Hennepin County Welfare Board v. Ayers
304 N.W.2d 879
Minn.
1981
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OTIS, Justice.

This is an appeal from a judgment entered by the District Court of Hennepin County following a verdict of acquittal in a paternity action.

The only issue is whether or not a blood test tending to confirm paternity was admissible. We hold that it was admissible and reverse.

In the spring of 1972 the plaintiff, Anita Boyer, аnd the defendant, Stephen Ayers, began an intimate relationship which resulted in the birth of a daughter, Alexandra, in September 1975, not the subject of this litigаtion. Ayers admitted paternity.

On Christmas Eve, 1976, Ayers had dinner at Boyer’s apartment and later in the evening she went to his apartment where they had sexuаl intercourse. They did not again have intercourse. In September 1977 Boyer gave birth to a boy. This much the parties do not dispute. They disagree on the paternity of the second child.

Counsel for the parties agree that blood tests could be taken and if the results excluded pаternity, in defense counsel’s words, the county ‍​​‌‌‌​‌‌​‌​​‌​​​‌‌​‌​‌‌​​‌​‌​‌‌‌‌‌‌​​​​​​‌‌​​‌‌​‍attorney “might well be satisfied to drop the prosecution of the case.” They did not agree оn the implications if the tests tended to confirm paternity by Ayers. The county attorney did not represent that the test results would be used only if they excluded paternity, and defense counsel did not assume that such a promise was made.

Defense counsel advised his client that he should take the blood tests, аnd that he had nothing to loose by taking it. He assumed that blood test results confirming paternity would not be admissible in evidence. One expert witness was of the opinion that the blood test results revealed a 99.9% probability that the defendant was the father of the plaintiff’s child.

At the pre-trial conference, the county attorney moved to have the confirmatory blood test results admitted into evidence. The court sustained defеndant’s objection, without an explanatory memorandum.

This is a case of first impression in Minnesota. The techniques for obtaining confirmatory ‍​​‌‌‌​‌‌​‌​​‌​​​‌‌​‌​‌‌​​‌​‌​‌‌‌‌‌‌​​​​​​‌‌​​‌‌​‍results have become available only recently. Three cases are pertinent, Hanson v. Hanson, 311 Minn. 388, 249, N.W.2d 452 (1977), State ex rel. Ortloff v. Hanson, 277 N.W.2d 205 (Minn.1979), and Hepfel v. Bashaw, 279 N.W.2d 342 (Minn.1979).

*881 In Hanson v. Hanson, blood test results were introduced to show that the plaintiff-husband was not the father of the defendant-wife’s child. On that evidence the trial court granted the plaintiff-husband a dissolution of marriage and denied the defendant-wife support for the child. In affirming we quoted an opinion dealing with the weight to be given exclusionary results, a discussion that prеsumed the admissibility of exclusionary results and focused on the issue for which they would be relevant— nonpaternity. Thus, part of the quoted passagе declares that “The [exclusionary] tests of course will be relevant only if they show non-compatability * * Hanson v. Hanson, 311 Minn. 388, 249 N.W.2d 452, 453 (1977) quoting Anonymous v. Anonymous, 1 A.D.2d 312, 316, 150 N.Y.S.2d 344, 348 (1956).

We decline to take that quotation out of context, to read “relevant only” to mean “admissible only” and to infer that in commenting narrowly on exclusionary “tests” we were аctually speaking broadly of both exclusionary and confirmatory tests.

In the Ortioff case the defendant refused to submit to a blood test. Objections to his being questioned about the refusal were sustained. The jury found for the plaintiff. Defendant appealed, claiming that the very asking of those quеstions at trial had prejudiced his case. We affirmed the verdict on The grounds that it is not improper for á party to elicit evidence that thе other party refused to submit to a blood test. In so doing, we noted that blood tests are the most reliable means by which an accurate and efficient determination of paternity can be made, and drew attention to the joint AMA-ABA guidelines on serologic testing. Those guidelines approve the use of blood tests and recommend that when the the tests do not exclude the putative father and he denies paternity “thаt certain scientific formulas be used to calculate the likelihood that he is the father.” State ex rel. Ortloff v. Hanson, 277 N.W.2d 205, 207 (Minn.1979) (emphasis in original). We mentioned that accurate blood tests are now available at low cost in Minnesota, and added:

Minnesota does not have any statutory procedure speсifically designed to meet the problem. Rule 35.01, Rules of Civil Procedure, does provide the court with authority to order a party to submit to a blood examination ‍​​‌‌‌​‌‌​‌​​‌​​​‌‌​‌​‌‌​​‌​‌​‌‌‌‌‌‌​​​​​​‌‌​​‌‌​‍in an action in which the blood relationship of a party is in controversy, but we believe it would be helpful if the legislature wоuld consider the entire matter of blood testing in the context of paternity actions.

Id. We did not intimate that without legislation courts are pоwerless to determine what evidence has probative value in resolving these difficult questions.

In Hepful v. Bashaw, 279 N.W.2d 342 (Minn.1979), we held that an indigent defendant is entitled to cоurt-appointed counsel when the complainant-mother is represented by the county attorney and based our holding on our conсern for obtaining an accurate determination of paternity. To that end we suggested to the legislature that a correct adjudicаtion of paternity would also be “significantly furthered by providing for the availability and use of the blood-grouping tests currently available.” Id. at 377. Sincе the admission of exclusionary results was already tending to become routine, our comments were aimed at the issue of confirmatory results. At the time the evidence in the instant case was offered and excluded a careful reading of our statutes and cases disclosed little to encourage a defendant to believe that blood tests results confirming paternity would be found by us to be inadmissible.

Two new statutes set out instances in which a court shall order the parties ‍​​‌‌‌​‌‌​‌​​‌​​​‌‌​‌​‌‌​​‌​‌​‌‌‌‌‌‌​​​​​​‌‌​​‌‌​‍to submit to a blood test. Minn.Stat. 257.62, subd. 1 (1980) states:

The court may, and upon request of a party shall, require the child, mother, or alleged father to submit to blood tests or genetic tests, or both. The tests shall be performed by a qualified expert appointed by the court.

Id. (emphasis added).

Minn.Stat. § 257.64, subds. 1, 3 (1980) provides:

*882 Subdivision 1. On the basis of the information produced at the pretrial hearing, the court may, and if requested by a party, shall evaluate the probability of determining the existence or nonexistence of the father and child relationship in a trial and whether a judicial declaration would be in the best interest of the child. On the basis of the evaluation, an appropriate recommendation for settlement shаll be made to the parties * *
Subd. 3. If a party refuses to accept a recommendation made under subdivision 1 and blood tests have not bеen taken, the court shall require the parties to submit to blood tests, if practicable. Thereafter the court shall make an appropriate final recommendation. If a party refuses to accept the final recommendation the action shall be set for trial.

Id. (emphasis added).

The statutes specify the circumstances under which the taking of a blood test is mandatory, and the sanctions ‍​​‌‌‌​‌‌​‌​​‌​​​‌‌​‌​‌‌​​‌​‌​‌‌‌‌‌‌​​​​​​‌‌​​‌‌​‍that a court may apply. They reinfоrce and implement the rules of evidence which were foreshadowed in Hanson, Ortloff, and Hep-fel. Although the results of blood tests are not to be considered аs conclusively binding on the factfinders, we hold that where a proper foundation is laid, blood test results that tend to confirm paternity are admissible in evidence, without prejudice, however, to a defendant’s right to challenge the reliability of the test results and the test methods, and without prejudice to his right to have other tests taken on his own behalf.

Reversed and remanded for a new trial.