The Agency may reopen/ and revise/ its determination or decision on a claim, which is otherwise final and binding, within 12 months of the date of the notice of the initial determination for any reason; within 4 years of the date of the notice of the initial determination if the agency finds good cause to reopen the case; or at any time if the determination was obtained by fraud or similar fault. In this case, the 12-month period has not yet lapsed from the September 2013 applications, and, thus, the agency may reopen and revise the determinations for any reason. However, because the NH in this case did not timely initiate proceedings to disavow his paternity of C1~, the Louisiana Judgment of Disavowal is not binding on the agency. Under the Louisiana law, the NH is still considered to be C1~’s father and, on that basis, the agency has no grounds to reopen and revise its earlier determinations.

QUESTION PRESENTED

You asked whether a Judgment of Disavowal of a Child by the number holder J~ (NH) obtained after the expiration of the time limit set by Louisiana statutory law affects the status of (C1~’s) entitlement to child’s insurance benefits on the NH’s account. If the Social Security Administration (SSA or agency) can accept the Judgment of Disavowal of a Child at face value, you further ask whether SSA can re-open the agency’s initial determination awarding child’s insurance benefits to C1~ and spouse’s benefits to D~.

ANSWER

Under Louisiana law, the NH is presumed to be C1~’s father and the Louisiana Judgment of Disavowal is not binding on the agency. As such, there is no basis for reopening C1~’s or D~’s applications.

BACKGROUND

According to the information that you provided, the NH married D~ on May XX, 2012, and she gave birth to C1~ on July XX, 2012. The NH became entitled to disability benefits effective October 2012. On September 23, 2013, D~ filed an application on C1~’s behalf for child’s insurance benefits on the NH’s account, but reported that the NH was not C1~’s biological father. Based upon a presumption that the NH was C1~’s father because C1~ was born during the NH’s and D~’s marriage, SSA awarded child’s insurance benefits to C1~ effective October 2012. It is our understanding that SSA also awarded spouse’s benefits to D~ as the NH’s wife with a child under age 16 in her care.

On September XX, 2013, the NH filed a petition for divorce, which incorporated a disavowal action, alleging that he was not C1~’s father. The 21st Judicial District Court, Parish of Tangipahoa, State of Louisiana, issued a Judgment of Divorce and a Judgment of Disavowal on March XX, 2014. It is our understanding that SSA terminated D~’s spouse’s benefits due to the divorce from the NH. The Judgment of Disavowal declared that the NH was not C1~’s biological father, that the NH be allowed to disavow paternity of C1~, and that his name be stricken from C1~’s birth certificate. However, as addressed below, the evidence presented shows that the NH did not timely file an action to disavow paternity under Louisiana statutory law.

DISCUSSION

Requirements for Child’s Insurance Benefits Under the Social Security Act

Section 202(d) of the Social Security Act (Act) provides that a child of an individual entitled to old-age or disability benefits is entitled to child’s insurance benefits beginning with the first month in which the child meets certain criteria. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.352(a)(2). To be entitled to child’s benefits on an insured number holder’s account, a child must be (1) the number holder’s child, (2)apply for benefits, (3) under age 18, or a full-time elementary or secondary school student under age 19, or under a disability that began before age 22, (4) be dependent on the insured, and (5) be unmarried. 42 U.S.C. § 402(d)(1), 20 C.F.R. § 404.350(a)(1)-(5). In this case, at the time of the filing of the application for child’s insurance benefits on C1~’s behalf on September 23, 2013, C1~ was under the age of eighteen and unmarried. Further, SSA found that the presumption of paternity applied because C1~ was born during the marriage between the NH and C1’s mother, D~, ^[1] and thus SSA found that C1~ was the NH’s natural child, and, as a result, that she was dependent on the NH. ^[2] See 20 C.F.R. § 404.361(a). Therefore, the question of C1~’s entitlement or continuing entitlement to benefits turns on whether the Louisiana court’s judgment binds SSA.

