
    DEPARTMENT OF HUMAN SERVICES, State of Mississippi v. Reginald Deon SMITH.
    No. 92-CA-0574.
    Supreme Court of Mississippi.
    Nov. 24, 1993.
    Chester Ray Jones, Brandon, Joel R. Jones, Raymond, for appellant.
    Rabun Jones, Gaines S. Dyer, Dyer Dyer Dyer & Jones, Greenville, for appellee.
    
      Before PRATHER, P.J., and SULLIVAN and JAMES L. ROBERTS, Jr., JJ.
   PRATHER, Presiding Justice,

for the Court:

I. INTRODUCTION

On September 4, 1991, the Mississippi Department of Human Services (“DHS”) filed a complaint in the Sharkey County Chancery Court alleging that Reginald Deon Smith was the biological father of Ceatrice Hollins’ child, Natasha. More specifically, DHS sought to establish paternity and secure child-support payments.

A hearing was scheduled for October 16, 1991. On October 16, Smith presented Chancellor Gerald Braddock a motion for a continuance because he needed more time to retain an attorney’s services. Chancellor Braddock granted Smith’s motion and rescheduled the hearing for January 29, 1992.

On January 6, 1992, Smith’s attorney filed an answer to DHS’s complaint denying paternity. On January 29 — the day of the hearing — DHS requested a continuance because it (DHS) was not prepared. DHS also presented a motion for blood tests. DHS explained that it was unprepared because the attorney who had been handling its paternity cases had “abruptly quit.” The chancellor denied DHS’s request for a continuance. The chancellor also denied DHS’s motion for blood tests because the motion was presented in an untimely manner.

The hearing proceeded and at its conclusion, the chancellor found that DHS had failed to prove paternity by a preponderance of the evidence. DHS appealed and presents two issues for this Court’s analysis:

1. Whether the chancellor erred by denying DHS’s motion for blood tests?
2. Whether the chancellor erred by allowing testimony regarding the mother’s sexual activity “outside the 9 to 10 month period of conception of the child?”

II. ANALYSIS

A. Issue #1

1.

Pursuant to Miss.Code Ann. § 93-9-21 (Supp.1992), a chancellor may — on his or her own motion or in response to a motion of a party — order the mother, child, and putative father to submit to a blood test. Thus, “the ordering of the blood tests is ... discretionary, rather than mandatory.” Deer v. State Dep’t of Public Welfare, 518 So.2d 649, 651 (Miss.1988). Accordingly, this Court “may reverse ... where [the chancellor] has abused that discretion in ordering, or refusing to order, the blood tests.” Id.

Public policy dictates that a determination of paternity is in a child’s best interest. Protection of a child’s best interest is a goal which this Court considers to be of utmost import in any domestic-relations case. Accordingly, this Court must determine whether the child’s best interests would have been served if the chancellor had granted DHS’s motion for blood tests. Another way of looking at it is this: Natasha may never know who her father is nor receive any financial support from him — all because an attorney who had been handling her case “abruptly resigned” from DHS and left her without adequate representation.

With the foregoing analysis of law and public policy in mind, this Court concludes that the child’s best interests would have been protected if the chancellor had granted DHS’s motion for a blood test. This Court reaches this conclusion while recognizing DHS’s admitted failure to file its motion in a timely manner. However, neither the chancellor nor the defendant cited any prejudice which would have resulted if DHS’s motion had been granted.

In sum, under the facts of this case, the child’s best interests must override any concern over timeliness and we reverse and remand on this issue.

B. Issue #2

DHS contends that the chancellor erred “in allowing inadmissible testimony of sexual activities of the mother outside the 9 or 10 months before the birth of the subject minor child.” Smith stated that the questions he posed to Hollins were not “addressed to a time period other than the ten month period prior to the child’s birth, but instead was simply a question as to the number of times Ms. Hollins had engaged in sexual relations with Nicholas Thomas.” Smith’s question regarding Hollins’ sexual activities during the 9- to 10-month period preceding her child’s birth was a valid and relevant question. The chancellor properly overruled DHS’s objection. This Court affirms on this issue.

III. CONCLUSION

This Court holds that the chancellor’s denial of DHS’s motion for an order compelling the putative father to submit to a blood test constituted an abuse of discretion. The chancellor was correct in allowing testimony regarding the mother’s sexual activity within the 9 or 10 month period proceeding the birth of the child. Therefore, this cause is affirmed in part and reversed and remanded in part.

AFFIRMED IN PART, REVERSED AND REMANDED IN PART FOR PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.

HAWKINS, C.J., DAN M. LEE, P.J., and SULLIVAN, PITTMAN, JAMES L. ROBERTS, Jr., and SMITH, JJ., concur.

McRAE, J., dissents with separate written opinion joined by BANKS, J.

McRAE, Justice,

dissenting:

I agree with the majority that determination of paternity is in a child’s best interest. Competent and responsible representation by the Department of Human Services is also in a child’s best interest. The majority’s acquiescence to DHS’s failure to timely file a motion for blood tests in this ease endorses practices which are contrary to the goal of securing support for these children. Accordingly, I dissent.

I further disagree with the majority’s refusal to even-handedly apply the rules of discovery. Equal protection applies to all litigants, both public and private, and should not be applied indiscriminately.

DHS filed its complaint against Reginald Deon Smith on September 4,1991. It is safe to assume that DHS was aware at that time that a blood test would be helpful in establishing paternity. After Smith requested a continuance in October, the trial was rescheduled for January 29, 1992. Despite nearly a five-month lead time, DHS presented its motion for blood tests on the day of the trial.

Waiting until the day of trial to present a motion for blood tests exhibits either disregard for the rules or incompetence. I am not moved by the agency’s excuse that its attorney had “abruptly quit.” Nearly five months had elapsed since the case against Smith was filed. The chancellor properly denied the motions as untimely.

The majority’s opinion affords special privileges to DHS not available to other parties or litigants. Our rules of procedure, except where specified by statute, apply to DHS and other agencies as to any other litigants. We should not establish policies to the contrary. Recently, we have considered three cases where DHS has waited until trial to present motions to order blood tests. When will it end?

Affirming the chancellor’s decision will only prevent DHS from collecting child support from the putative father. It does not preclude the child, herself, from bringing suit to establish paternity at a later date.

The majority bases its conclusion not on our rules of procedure but on its desire to protect the interests of this particular child. However, the interest of all similarly situated children in our state would be better served by requiring DHS to adhere to the rules applicable to all other litigants. Only then will the litigation necessary to establish paternity and secure support payments for these children he handled in a timely and professional manner. Accordingly, I dissent.

BANKS, J., joins this opinion. 
      
      . For this reason, the Mississippi Legislature has provided chancellors with the power to order blood tests on the chancellor's own motion. See Miss.Code Ann. § 93-9-21 (1972).
     