The number holder’s (NH) death certificate indicates he was domiciled in Alabama when he died; therefore, we look to Alabama intestacy law to determine whether the claimant is NH’s child. In this case, the mother submitted an Alabama probate court order declaring that claimant is NH’s biological child. Under Social Security Ruling 83-37c, SSA is not bound by the decision of a state court in a proceeding to which SSA was not a party. The court order alone does not provide clear and convincing evidence and the evidence submitted by the claimant’s mother is not sufficient to establish that the claimant could inherit from the NH under Alabama intestacy law. The claimant is not NH’s child under section 216(h)(2)(A) of the Act. The evidence also does not establish claimant could be deemed NH’s child under section 216(h)(3)(C) of the Act. Therefore, the claimant is not NH’s child for determining claimant’s eligibility for child insurance benefits (CIB) on NH’s earnings record.

QUESTION

You asked whether a court order from the Probate Court of J~, Alabama determining that the claimant is the number holder’s biological child is sufficient to establish that the claimant is the number holder’s child for determining her eligibility for child’s insurance benefits (CIB) on the number holder’s earnings record.

OPINION

The information provided, including the court order, is insufficient to establish that the claimant is the number holder’s child for determining her eligibility for CIB on the number holder’s earnings record because the claimant did not provide clear and convincing evidence of the number holder’s paternity.

BACKGROUND

According to the information provided, on February XX, 2016, C~ (Claimant’s mother) filed an application on behalf of her daughter, K~ (Claimant), for CIB on the earnings record of K2~, the number holder (NH). Claimant’s mother and NH were never married. Social Security Administration (SSA) records show that Claimant was born on February XX, 2012. NH’s death certificate indicates he died on April XX, 2013, while domiciled in Alabama. Prior to his death, NH applied for disability insurance benefits in March 2013. NH reported that he had two children under age 18, but he did not list Claimant as one of his children.

On February XX, 2016, a claims representative spoke with Claimant’s mother. Claimant’s mother reported that she never filed for food stamps claiming that NH was Claimant’s father, and she stated that there was no court order directing NH to pay child support for Claimant. Claimant’s mother also stated that to her knowledge NH never filed an application with or made a statement to the Department of Veterans Affairs or any welfare office identifying Claimant as his child; he never wrote any letters or sent cards acknowledging her as his child; there were no documents written by NH acknowledging her as his child; he never claimed her as a child on a tax return or took out an insurance policy on or made her a beneficiary on his own insurance policy; and he had no will stating Claimant was his child. Claimant’s mother further stated that NH never listed Claimant as his child on an employment application; registered her in a school or at a place of worship as his child; took her to the doctor or hospital as his own child. He was not at the hospital for Claimant’s birth, and he never accepted responsibility for or paid any of her hospital expenses at birth or provided information for the birth certificate. Claimant’s mother reported NH’s mother did acknowledge Claimant as her grandchild; however, Claimant’s mother had lost all contact with NH’s family, had no way to get in touch with them, and did not know how to locate them. Claimant’s mother also reported that NH had never seen Claimant.

Claimant’s mother submitted an order from the Probate Court of J~ County, Alabama dated November XX, 2015. The court order declares Claimant to be NH’s biological child. The order indicates that the cause came before the court based on a petition filed by Claimant’s mother on behalf of Claimant claiming that she was NH’s biological child. The order indicates that the court made its determination based on the testimony of Claimant’s mother. The court did not summarize that testimony or cite any other evidence. The court order also indicates that notice was served on all interested parties by publication in a paper of general circulation.

DISCUSSION

A claimant may be eligible for CIB on the earnings record of an individual who dies a fully or currently insured individual if the claimant is the insured individual’s “child.” See Social Security Act (Act) §202(d)(1); 20 C.F.R. §404.350(a)(1) (2016).^[1] “Child” includes “the child” of an insured individual. Act §216(e);see 20 C.F.R. §404.354; Astrue v. Capato, --- U.S. ---, 132 S. Ct. 2021, 2027-28 (2012). A claimant may show she is “the child” of a deceased insured individual, within the meaning of section 216(e)(1), under section 216(h)(2)(A) or 216(h)(3)(C) of the Act. See Capato, 132 S. Ct. at 2028. Under section 216(h)(2)(A), a claimant is considered “the child” of a deceased insured individual if she could inherit the insured individual’s intestate personal property under the law of the state in which the insured individual was domiciled when he died. See Act §216(h)(2)(A); 20 C.F.R. §404.355(a)(1), (b)(1), (b)(4); Capato, 132 S. Ct. at 2028-34; Program Operations Manual System (POMS) GN 00306.001.C.1.a., C.2.a. NH’s death certificate indicates he was domiciled in Alabama when he died. Therefore, we look to Alabama intestacy law to determine whether Claimant is NH’s child. See Act §216(h)(2)(A); 20 C.F.R. §404.355(a)(1), (b)(1), (b)(4); POMS GN 00306.001.C.1.a., C.2.a.