A. Child Status Under Louisiana Law and the Presumption of Paternity

In determining whether an applicant is a number holder’s child when the number holder is living, SSA applies the state inheritance laws of the state where the number holder has his permanent home when the child applies for benefits to determine if the child could inherit the number holder’s property. 42 U.S.C. § 416(h)(2)(A), 20 C.F.R. § 404.355(a)(1), (b). Because the NH had his permanent home in Louisiana at the time of C1~’s application, we apply Louisiana inheritance laws to determine C1~’s status as the NH’s child. Louisiana intestacy law provides that when a person dies without a valid will, “the undisposed property of the deceased devolves by operation of law in favor of his descendants, ascendants, and collaterals, by blood or by adoption, and in favor of his spouse not judicially separated from him.” La. Civ. Code Ann. art. 880. Descendants include children. La. Civ. Code Ann. art. 882. Louisiana defines a child as “those persons born of the marriage,” and “a child born of marriage is a child conceived or born during the marriage of his parents.” La. Civ. Code Ann. Art. 3506; La. Civ. Code Ann. art. 185 (a mother’s husband is presumed to be the father of a child born during the marriage). Therefore, under Louisiana law, C1~, being born during Domonique’s and the NH’s marriage, is the NH’s presumed child for purposes of inheritance. See Succession of V~, 70 So.2d 89, 89-90 (La. 1953) (children conceived and born during a marriage, but admittedly another man’s biological children, were entitled to inherit as children from the husband’s estate where he did not file a timely action to disavow); State, Dept. of Social Services, Office of Family Support ex rel. K.B.D. v. Drew, 70 So.3d 1011, 1012 (La. Ct. App. 2011) (mother’s husband is presumed to be the father of a child born during the marriage, and therefore paternity was established by operation of law). In accordance with Louisiana law, SSA awarded child’s benefits to C1~ effective October 2012 based upon a presumption of paternity since D~ gave birth to C1~ during D~’s and the NH’s marriage.

B. SSA is Not Bound by the Louisiana State Court’s Judgment of Disavowal

Generally, a state court decision does not bind the agency in a proceeding to which it was not a party. See Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973). Pursuant to Social Security Ruling (SSR) 83-37c, adopting the rationale of Gray, certain state court determinations on domestic relations matters are entitled to deference. See POMS GN 00306.001(C)(3) (noting that in determining child relationship under state law, where the evidence includes a state court decision on the issue, SSA is not necessarily bound by the court decision. See SSR 83-37c. Per SSR 83-37c, the agency is required to accept a state court’s determination when the following prerequisites exist: (1) a state court of competent jurisdiction has previously determined an issue in a claim for social security benefits; (2) parties with opposing interests genuinely contested this issue before the state court; (3) the issue falls within the general category of domestic relations law; and (4) the State trial court’s resolution is consistent with the law the highest court in the State enunciated. See SSR 83-37c, 1983 WL 31272 at *3. Conversely, when one of these elements is not satisfied, a state court determination does not bind the agency.

The Judgment of Disavowal does not bind the agency in this case. From the information provided, D~ acknowledged that the NH is not C1~’s biological father and did not contest this issue before the court. Thus, the Judgment of Disavowal does not meet the second Gray criteria that parties with opposing interests genuinely contested this issue before the court. Additionally, the State trial court’s granting of a Judgment of Disavowal is not consistent with the law the Louisiana Supreme Court has enunciated. Therefore, the Judgment of Disavowal does not meet the fourth Gray criteria. ^[3]

C. The Judgment of Disavowal is not Consistent with the Law the Louisiana Supreme Court has Enunciated

The only means to disestablish paternity under Louisiana law when paternity is presumed, as in this case, is through a disavowal action showing by clear and convincing evidence that the husband is not the father. Drew, 70 So.3d at 1013; La. Civ. Code Ann. Art. 187. An action to disavowal presumed paternity is subject to a “liberative prescription” of one year. La. Civ. Code Ann. art. 189. The prescription commences to run from the day the husband learns or should have learned of the child’s birth. Id. In the case of Naquin v. Naquin, 370 So.2d 148, (La. Ct. App. 1979), the court held that “birth of the child” refers to learning of the birth under circumstances that would point to the possibility of assertion of paternity. The facts in the current case demonstrate that the NH was aware of D~’s pregnancy with C1~ during the marriage, that he knew, or should have known, of the “birth of the child” on July XX, 2012, and that he was listed as the father on C1~’s birth certificate. Cf. Drew, 70 So.3d at 1013 (Drew was at the hospital when the child was born, signed the child’s birth certificate, and is listed as the child’s father). As such, the NH was required to institute an action for disavowal of paternity within one year of C1~’s July XX, 2012, birth, or by July XX, 2013. The NH did not institute the action to disavowal paternity until September 30, 2013.

