TN 4 (09-10)

PR 01005.056 Wyoming

A. PR 10-146 Relationship of Child to the NH; NH – David C~ – REPLY

DATE: August 2, 2010

1. SYLLABUS:

In the State of Wyoming, it is reasonable to conclude that a Wyoming court would declare the Number Holder (NH) as the biological father of the claimant based on DNA testing of the NH’s alleged uncle and statements of the NH’s mother that she never had physical contact with any of the NH’s relatives, it would likely conclude that the NH was the father of the claimant.

The Wyoming Uniform Parentage Act does not contemplate the establishment of paternity through DNA testing on a relative of a deceased putative father, the DNA testing on the alleged uncle, as was done in this case, provides only a relationship index, a Wyoming court would look at all of the evidence, including genetic testing.

2. OPINION

Questions Presented

You asked whether Wyoming would recognize Ryan M~ as the child of David C~, the deceased number holder, based on DNA testing conducted on an alleged uncle. If Wyoming would recognize Ryan M~ as the child of the number holder, you also asked whether the child is a legitimated child (under POMS GN 00306.50) or an illegitimate child with inheritance rights (under POMS GN 00306.55).

Short Answer

Wyoming law does not directly address the question of whether DNA testing conducted on a male relative is sufficient to establish paternity. However, based on the information provided, it is likely that a Wyoming court applying the Wyoming Uniform Parentage Act would determine that the number holder is M~’s father. If so, the number holder would be considered M~’s father effective as of the date of M~’s birth, such that M~ should be treated like a legitimated child under POMS GN 00306.50.

Background

According to the information you provided, M~ is a child allegedly born to the number holder and Sherlene M~ in Longview, Texas on January 31, 2008. A father’s name was not shown on the birth certificate. At the time of M~’s conception and birth, M~ was legally married to a man other than the number holder. M~ and her husband have never been legally separated and remain married. However, M~ claims that at the time M~ was conceived, she was not living with her husband, but rather was living and in an intimate relationship with the number holder. The number holder died on July 13, 2009. He was domiciled in Wyoming at the time of his death. Although M~ and M~ briefly resided with number holder in Wyoming, they were not living with him at the time of his death.

In an effort to establish that the deceased number holder was M~’s father, M~ arranged for DNA testing of the child and of John C~, the brother of the deceased number holder. The DNA testing did not summarize the probability of parentage since it was not direct testing on the purported father. However, the Y-chromosome DNA testing indicated that there is a 99.927% probability that M~ and John C~ share a common patrilineal ancestor. According to information provided by the laboratory that conducted the testing, when an alleged father is unavailable for testing or is deceased, the Y-chromosome DNA of a male child can be tested against any number of his male relatives, including, but not limited to, other known male children, brothers and half brothers with the same father, uncles, a grandfather, and grandfather’s brothers. However, the laboratory noted that such testing is not appropriate to determine paternity in circumstances where there are two related alleged fathers.

M~ signed a statement indicating that she never met John C~. She also represented that the number holder’s father was deceased at the time she met the number holder. She said that she has not met any of the number holder’s relatives, and does not know if he had any male relatives other than John C~.

DISCUSSION

Because the number holder was domiciled in Wyoming at the time of his death, the agency applies Wyoming law to determine the relationship between the number holder and M~. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(4); Program Operations Manual System (POMS) GN 00306.001.

Under the Wyoming statute concerning intestate succession, a person born out of wedlock is a child of the mother. WYO. STAT. ANN. § 2-4-107(a)(iii). Such a person is also a child of the father “if the relationship of parent and child has been established under the Uniform Parentage Act.” Id.

Under the Wyoming Uniform Parentage Act, WYO. STAT. ANN. §§ 14-2-401 through 14-2-907, a man is presumed to be the father of a child if “[h]e and the mother are married to each other and the child is born during the marriage.” WYO. STAT. ANN. § 14-2-504(a)(i). Here, M~ was married to and not legally separated from her husband at the time M~ was conceived and born. Thus, under Wyoming law, M~’ husband is presumed to be M~’s father. 1

A father-child relationship is established under the Wyoming Uniform Parentage Act when there is an unrebutted presumption of the man’s paternity under WYO. STAT. ANN. § 14-2-504. See WYO. STAT. ANN. § 14-2-501(b)(i). In other words, unless the presumption of paternity is rebutted, Wyoming would consider M~’ husband to be M~’s father.

