Toft v. State Ex Rel. Pimentel

²¹⁰ HARRELL, Judge. Appellant, Donald P. Toft, appeals from a judgment in the Circuit Court for Anne Arundel County, wherein a jury, presided over by Judge Lawrence H. Rushworth, found that he fathered a daughter born to appellee; Ali Pimentel, and the court subsequently entered an order requiring him to pay child' support. For the reasons set forth below, we shall affirm the judgment of the circuit court. ISSUES PRESENTED Appellant presents four issues for our resolution on appeal, which we have rephrased for analysis as follows: I. Did the circuit court err by admitting the blood test report into evidence: (A) Based upon the alleged failure of the court to “select” the laboratory that performed the blood tests?

(B) Based upon the alleged failure of the laboratory to follow industry standards or its own internal standards?

II

Did the circuit court err in denying appellant’s motion for judgment at the close of all evidence because the presumption. of legitimacy contained in Md.Fam.Law Code Ann. § 5-1028(c) had not been rebutted?

III

Did the circuit court err by failing to give appellant’s requested jury instructions regarding the presumption of legitimacy and the admissibility of blood tests?

IV

Did the circuit court err by conducting a child support hearing immediately following the conclusion of the paternity trial? FACTS AND PROCEEDINGS BELOW On 31 July 1989, appellee gave birth to a child, subsequently named “Alexandria Jordan Toft” (“Alexandria”). During the period (stipulated by the parties) within which this child was conceived, i.e., from 20 October 1988 until 2 November 1988, appellee was married to one Michael Wayne Williamson, but ²¹¹ they lived separate and apart from one another. 1 Appellee first met appellant in the middle of October, 1988, in Virginia Beach, Virginia, where they were both residing. Almost immediately, appellee and appellant began a sexual relationship.

Appellee also engaged in ongoing sexual intercourse with another man, David Turner, beginning on either 5 or 7 November 1988. Although appellant was cognizant of appellee’s relationship with Mr. Turner, his sexual relationship with appellee did not cease until the end of November, or early December, 1988. In January of 1989, appellee informed appellant that she was pregnant, and that she believed the child was Mr. Turner’s. One day after Alexandria was born, appellee contacted appellant, and indicated to him that he was the father of the child.

Although there is no direct evidence contained in the record, the parties are in apparent agreement that, on 6 December 1991, another judge, in a separately numbered case, signed an order requiring appellee, Alexandria, and appellant to submit to blood tests in order to determine exclusion and/or the statistical probability of appellant’s paternity. 2 The record ²¹² does not reflect that Mr. Williamson, appellee’s husband, or Mr. Turner submitted to any blood test vis á vis Alexandria and her paternity. On 30 September 1992, appellee filed the instant Uniform Support Petition in the Circuit Court for Anne Arundel County, naming appellant as the father of her child. The petition sought establishment of paternity in appellant, an order for child support, and medical coverage for Alexandria. Appellant answered the petition, alleging that he was not Alexandria’s father and that there was no basis for a claim against him for child support and medical coverage.

A two day jury trial on the paternity portion of appellee’s petition commenced on 17 January 1995. Appellee’s expert witness, Francis Chiafari, a molecular biologist and supervisor in the DNA laboratories of the Baltimore Rh Typing Laboratory (“Baltimore Rh Lab”), where the blood tests were performed in this case, began to testify regarding the test results when appellant’s counsel objected to their admission. The basis for this objection was that Baltimore Rh Lab was not “selected” in accordance with Md.Fam.Law Code Ann. (“FL”) § 5-1029(b).I * 3 After several bench conferences with counsel ²¹³ and some further testimony by Mr. Chiafari, the court overruled the objection. 4 Mr. Chiafari testified that tests were performed in both an Human Leukocyte Antigens (“HLA”) laboratory and a DNA laboratory, and based upon the results of the tests: (1) appellant could not be excluded as a possible father of Alexandria; (2) the probability of appellant’s paternity was 99.9%; (3) it was extremely likely that appellant was Alexandria’s father; and (4) the genetic markers would exclude 99.96% of the men falsely accused of paternity in this case. Over objection, the blood test report was moved into evidence by appellee.

