision should be reversed because
the chancellor evidenced a lack of impartiality; and that the
appellee should be ordered to repay all sums paid pursuant to the
order of support if the paternity judgment is reversed.  We hold
that the chancellor properly admitted the first of the two blood-
test reports and affirm.  
     Tina Lawrence claims that Bain is the father of her child born
on February 18, 1991.  A paternity action was filed against Bain by
the appellee, Child Support Enforcement ("CSE"), on June 12, 1991. 
An order for blood draw designating Genetic Design, Inc. ("Genetic
Design"), as the court-appointed expert to perform the blood test
was entered on July 10, 1991.  The test was instead performed by
Roche Biomedical Labs ("Roche").  Roche submitted a report dated
September 20, 1991, finding a 99.98% probability that Bain was the
father of Lawrence's child. 
     After receiving the test result, Bain filed an answer denying
paternity and cross-complained, alleging that James Priddy was the
father of Lawrence's child.  Bain asked that a blood test also be
performed on Priddy.  Priddy voluntarily submitted to the blood
test, which was also performed by Roche; CSE did not obtain a court
order authorizing this test.
     During a hearing on the merits held on May 11, 1992, Lawrence
testified that she had sexual relations with Bain during the period
of conception, and also testified to relations with James Priddy
approximately a week before she learned she was pregnant.  Bain
denied having any sexual contact with Lawrence.  CSE attempted to
introduce the blood-test reports on Bain and Priddy.  The trial
court admitted the report on Bain over the objection of Bainþs
counsel that the test was not performed by the court-appointed
expert as required by Arkansas statute.  However, the court
sustained Bain's objection to admission of the report of Priddyþs
test.
     At the conclusion of the hearing, the trial court requested
briefs on the issue of whether additional testing of Bain could
be ordered.  An additional test was performed on Bain by Genetic
Design and its report dated December 31, 1992, found that there was
a 99.97% probability that Bain was the father.  A second hearing
was held on February 5, 1993, during which Bain objected to the
admission of the Genetic Design report because it was not properly
certified as required by Arkansas statute.  The trial court again
overruled Bain's objection and allowed the second test report to be
introduced.
     On August 27, 1993, the trial court entered an order which
found that Bain was the father of Lawrence's child based on the
second blood-test report and on the testimony of the parties and
other witnesses.  Bain's appeal of this order was dismissed for
lack of finality.  A subsequent hearing was conducted during which
the amount of regular and back child support was determined.  Bain
again appeals the trial court's determination that he was the
father of Lawrence's child.
     Bain's first two arguments on appeal pertain to the admission
of the reports of the two blood tests performed on him.  Bain
relies on the language of Ark. Code Ann.  9-10-108 (1987) and on
two cases decided by this court and the Arkansas Supreme Court
for his argument that neither of these reports should have been
admitted into evidence.  Because these arguments are related, we
discuss them together.
     At the time the two blood tests were performed and the hearing
held on the merits of the paternity complaint,  9-10-108 provided
in pertinent part:  
     (a)(1) Upon motion of either party in a paternity action,
     the trial court shall order that the putative father,
     mother, and child submit to blood tests or other
     scientific examinations or tests. . . .
     (2) The tests shall be made by a duly qualified expert or
     experts to be appointed by the court.
     (3)(A) A written report of the test results prepared by
     the duly qualified expert conducting the test, or by a
     duly qualified expert under whose supervision or
     direction the test and analysis have been performed,
     certified by an affidavit duly subscribed and sworn to by
     him or her before a notary public, may be introduced in
     evidence in paternity actions without calling the expert
     as a witness unless a motion challenging the test
     procedures or results has been filed within thirty (30)
     days of the trial on the complaint and bond is posted in
     an amount sufficient to cover the costs of the duly 
     qualified expert to appear and testify. (Emphasis
     supplied.)

(Ark. Code Ann. 9-10-108 (a)(1)-(3) (Repl. 1993) (now amended as
Ark. Code Ann. 9-10-108 (a)(1), (4), and (5)(A)).
     Bain asserts that the first blood test should have been
excluded because Roche was not named in the blood-test order as the
expert appointed by the court, as required by  9-10-108(a)(2). 
Bain further relies on the holdings in Ross v. Moore, 30 Ark. App.
207,  785 S.W.2d 243 (1990), and Boyles v. Clements, 302 Ark. 575,
792 S.W.2d 311(1990), for the proposition that strict adherence to
the statute is required before a blood-test report may be admitted
in the absence of the expert who performed or supervised the test.
     With regard to the second blood test performed by Genetic
Design, Bain asserts that because the written report does not
comply with the foundational prerequisites set forth in  9-10-108
(a)(3)(A), the holdings in Ross and Boyles also mandate its
exclusion.