A presumption of paternity that is based on marriage can only be rebutted by an adjudication under article 8 of the Wyoming Uniform Parentage Act. WYO. STAT. ANN. § 14-2-504(b). Even though Wyoming law requires an actual adjudication of paternity, M~ need not obtain an adjudication for Social Security purposes if she can establish paternity using the standard of proof a Wyoming court would apply. 20 C.F.R. § 404.355(b)(2). 2 WYO. STAT. ANN. § 14_2_817(a)(iii) is silent as to the standard of proof to be applied when evaluating evidence of paternity, and we have located no Wyoming cases that address the standard of proof applicable to paternity determinations made under the current version of the statute. As indicated in POMS GN 00306.680, an earlier version of the Wyoming Uniform Parentage Act required the presumption of paternity to be rebutted by clear and convincing evidence. However, this language was eliminated in the latest version of the statute. 3 The commentary to the model Uniform Parentage Act, a model statute that was adopted nearly verbatim (with certain omissions) by the Wyoming legislature, indicates that this was intentional. The clear and convincing evidence standard was eliminated because modern genetic testing makes it possible to resolve competing claims to paternity in most cases. See Commentary to 2000 Uniform Parentage Act (2002 revision) § 204, available at http://www.law.upenn.edu/bll/archives/ulc/upa/final2002.htm#TOC1_1. Moreover, both the model Uniform Parentage Act and the Wyoming Uniform Parentage Act state that a proceeding to adjudicate paternity is a civil proceeding governed by the rules of civil procedure, and the commentary to the model uniform Parentage Act indicates that the standard of proof for establishing paternity should be a preponderance of the evidence as it is in other civil cases. 2000 Uniform Parentage Act (2002 revision) § 601; WYO. STAT. ANN. § 14-2-801. Thus, it is likely that a Wyoming court would apply a preponderance of the evidence standard to this case.

Regardless of the standard of proof, Article 8 of the Wyoming Uniform Parentage Act provides that the paternity of a child having a presumed father “may be disproved only by admissible results of genetic testing excluding the man as the father of the child or identifying another man as the father of the child.” WYO. STAT. ANN. § 14-2-817. There is no indication in the information you provided us that M~’ husband has submitted to genetic testing that excluded him as M~’s father. Unless such testing exists, the presumption that M~’ husband is M~’s father can only be rebutted by genetic testing identifying another man (i.e., the number holder) as M~’s father. Id.

The Wyoming Uniform Parentage Act does not contemplate the establishment of paternity through DNA testing on a relative of a deceased putative father, and we have not located any Wyoming cases that address this issue. 4 Rather, the law requires that in order to rebuttably identify a man as the father of a child, the results of genetic testing must show:

(i) The man has at least a ninety-nine percent (99%) probability of paternity, using a prior probability of one-half (1/2), as calculated by using the combined paternity index obtained in the testing; and

(ii) A combined paternity index of at least one hundred (100) to one (1).

WYO. STAT. ANN § 14-2-705(a). DNA testing on an alleged relative, as was done in this case, provides only a relationship index; it does not provide a probability of paternity or a combined paternity index. Thus, genetic testing results on a relative do not per se overcome or establish a presumption of paternity under the Wyoming Uniform Parentage Act.

However, the Wyoming Uniform Parentage Act also provides that “[i]f the court finds that genetic testing under [WYO. STAT. ANN §] 14-2-705 neither identifies nor excludes a man as the father of a child, the court may not dismiss the proceeding.” WYO. STAT. ANN. § 14_2_817(a)(iii). Rather, the results of genetic testing, and other evidence, are admissible to adjudicate the issue of paternity. Id. 5

Here, the results of genetic testing of the number holder’s brother indicate that there is better than a 99% probability that M~ and the number holder share a common male ancestor. These results do not conclusively identify the number holder as M~’s father, but they also certainly do not exclude him. Thus, it appears that WYO. STAT. ANN. § 14-2-817(a)(iii) would apply, which would allow a Wyoming court to consider all of the evidence, including genetic testing, in determining M~’s paternity.

