The Pennsylvania statute does not address DNA testing that establishes the likelihood of paternity or relatedness based on a grandparent relationship. While there is similarly no case law directly on point, we believe that, in light of the statutory recognition granted to DNA testing, a Pennsylvania court would consider the results of DNA testing on a paternal grandparent along with the totality of the evidence presented to determine if a paternal relationship could be established.

We believe that the statements from number holder’s (NH) relatives affirming his paternity, uncontradicted in the record, along with the DNA test results, establish by clear and convincing evidence that NH was Minor Child’s father under Pennsylvania law.

You asked us to determine if, under Pennsylvania law, minor child M~ (Minor Child) qualifies for surviving child’s insurance benefits on the record of the deceased Number Holder, C~ (NH), where genetic testing was conducted on Minor Child and NH’s biological mother, A~ (NH’s mother).

Based on our review of the facts of this case and our research of relevant law, we have determined that a court will likely find that there is a parent-child relationship between NH and Minor Child under Pennsylvania law. Because D~ (Applicant) has established a parent-child relationship between NH and Minor Child by clear and convincing evidence, she has established Minor Child’s entitlement to benefits on NH’s record.

NH passed away on February XX, 2018 and was domiciled in Pennsylvania at the time of his death. Minor Child was born on February XX, 2018. Minor Child’s Numident record did not list a name for a biological father. His birth certificate also did not list a father’s name. NH and the Applicant were not married at any time prior to NH’s death.

In August of 2020, Applicant applied for surviving child’s benefits on behalf of Minor Child on the record of NH. In support thereof, Applicant submitted a DNA Test Report from DNA Diagnostics Center signed on February XX, 2020. The report compared DNA samples collected from Minor Child and NH’s biological mother. The results of the DNA test indicated a 99.999% probability of relatedness between the subjects. In further support of her application, Applicant also provided statements from NH’s mother, A~, NH’s father, L~, and NH’s brother, D2~. In each statement, NH’s relative expressed that NH was the father. Specifically, NH’s brother stated that “M~, born February XX, 2018, is the child of my departed brother, C~, born on August XX, 1992.” Likewise, NH’s mother and father submitted a joint letter in which they stated that we “are writing this in acknowledgement that, M~, born February XX, 2018, is the one and only child of our departed son, C~, born on August XX, 1992.”

To qualify for child’s insurance benefits 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). A claimant can qualify as the insured individual’s natural child if the claimant could inherit from the insured individual as his child. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b). To determine if a claimant could inherit from the insured individual, the Social Security Administration applies the intestacy laws of the state where the insured had his permanent home when he died. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1). Because NH was domiciled in Pennsylvania when he died, we look to Pennsylvania law to determine whether the minor child could inherit from the NH as his child. Act § 216(h)(2)(A); 20 C.F.R. § 404.355(b)(4).

The Pennsylvania intestacy statute addressing persons born out of wedlock, 20 Pa. Cons. Stat. Ann. § 2107(c), indicates that an individual will be considered to be the child of a putative father if any one of the following conditions is met:

1. If the parents of a child born out of wedlock shall have married each other;

2. If during the lifetime of the child, the father openly holds out the child to be his and receives the child into his home, or openly holds the child out to be his and provides support for the child which shall be determined by clear and convincing evidence; or

3. If there is clear and convincing evidence that the man was the father of the child, which may include a prior court determination of paternity.

20 Pa. Cons. Stat. Ann. § 2107(c). Because the NH and Applicant never married, and because the NH died before Minor Child was born, the first two conditions have not been satisfied. Thus, the question is whether the evidence submitted by Applicant satisfies the third condition – namely, whether there is clear and convincing evidence that the NH was the father of Minor Child.

Pennsylvania courts have defined clear and convincing evidence as that which is “clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue. It is not necessary that the evidence be uncontradicted provided it carries a clear conviction to the mind or carries a clear conviction of its truth.” In Re Novosielski, 992 A.2d 89, 107 (Pa. 2010). Courts have found the clear and convincing standard met where the mother provided testimony of her relationship with the alleged father that was corroborated by other witnesses’ testimony and uncontradicted. See, e.g., Giblin v. Astrue, No. 09-218, 2010 WL 3811433 (W.D. Pa. Sept. 22, 2010); Black v. Bowen, No. 86-1894, 1988 WL 252015 (W.D. Pa. Mar. 24, 1988).

When considering the sufficiency of DNA testing, Pennsylvania courts have held that DNA evidence is material to, though not conclusive of, establishing paternity. See, e.g., Zearfoss v. Frattaroli, 646 A.2d 1238, 1241 (Pa. Super. 1994) (holding that blood test results are “one factor to be weighed in the totality of the evidence presented on the question of paternity”); Wawrykow v. Simonich, 652 A.2d 843 (Pa. Super. 1994); see also Dungee v. Apfel, No. 97-4544, 1997 WL 805227 (E.D. Pa. Dec. 19, 1997) (remanding for the ALJ to consider DNA test results, explaining that “a DNA test which has shown a 98.9% probability of paternity is certainly compelling evidence”). Moreover, by state statute, where the paternity of a child born out of wedlock is disputed, genetic test results indicating a 99% or greater probability that the alleged father is the father of the child shall create a presumption of paternity.” 23 Pa. Cons. Stat. Ann. § 4343(a)-(c).^[1]

The Pennsylvania statute does not address DNA testing that establishes the likelihood of paternity or relatedness based on a grandparent relationship. While there is similarly no case law directly on point, we believe that, in light of the statutory recognition granted to DNA testing, a Pennsylvania court would consider the results of DNA testing on a paternal grandparent along with the totality of the evidence presented to determine if a paternal relationship could be established. See generally Reed v. Boozer, 693 A.2d 233 (Pa. Super. 1997) (blood test evidence is not conclusive evidence of paternity and must be considered in conjunction with all other evidence).