On cross-examination of Mr. Chiafari, testimony was elicited that Baltimore Rh Lab is certified by the American Association of Blood Banks (“AABB”), and subscribes to the standards set forth by the AABB, including its requirements that: (1) methods be available to identify specimens collected from a facility outside of the laboratory conducting the tests; (2) the blood samples be identified with a firmly attached label bearing a unique identification for each individual and the collection date; and (3) the phlebotomist’s name must be part of the permanent record of each sample. In addition, Mr. Chiafari testified that Baltimore Rh Lab has its own internal standard that requires all blood samples received from other laboratories to be drawn on Monday, Tuesday, or Wednesday only, and be received by Baltimore Rh Lab within 24 hours of drawing. The blood samples from appellee and Alexandria were drawn on 12 May 1993 in Las Vegas, Nevada, but not received by Baltimore Rh Lab until 14 May 1993, in contravention of its ²¹⁴ own internal standard. On re-direct examination, however, Mr. Chiafari stated that the samples could be as old as three days without any deleterious effects on the accuracy of the tests.

The documentation sent by the Las Vegas collecting facility did not indicate which tubes were drawn from the minor child, and although it provided the name and signature of the phlebotomist who drew the sample from appellee, this information was omitted from the appropriate blank in the form for Alexandria’s sample. Mr. Chiafari testified, nevertheless, that the other information on the form indicated to him that the same phlebotomist drew both appellee’s and Alexandria’s samples. Following the testimony of Mr. Chiafari, both appellee and appellant testified at trial consonant with the above-described facts that were within their scope of personal knowledge. Particularly with regard to appellee, as we noted supra, testimony was received, without objection, that she and her husband had been living separate and apart since June, 1988.

Apparently, she had been living in California, Nevada, and Virginia at various times, while he had been living in Texas. 5 At the conclusion of the evidentiary phase of the trial, appellant moved for judgment based upon the alleged failure of appellee to overcome the “rebuttable presumption” contained in FL § 5—1028(c)(1) “that the child is the legitimate child of the man to whom its mother was married at the time of conception.” The trial court denied this motion. After providing the jury general instructions, the trial judge proceeded to give specific instructions relative to paternity actions. The court instructed the jury that the blood tests were admissible if they both excluded 97.3% of supposed fathers and had a 97.3% probability of appellant’s paternity. He further instructed that blood tests results above 97.3% are prima facie evidence of paternity, and that- a “laboratory report received into evidence establishing a statistical proba ²¹⁵ bility of the alleged father’s paternity of at least [99.0%] constitutes a rebuttable presumption of his paternity.” After explaining what a rebuttable presumption means, the court gave the following instruction regarding the presumption of legitimacy: There is ... a rebuttable presumption also that a child is the legitimate child of a man to whom its mother was married at the time of conception.

This presumption may be rebutted by the testimony of a person other than the mother or husband, that the husband and the wife were living separate and apart, or by the introduction of evidence of genetic blood testing. (Emphasis supplied). Appellant’s counsel excepted to the emphasized portion of the above instruction, and additionally excepted to the refusal of the court to give the following proposed instruction: Maryland law states that the blood tests shall be made in a laboratory selected by the court from a list of laboratories provided by the [Child Support Enforcement] Administration. If you find that the laboratory was not selected by the court from a list of laboratories provided by the Administration, then you shall disregard the laboratory report and testimony of the expert witness.

Both of appellant’s exceptions were overruled by the court, and the case was submitted to the jury. After approximately twenty minutes of deliberation, the jury returned its verdict, concluding that appellant was Alexandria’s father. Immediately following the jury verdict declaring appellant’s paternity on 18 January 1995, the court commenced the child support hearing. Appellant objected to the child support hearing, based upon FL § 5-1037, which provides that “|.t]he court may not enter an order under this subtitle against a party unless the party is given reasonable notice and an opportunity to be heard.” Appellant contended that the only notice he received pertained to the jury trial on the issue of paternity, and that he received no notice that a child support hearing would follow the trial if the jury determined that he ²¹⁶ was Alexandria’s father.