The Louisiana Supreme Court has noted that in accordance with the State’s civilian tradition, “prescription is defined as a means of acquiring legal rights or of losing certain rights as the result of the passage of time. Taranto v. Louisiana Citizens Property Insurance Corp., 62 So.3d 721, 726 (La. 2011). Prescription and preemption ^[4] are procedural devices that bar valid substantive claims in Louisiana that have not been timely filed. Id. The creation of prescription periods is exclusively a legislative task. Id., at FN 4. Louisiana statutory law recognizes three kinds of prescription, acquisitive prescription, liberative prescription, and prescription of no-use. La. Civ. Code Ann. art. 3445. “Liberative prescription” which is applicable in this case, is defined as “a mode of barring of actions as a result of inaction for a period of time.” La. Civ. Code Ann. art. 3447. The Louisiana Supreme Court has further defined the term “liberative prescription” as “a period of time fixed by law for the exercise of a right,” Taranto, 62 So.3d at 726, and “repeatedly held” that “prescription bars the remedy sought to be enforced and terminates the right of access to the courts for enforcement of existing rights.” Pounds v. Schori, 377 So.2d 1195, 1198 (La. 1980). If the presumed father fails to bring a timely disavowal action, as in this case, disavowal of paternity is barred by prescription, and the presumption of paternity is irrebuttable. Modisette v. Phillips, 736 So.2d 983, 987 (La. Ct. App. 1999).

Liberative prescription is subject to suspension or interruption. See D~, 70 So.3d at 1014 (citing Who’s Your Momma, Who Are Your Daddies? Louisiana’s New Law of Affiliation, 67 La. Law Rev. 307 at 314 (2007). However, liberative prescription may not be interrupted due to the father’s erroneous belief that he is the biological father, which is subsequently disproved by clear and convincing evidence. As the Louisiana Supreme Court stated, “[t]he Louisiana legislature has decided … that prescription runs from the date the presumed father learned of or should have learned of the ‘birth’ of the child,” and the “statute is clear and unambiguous.” ^[5] Id . at 1015. The NH should have brought any disavowal action within one year of C1~’s birth, and his erroneous belief that he was C1~’s biological father does not provide a basis for suspension or interruption of liberative prescription. Accordingly, because the Judgment of Disavowal is not consistent with Louisiana law, it does not bind the agency for purposes of C1~’s status as the NH’s child and his continued entitlement to child’s benefits on the NH’s account.

D. The Judgment of Disavowal Does Not Provide a Basis for Reopening the Initial Determinations of C1~’s and D~’s Applications

You asked whether SSA could reopen C1~’s and D~’s applications to change the awards to denials. The Agency may reopen ^[6] and revise ^[7] its determination or decision on a claim, which is otherwise final and binding, within 12 months of the date of the notice of the initial determination for any reason; within 4 years of the date of the notice of the initial determination if the agency finds good cause to reopen the case; or at any time if the determination was obtained by fraud or similar fault. 20 C.F.R. §§ 404.987, 404.988. Here, the 12-month period has not yet lapsed from the September 2013 applications, and, thus, the agency may reopen and revise the determinations for any reason. However, because the NH in this case did not timely initiate proceedings to disavow his paternity of C1~, the Judgment of Disavowal is not binding on the agency. Thus, Louisiana law still considers the NH to be C1~’s father and, on that basis, the agency has no grounds to reopen and revise its earlier determinations.

CONCLUSION

Under Louisiana law, the NH is presumed to be C1~’s father and the Louisiana Judgment of Disavowal is not binding on the agency. As such, there is no basis for reopening C1~’s or D~’s applications.

