Johnson v. Johnson

          APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT [35DR-17-369] HONORABLE LEON N. JAMISON, JUDGE

          Brockman, Norton & Taylor, by: C. Mac Norton and Zachary Taylor, for appellants.

          McKissic & Associates, PLLC, by: Gene E. McKissic, Sr., and Jackie B. Harris, for appellees.

          ROBERT J. GLADWIN, JUDGE

         Sandra Johnson, administrator of the estate of Perry Johnson, Jr., and the estate of Perry Johnson, Jr., appeal the October 12, 2018 judgment of paternity entered by the Jefferson County Circuit Court. The sole issue is whether the circuit court erred in admitting appellees' reports of DNA test results into evidence when it found substantial compliance with Arkansas Code Annotated section 9-10-108 (Repl. 2015). We affirm.

         I. Facts

         Perry Johnson, Jr. (P.J.), died on December 6, 2016, and Sandra Johnson, his widow and wife of fifty years, was appointed personal representative of the estate. A paternity action subsequently was filed alleging that P.J. is the biological father of the appellees, Vincent Osric Johnson, Tammy Johnson, Trina Surratt, Shayla Brentley Moore, Stacy Rogers, Demarlone Bell, and Kenneth Johnson. The action was initially filed against Sandra Johnson, administrator of the estate of Perry Johnson, Jr., but was later amended to name the estate of Perry Johnson, Jr., as a separate defendant.

         The parties entered into a partial settlement resulting in an order filed by the circuit court on June 1, 2017. This order, provided, among other things, for DNA paternity testing initiated by appellees. It also provided that if the DNA testing results were in proper form as required by law for such testing and reflected a finding of paternity of 95 percent or greater for an appellee, a presumption of paternity would exist for that particular person.

         On September 5, appellants filed a motion for a chain-of-custody affidavit alleging deficiencies in a set of proffered DNA test results. Appellants' motion was granted by the circuit court on September 26, and the resulting order described numerous deficiencies in the proffered test results and set forth instructions as to how they must be cured.

         Appellees filed an affidavit of test results on March 22, 2018, with attachments, including an affidavit executed by Joy Johnson, Ph.D., the assistant lab director of DNA Diagnostics Center, and certifications or statements regarding the integrity of the samples. Appellants filed a motion to enforce the chain-of-custody order and objections to DNA testing results on April 6, in which they argued solely that appellees had not satisfied Arkansas law pertaining to chain of custody pursuant to Arkansas Code Annotated section 9-10-108(a)(5)(B) (Repl. 2015). Appellees responded to appellants' motion on April 9 and attached to the response more than eighty pages of supporting documents.

         During a telephone conference on April 11, the circuit court determined that the record was complete and that it could rule on the admissibility of the DNA records. The circuit court entered an order on September 17 finding that appellees were in substantial compliance with the chain-of-custody statute, section 9-10-108(a)(5)(B). The circuit court also found that appellants' pending motion to enforce the chain-of-custody order was moot, thereby denying appellants' pending motion and denying their objections to the subject DNA testing results. The circuit court found that appellees' argument in paragraph 5 of their response was persuasive:

5. Further, all of the DNA Test Results contain supporting documentation of the collection of the samples and receipt of samples at the testing facility. The Collectors of the specimens certify that they have collected, packaged and sealed the specimens and witnessed the signatures of the specimen donors. Further, the Collectors affirm under penalty of perjury that no tampering with the specimen(s) occurred while under the collector's control. Additionally, the testing facility provided a statement that the specimens were received with no evidence that the specimens had been tampered with or the package opened. The Assistant Laboratory Director of DNA Diagnostic Center certified that the packages containing the DNA specimens of the Plaintiff were examined for integrity upon receipt at the lab and that there was no sign of tampering during transit. This documentation is provided for the testing of each of the specimens provided by each of the Plaintiffs and attached hereto as Exhibit A and incorporated by reference.

         On October 12, a judgment of paternity was entered by the circuit court consistent with its previous order. The court held, among other things, that all the appellees are P.J.'s biological children. Appellants filed a timely notice of appeal on October 15.

         II. Standard of Review ...