We have identified no Wyoming court decisions addressing what weight would be given to DNA testing of a sibling or explaining what other facts a court might finding probative when considering all the evidence of paternity under WYO. STAT. ANN. § 14-2-817(a)(iii). While the DNA evidence shows that the number holder and M~ share a common male ancestor, the DNA laboratory stated that this information is not useful to show paternity if there are related alleged fathers. Thus, a Wyoming court would likely look to the strength of the evidence that none of the number holder’s relatives was M~’s father.

M~ has provided a statement indicating that she was living with the number holder during the time period when M~ was conceived. She also stated that she has never met John C~, the brother of the number holder on whom the genetic testing was conducted. In addition, she said that the number holder’s father was deceased at the time she met the number holder, and claimed that she did not know whether the number holder had any other male relatives. If true, M~’ statements would appear to exclude the number holder’s male relatives as potential fathers of M~, leaving the number holder as the only potential father in light of the DNA test results. Although the information you provided to us does not give us any particular reason to question the truth of M~’s statements, a Wyoming court considering the issue would make its determination after considering all of the evidence, which may include information beyond that which has been provided to us. For example, evidence that the number holder’s father was not deceased at the time M~ met the number holder, or that she in fact met John C~ or another male relative of the number holder, would undermine M~’ credibility. Evidence that the number holder’s father was deceased at the time M~ met the number holder or a corroborating statement from John C~ that he never met M~ would enhance her credibility. It is impossible for us to predict how the evidence would develop if a Wyoming court were to hold a hearing on this issue. However, assuming that no evidence emerges to detract from M~’ credibility, it appears likely that a Wyoming court would find that the number holder was M~’s father based upon the combination of (1) the DNA evidence establishing the patrilineal link between the number holder and M~; and (2) M~’ testimony that would appear to exclude any of the number holder’s relatives as other potential fathers.

With regard to the question of whether M~ should be considered a legitimized child under POMS GN 00306.50, or an illegitimate child with inheritance rights under POMS GN 00306.55, neither POMS provision appears to be directly applicable to the current Wyoming intestacy laws. A legitimated child is a child who was born illegitimate but has been legitimated under state law by the acts of his parents. POMS GN 00306.050. Such a child is considered to be legitimate from birth. Id. If an illegitimate child is not legitimated, the child has the status of a “child” under the Social Security Act if the child has inheritance rights under applicable state intestacy laws. POMS GN 00306.55. When an illegitimate child has inheritance rights, an act or event conferring these inheritance rights generally has effect only from the date of such act or event, not from the date of the child’s birth. Id. Wyoming, however, does not distinguish between legitimate and illegitimate children.

As explained above, the Wyoming intestacy statute provides that a child born out of wedlock is the child of the father if the relationship of parent and child has been established under the Wyoming Uniform Parentage Act. WYO. STAT. ANN. § 2-4-107(a)(iii). The Wyoming Uniform Parentage Act further provides that “[a] child born to parents who are not married to each other has the same rights under the law as a child born to parents who are married to each other.” WYO. STAT. ANN. § 14-2-502. When a Wyoming court issues an order that a man not listed on the birth certificate is a child’s father, the court is required to order the state office of vital records to issue an amended birth certificate naming the adjudicated father as the child’s father. WYO. STAT. ANN § 14-8-822(f). In other words, if a paternal relationship is established through the Wyoming Uniform Parentage Act, the child is considered the child of the father from the date of his birth, and has all the same rights he would have if his parents had been married. Thus, it appears that if number holder’s relationship to the child were to be established under the Wyoming Uniform Parentage Act, the situation would be most analogous to that of a legitimated child under POMS GN 00306.55.