 

Louisiana law presumes that the husband of the child’s mother is the father of a child born during the marriage or born within three hundred days from the date of the termination of the marriage. The presumption may be overcome by producing clear and “convincing evidence” The evidence showed that Noah no longer satisfied the conditions to inherit the NH’s personal property under Louisiana intestacy laws.

The purpose of this memorandum is to respond to your request for a legal opinion on whether a Louisiana court judgment disavowing the number holder’s (NH) paternity issued after the NH’s death rebuts the presumption of paternity between the NH and Noah , a child conceived during the NH’s marriage to Noah’s mother. ^[8] In our opinion, the Louisiana court judgment that found Noah was not the NH’s child rebuts the presumption that Noah is the NH’s child. Because the judgment disavowing paternity provides the agency with good cause to reopen Noah’s case, the agency should reopen Noah’s case and find that Noah’s entitlement to child’s insurance benefits under the NH’s account ceased as of January 5, 2010, the date of the judgment disavowing paternity. ^[9]

BACKGROUND

As we understand the facts, the NH and Natalie (a/k/a Natalie ) were married and divorced. ^[10] Two children were born of the marriage between the NH and Natalie, Clifford , born on December, and Marti , born on April. After his divorce from Natalie, the NH married Tracy on July 3, 2007. The NH died on November 12, 2008, while domiciled in Louisiana, and while married to, but not living with, Tracy. In November 2008, Natalie filed, on Marti’s and Clifford’s behalf, applications for child’s insurance benefits on the NH’s account, and the agency approved the applications. On May 21, 2009, Tracy gave birth to Noah. In August 2009, Tracy filed an application for child’s insurance benefits, on Noah’s behalf, on the NH’s account. The agency approved Noah’s application, with benefits beginning October 2009, because there was no documentation to rebut the presumption that Noah was the NH’s child. ^[11]

On October 2, 2009, Natalie received a letter notifying her that the agency would reduce Marti’s and Clifford’s benefits because Tracy had applied for child’s insurance benefits on Noah’s behalf, and the agency had approved the application. ^[12] On October 7, 2009, Natalie contested the agency’s decision to reduce Marti’s and Clifford’s benefits, stating that the NH could not be Noah’s father because the NH had a vasectomy nine years after Marti’s birth and because Tracy had admitted to Natalie that Noah was not the NH’s child. ^[13] On November 10, 2009, Natalie filed on Clifford’s and Marti’s behalf a Petition to Disavow Paternity, asserting that any additional children born of the NH adversely affected Clifford’s and Marti’s Social Security benefits and asking the court to issue a judgment decreeing that the NH was not Noah’s father. In response, on January 5, 2010, a Louisiana court issued a judgment disavowing paternity, finding that Noah was not the NH’s child. ^[14] On April 12, 2010, the Louisiana court issued an amended judgment disavowing paternity finding that Noah was not the NH’s child and ordering, “[A]ll necessary documents including that of Vital Records and the Social Security Administration be changed to reflect that David , Jr., is not the father of the minor child, Noah. ^[15]

DISCUSSION

The Social Security Act (Act) provides that a child of an individual who dies a fully or currently insured individual (insured) is entitled to child’s insurance benefits, beginning with the first month in which the child meets the criteria for child’s insurance benefits. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.352(a)(1). In the case of a child of such deceased individual who has died, the child must meet the following criteria: (1) the child must have filed an application for child’s insurance benefits; (2) the child is the insured’s child; (3) the child is dependent on the insured; ^[16] and (4) the child is under age 18, or 18 years old or older and had a disability that began before the child became 22 years old, or the child is 18 years or older and qualified for benefits as a full-time student. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a). Tracy filed an application for child’s insurance benefits on Noah’s behalf, and Noah was under age 18 at the time she filed the application. Thus, to meet the criteria for child’s insurance benefits, Noah must show that he was the NH’s child under the Act.

