Wayne County Department of Social Services v. Brett D.

Appellate Division of the Supreme Court of New York

Wayne County Department of Social Services v. Brett D.

242 A.D.2d 959, 662 N.Y.S.2d 657, 1997 N.Y. App. Div. LEXIS 10575

CourtAppellate Division of the Supreme Court of the State of New York

DecidedSeptember 30, 1997

StatusPublished

This text of 242 A.D.2d 959 (Wayne County Department of Social Services v. Brett D.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wayne County Department of Social Services v. Brett D., 242 A.D.2d 959, 662 N.Y.S.2d 657, 1997 N.Y. App. Div. LEXIS 10575 (N.Y. Ct. App. 1997).

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Opinion

Order unanimously reversed on the law without costs and petition granted in accordance with the following Memorandum: Family Court erred in dismissing the petition in this paternity proceeding on the ground that petitioner had not met its burden of proving paternity by clear and convincing evidence. The only witness at the hearing was the mother, who testified that she had sexual intercourse with respondent in January 1980 and that the child was a full-term baby, born on October 16, 1980. The period of gestation indicated by that evidence placed conception within the time period in which the mother engaged in sexual intercourse with respondent (see, Matter of Niagara County Dept, of Social Servs. [Yvonne W.] v David R., 219 AD2d 812, 812-813). Although the mother acknowledged that she had sexual intercourse with three other men during the probable period of conception, each of those men was ruled out as the child’s father by blood genetic marker tests. A blood genetic marker test indicating that there is a 99.99% probability that respondent is the child’s father was received in evidence. That test, which is entitled to great weight, created a presumption of paternity that respondent failed to rebut (see, Family Ct Act § 532 [a]; Matter of Oneida County Dept, of Social Servs. [Karen L.] v Amadeo J. D., 219 AD2d 834). Furthermore, because respondent did not testify, the court is allowed to draw the strongest inference against him that the opposing evidence in the record permits (see, Matter of Commissioner of Social Servs. [Patricia A.] v Philip De G., 59 NY2d 137, 141).

[960]*960Thus, we conclude that petitioner established respondent’s paternity by clear and convincing evidence (see, Matter of Niagara County Dept, of Social Servs. [Bridgette C. O.] v Wendell R., 233 AD2d 949; Matter of Niagara County Dept, of Social Servs. [Yvonne W.] v David R., supra). (Appeal from Order of Wayne County Family Court, Parenti, J.—Paternity.) Present—Pine, J. P., Lawton, Wisner, Callahan and Doerr, JJ.

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Order unanimously reversed on the law without costs and petition granted in accordance with the following Memorandum: Family Court erred in dismissing the petition in this paternity proceeding on the ground that petitioner had not met its burden of proving paternity by clear and convincing evidence. The only witness at the hearing was the mother, who testified that she had sexual intercourse with respondent in January 1980 and that the child was a full-term baby, born on October 16, 1980. The period of gestation indicated by that evidence placed conception within the time period in which the mother engaged in sexual intercourse with respondent (see, Matter of Niagara County Dept, of Social Servs. [Yvonne W.] v David R., 219 AD2d 812, 812-813). Although the mother acknowledged that she had sexual intercourse with three other men during the probable period of conception, each of those men was ruled out as the child’s father by blood genetic marker tests. A blood genetic marker test indicating that there is a 99.99% probability that respondent is the child’s father was received in evidence. That test, which is entitled to great weight, created a presumption of paternity that respondent failed to rebut (see, Family Ct Act § 532 [a]; Matter of Oneida County Dept, of Social Servs. [Karen L.] v Amadeo J. D., 219 AD2d 834). Furthermore, because respondent did not testify, the court is allowed to draw the strongest inference against him that the opposing evidence in the record permits (see, Matter of Commissioner of Social Servs. [Patricia A.] v Philip De G., 59 NY2d 137, 141).

[960]*960Thus, we conclude that petitioner established respondent’s paternity by clear and convincing evidence (see, Matter of Niagara County Dept, of Social Servs. [Bridgette C. O.] v Wendell R., 233 AD2d 949; Matter of Niagara County Dept, of Social Servs. [Yvonne W.] v David R., supra). (Appeal from Order of Wayne County Family Court, Parenti, J.—Paternity.) Present—Pine, J. P., Lawton, Wisner, Callahan and Doerr, JJ.

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Bluebook (online)

242 A.D.2d 959, 662 N.Y.S.2d 657, 1997 N.Y. App. Div. LEXIS 10575, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wayne-county-department-of-social-services-v-brett-d-nyappdiv-1997.

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