Tandra S. v. Tyrone W.

ELDRIDGE, Judge, dissenting. The majority decides that the judgment in a paternity case may not be vacated absent a showing of “fraud, mistake, or irregularity,” under the narrow definition of those terms set forth in Maryland case law, even though scientific evidence is later obtained which conclusively establishes that an “adjudged father” is not in fact the biological father of the child. 1 Although I would agree that a judgment ordinarily should not be set aside unless the strict requirements of Maryland Rule 2-535(b) have been met, a paternity action differs significantly from other adjudications and merits different treatment. As the Court of Special Appeals pointed out in Case No. 157, the unique nature of paternity actions, and the need for some flexibility in such actions, was recognized by the General Assembly in the paternity statute. Maryland Code (1984, 1991 Repl.Vol.), § 5-1007 of the Family Law Article, provides that “[a]ny rule of court or statute that relates to procedure applies to a proceeding under this subtitle only to the extent that the rule or statute is ...

(1) practical under the circumstances----” This statutory provision furnished ample authority for the circuit courts’ decisions in. both cases. I would affirm. 2 ³²⁷ In a paternity action, unlike other lawsuits, a court is called upon to declare a scientific, biological fact, namely whether a particular individual is the biological father of a given child. Most other types of lawsuits, however, require a court to decide upon the appropriate remedy in a particular situation based upon society’s rules applicable to human conduct. While the judgments in ordinary lawsuits often depend upon the judicial system’s ascertainment of historical facts, the typical judicial fact-finding process is quite different from what a court is asked to do in a paternity action.

Moreover, the scientific processes for determining fatherhood have been rapidly improving. In addition to the red blood cell antigen test (RBC), “the first level of genetic systems tested,” there are available tests such as the human leukocyte antigens system (HLA) and the red cell enzymes and serum proteins which may be used to produce a high rate of exclusion. United States Department of Health and Human Services, Paternity Establishment, at 61 (3d ed. 1990). The “HLA has a very high probability of exclusion (95%), which can be increased to approximately 99% when combined with other tests for red cell antigens and enzymes, and plasma protein systems.” Sidney B. Schatkin, Disputed Paternity Proceedings, § 11.04, at 11-48 (4th ed. 1976).

In addition, DNA testing can provide even more reliable information “since no two people, aside from identical twins, have the same genetic composition.” Id. § 11B.01 at 11B--3. “ ‘[Disputing [DNA] technology is like disputing the law of gravity’ ”. Id. § 11B.01 at 11B-41. See also Debra Cassens Moss, DNA— The New Fingerprints, A.B.A.J. 66 (May 1, 1988) (“In the family law area, [DNA testing] means a woman suing for paternity can establish conclusively whether the respondent is the father”). It is absurd, in the face of incontrovertible scientific evidence, for a court to treat as binding, for the future, a patently erroneous declaration of biological fact. ³²⁸ A judgment of paternity has continuing ramifications uncharacteristic of the typical judgment rendered by a court.

In addition to providing the basis for child support, a paternity determination affects, inter alia, inheritance rights, citizenship, and the child’s knowledge of his or her medical history. See Locklear v. Sampson, 478 So.2d 1113, 1115 (Fla.App.1985); Crowder v. Com. Ex. Rel.

Gregory, 745 S.W.2d 149, 151 (Ky.Ct.App.1988). Thus, accurate determinations of paternity are critical, not simply because a child is entitled to financial support from his or her father, but also because a child may later be in need of a blood transfusion or an organ transplant from a compatible family member. A child may face decisions about marriage and childbearing based on the risk of passing on what the child believes are inherited conditions. Similar ramifications are not usually associated with ordinary tort or contract litigation.

In an automobile injury case, for example, a factfinder might decide that the traffic light was green when the plaintiffs car entered the intersection. If later it were irrefutably established that the light had been red, the consequences of foreclosing the matter because of the earlier judgment, which would simply involve the effect on the parties of the award or non-award of damages, are less compelling than the consequences of a paternity declaration. Incidental to the resolution of the dispute between the mother and the putative father, a paternity judgment affects the interests of third parties to a greater extent than other judgments. A child has an independent interest in receiving financial support from his or her true parents.

Furthermore, a child has an interest in knowing his or her true heritage for medical and psychological reasons, inheritance, and other purposes. Likewise, the natural father is entitled to an accurate determination of paternity, not just in order to uphold his parental obligations, but also for psychological and emotional reasons. As previously mentioned, the General Assembly in the paternity statute itself recognized the unique nature of paternity actions and the need for flexibility in applying procedural ³²⁹ rules to paternity actions. Section 5-1007 of the Family Law Article provides as follows: “§ 5-1007.

Inconsistent statutes or rules. Any rule of court or statute that relates to procedure applies to a