Under Alabama intestacy law, a child of an individual who died intestate is entitled to a share of the individual’s personal property. See Ala. Code §§43-8-40, 43-8-42(1) (2016).^[2] A child born out of wedlock can inherit from her putative father if she establishes paternity by “clear and convincing proof.” Ala. Code § 43-8-48(2)b. Clear and convincing proof in Alabama intestacy cases is “evidence which convinces the trier of fact that a proposition is highly probable, as distinguished from more probable than not.” Jackson v. Apfel, 105 F. Supp. 2d 1220, 1221 (N.D. Ala. 2000) (quoting D.D.P. v. State, 595 So. 2d 528, 538 (Ala. Crim. App. 1991) (citation and internal quotation marks omitted)). Clear and convincing proof is not synonymous with undisputed proof. See id. Instead, evidence amounts to clear and convincing proof when the court is “[c]learly convinced of the affirmative of the proposition to be proved.” Id. (quoting D.D.P., 595 So. 2d at 538 (internal quotation marks omitted)). Evidence can amount to clear and convincing proof even when contrary evidence exists. See id. at 1221-22.

Claimant submitted an Alabama probate court order declaring that Claimant is NH’s biological child. Under Social Security Ruling 83-37c, SSA is not bound by the decision of a state court in a proceeding to which SSA was not a party. However, SSA cannot ignore such a decision that meets all four of the following prerequisites: “(1) an issue in a claim for Social Security benefits previously has been determined by a State court of competent jurisdiction; (2) the issue was genuinely contested before the State court by parties with opposing interests; (3) the issue falls within the general category of domestic relations law; and (4) the resolution by the State trial court is consistent with the law enunciated by the highest court in the State.” SSR 83-37c (adopting the rationale of Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973)); see also Baker o/b/o Baker v. Sullivan, 880 F.2d 319, 322 (11th Cir. 1989) (holding that, “As a legal matter, the Appeals Council could determine that the state court judgment is not binding on the [Commissioner] on the issue of paternity of children . . , particularly when the [Commissioner] was not a party to the state court action, and no opposing interest were presented in the case”).

Here, it appears the court was a court of competent jurisdiction and paternity was the only issue before the court. However, the court order does not indicate that the issue of paternity was genuinely contested by parties with opposing interests. Nothing in the court’s order indicates a party represented the interests of NH or his possible heirs. The order explains that “notice was served upon all interested parties by publication, which ran for three consecutive weeks in a paper of general circulation in the State of Alabama,” but it appears that no one other than Claimant’s mother attended or testified at the hearing. Furthermore, it is unclear whether the court’s order is consistent with the law enunciated by the highest court in Alabama because the court does not cite the “clear and convincing” standard to establish paternity after the death of the alleged father and does not cite any “clear and convincing evidence” to support its finding that Claimant is NH’s biological child. Because the court order does not meet the four prerequisites in Social Security Ruling 83-37c, SSA is not bound by the court order.

Moreover, the court order alone does not provide clear and convincing evidence. The order does not state what evidence the court examined to determine the issue of paternity, other than to cite generally to the mother’s testimony. The court does not indicate the substance of that testimony and does not cite any other evidence.

The only other evidence provided by Claimant’s mother is her own statements that NH is Claimant’s father and that NH’s mother acknowledged Claimant as her grandchild. The grandmother’s purported acknowledgment carries no weight in this case. Claimant’s mother otherwise reported there were no other instances of acknowledgment by NH that Claimant was his child. NH never even saw Claimant. Thus, the information provided does not provide clear and convincing proof to establish Claimant as NH’s child.

The evidence available also does not establish Claimant is NH’s child under section 216(h)(3)(C) of the Act. To qualify as “the child” of a deceased insured individual under section 216(h)(3)(C), a claimant must be the son or daughter of the insured individual and show one of the following: (1) the insured individual acknowledged in writing that he was his child, (2) a court decreed the insured individual to be his father prior to the insured individual’s death, (3) a court ordered the insured individual to contribute to his support prior to the insured individual’s death, or (4) the insured individual is his natural father and was living with him or contributing to his support at the time the insured individual died. See Act § 216(h)(3)(C); 20 C.F.R. § 404.355(a)(3), (4); POMS GN 00306.100.A, B. The record, as discussed above, does not establish that Claimant met the threshold requirement of section 216(h)(3) of being NH’s daughter, i.e., his biological child. See Act § 216(h)(3); 20 C.F.R. §404.355(a)(3); POMS GN 00306.100.D.1. Claimant’s mother also did not submit evidence that would satisfy any of the four foregoing requirements of section 216(h)(3)(C). Claimant, therefore, does not qualify as NH’s child under any provision of section 216(h)(3)(C) of the Act.

