Commonwealth, DSS v. James Flaneary , 22 Va. App. 293 ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Coleman and Fitzpatrick
Argued By Teleconference
COMMONWEALTH OF VIRGINIA,
DEPARTMENT OF SOCIAL SERVICES,
DIVISION OF CHILD SUPPORT ENFORCEMENT,
ex rel. COMPTROLLER OF VIRGINIA,
o/b/o DEBRA OVERBY OPINION BY
JUDGE SAM W. COLEMAN III
v. Record No. 2528-94-3 APRIL 16, 1996
JAMES FLANEARY
FROM THE CIRCUIT COURT OF HENRY COUNTY
David V. Williams, Judge
Alice G. Burlinson, Special Counsel (Betsy S.
Elliott, Senior Special Counsel, Division of
Child Support Enforcement; James S. Gilmore,
III, Attorney General; William H. Hurd,
Deputy Attorney General; Siran S. Faulders,
Senior Assistant Attorney General; Robert B.
Cousins, Jr., Senior Assistant Attorney
General, on briefs), for appellant.
Douglas K. Frith (Douglas K. Frith & Associates,
on brief), for appellee.
The Department of Social Services, Division of Child Support
Enforcement (DCSE), appeals the trial court's order finding that
the evidence failed to prove that James Flaneary is the father of
Gerald Lee Overby and dismissing DCSE's petition for child
support. DCSE contends that Code § 20-49.1(B) requires that when
DNA test results show a probability of paternity of 98% or
greater, the trial court must treat the results as the equivalent
of a judgment finding paternity and, therefore, the trial court
erred by finding nonpaternity despite DNA test results showing a
99.92% probability of paternity.
We hold that Code § 20-49.1(B) applies only when the parties
have signed a voluntary acknowledgement of paternity under oath,
or after having signed such an acknowledgement have obtained a
"subsequent" genetic test that affirms at least a 98% probability
of paternity. Because the parties had not executed an
acknowledgement of paternity, Code § 20-49.1(B) does not apply.
Therefore, Code § 20-49.4 is the applicable statute by which we
review the trial court's decision that DCSE failed to prove by
clear and convincing evidence that Flaneary is the biological
father of Gerald Lee Overby.
Upon our review, and applying the provisions of Code
§ 20-49.4, we hold that the unimpeached DNA test results showing
a 99.92% probability of paternity and the uncontroverted evidence
that Debra Overby and Flaneary had sexual intercourse during the
period of conception proved paternity, as a matter of law, by
clear and convincing evidence. Thus, because the trial court's
finding that Flaneary is not Gerald Lee Overby's father is
plainly wrong, we reverse the trial court's decision and remand
the matter for the court to enter an appropriate order of
paternity and to determine child support.
I. FACTS
On March 17, 1987, Debra Overby gave birth to a son, Gerald
Lee Overby. Because Debra Overby received public assistance for
her son's support, she assigned the right to child support from
the father to DCSE. In 1992, DCSE required Debra Overby to
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identify the child's father and she named Willard Edward Stump as
the biological father. Stump voluntarily agreed to paternity
testing, and the test results positively excluded him as the
child's father.
After Stump was excluded, DCSE again requested that Debra
Overby identify the father. This time, she identified James
Flaneary, the appellee, as the father. DCSE filed a petition
against Flaneary to establish paternity and to assess and order
the payment of child support. The court ordered that DNA blood
tests be conducted on Debra Overby, Gerald Lee Overby, Flaneary,
and Flaneary's brother.
The DNA test results excluded Flaneary's brother as the
father. In testing Flaneary, the laboratory probed six genetic
systems from the child and parents for comparison. Five of the
six systems probed from Flaneary matched those of Gerald Lee
Overby and, according to the laboratory's calculations, these
phenotype comparisons established a probability of paternity for
Flaneary of 99.92%. According to the lab's report, the
calculations were based upon accepted guidelines established by
the American Association of Blood Banks. A second mismatch
between the child's and Flaneary's phenotypes would have excluded
Flaneary as the father. However, each phenotype of the child's
that matched Flaneary's significantly increased the statistical
probability that he is the child's father.