The circuit court overruled appellant’s objection and proceeded to take testimony from the parties regarding their respective incomes, day care costs, medical insurance, and the costs of blood tests. Employing the Child Support Guidelines set forth in FL § 12-201 et. seq., the court ordered appellant to pay $372.00 per month in child support and $327.00 for the cost of blood tests. Appellant filed a timely appeal to this Court. Additional facts will be supplied as necessary in our analysis of the issues raised.

ANALYSIS STATUTORY CONSTRUCTION As the resolution of a majority of the issues presented on this appeal depend on our interpretation of the applicable statutes, a brief discussion is warranted on the guiding principles involved therein. The cardinal rule of statutory construction is to effectuate and carry out legislative intent. E.g., Taxiera v. Malkus, 320 Md. 471, 480 , 578 A.2d 761 (1990) (citations omitted). Statutes are enacted to further an underlying goal, aim, or purpose, and must be interpreted in accordance with their general purposes and policies.

E.g., Motor Vehicle Administration v. Gaddy, 335 Md. 342, 346 , 643 A.2d 442 (1994) (citations omitted). We look first to the statutory language itself, since those words, given their generally understood meaning, are the most convincing evidence of legislative intent. E.g., Comptroller v. Jameson, 332 Md. 723, 732-33 , 633 A.2d 93 (1993) (citations omitted). In addition, we look to the “context,” or legislative history of a statute, including the statute’s relationship to earlier or subsequent legislation, as an aid in determining legislative intent.

Rose v. Fox Pool Corp., 335 Md. 351, 360 , 643 A.2d 906 (1994) (citing Maryland Nat’l Bk. v. Pearce, 329 Md. 602, 619 , 620 A.2d 941 (1993)) (quoting Kaczorowski v. City of Baltimore, 309 Md. 505, 515 , 525 A.2d 628 (1987)); Jameson, supra, 332 Md. at 733 , 633 A.2d 93 (citations omitted). Furthermore, “where two statutes purport to deal with the same subject matter, they must be ²¹⁷ construed together as if they were not inconsistent with one another,” giving “full effect to both statutes, even where they were enacted at different times and without relation to one another.” Taxiera, supra, 320 Md. at 481 , 578 A.2d 761 . With these principles in mind, we turn to consider the issues presented.

I

(A) Appellant contends that FL § 5—1029(b), set forth in n. 3, supra, required that the trial judge in this case personally select the particular laboratory that performed the blood testing from a list of laboratories provided by the Child Support Enforcement Administration. 6 Inasmuch as Judge Rushworth did not make this selection, appellant posits that the blood test report was therefore inadmissible. We disagree. It is our view, derived from the plain language of the statute, that FL § 5-1029(b) is concerned with the proper procedure for ordering of blood tests, not their admissibility at a later point in time. Admissibility of blood test reports is governed by FL § 5-1029(e), set forth and discussed in section I.(B), infra.

Accordingly, if appellant disputed the propriety of the laboratory selection, the time for objection was when the testing was ordered, i.e., apparently on 6 December 1991. As the record before us contains no indication of a prior objection to the order when it was entered, we consider the FL § 5-1029(b) objection not to have been timely made in this case, and we see no error in its being overruled. In any event, were we to decide specifically appellant’s contention, we would not hold it to be cause for reversal. At ²¹⁸ trial, in an effort to prove that the prior order was in fact properly made, appellee’s counsel submitted to the trial judge the list of approved laboratories compiled by the Child Support Enforcement Administration.

Baltimore Rh Lab was the first laboratory named on the list. Appellant does not dispute that Baltimore Rh Lab is fully approved for court usage by the Child Support Enforcement Administration. In addition, the reference to the 6 December 1991 order by Judge Lerner, 7 read into the record by appellee’s counsel, indicates that “[appellee], the minor child, Alexandria J. Toft, and [appellant] are hereby ordered to submit to an HLA blood test to determine exclusion or statistical probability of [appellant’s] paternity. Said blood test shall be arranged through the Domestic Relations Division of this Court.” (Emphasis Supplied).