CONCLUSION

The evidence Claimant’s mother submitted is not sufficient to establish Claimant could inherit from NH under Alabama intestacy law; and, therefore, Claimant is not NH’s child under section 216(h)(2)(A) of the Act. The evidence also does not establish Claimant could be deemed NH’s child under section 216(h)(3)(C) of the Act. Claimant, therefore, is not NH’s child for determining Claimant’s eligibility for CIB on NH’s earnings record.

Sincerely,

Mary Ann Sloan

Regional Chief Counsel

By: Kristin M. Rogers

Assistant Regional Counsel

Under Alabama intestacy law, a child of an individual who died intestate is entitled to a share of the individual’s personal property. A child born out of wedlock can inherit from his putative father if he establishes paternity by clear and convincing proof. In this case, the DNA test results Claimant’s mother submitted in support of Claimant’s application for CIB do not, standing alone, constitute clear and convincing proof of paternity. Also, the non DNA evidence does not provide clear and convincing evidence to establish the Claimant is the NH’s child for CIB. Therefore, Claimant is not NH’s child under section 216(h)(2)(A) of the Act and the evidence also does not establish Claimant could be deemed NH’s child under section 216(h)(3)(C) of the Act.

However, if Claimant’s mother provides additional credible evidence showing NH’s parents had only one male child together or showing she never had a sexual relationship with any of NH’s brothers, the record would contain sufficient evidence for a SSA adjudicator to conclude Claimant is NH’s child under Alabama intestacy law. Thus, further development of the record is necessary to determine whether NH’s parents had any male children other than NH and if so, whether Claimant’s mother had a sexual relationship with any of NH’s brothers.

QUESTION

You asked whether DNA test results showing a high probability a claimant is the grandchild of a number holder’s parents, statements from the claimant’s mother and the number holder’s family members, and the program from the number holder’s funeral establish the claimant is the number holder’s child for determining the claimant’s eligibility for child’s insurance benefits (CIB) on the number holder’s earnings record.

OPINION

The evidence presented does not provide clear and convincing proof to establish the claimant is the number holder’s child under Alabama intestacy law. The evidence also does not indicate the claimant could be deemed the number holder’s child. Therefore, under the current record, the claimant is not the number holder’s child for determining the claimant’s eligibility for CIB on the number holder’s earnings record.

However, if the claimant presents additional credible evidence showing the number holder’s parents had only one male child together or showing the claimant’s mother did not have a sexual relationship with any of the number holder’s brothers, a Social Security Administration (SSA) adjudicator could find the claimant is the number holder’s child under Alabama intestacy law. Accordingly, further development of the record is necessary to determine whether the number holder’s parents had any male children other than the number holder and if so, whether the claimant’s mother had a sexual relationship with any of the number holder’s brothers.

BACKGROUND

According to the information provided, S~ (Claimant’s mother) filed an application on behalf of her son, T~ (Claimant), for CIB on the earnings record of R~, the number holder (NH). To support the application, Claimant’s mother submitted the results of DNA testing. The DNA testing report indicates a facility accredited by the American Association of Blood Banks (AABB) analyzed DNA samples from Claimant, Claimant’s mother, O~ (NH’s mother), and R1~. (NH’s father). ^[3] The DNA testing revealed a 99.99% probability that NH’s mother and NH’s father were Claimant’s grandparents. ^[4] On a Child Relationship Statement form, Claimant’s mother stated no court decreed Claimant NH’s child or ordered NH to contribute to Claimant’s support. Claimant’s mother also stated NH did not identify Claimant as his child in an application or statement filed with a government agency, a letter, a family tree or other family record, a tax return, an insurance policy, a will, or an employment application. Additionally, Claimant’s mother stated NH did not register Claimant in a school or place of worship or sign a report card as Claimant’s parent. Claimant’s mother also stated NH did not take Claimant to a medical appointment and list himself as Claimant’s parent. Claimant’s mother further stated NH did not pay Claimant’s hospital expenses at birth or provide information for Claimant’s birth certificate. Moreover, Claimant’s mother stated NH did not orally state to anyone that he was Claimant’s father. Claimant’s mother also stated NH was not making regular and substantial contributions to Claimant’s support at the time of his death. Claimant’s mother did state she knew of other written evidence that showed Claimant is NH’s son.