At the evidentiary hearing, Debra Overby acknowledged that
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she had previously signed an affidavit naming Willard Stump as
the child's father and that she told a representative of DCSE
that Flaneary was not Gerald's father. Overby testified that she
had first named Stump as the father because he and Flaneary were
the only two men she had sexual relations with during the period
of conception and Flaneary had told her that he could not father
a child. She testified that she first had sexual intercourse
with Flaneary on July 6, 1986.
Dr. Daniel B. Demers, an expert in DNA testing, gave two
possible explanations why the failure of one of Gerald Overby's
genetic systems to match that of Flaneary did not exclude
paternity: "(1) The rare likelihood that James Flaneary had the
same genetic material as an unknown man in the population or (2)
Mr. Flaneary was the biological father but a rare mutational
even[t] occurred during spermatogenesis." Demers testified that,
in his opinion, the second explanation was the most likely of the
two.
Demers further explained that Stump and Flaneary's brother
were only probed three times, while Flaneary was probed six
times, because Stump and the brother did not match Gerald after
three probes and, thus, were excluded. He explained that the
percentage of probability of paternity increases each time the
blood is probed and a match is found between the child's and
putative father's genetic systems or genetic markers. On
cross-examination, Demers explained that because five phenotypes
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matched, it was highly probable, but not definite, that Flaneary
was the child's father, and that had there been a second
inconsistent probe, Flaneary would have been excluded as the
father.
Flaneary testified that Overby told him that she was already
pregnant when they first had sexual intercourse. He also denied
that he was the father and denied that he told anyone that he was
the father. Furthermore, in light of Overby's testimony that she
first had sexual intercourse with Flaneary on July 6, 1986, he
introduced medical records from Overby's obstetrician which
indicated that her pregnancy could have begun in early June 1986.
In holding that Overby and DCSE had failed to carry the
burden of proving paternity, the trial court found that Overby's
testimony was "equivocal [and] confused," that Flaneary denied
paternity, and that the DNA testing "ha[d] at least one joker."
Accordingly, the trial court ruled that Flaneary was not Gerald
Lee Overby's father and dismissed DCSE's petition.
II. ANALYSIS
DCSE, citing Code § 20-49.1(B), contends that when DNA
testing affirms at least a 98% probability of paternity, the test
results are conclusive as to paternity and the trial court need
not consider other evidence of paternity. Code § 20-49.1(B)
provides that
[t]he parent and child relationship between a
child and a man may be established by a
written statement of the father and mother
made under oath acknowledging paternity or
subsequent scientifically reliable genetic
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tests, including blood tests, which affirm at
least a ninety-eight percent probability of
paternity. Such statement or blood test
result shall have the same legal effect as a
judgment entered pursuant to § 20-49.8. In
the absence of such acknowledgment or if the
probability of paternity is less than ninety-
eight percent, such relationship may be
established as otherwise provided in this
chapter.
Thus, DCSE argues that either a sworn acknowledgement of
paternity or a genetic test result showing the requisite
probability of paternity has the same legal effect as a judgment
of paternity.
Flaneary asserts that Code § 20-49.4, not Code § 20-49.1,
controls contested paternity proceedings. Code § 20-49.4
provides, "in any action to establish parentage, . . . [a]ll
relevant evidence on the issue of paternity shall be admissible
. . . [and] may include, but shall not be limited to . . . [t]he
results of scientifically reliable genetic tests, including blood
tests, if available, weighted with all the evidence." (Emphasis
added). Moreover, Flaneary points out that under Code § 20-49.4,
paternity must be proven by clear and convincing evidence. He
notes that Code § 20-49.4 sets forth a nonexclusive list of the
types of evidence, including scientifically reliable genetic
1
tests, that are relevant to prove paternity. He argues,
1
Code § 20-49.4 provides:
The standard of proof in any action to
establish parentage shall be by clear and
convincing evidence. All relevant evidence
on the issue of paternity shall be
admissible. Such evidence may include, but
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therefore, that Code § 20-49.1 applies only when a sworn
voluntary acknowledgement of paternity exists and that Code
§ 20-49.4 applies in contested judicial proceedings to establish
paternity where, as in this case, no voluntary acknowledgement
exists, or where the genetic testing reports less than a 98%
probability of paternity.