To be considered an insured’s child for the purposes of the Act, the child must show that he or she would be entitled to inherit property through the intestacy laws of the state in which the insured was domiciled when the insured died; or that the child’s parents went through a marriage ceremony, but the marriage was invalid because of a legal impediment. 42 U.S.C. § 416(h)(2)(A)-(B); 20 C.F.R. § 404.355. The agency will nevertheless deem a child, who is not the deceased insured’s child under 42 U.S.C. § 416(h)(2)(A)-(B), to be the deceased insured’s child if the deceased insured had acknowledged in writing that the child was his, was decreed by a court to be the child’s parent, or was ordered by a court to provide child support because the child was his, and such acknowledgment, court decree, or court order was made before the death of such insured; or satisfactory evidence shows that the insured is the child’s parent and was living with or contributing to the support of the child when the insured died. 42 U.S.C. § 416(h)(3)(C)(i)-(ii); 20 C.F.R. § 404.355(a)(3)-(4).

In this case, Louisiana law applies because the NH lived in Louisiana when he died. Thus, we first look to whether Noah could inherit the NH’s personal property under Louisiana intestacy law.

Louisiana intestacy law provides that when a person dies without a valid will, “the undisposed property of the deceased devolves by operation of law in favor of his descendants, ascendants, and collaterals, by blood or by adoption, and in favor of his spouse not judicially separated from him.” La. Civ. Code Ann. art. 880. Descendants include children. La. Civ. Code Ann. art. 882. Louisiana law presumes that the husband of the child’s mother is the father of a child born during the marriage or born within three hundred days from the date of the termination of the marriage. ^[17] La. Civ. Code Ann. art. 185. The husband may disavow the child’s paternity within a liberative prescription ^[18] of one year from the day the husband learns or should have learned of the child’s birth. La. Civ. Code Ann. arts. 187, 189. If the liberative prescription has commenced to run and the husband dies before the liberative prescription has ended, his heirs, ^[19] whose interest are adversely affected, may institute an action for disavowal of paternity. La. Civ. Code Ann. art. 190; see Guidry v. Coregis Insurance Company, et al., 04-325, (La.12/29/04); 896 So.2d 164, 186-87 (Civil Code explicitly permits the father, or his heir if the father is deceased, to seek to disavow a legitimate child’s paternity). The heirs must commence the action within the liberative prescription of one year, running from the day of the husband’s death. La. Civ. Code Ann. art. 190.

The record shows uncontested evidence that Marti and Clifford are the NH’s children and heirs under Louisiana law. Within the liberative prescription, on November 10, 2009, Natalie filed, on Marti’s and Clifford’s behalf, a Petition to Disavow Paternity, asserting that the NH was not Noah’s father and that any additional children born of the NH adversely affected Clifford’s and Marti’s Social Security benefits. The Petition to Disavow Paternity asked the Louisiana court to issue a judgment decreeing, among other things, that the NH was not Noah’s father. On January 5, 2010, the Louisiana court issued a judgment disavowing paternity, finding that Noah was not the NH’s child. On that date, Noah ceased to satisfy the conditions to inherit the NH’s personal property under Louisiana intestacy law. La. Civ. Code Ann. arts. 880 and 882 (undisposed property of deceased devolves in favor of his children). Because the evidence shows that Noah no longer satisfied the conditions to inherit the NH’s personal property under Louisiana intestacy law, he also ceased, as of January 5, 2010, to be eligible for child’s insurance benefits as the NH’s child under section 216(h)(2)(A) of the Act.

We next look to whether Noah would be eligible for Social Security benefits as the NH’s natural child under section 216(h)(2)(B) of the Act. The judgment adopting a Hearing Officer Conference Report shows that Tracy and the NH were legally married. ^[20] Thus, Noah is not the NH’s natural child and not eligible for child’s insurance benefits as the NH’s child under section 216(h)(2)(B) of the Act.

We next look to whether the agency will deem Noah to be the NH’s child even though he does not meet the requirements of section 216(h)(2)(A)-(B) of the Act. 42 U.S.C. § 416(h)(3)(C)(i)(-ii); 20 C.F.R. § 404.355(a)(3). In this case, the NH died prior to Noah’s birth. Thus, Noah does not meet the requirements of section 216(h)(3)(C)(i)-(ii) of the Act.