Claimant’s mother submitted the program from NH’s funeral identifying Claimant as a surviving child. The funeral program also identifies two surviving sisters and does not identify any surviving brothers. Claimant’s mother also submitted an affidavit NH’s mother signed before a notary public stating she considers Claimant her grandson and NH recognized Claimant as his son. Additionally, Claimant’s mother submitted a notarized statement from two purported descendants of NH indicating they consider Claimant their sibling and an identical statement from another purported descendant of NH that is not notarized.

NH’s amended death certificate indicates he died on December XX, 2002, while domiciled in Alabama. NH’s death certificate and the funeral program also indicate NH was married to L~ (NH’s wife) at the time of his death. The information provided does not indicate NH ever married Claimant’s mother.

The agency denied Claimant’s application for CIB initially and upon reconsideration because there was insufficient information to establish Claimant was NH’s child. Claimant’s mother, on behalf of Claimant, requested a hearing before an administrative law judge (ALJ). Based on Program Operations Manual System (POMS) PR 01005.001 (PR 11-058), the ALJ found the DNA test results indicating a 99.99% probability that NH’s mother and NH’s father are Claimant’s grandparents did not establish Claimant is NH’s child under Alabama intestacy law. The ALJ further found that the statement of purported descendants of NH indicating they consider Claimant their sibling in combination with the DNA test results did not amount to the clear and convincing evidence necessary to establish Claimant as NH’s child under Alabama intestacy law. The ALJ did not discuss the other evidence Claimant’s mother submitted and denied Claimant’s application for failure to establish Claimant was NH’s child.

Claimant’s mother, on behalf of Claimant, requested review of the ALJ’s decision from the Appeals Council. That request is currently pending.

DISCUSSION

A claimant may be eligible for CIB on the earnings record of an individual who dies a fully or currently insured individual if the claimant is the insured individual’s “child.” See Act § 202(d)(1); 20 C.F.R. § 404.350(a)(1) (2014).^[5] “Child” includes “the child” of an insured individual. Act § 216(e); see 20 C.F.R. § 404.354; Astrue v. Capato, --- U.S. ---, 132 S. Ct. 2021, 2027-28 (2012). A claimant may show he is “the child” of a deceased insured individual, within the meaning of section 216(e)(1), under section 216(h)(2)(A) or 216(h)(3)(C) of the Act. ^[6] See Capato, 132 S. Ct. at 2028.

Under section 216(h)(2)(A), a claimant is considered “the child” of a deceased insured individual if he could inherit the insured individual’s intestate personal property under the law of the state in which the insured individual was domiciled when he died. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4); Capato, 132 S. Ct. at 2028-34; POMS GN 00306.001(C)(1)(a), (C)(2)(a). NH’s death certificate indicates he was domiciled in Alabama when he died. Therefore, we look to Alabama intestacy law to determine whether Claimant is NH’s child. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4); POMS GN 00306.001(C)(1)(a), (C)(2)(a).

Under Alabama intestacy law, a child of an individual who died intestate is entitled to a share of the individual’s personal property. See Ala. Code §§ 43-8-40, 43-8-42(1) (2014). ^[7] A child born out of wedlock can inherit from his putative father if he establishes paternity by “clear and convincing proof.” Ala. Code § 43-8-48(2)b. Clear and convincing proof in Alabama intestacy cases is “evidence which convinces the trier of fact that a proposition is highly probable, as distinguished from more probable than not.” Jackson v. Apfel, 105 F. Supp. 2d 1220, 1221 (N.D. Ala. 2000) (quoting D.D.P. v. State, 595 So. 2d 528, 538 (Ala. Crim. App. 1991)) (internal quotation marks omitted). Clear and convincing proof is not synonymous with undisputed proof. See id. Instead, evidence amounts to clear and convincing proof when the court is “[c]learly convinced of the affirmative of the proposition to be proved.” Id. (quoting D.D.P. , 595 So. 2d at 538) (internal quotation marks omitted). Evidence can amount to clear and convincing proof even when contrary evidence exists. See id. at 1221-22.

In previous precedent opinions we have indicated the presumptions of paternity stated in the Alabama Uniform Parentage Act (AUPA) would apply in determining paternity under Alabama intestacy law. See POMS PR 01005.001 (PR 11-058); POMS PR 01105.001 (PR 12-090); POMS PR 01115.001 (PR 12-090, PR 09-151, PR 07-079, PR 06-034, PR 05-246, PR 00-214); POMS PR 01120.001 (PR 06-034, PR 05-246). However, the Alabama Court of Civil Appeals recently held such presumptions do not apply when establishing paternity in an intestacy case. See Clemons v. Howard, 124 So. 3d 738, 746 (Ala. Civ. App. 2013). Pursuant to the Clemons decision, Alabama courts evaluating whether a decedent is the father of a child born out of wedlock for the purposes of intestate succession when the decedent’s paternity was not established through an adjudication prior to the decedent’s death should consider only whether the evidence presented amounts to clear and convincing proof of paternity. See id.; see also Ala. Code § 43-8-48(2)b. Thus, the aforementioned opinions should no longer be relied upon to the extent they indicate the paternity presumptions within the AUPA apply to evaluating whether an individual is a decedent’s child under Alabama intestacy law. ^[8]