The initial question presented by DCSE is whether Code
§ 20-49.1 applies and requires a trial court in a contested
(..continued)
shall not be limited to, the following:
1. Evidence of open cohabitation or
sexual intercourse between the known parent
and the alleged parent at the probable time
of conception;
2. Medical or anthropological evidence
relating to the alleged parentage of the
child based on tests performed by experts.
If a person has been identified by the mother
as the putative father of the child, the
court may, and upon request of a party shall,
require the child, the known parent, and the
alleged parent to submit to appropriate
tests;
3. The results of scientifically
reliable genetic tests, including blood
tests, if available, weighted with all the
evidence;
4. Evidence of the alleged parent
consenting to or acknowledging, by a general
course of conduct, the common use of such
parent's surname by the child;
5. Evidence of the alleged parent
claiming the child as his child on any
statement, tax return or other document filed
by him with any state, local or federal
government or any agency thereof;
6. A true copy of an acknowledgement
pursuant to § 20-49.5; and
7. An admission by a male between the
ages of fourteen and eighteen pursuant to
§ 20-49.6.
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paternity proceeding to give genetic test results affirming at
least a 98% probability of paternity the same legal effect as a
judgment. 2 Clearly, the major purpose for enacting Code
§ 20-49.1 was to eliminate the necessity of obtaining a judicial
adjudication of paternity in cases where both parents voluntarily
acknowledge under oath a child's paternity. See 1990 General
Assembly, Summary of Legislative Proposal Priority 1, Department
of Social Services, Legislative Draft File, House Bill 961
(1990); see also Code § 63.1-250.2.
In Dunbar v. Hogan, 16 Va. App. 653, 658-59, 432 S.E.2d 16,
19 (1993), we held, however, that under Code § 20-49.1, a
voluntary acknowledgement of paternity under oath does not
preclude a party from litigating paternity even though the
statute provides that such acknowledgement shall be accorded the
effect of a "judgment entered pursuant to § 20-49.8." 3 We held
2
Code §§ 20-49.1 and -49.4 were first enacted in 1988, see
1988 Va. Acts. c. 866, and then amended in 1990, see 1990 Va.
Acts c. 836. They replaced former Code § 20-61.1, which, like
Code § 20-49.4, set forth several types of evidence, including
blood tests, that could be introduced in an action to establish
paternity. Code § 20-61.1 (repealed 1988).
3
Code § 20-49.8(B) provides:
A determination of paternity made by any
other state shall be given full faith and
credit, whether established through voluntary
acknowledgment or through administrative or
judicial process; provided, however, that,
except as may otherwise be required by law,
such full faith and credit shall be given
only for the purposes of establishing a duty
to make payments of support and other
payments contemplated by subsection A.
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that such acknowledgements are accorded treatment as a judgment
for such purposes as administrative support orders, Code
§ 63.1-250.1, or full faith and credit to foreign support orders
and other payments. See Code § 20-49.8(B). Thus, even if Code
§ 20-49.1 applied to cases where the parties had not voluntarily
acknowledged paternity but where genetic test results affirm at
least a 98% probability of paternity, the Dunbar rationale would
not preclude the putative father from contesting and litigating
the issue of paternity. When litigating the issue of paternity,
the question then is whether Code § 20-49.1 applies and requires
that DNA test results that affirm at least a 98% probability of
paternity be accorded either a rebuttable or conclusive
presumption of paternity.
It is a well established rule of
construction that a statute ought to be
interpreted in such a manner that it may have
effect, and not found to be vain and elusive.
. . . It is our duty to give effect to the
wording of the statute, and allow the
legislative intention to be followed.
Barnett v. D.L. Bromwell, Inc., 6 Va. App. 30, 34, 366 S.E.2d
271, 273 (1988) (en banc) (quoting McFadden v. McNalton, 193 Va.
455, 461, 69 S.E.2d 445, 449 (1952)). In Dunbar, we decided only
that under Code § 20-49.1 an acknowledgement of paternity under
oath is not res judicata or collateral estoppel to a judicial
adjudication of paternity; we did not consider the extent to
which or whether Code § 20-49.1 controls or has any effect in a
judicial proceeding to determine paternity. We hold that Code
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§ 20-49.1, by its terms, applies only where the parties have
voluntarily acknowledged paternity under oath, or where after
acknowledging paternity under oath a "subsequent scientifically
reliable genetic test[] . . . affirm[s] at least a ninety-eight
percent probability of paternity." (Emphasis added).