This is a predictable and acceptable form of laboratory selection under the statute. We do not believe that the legislature envisioned that a trial judge would keep an updated list of laboratories under his or her control and name a specific laboratory in each and every order that he or she enters for blood tests. Continuous scheduling duties and the ongoing updating of the list of approved laboratories would, practically speaking, preclude or severely limit the effectiveness of this option. Rather, it is better reasoned that the Child Support Enforcement Administration, the agency specifically charged with the duty of keeping a list of laboratories that meets the current standards, provide that list to the various court agencies that routinely deal with the types of cases where such laboratory work is required, e.g., the Domestic Relations Division of the Anne Arundel County Circuit Court. 8 ²¹⁹ In any event, even assuming, arguendo, that our view of the legislative design of FL § 5-1029(b) is somehow misguided, and the circuit court erred by failing to adhere to the statute’s requirements, appellant has not demonstrated how he was harmed or prejudiced by it in any way.

The laboratory that performed the blood tests was on the list compiled by the Child Support Enforcement Administration. With the exception of his claims discussed in section I.(B), infra, appellant does not contend that the selection of Baltimore Rh Lab tainted the results of the blood tests, or that the results would have been different if the trial judge would have selected the laboratory. We will not reverse a civil judgment unless the complaining party shows error and prejudice. E.g., Harris v. Harris, 310 Md. 310, 319 , 529 A.2d 356 (1987) (citing Beahm v. Shortall, 279 Md. 321, 330 , 368 A.2d 1005 (1977)).

(B) Appellant contends additionally that the blood test results were inadmissible because they failed to meet AABB standards and Baltimore Rh Lab’s own internal collection standards. FL § 5-1029(e) governs the admissibility of, and certain burdens and presumptions relating to, blood test reports, and provides, in pertinent part: (e) Laboratory report as evidence.—(1) Subject to the provisions of paragraph (3) of this subsection, the laboratory report of the blood or genetic test shall be received in evidence if: (i) definite exclusion is established; or (ii) the testing is sufficiently extensive to exclude 97.3% of alleged fathers who are not biological fathers, and the statistical probability of the alleged father’s paternity is at least 97.3%. ²²⁰ (2) A laboratory report is prima facie evidence of the results of a blood or genetic test. (3) (i) Subject to the provisions of paragraph (ii) of this paragraph, the laboratory report of the blood or genetic test is admissible in evidence without the presence of a doctor or technician from the laboratory that prepared the report if the report: 1. is signed by the doctor or technician who prepared or verified the report; and 2. states that the result of the blood or genetic test is as stated in the report. (ii) When the laboratory report of the blood or genetic test is admitted in evidence, a doctor or technician from the laboratory that prepared the report is subject to cross-examination by any party to the proceeding if the party who desires cross-examination has subpoenaed the doctor or technician at least 10 days before trial.

(4) A laboratory report received into evidence establishing a statistical probability of the alleged father’s paternity of at least 99.0% constitutes a rebuttable presumption of his paternity. FL § 5-1029(e) (Supp.1995). 9 We begin our analysis of this particular contention by considering whether the requirements of FL § 5-1029(e)(1) were met. The record reveals that the degree of statistical accuracy of appellant’s paternity (99.9% probability), and that of exclusion of those that would be falsely accused (99.96%), exceeds the statutory thresholds for admissibility. See Sider v. Sider, 334 Md. 512 , 516 n. 5, 639 A.2d 1076 (1994); Eagan v. Ayd, 313 Md. 265, 274-76 , 545 A.2d 55 (1988) (held that ²²¹ contempt power could be used to compel a reluctant putative father to take blood test and, while discussing the legislative history of blood test usage, stated: “Given these legislative goals and the fact that a test which complies with the conditions of [FL] § 5-1029(e) must be admitted into evidence ....”) (emphasis supplied).