The DNA test results Claimant’s mother submitted in support of Claimant’s application for CIB do not, standing alone, constitute clear and convincing proof of paternity. In previous precedent opinions, we have stated DNA test results showing a high probability that a deceased number holder’s parents are the grandparents of the claimant do not, standing alone, amount to the clear and convincing proof necessary to establish paternity under Alabama intestacy law. See POMS PR 01005.001 (PR 11-058); POMS PR 01115.001 (PR 05-246); POMS PR 01120.001 (PR 05-246). A high probability of grandparentage does not equate to a high probability of paternity without additional information regarding the number of male children the number holder’s parents had together or the relationship between the claimant’s mother and the deceased number holder’s brothers. See POMS PR 01115.001 (PR 05-246); POMS PR 01120.001 (PR 05-246).

Claimant’s mother did not provide any evidence affirmatively stating the number of male children NH’s parents had together or her relationship with any of NH’s brothers. ^[9] Thus, the DNA test results indicating a 99.99% probability that NH’s parents are Claimant’s grandparents ^[10] do not amount to clear and convincing proof that NH is Claimant’s father. Indeed, if NH’s parents had another male child together and Claimant’s mother engaged in sexual relations with him around the time of Claimant’s conception, the DNA test results fall far short of the standard for clear and convincing proof of NH’s paternity. Accordingly, additional credible evidence regarding the number of male children NH’s parents had together or the relationship between Claimant’s mother and NH’s brothers is necessary for the DNA test results to establish Claimant could inherit from NH under Alabama intestacy law.

Courts have found clear and convincing proof of paternity in Alabama intestacy matters without DNA evidence. In Cotton v. Terry, 495 So. 2d 1077, 1079-80 (Ala. 1986), the Alabama Supreme Court found there was clear and convincing proof of paternity when the putative child had the decedent’s last name before she married and all witnesses who testified, including the party challenging the paternity determination, agreed the decedent referred to the putative child as his daughter and held himself out as the putative child’s father while he was living. In Jackson, 105 F. Supp. 2d at 1222-23, an Alabama federal district court found there was clear and convincing proof of paternity when the decedent’s family acknowledged the putative child as the decedent’s son, the decedent’s obituary and funeral program listed the putative child as a surviving son, the putative child visited with the decedent and his relatives, the decedent’s mother stated the putative child looked just like the decedent, and the decedent gave the putative child’s mother money for the putative child’s support.

However, the non-DNA evidence Claimant’s mother submitted is not as substantial as the evidence that established clear and convincing proof of paternity in Cotton and Jackson. The notarized affidavit from NH’s mother indicating she considers Claimant her grandson and NH recognized Claimant as his son, the statements from purported descendants of NH indicating they consider Claimant their sibling, and the program from NH’s funeral listing Claimant as a survivor must be weighed against the statements from Claimant’s mother that NH did not acknowledge himself as Claimant’s father on any available documents, did not orally state to anyone he was Claimant’s father, and was not making regular and substantial contributions to Claimant’s support at the time of his death. Moreover, there is no evidence Claimant visited NH during NH’s lifetime. We believe an Alabama court viewing the above-referenced evidence would conclude the evidence does not show that NH’s paternity of Claimant is highly probable and does not amount to the clear and convincing proof necessary for Claimant to inherit from NH under Alabama intestacy law. See Jackson, 105 F. Supp. 2d at 1221-22 (stating the clear and convincing proof standard requires a court to weigh the evidence supporting the decedent’s paternity versus the evidence against the decedent’s paternity and conclude the decedent’s paternity is highly probable). Accordingly, Claimant’s mother has not provided sufficient evidence to establish Claimant is NH’s child for purposes of CIB under section 216(h)(2)(A) of the Act.

The evidence Claimant’s mother submitted does not amount to the clear and convincing proof of paternity necessary for Claimant to inherit from NH under Alabama intestacy law. However, the DNA test results Claimant’s mother submitted would be much more persuasive if coupled with credible evidence showing NH’s parents had only one male child together or showing Claimant’s mother never had a sexual relationship with any of NH’s brothers. Thus, if Claimant’s mother provides the foregoing evidence, an SSA adjudicator could find such evidence combined with the DNA test results constitute the clear and convincing proof of paternity necessary for Claimant to inherit from NH under Alabama intestacy law. As such a finding would establish Claimant is NH’s child for purposes of CIB under section 216(h)(2)(A) of the Act, further development of the record is necessary to determine whether NH’s parents had any male children other than NH together and if so, whether Claimant’s mother had a sexual relationship with any of them.