     In the case of the second test performed by Genetic Design,
Bain's argument is well taken.  Section 9-10-108(a)(3)(A) requires
that a report be certified by the duly qualified expert who either
conducted the test or supervised or directed the test and analysis,
if the report is to be introduced without calling the expert as
a witness.  The report submitted by Genetic Design was signed by
Dr. Deborah Cutter, who certified under oath only that she had
"read the foregoing report" and "that the facts and results therein
are true and correct as I verily believe."  The certification lists
Cutter, along with seven others, as directors or associate
directors of Genetic Design.  In a separate affidavit, which set
forth her qualifications as an expert in genetic testing, Cutter
simply stated that she was an associate director of Genetic Design. 
     We do not agree with CSE's assertion that Bain was required to
give 30 days' notice in order to object to admission of the report,
because such notice is required only where the chain of custody,
test procedures, or results are contested.  See Parks v. Ewans, 316
Ark. 91-B, 871 S.W.2d 343 (1994).  Nor do we agree with CSE that
Cutterþs certification and affidavit constitute strict compliance
with  9-10-108(a)(3)(A), and that the expert need not attest that
he or she personally either performed or directed the performance
of the test.  Moreover, this issue was addressed in our holding in
Ross, supra, which involved a similarly defective test report.  In
Ross, a blood-test report was admitted over the objection of the
putative father.  At the time, the paternity-test statute required
that the report be certified by the expert who performed the test. 
The report in Ross, like that of Genetic Design, was merely signed
by the laboratory director and did not indicate that he performed
the test or whether he was a qualified expert.  This court held
that the statutory foundation, which was a prerequisite to
admission of the report, had not been established and that the
trial court had thus abused its discretion in admitting the report.
     Although the statute has since been amended to also allow for
certification by an expert under whose supervision or direction the
test has been performed, Cutter's statements that she is a director
of Genetic Design and that she had read the report likewise fall
short of meeting the foundational prerequisites for admission under
the amended statute.  Moreover, the following rationale for
requiring strict adherence set forth in Ross applies equally in the
instant case: 
          Prior to the adoption of Ark. Code Ann. 9-10-108,
     this report would have been considered inadmissible
     hearsay, and in order to be admissible and fall into one
     of the exceptions to the hearsay rule, certain
     foundational requirements must have been met. . . .

          The purpose of  9-10-108 is to relax these
     foundational requirements and make it less difficult to
     introduce paternity testing results into evidence. 
     However, to insure the reliability of this type of
     testing, the foundational prerequisites in the statute
     must be met. See Newton v. Clark, 266 Ark. 237, 582 S.W.2d 955 (1979). In light of the fact that recently
     developed genetic testing can, with a high degree of
     certainty, identify the father of a child and, thus, be
     viewed as conclusive by the fact-finder in paternity
     suits, we do not think that strict adherence to the
     statutory prerequisites is unreasonable.

Id. at 210-11, 785 S.W.2d  at 245.
     Finally, the supreme court has adopted the rationale and
conclusion of Ross in a case involving a report that was only
signed by two laboratory directors and notarized, stating: 
          As in Ross v. Moore, supra, there is nothing in the
     report to indicate the identity of the person who
     performed the test or whether the person who performed
     the test was a duly qualified expert. Although the report
     is signed by Dr. Smith and Mr. Gutendorf and states their
     positions to be Laboratory Director and Scientific
     Director respectively, there is nothing in the report to
     indicate that these two men performed the test or that
     they are qualified experts.
Boyles, 302 Ark. at 579, 792 S.W.2d  at 314.  We therefore hold that
the trial court abused its discretion in admitting the second test
performed by Genetic Design.
     As to the first test performed by Roche, we reach a different
conclusion.  Although CSE does not argue the merits of this issue,
and merely states that the question is moot because the trial court
did not rely on the first report in making the adjudication of
paternity, we do not agree that the matter is moot.  Rather, if the
trial court in fact erroneously admitted this report, the error
would be harmless if the trial court relied solely upon the report
by Genetic Design.  Moreover, in reviewing chancery cases, we
consider the evidence de novo on the record.  Jones v. Jones, 43
Ark. App. 7, 858 S.W.2d 130 (1993).  Accordingly, we can consider
the report of the Roche blood test, if properly admitted, in
determining whether the chancellor's finding of paternity is
clearly against the preponderance of the evidence, and we can
affirm if the chancellor reached the right conclusion for the wrong
reason.  See, e.g. Estate of Gaston v. Ford Motor Co., 320 Ark.
699, 898 S.W.2d 471 (1995); Southern Farm Bureau Cas. Ins. Co. v.
Pettie, 54 Ark. App. 79, 89, 924 S.W.2d 828 (1996).
     In arguing that the Roche report was erroneously admitted,
Bain again relies on Ross and Boyles for the proposition that the
statutory directive that the expert be appointed by the court
requires strict compliance.  He does not challenge the test
procedures or the results of the test performed by Roche, nor does
he argue that Roche is not an expert qualified to perform paternity
blood tests or that he would have objected to the appointment of
Roche.  In short, he does not suggest that he was in any way
prejudiced by the substitution of Roche in the first blood test.