The purpose of Code § 20-49.1, as we pointed out in Dunbar,
was to deal with paternity claims that the parties voluntarily
agreed upon, including those that "subsequently" were verified by
genetic testing that affirmed a high probability of paternity.
Code § 20-49.1 provides that those situations shall be treated as
judgments for certain purposes, such as collection and
enforcement of support through administrative orders or full
faith and credit, even though there has been no formal
adjudication of paternity. See Code § 20-49.8(B). The
legislative history and statutory scheme make clear that Code
§ 20-49.4 controls contested paternity disputes and Code
§ 20-49.1 does not apply.
Many states have enacted paternity statutes establishing a
rebuttable presumption of paternity where genetic test results
report a paternity equal to or greater than a designated
percentage. See, e.g., Howie v. Thomas, 514 N.W.2d 822, 824
(Minn. Ct. App. 1994) (statute provides that when a blood test
from accredited laboratory shows a paternity probability of 99%
or greater, the burden shifts to the alleged father to prove
nonpaternity by clear and convincing evidence); Filkins v. Cales,
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619 N.E.2d 1156, 1158 (Ohio Ct. App. 1993) (statute provides that
genetic test results indicating a probability of 95% or greater
raises presumption of paternity and satisfies preponderance of
evidence burden of proof, thereby requiring presumed father to
rebut by clear and convincing evidence); Gregory v. McLemore, 899
P.2d 1189 (Okla. Ct. App. 1995) (statute creates rebuttable
presumption of paternity where scientifically reliable genetic
tests show statistical probability of paternity at 95% or more);
In re the paternity of J.M.K., 465 N.W.2d 833, 835 (Wis. Ct. App.
1991) (statute creates a rebuttable presumption of paternity
where an alleged father is shown to have a statistical
probability of paternity of 99% or higher), review denied, 471
N.W.2d 510 (Wis. 1991).
Code § 20-49.1 neither expressly establishes a rebuttable
presumption of paternity nor otherwise addresses the "host of
technical, legal questions" presented by such a presumption.
D. H. Kaye, Presumptions, Probability and Paternity, 30
Jurimetrics 323, 327 (1989-90). Therefore, we decline to
establish such a presumption under the guise of statutory
construction. See Barnett, 6 Va. App. at 34, 366 S.E.2d at 273.
Rather, we hold that the Virginia General Assembly intended that
"subsequent" genetic test results showing a probability of
paternity of 98% or higher are to be given greater weight only
when accompanied by a prior voluntary acknowledgement of
paternity under oath.
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By contrast, Code § 20-49.4 contains no rebuttable
presumption of paternity. To the contrary, it expressly provides
that the genetic test results shall be considered together with
the other evidence of paternity and given such weight as the fact
finder determines is justified. Where there is no voluntary
acknowledgement of paternity under oath, or where there is an
acknowledgement but a party in interest challenges paternity and
the genetic test results show a probability of paternity of less
than 98%, paternity shall be established in accordance with the
provisions of Code § 20-49.4. Because there was no
acknowledgement of paternity here, the decision of the trial
court will be affirmed unless, as a matter of law, clear and
convincing evidence proves paternity.
Code § 20-49.4 provides that "[t]he standard of proof in any
action to establish parentage shall be by clear and convincing
evidence. All relevant evidence on the issue of paternity shall
be admissible." (Emphasis added). Among the nonexclusive list
of factors that may be considered to prove paternity under Code
§ 20-49.4 are
1. Evidence of open cohabitation or sexual
intercourse between the known parent and the
alleged parent at the probable time of
conception; [and]
* * * * * * *
3. The results of scientifically reliable
genetic tests, including blood tests, if
available, weighted with all the evidence.
Id.
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Clear and convincing evidence is
[t]hat measure or degree of proof which will
produce in the mind of the trier of facts a
firm belief or conviction as to the
allegations sought to be established. It is
intermediate, being more than a mere
preponderance, but not to the extent of such
certainty as is required beyond a reasonable
doubt as in criminal cases. It does not mean
clear and unequivocal.