The evidence does not establish Claimant is NH’s child under section 216(h)(3)(C) of the Act. To qualify as “the child” of a deceased insured individual under section 216(h)(3)(C), a claimant must be the son or daughter of the insured individual and show one of the following: (1) the insured individual acknowledged in writing that he was his child, (2) a court decreed the insured individual to be his father prior to the insured individual’s death, (3) a court ordered the insured individual to contribute to his support prior to the insured individual’s death, or (4) the insured individual is his natural father and was living with him or contributing to his support at the time the insured individual died. See Act § 216(h)(3)(C); 20 C.F.R. § 404.355(a)(3), (4). Claimant’s mother did not submit evidence that would satisfy any of the four foregoing requirements. Therefore, Claimant does not qualify as NH’s child under any provision of section 216(h)(3)(C) of the Act.

CONCLUSION

The evidence Claimant’s mother submitted is not sufficient to establish Claimant could inherit from NH under Alabama intestacy law and, therefore, Claimant is not NH’s child under section 216(h)(2)(A) of the Act. The evidence also does not establish Claimant could be deemed NH’s child under section 216(h)(3)(C) of the Act. However, if Claimant’s mother provides additional credible evidence showing NH’s parents had only one male child together or showing she never had a sexual relationship with any of NH’s brothers, the record would contain sufficient evidence for a SSA adjudicator to conclude Claimant is NH’s child under Alabama intestacy law. Thus, further development of the record is necessary to determine whether NH’s parents had any male children other than NH and if so, whether Claimant’s mother had a sexual relationship with any of NH’s brothers.

Mary A. Sloan
Regional Chief Counsel
By: Peter S. Massaro, III

Assistant Regional Counsel

Under Alabama intestacy law, a child of a deceased individual may be entitled to some or all of the deceased’s intestate estate. A child born out of wedlock may inherit from his or her purported father through intestate succession if paternity is established, after the father’s death, by an adjudication supported by clear and convincing evidence.

In this case, we believe the evidence presented does not provide clear and convincing evidence that the NH is Claimant’s father under Alabama intestacy law or that Claimant could be deemed NH’s child. The DNA test results, combined with the statements from number holder’s mother, do not provide clear and convincing evidence, therefore, Claimant is not NH’s child for the purposes of CIB on NH’s earning record.

QUESTION

You have asked whether results of DNA testing of samples from the claimant and his alleged uncle, combined with statements from number holder’s mother, are sufficient to establish the claimant as the child of the number holder for the purpose of determining the claimant’s eligibility for child’s insurance benefits (CIB) on the number holder’s earning record.

OPINION

The DNA test results, combined with the statements from number holder’s mother, do not provide clear and convincing evidence that the number holder is the father of the claimant for purposes of Alabama intestacy law or otherwise establish the claimant as the number holder’s child for CIB purposes. 

BACKGROUND

According to the information provided, Ryan (Claimant) was born in June.  Claimant’s birth certificate does not identify a father. Bradley, the number holder (NH), died on August XX, 2010. NH’s death certificate indicates he was a resident of Alabama when he died. Claimant was not listed as a survivor in NH’s obituary. Additional information from SSA indicates Claimant’s mother and NH were never married.

Claimant’s mother applied on Claimant’s behalf for CIB on NH’s earnings record in August 2011. In support of Claimant’s application, Claimant’s mother submitted DNA test results dated August XX, 2011. The DNA test results relied on samples taken from Claimant and NH’s brother. The results showed NH’s brother has a probability of relatedness with Claimant of 90.412%.  From the information provided, it appears that Claimant’s mother attempted to establish NH’s paternity before his death, but NH did not follow through on scheduled DNA testing appointments.  

NH’s mother also completed a Child Relationship Statement in which she indicated she did not know of any written acknowledgment of paternity by NH. NH’s mother claimed NH had orally acknowledged to her and others that he was Claimant’s father and shared pictures of Claimant. She further indicated Claimant “is [a] spitting image of” NH and NH’s mother knew Claimant belonged to NH because Claimant’s mother and NH traveled together. NH’s mother also stated that NH and Claimant never met and he did not provide support for Claimant. In her statement, NH’s mother also indicated that NH never listed Claimant as a dependent on a tax return; did not take out an insurance policy on Claimant or make Claimant a beneficiary on his own insurance policy; NH never made a will listing Claimant as a beneficiary; and NH never took Claimant to the hospital or a doctor’s office and listed himself as a parent.