As previously noted, the agency originally approved Noah’s application for child’s insurance benefits, with benefits beginning October 2009. Because the NH was Noah’s presumed father, Noah met all the requirements for entitlement to child’s insurance benefits on the NH’s account at the time Tracy filed the application for child’s insurance benefits on Noah’s behalf. The evidence shows, however, that on January 5, 2010, a Louisiana court issued a judgment disavowing paternity, finding that Noah was not the NH’s child. Thus, Noah’s relationship to the NH ceased as of January 5, 2010.

The agency may reopen and revise a determination or a decision made in a claimant’s case within four years of the date of the notice of the agency’s initial determination if the agency finds good cause to reopen the case. 20 C.F.R. §§ 404.987, 404.988(b). The agency will find that there is good cause to reopen a determination or decision if new and material evidence is furnished, or that the evidence the agency considered in making the determination or decision clearly shows on its face that the agency made an error in the decision. Id. at § 404.989. We conclude that the Louisiana judgment disavowing paternity, finding that Noah is not the NH’s child, constitutes new and material evidence and provides the agency with good cause to reopen Noah’s case.

CONCLUSION

In summary, Natalie properly and timely filed, on Marti’s and Clifford’s behalf, a Petition to Disavow Paternity, asking the Louisiana court to issue a judgment decreeing that the NH was not Noah’s father. The judgment disavowing paternity, issued on January 5, 2010, finding that Noah is not the NH’s child, rebuts the presumption that Noah is the NH’s child. As such, Noah cannot inherit the NH’s personal property under Louisiana intestacy law. Noah ceased to meet the requirements of entitlement to child’s insurance benefits as the NH’s child the date the Louisiana court issued the judgment disavowing paternity. The judgment disavowing paternity provides the agency with good cause to reopen Noah’s case. Therefore, the agency should reopen Noah’s case and find that Noah’s entitlement to child’s insurance benefits under the NH’s account ceased as of January 5, 2010.

 

In this case, the claimant has submitted DNA test results showing a 99.9388% probability that the deceased number holder is the father along with a letter from the number holder's parents confirming that he was told prior to death that he is the claimant's father.

Louisiana law provides the presumption that the husband of the mother is the legal father of her child while it recognizes a biological father's actual paternity. Based on this, the mother's husband being listed on the birth certificate as the father does not preclude the presumption that the number holder is the actual father.

The DNA evidence and the letter from NH's parents indicate a high probability that the claimant was the number holder's child, thereby meeting the meet the clear and convincing evidence standard for proof of paternity.

QUESTION

You asked whether a child claimant is the child of the deceased number holder for the purposes of determining the child's eligibility to child's benefits on the earnings record of the deceased number holder, based upon DNA test results and a letter from the number holder's parents.

ANSWER

Yes, the child claimant would be considered the child of the deceased number holder. Christie is entitled to child's benefits on the number holder's account based upon the evidence provided.

BACKGROUND

On May 16, 2007, Christie (Claimant) applied for child's benefits on the earnings record of Brian, the deceased number holder (NH). Claimant presented her birth certificate, which listed her father as Charles . However, she also presented DNA test results dated April 23, 2007, that showed with a probability of 99.9388%, NH was her father. Claimant also provided a letter form NH's parents, Edgar and May , wherein they stated Claimant was their granddaughter and that NH was her father. NH's parents further stated that prior to his death NH indicated that Claimant's mother, Julie, told NH that he was Claimant's father. NH died on December 31, 2005, while domiciled in Louisiana. The facts as presented do not indicate that NH and Claimant's mother were married.

STATUTORY AUTHORITY

Federal Law

Under section 202(d) of the Social Security Act (the Act), a child is entitled to benefits on the earnings record of an insured individual who died, if the child could inherit the insured's property under the intestacy laws of the state in which the insured was domiciled when he or she died. 42 U.S.C. § 416(h)(2)(A). To determine whether a child is eligible for benefits under section 416(h)(2)(A), the Commissioner will first apply the version of state law that is in effect when the Commissioner makes a final decision on an application for benefits. 20 C.F.R. § 404.355(b)(4)(2007).