Martin v. Pittsylvania County Dep't of Social Servs., 3 Va. App.
15, 21, 348 S.E.2d 13, 16 (1986) (quoting Gifford v. Dennis, 230
Va. 193, 198 n.1, 335 S.E.2d 371, 373 n.1 (1985)).
On appeal, the reviewing court cannot set aside the judgment
of the trial court sitting without a jury unless it is "plainly
wrong or without evidence to support it." Code § 8.01-680; see
Hankerson v. Moody, 229 Va. 270, 274, 329 S.E.2d 791, 794 (1985).
However, a trial court's conclusion based on
evidence that is "not in material conflict"
does not have this binding effect on appeal.
The trier of fact must determine the weight
of the testimony and the credibility of the
witnesses, but it "may not arbitrarily
disregard uncontradicted evidence of
unimpeached witnesses which is not inherently
incredible and not inconsistent with facts in
the record."
Hankerson, 229 Va. at 274, 329 S.E.2d at 794 (citations omitted).
In order to reverse the trial court, we must find "as a matter
of law that [DCSE] sustained [its] burden of proving" paternity
by clear and convincing evidence. Tomko v. Michael's Plastering
Co., 210 Va. 697, 700, 173 S.E.2d 833, 836 (1970).
Here, Dr. Demers provided uncontroverted testimony that the
genetic blood test results reported a 99.92% probability of
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paternity and that the test was conducted in accordance with the
accepted standards of the American Association of Blood Banks.
There was no evidence challenging the test results or the
reliability of the test procedure or methodology. Although the
trial judge commented that the DNA test had at least one "joker
in there," apparently suggesting that the test was not reliable
or the result was not accurate, Dr. Demers testified that the
most likely explanation for this phenomenon was that a rare
mutational event occurred during spermatogenesis and that the
99.92% calculation took this discrepancy into account. 4
Therefore, the uncontroverted evidence established that the
genetic tests used here were scientifically reliable and that the
99.92% calculation was a correct statistical probability of
paternity.
We are bound by the trial court's finding that Debra
Overby's testimony was "equivocal [and] confused," and must
discard any of her testimony that conflicts with Flaneary's
testimony or with other evidence in the record. See Brooks v.
Rogers, 18 Va. App. 585, 587, 445 S.E.2d 725, 726 (1994) (stating
4
Dr. Demers' report stated "the mutation rate was included
to estimate the chance of paternity given the phenotypes of the
individuals tested. This type of analysis includes all of the
genetic evidence and results in a downward adjustment of the
cumulative paternity index and probability of paternity."
The statistical probability calculation also takes into
consideration the fact that the testing methodology, as with
other scientific testing, yields an occasional false positive or
false negative. See D. H. Kaye, Presumptions, Probability and
Paternity, 30 Jurimetrics 323, 333-36 (1989-90).
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that "the credibility of witnesses and the weight accorded the
their testimony are matters solely within the purview of the
trial court"). Nevertheless, Flaneary confirmed that he had
sexual intercourse with Overby on July 6, 1986, and although he
testified that she told him that she was already pregnant, this
statement, standing alone, is not sufficient to establish with
reliability the period of conception or that Overby was, in fact,
pregnant. Furthermore, the medical records Flaneary produced do
not prove that Overby was pregnant when she had intercourse with
him for the first time. For instance, an entry dated January 28,
1987, states that the gestational age was "33 weeks (+ - 3 wks),"
which would include July 6, 1986. Therefore, even without
Overby's testimony, the evidence that Flaneary had access during
the period of conception is uncontroverted.
Because uncontroverted evidence established that genetic
blood tests reported a 99.92% probability of paternity and that
Flaneary had access during the period of conception, we hold that
the evidence proved clearly and convincingly, as a matter of law,
that Flaneary is the father of Gerald Lee Overby. See Buckland
v. Commonwealth, 229 Va. 290, 297, 329 S.E.2d 803, 807 (1985)
(holding that blood tests reporting a 99.72% probability of
paternity "alone proved Buckland's paternity beyond a reasonable
doubt"). Accordingly, we remand the matter to the trial court
for entry of an order to that effect and to determine the amount
of Flaneary's child support obligation.
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Reversed and remanded.
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