DISCUSSION

To qualify for CIB on the earnings record of an insured individual who has died, a claimant must be that individual’s “child.” See Social Security Act (Act) § 202(d); 20 C.F.R. § 404.350(a)(1) (2011). All future references to the C.F.R. are to the 2011 version unless otherwise noted.  “Child” includes “the child” of an insured individual. See Act § 216(e); 20 C.F.R. § 404.354.  A claimant may show he is “the child” of a deceased insured individual who never married his mother, within the meaning of section 216(e)(1), under section 216(h)(2)(A) or 216(h)(3)(C) of the Act.  Under section 216(h)(2)(A), a claimant is considered “the child” of the insured individual if the claimant could inherit the insured individual’s intestate personal property under the law of the State in which the insured individual was domiciled when he died. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4); Baker o/b/o Baker v. Sullivan, 880 F.2d 319, 321 (11th Cir. 1989). Because NH was domiciled in Alabama when he died, we look to Alabama intestacy law to determine whether Claimant was NH’s child for the purposes of section 216(h)(2)(A) of the Act.

Under Alabama intestacy law, a child of a deceased individual may be entitled to some or all of the deceased’s intestate estate. See Ala. Code §§ 43-8-40, 43-8-42(1) (2011). A child born out of wedlock may inherit from his or her purported father through intestate succession if paternity is established, after the father’s death, by an adjudication supported by clear and convincing evidence. See Ala. Code § 43-8-48(2)b (2011); Cotton v. Terry, 495 So. 2d 1077, 1079 (Ala. 1986). Clear and convincing evidence in Alabama intestacy cases is “evidence which convinces the trier of fact that a proposition is highly probable, as distinguished from more probable than not.” Jackson v. Apfel, 105 F. Supp. 2d 1220, 1221 (N.D. Ala. 2000) (internal citations omitted). The J~ court further noted that clear and convincing proof is not necessarily undisputed proof. See 105 F. Supp. 2d at 1221.  Instead, evidence meets that standard when the court is “[c]learly convinced of the affirmative of the proposition to be proved. This does not mean that there may not be contrary evidence.” Id. at 1221 (internal citations omitted). According to the J~ court, “‘[c]onvincing’ evidence by definition requires a weighing of the evidence.” Id. at 1222 (internal citations omitted). 

Alabama’s intestacy statute does not address genetic testing, but its domestic relations statute does. Under Alabama’s version of the Uniform Parentage Act (UPA), genetic test results may be used to establish paternity. See Ala. Code § 26-17-505(a) (2011). We have found no Alabama statute that expressly states Alabama courts may or should use Alabama’s UPA provisions in an intestacy proceeding. However, we previously addressed this issue in precedent opinions, noting that Alabama courts have used Alabama’s UPA provisions on genetic testing in paternity proceedings under Alabama’s intestacy statutes. See Program Operations Manual System (POMS) PR 01115.001 (PR 09-151 DNA Testing of Putative Father and Incarceration of Mother’s Husband as Evidence to Rebut Presumption of Paternity of Husband under Alabama Law Number Holder- Fred Claimant- Jessica ; PR 06-034 DNA Testing Used to Establish a Parent-Child Relationship Between the Deceased Number Holder, Broderick and Damonicka and Broderick, under Alabama Law).

In this case, Claimant’s mother provided DNA test results indicating a 90.412% probability that NH’s brother and Claimant are related. In 2009, Alabama amended its statute on genetic test results and revised the statute that created a presumption of paternity based on genetic test results. Under the current law, “a man is rebuttably identified as the father of a child” if the genetic test results disclose that “the man has at least a 99 percent probability of paternity” and “a combined paternity index of at least 100 to 1.” Ala. Code § 26-17-505(a) (2011).  The statute, however, does not address thCCe evidentiary weight of genetic testing involving an individual other than the purported father, such as the purported father’s brother.  Accordingly, the DNA test results identifying only the probability of Claimant being related to an alleged uncle (i.e., NH’s brother) would not establish a rebuttable presumption that NH was Claimant’s father under current Alabama law, even if the test results showed a 99% probability of relatedness. 