To be considered an insured person's child for the purposes of the Act, the child must show one of the following: (1) she would be entitled to inherit property through intestate succession under the laws of the state in which the insured person had his permanent home when the application for Social Security benefits was filed; or (2) her parents went through a marriage ceremony, but the marriage was invalid because of a legal impediment; or (3) the deceased acknowledged in writing that the applicant is his or her son or daughter, had been decreed by a court to be the mother or father of the applicant, or been ordered by a court to contribute to the support of the applicant because the applicant was his or her son or daughter, and such acknowledgment, court decree, or court order was made before the death of such insured individual, or such insured individual is shown by evidence satisfactory to the Commissioner of Social Security to have been the mother or father of the applicant, and such insured individual was living with or contributing to the support of the applicant at the time such insured individual died. See 42 U.S.C. §§ 416(h)(2)(A)-(B), (3)(C).

Louisiana Law

Because NH was domiciled in Louisiana at the time of his death, Louisiana intestacy law applies in this case. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(b)(4). Louisiana intestacy law provides that when a person dies without a valid will, his descendants may inherit property from him. See LA. CIV. CODE ANN. art. 880 (West 2007). Descendants include children. See LA. CIV. CODE ANN. art. 882 (West 2007).

In Louisiana, a certified report of blood or tissue sampling which indicates by a ninety-nine and nine-tenths percentage point threshold probability that the alleged father is the father of the child creates a rebuttable presumption of paternity. LA. REV. STAT. ANN. § 9:397.3(B)(2)(b) (West 2007). Although insufficient to prove paternity alone, scientific testing provides persuasive and objective evidence that can help establish paternity by a preponderance of evidence. LA. CIV. CODE ANN. art. 197, cmt. (c). However, if the child institutes the paternity action after the death of the alleged father, the child must prove paternity by clear and convincing evidence. Id. art. 197, cmt. (d). In Louisiana, to meet the clear and convincing evidence standard of proof, the evidence, taken as a whole, must show that the facts sought to be proven are highly probable. Talley v. Stuckey, 560 So.2d 111, 112-113 (La. Ct. App. 1990).

DISCUSSION

The facts as presented do not indicate that NH and Claimant's mother were married. Further, according to the facts presented, at the time of his death NH had not acknowledged in writing that Claimant was his child, and no court decreed that he was her father. As we understand the facts, no court ever ordered NH to pay child support for Claimant. NH apparently never lived with Claimant or contributed to her support. Given these facts, Claimant cannot establish she is the child of NH under section 216(h)(3). Therefore, to establish that she is NH's child for the purposes of the Act, Claimant must show that she would be entitled to inherit property from him through intestate succession under Louisiana law. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(b)(4).

DNA test results in this case show a 99.9388% probability that NH was Claimant's father. Consequently, he is presumed to be her father under Louisiana law. See LA. REV. STAT. ANN. § 9:397.3(B)(2)(b). We note that Charles was listed as Christie’s father on her birth certificate; however this does not nullify the presumption that NH is Claimant's biological father. Louisiana law provides the presumption that the husband of the mother is the legal father of her child while it recognizes a biological father's actual paternity. Smith v. Cole, 553 So.2d 847, 854-55 (La. 1989).

However, DNA test results, alone, are not sufficient to prove paternity in Louisiana. Simpson v. Stevenson, 852 So.2d 1093, 1096 (La. App. 2003). Scientific testing provides persuasive and objective evidence that can help establish paternity by a preponderance of evidence. LA. CIV. CODE ANN. art. 197, cmt. (c). However, if the child institutes the paternity action after the death of the alleged father, the child must prove paternity by clear and convincing evidence. Id. art. 197, cmt. (d). To meet the clear and convincing evidence standard of proof, the evidence, taken as a whole, must show that the facts sought to be proven are highly probable. T~, 560 So.2d at 112-113. Here, in addition to the DNA test results, Claimant presented a statement from NH's parents indicating that she was their granddaughter and that NH was her father. NH's parents also stated that prior to NH's death, Claimant's mother told NH that he was Claimant's father. We believe that the DNA evidence and the letter from NH's parents indicate a high probability that Claimant was NH's child, thereby meeting the meet the clear and convincing evidence standard for proof of paternity.

CONCLUSION

As such, Claimant has the right to inherit property from NH under Louisiana intestacy law, and she is entitled to Social Security benefits on NH's account.