CONCLUSION

Under Wyoming law, the DNA testing of M~’s alleged uncle does not meet the standards for determining paternity through genetic testing as a matter of law. However, because the DNA testing on M~’s alleged uncle neither affirmatively established nor excluded the number holder as M~’s father, a Wyoming court would likely look to all of the evidence, including the genetic testing. Assuming that a Wyoming court accepted as true M~’ statements that she never had physical contact with any of number holder’s male relatives, it would likely conclude that number holder was M~’s father Wyoming Uniform Parentage Act. Thus, if the agency adjudicator finds these statements credible, this would establish the number holder as M~’s father for all purposes effective at the time of M~’s birth. As such, M~ should be treated like a legitimated child under POMS GN 00306.

Donna L. C~
Acting Regional Chief Counsel Region VIII
By: ___________
Sandra T. K~

Assistant Regional Counsel


Footnotes:

[1]

A man is also presumed to be a child’s father if, “[f]or the first two (2) years of the child’s life, he resided in the same household with the child and openly held the child out as his own.” WYO.  STAT. ANN. § 14-2-504(a)(v). Although M~ indicated that she and Morse briefly lived with the number holder in Wyoming, her statement indicates that this arrangement was temporary and that they moved back to Texas before the number holder passed away. The number holder died before Morse was two years old. Thus, the number holder is not a presumed father under WYO. STAT. ANN. § 14-2-504.

[2]

In a case like this one, where the child has a presumed father, Wyoming law also provides that a proceeding to adjudicate the paternity of the child must be commenced within a reasonable time after obtaining knowledge of relevant facts, and in no event later than five (5) years after the child’s birth. WYO. STAT. ANN §  14_2_807(a). However, the agency does not apply this type of state law requirement that an action be taken within a specific timeframe. 20 C.F.R. § 404.355(b)(2). In any event, as Morse is only two-and-a-half-years old, a proceeding to adjudicate his paternity under article 8 of the Wyoming Uniform Parentage Act would likely be considered timely.

[3]

POMS GN 00306.680 was last revised in 2000. Both the Wyoming intestate succession statute and the Wyoming Uniform Parentage Act underwent significant amendments in 2003. As such, POMS GN 00306.680 is out of date and does not reflect current Wyoming law concerning the determination of paternity.

[4]

The model Uniform Parentage Act provides that if a genetic testing specimen is not available from a man who may be the father of the child, a court can order relatives of the man to submit to genetic testing for the purpose of determining paternity. See 2000 Uniform Parentage Act (2002 revision) § 508. We have researched the legislative history of the 2003 revisions to the Wyoming Uniform Parentage Act and have been unable to determine why this provision was omitted from the Wyoming statute. However, the commentary to the model Uniform Parentage Act states that the purpose of § 508 was to clarify that courts have the power to order genetic testing on relatives who do not voluntarily consent to such testing. See Commentary to 2000 Uniform Parentage Act (2002 revision) § 508. Thus, the Wyoming legislature’s decision to omit this provision means only that it remains unclear whether a Wyoming court has the power to order genetic testing on an unwilling relative. The omission of this provision does not mean that a Wyoming court could not consider the result of genetic testing on a relative who voluntarily submitted to such testing, as was the case here. Moreover, although the Wyoming Uniform Parentage Act does provide that a court may order genetic testing of a deceased individual for good cause shown, WYO. STAT. ANN. § 14-2-708, we have located no case law or legislative history suggesting that Wyoming would require genetic testing of a deceased individual in order to establish that the deceased individual was the father of a particular child.

[5]

The commentary to the model Uniform Parentage Act provision upon which WYO. STAT. ANN. § 14_2_817 was based indicates that the purpose of this provision is to “establish[] the controlling supremacy of admissible genetic test results in the adjudication of paternity.” See Commentary to 2000 Uniform Parentage Act (2002 revision) § 631. The commentary also clarifies that §  14_2-817(a)(iii) was intended to ensure that the fact that the specific standards set forth in § 14_2-705 are not met in a particular case “will not be perceived as an indicator of an exclusion of paternity.” Id. Rather, the commentary makes clear that the intent of § 14-2-817 is to ensure that all evidence of paternity is considered when paternity is not definitively established under § 14-2-705. Id.


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