Moreover, Alabama caselaw suggests that the DNA test results in this case would not provide clear and convincing evidence that Claimant is NH’s child because, even if the testing was based on a genetic sample from NH, the percentage of probability here is far below the statutorily required percentage. Based on our review of Alabama case law, none of the cases involved DNA testing that relied on samples taken from the putative father’s relatives. See, e.g., D.J.G. v. F.E.G., No. 2101214, 2012 WL 677553 (Ala. Civ. App. Mar. 2, 2012); J.N.H. v. N.T.H., 705 So. 2d 448, 452 (Ala. Civ. App. 1997); C~, 495 So. 2d at 1079.  The genetic testing always involved the father’s DNA. In fact, in Swafford v. Norton, 992 So. 2d 20 (Ala. Civ. App. 2008), the circuit court went as far as granting a petition from the putative son to exhume his purported father’s body to undergo DNA testing to ascertain whether the putative son had standing to assert a paternity action. See id. at 24. While the court later decided that the putative son did not have standing to challenge paternity, the trial court judge’s order allowing the putative son to exhume his purported father’s body suggests the court’s preference for DNA evidence from the purported father as opposed to DNA evidence suggesting relatedness to other relatives. Without more, the DNA test results showing potential relatedness to the alleged uncle would be insufficient to establish Claimant as NH’s child under Alabama intestacy law for purposes of CIB on NH’s earnings record.

Claimant’s mother also provided a statement from NH’s mother asserting she believed NH was Claimant’s father and that he had orally acknowledged Claimant as his child to other people. Neither Claimant’s mother nor NH’s mother offered other evidence that NH acknowledged Claimant as his child.  In contrast to the claims of Claimant’s mother and NH’s mother, the evidence shows NH and Claimant never met, NH did not respond to requests for a DNA test to establish child support, and he did not provide support for Claimant. Moreover, NH’s obituary did not list Claimant as his child. NH’s mother’s statement also shows NH never listed Claimant as a dependent on a tax return; did not take out an insurance policy on Claimant or make Claimant a beneficiary on his own insurance policy; NH never made a will listing Claimant as a beneficiary; and NH never took Claimant to the hospital or a doctor’s office and listed himself as a parent

The totality of the evidence presented, including the assertions of Claimant’s mother and NH’s mother and the DNA test results, would not seem to constitute clear and convincing evidence that NH was Claimant’s father. Cf. J~, 105 F. Supp. at 1222-23 (court concluded plaintiff established he was number holder’s child by clear and convincing evidence that included statements from deceased’s family members that plaintiff was number holder’s child, plaintiff was listed in funeral program as number holder’s child, plaintiff visited number holder and his family, and number holder provided money to plaintiff’s mother for his care). J~, 105 F. Supp. 2d 1220, 1222-23. Claimant’s case is more similar to Reid v. Flournoy, 600 So. 2d 1024, 1026 (Ala. Civ. App. 1992) where the plaintiff failed to establish by clear and convincing evidence that she was a child of the decedent because the weight of the evidence showed the plaintiff was not the decedent’s child. In R~, the plaintiff testified she was decedent’s child and claimed he had acknowledged her as such, but the court found the weight of the evidence contradicted her statements, including testimony from other family members that she was not the decedent’s child and the plaintiff’s own actions of waiting until the main witnesses were dead before bringing her claim. See R~, 600 So. 2d at 1026. Here, although NH’s mother and Claimant’s mother claim NH is Claimant’s father and the DNA suggests Claimant and NH’s brother may be related, the evidence is not clear and convincing because NH did not provide financial support for Claimant, NH never met Claimant, NH avoided the DNA testing, and Claimant was not listed in NH’s obituary.

The evidence also does not establish Claimant is NH’s child under section 216(h)(3)(C) of the Act. To qualify as “the child” of a deceased insured individual under section 216(h)(3)(C), a claimant must be the son or daughter of the insured individual and meet one of several other requirements. See Act § 216(h)(3)(C); 20 C.F.R. § 404.355(a)(3), (a)(4); POMS GN 00306.100.A, B.  To show he or she is the son or daughter of an insured individual, the claimant must show he or she is the biological child of the insured individual. See POMS GN 00306.100.D.1. The record does not indicate Claimant met the threshold requirement of section 216(h)(3)(C) of being NH’s biological child. See Act § 216(h)(3)(C); 20 C.F.R. § 404.355(a)(3), (a)(4); POMS GN 00306.100.D.1. Moreover, Claimant did not provide evidence to satisfy the other requirements of section 216(h)(3)(C)—the record does not include a written acknowledgement of paternity by NH, a court order issued before NH’s death, or evidence that NH lived with or contributed to the support of Claimant. See Act § 216(h)(3)(C); 20 C.F.R. § 404.355(a)(3), (a)(4). Therefore, Claimant could not qualify as NH’s child under section 216(h)(3)(C) of the Act.

CONCLUSION

We believe the evidence presented does not provide clear and convincing evidence that NH is Claimant’s father under Alabama intestacy law or that Claimant could be deemed NH’s child.  Therefore, Claimant is not NH’s child for the purposes of CIB on NH’s earning record. 

Sincerely,

Mary Ann Sloan
Regional Chief Counsel

By: Kristin M. Timm
Assistant Regional Counsel