The high degree of statistical reliability even implicates FL § 5-1029(e)(4), which, on its face, triggers a rebuttable presumption of appellant’s paternity, discussed infra. Thus, the blood test report admitted in this case comports with all of the statutorily-defined criteria for admissibility. 10 Nevertheless, appellant argues essentially that admissibility of the blood test report is precluded, not by the statute, but by the evidence elicited by appellant’s counsel on cross-examination, 11 after the report had already been admitted, that the laboratory failed to follow AABB standards, as well as its own internal standards. The statute makes no mention of adhering to specific standards of the AABB or other blood-testing industry group, or of the particular laboratory’s own internal standards, which may exceed those of the AABB. Accordingly, the failure of a laboratory to follow AABB standards, in and of itself, has no bearing on the admissibility of blood test reports coming from that laboratory, provided that all of the other statutory requirements have been met—as they were in this case.

As these are not criteria for admissibility under the statute, if relevant at all, non-adherence ordinarily would go ²²² only to the weight afforded the test results by the jury. Appellant does not, and based upon this record could not, argue that he was not given an opportunity to attempt to discredit the accuracy of the test results. 12 Of course, admissibility is a separate concern from the weight to be given blood test evidence, and the blood test report was properly admitted in this case.

II

Appellant argues that the trial court erred in denying his motion for judgment at the close of all evidence because appellee failed to overcome the presumption contained in the paternity statutes that a child is the legitimate child of the man to whom the mother was married at the time of conception. Our standard of review for the denial of a motion for judgment involves performing essentially the same analysis as the trial court, i.e., we must consider whether the evidence, including the logical inferences to be drawn therefrom, viewed in the light most favorable to the non-moving party, was legally sufficient to generate a jury question. E.g., James v. General Motors Corp., 74 Md.App. 479, 484 , 538 A.2d 782 , cert. denied, 313 Md. 7 , 542 A.2d 844 (1988) (and cases there cited). The legitimacy presumption is contained in FL § 5-1028(c), which provides: ²²³ (1) There is a rebuttable presumption that the child is the legitimate child of the man to whom its mother was married at the time of conception.

(2) The presumption set forth in this subsection may be rebutted by the testimony of a person other than the mother or her husband. (3) If the court determines that the presumption set forth in this subsection has been rebutted by testimony of a person other than the mother or her husband, it is not necessary to establish nonaccess of the husband to rebut the presumption set forth in this subsection. (4) If the court determines that the presumption set forth in this subsection has been rebutted by testimony of a person other than the mother or her husband, both the mother and her husband are competent to testify as to the nonaccess of the husband at the time of conception. The stool that appellant constructs to support his argument has two legs.

The first is that the Court of Appeals “has never held that blood tests may be used to rebut the legitimacy presumption under the paternity statute,” and the second is based upon his claim that the statute continues to require “third party testimony that the husband and wife were living separate and apart at the time of conception” in order to rebut the presumption of legitimacy. When called upon to bear the full weight of our scrutiny, the stool topples. Appellant is correct that Maryland’s highest court has yet to hold explicitly that blood tests may be used to rebut the presumption of legitimacy contained in FL § 5-1028(c). 13 In Turner v. Whisted, 327 Md. 106 , 607 A.2d 935 (1992), the Court of Appeals, while considering the ability of a putative biological father of a child born to a married woman to order blood tests to establish his paternity, concluded that “the Court of Special Appeals was in error in its determination that ²²⁴ blood tests could not be used to rebut the legitimacy presumption.” Id. at 117 , 607 A.2d 935 . We are cognizant that Turner proceeded under the Estates and Trusts Article, and not the paternity statutes of the Family Law Article at issue here.

As was recognized in Turner , paternity may be established under either the Family Law Article or the Estates and Trusts Article. Id. at 112 , 607 A.2d 935 . Both articles contain an express provision that a child conceived 14 during wedlock is presumed to be the legitimate child of both spouses. Md. Est. & Trusts Code Ann. § 1-206; FL § 5-1028(c).

Furthermore, the Court of Appeals quoted with approval the proposition, dealing with the availability of a paternity determination via an equitable action under the Estates and Trusts Article, as opposed to the paternity statutes, that “the rules of evidence controlling the proof of paternity ought to be the same in either case.” Turner, 327 Md. at 113 , 607