     After Bain objected to the admission of the Roche report, CSE
advised the trial court that it had used both Roche and Genetic
Design to perform paternity blood tests and that both companies had
been approved by the court in prior cases.  However, CSE stated
that their office had switched to Roche exclusively after the entry
of Bain's blood-test order, because of problems with Genetic
Design's chain of custody and affidavits.  CSE characterized the
erroneous designation of Genetic Design in the order as an
administrative error and argued that the use of Roche was
substantial compliance with the statute.  The trial court found
that there had been substantial compliance or good-faith compliance
with the statute, even though Roche was not specifically named in
the blood-test order, and that Roche was a recognized company and
denied Bain's motion to exclude the report.
     Under the circumstances of this case, we cannot say that
the trial court erred in admitting this report.  The Roche report
was properly certified by a director who set forth his expert
qualifications and attested that he had supervised and directed the
test, and neither the holdings nor the rationale set forth in  Ross
and Boyles, which pertain to the foundational requirements of the
report, mandate the exclusion of this report.
     Bain next argues that the trial court erred in finding that
he was the father of Lawrence's child.  He in essence argues that 
Lawrence's uncorroborated testimony that she had sexual relations
with Bain and her admission that she had sexual relations with
Priddy shortly before learning she was pregnant do not support the
finding of paternity if the two blood-test reports were erroneously
admitted and are thus excluded from evidence.  Lawrence's testimony
may be summarized as follows.  She stated that she had sexual
relations with Bain five to ten times between April and July of
1990, at her home and one time at his place of employment.  She
stated that her doctor advised her that her probable date of
conception was in May of 1990, and that she first had sexual
relations with James Priddy the weekend before she learned she was
pregnant on June 18, 1990.  She candidly testified that she wanted
a blood test because although she believed Bain to be the father of
her child, there was a slight possibility that Priddy could have
fathered the child.
     Bain denied having any sexual relations with Lawrence, but
admitted that he visited her in her home during the relevant
period.  He and his wife testified that he was completely impotent
during the months of April through July 1990 due to medication he
was taking for high blood pressure.  Bain's pharmacist testified
that his impotence could have resolved with intermittent withdrawal
from the medication.  Moreover, in a paternity client questionnaire
completed by Lawrence for CSE in April 1991 when her child was two
months old, she stated that Bain was unable to achieve an erection
the first five or six times they attempted intercourse.  Finally,
the Roche blood-test report found a 99.98% probability that Bain
was the father of Lawrence's child.  Arkansas Code Annotated  9-
10-108 (a)(4) provides as follows:
          If the results of the paternity tests establish a
     ninety-five percent (95%) or more probability of
     inclusion that the putative father is the biological
     father of the child, after corroborating testimony of the
     mother in regard to access during the probable period of
     conception, such shall constitute a prima facie case of
     establishment of paternity, and the burden of proof shall
     shift to the putative father to rebut such proof.
Thus, the Roche blood-test report along with the corroborating
testimony of Lawrence constitute a prima facie case of
establishment of paternity, and Bain has not met the burden of
rebutting this proof.  Moreover, in a review of chancery court
findings, we will not reverse a finding of fact made by the
chancellor unless it is clearly erroneous.  Erwin L. D. v. Myla
Jean L., 41 Ark. App. 16, 847 S.W.2d 45 (1993).  Based on
the evidence in the record, we cannot say that the trial courtþs
finding of paternity was clearly against the preponderance of the
evidence.
     Bain next argues that the decision of the trial court should
be reversed because the chancellor evidenced a lack of impartiality
during the proceedings.  Bain in essence complains of certain
remarks the trial court made in the first hearing, during
discussion of whether the court could order a second blood test of
Bain.  Bain's counsel asserted that CSE should be required to go
forward with its case without benefit of the Roche blood test or
further testing.  The trial court's remarks occurred during this
discussion and indicated  a concern about the interest of the child
and the ability of the court to require further blood testing if
necessary to reach a decision.  Bain also argues throughout his
brief that the second blood-test order is evidence of the
chancellor's partiality.  Bain offers no citation of authority
or convincing argument on this point.  This court has long held
that assignments of error unsupported by convincing argument or
authority will not be considered on appeal.  Rogers. v. Rogers, 46
Ark. App. 136, 877 S.W.2d 936 (1994).  Moreover, the welfare of
the child is paramount even in paternity proceedings, for the
major purpose of Arkansas's  filiation law is to identify the
putative father so that he may assume his equitable share of the
responsibility to his child.  See Davis v. Office of Child Support
Enforcement, 322 Ark. 352, 908 S.W.2d 649 (1995).
     Because we affirm the finding of paternity, we do not reach
Bain's final argument that he is entitled to a refund of monies
paid pursuant to the order of support.  We also note that this
action was filed by CSE when the minor child was four months old,
and had not been finalized as the child approached his seventh
birthday in part due to the failure of CSE to ensure that its
crucial blood-test reports meet the requirements of the paternity
testing statute before introducing them into evidence. 
     Affirmed.
     Robbins, C.J., and Neal, J., agree.