Thus, although the DNA test results do not conclusively establish that NH was Minor Child’s father, additional evidence was presented on this point. Specifically, in addition to the DNA test that established a 99.99% probability of relatedness between the NH’s mother and Minor Child, Applicant submitted statements from three individuals – NH’s parents and brother – each of which declared that NH was Minor Child’s father. These statements are uncontradicted in the record.

When considering statements from individuals as evidence of paternity for purposes of State intestacy law, under Program Operations Manual System (POMS) GN 00306.065, such statements should show: (1) the relationship of the individual to the number holder, and (2) how the individual knows that the child was the NH’s.

Applied here, although the statements from NH’s parents and brother do not indicate how the individual family members knew Minor Child was the NH’s as directed by POMS GN 00306.065, that provision appears to relate to situations where the Agency relies on statements alone in determining paternity. In this case, we have statements along with other evidence of paternity – namely, a DNA test that established a 99.99% probability of relatedness between the NH’s mother and Minor Child.

Accordingly, we believe that the statements from NH’s relatives affirming his paternity, uncontradicted in the record, along with the DNA test results, establish by clear and convincing evidence that NH was Minor Child’s father under Pennsylvania law. See, e.g., Giblin, 2010 WL 3811433, at *5-7 (finding Pennsylvania’s clear and convincing standard satisfied where the mother provided testimony of her relationship with the alleged father that was corroborated by other witnesses’ testimony and uncontradicted); Black, 1988 WL 252015, at *3 (same); Reed, 693 A.2d 233 (blood test evidence is to be considered in conjunction with all other evidence). Minor Child is, therefore, entitled to benefits on NH’s record.

Under Pennsylvania law, it is likely that the “clear and convincing” evidence standard proving paternity has been met. Therefore, it is our opinion that Minor Child can be considered NH’s child for the purpose of receiving surviving child’s benefits on NH’s record.

Based on our analysis under section 216(h)(2)(A) of the Social Security Act, the children are not entitled to benefits on the NH’s account. The NH was domiciled in Pennsylvania at the time of the March 2012 application, Pennsylvania State law of intestate succession applies in determining the claimants’ status as the children of the NH for purposes of section 216(h)(2)(A) of the Act. The evidence in this case would not meet the requirements for the children to inherit the NH’s personal property under the clear and convincing standard of the Pennsylvania intestacy statute

The mother presented a New Jersey Superior Court default order finding the NH to be the father of the two children.  Pursuant to SSR 83-37c, SSA should not give deference to the New Jersey Superior Court default order because the issue of the NH’s paternity was not genuinely contested by the NH in the court proceeding. To date, the NH has never acknowledged paternity of the children and has not been ordered to pay support.

When a claimant cannot establish that he is the wage earner’s child under state intestate succession laws, the Act allows alternative avenues to establish child status for survivorship benefits. Under section 216(h)(2)(B), an applicant can be deemed a child under the Act if his parents went through a marriage ceremony that turned out to be legally invalid.  This section of the Act is not applicable here because there is no evidence that Fanta ever went through a marriage ceremony with the NH.  Under section 216(h)(3)(B)(i), an applicant can be deemed to be a child under the Act where 1) the NH acknowledged paternity in writing, 2) the NH was decreed a parent by a court, or 3) the NH was ordered by a court to contribute to the support of the applicant. In this case, the NH never acknowledged paternity in writing. 

QUESTION PRESENTED

Whether L~ and M~ , the biological children of Fanta (Fanta), are entitled to Social Security benefits as the children of Sabo , the number holder (the NH).

 OPINION

Based on our analysis under section 216(h)(2)(A) of the Social Security Act (Act), L~ and M~ are not entitled to benefits on the NH’s account.  The evidence in the case would not meet the requirements for L~ and M~ to inherit the NH’s personal property under the clear and convincing standard of the Pennsylvania intestacy statute.  Moreover, the Social Security Administration (agency) is not obligated to give deference to the New Jersey Superior Court’s default judgment according to Social Security Ruling (SSR) 83-37c. 

BACKGROUND

The NH has been receiving Social Security disability insurance benefits since March 1992. The NH was living in New York State in 1994 when he filed his disability application. However, the NH has had a Pennsylvania address since 1997. The New York Center for Programs Support (CPS) confirmed that the NH has had a Pennsylvania address since 1997.

On June, Fanta gave birth to twins, L~ and M~, in Newark, New Jersey. The birth certificates list Alieu as the father. 

Fanta later filed a complaint for child support against Alieu on April 19, 2010, at which time the Superior Court of New Jersey in Hunterdon County issued a summons calling for Alieu to undergo blood testing before the hearing. DNA test results obtained on April 30, 2010 from Laboratory Corporation of America revealed that Alieu was not the biological father of M~. The Hunterdon County Division of Social Services then excluded Alieu as the biological father of both L~ and M~ by Notice of Genetic Testing Results rendered May 6, 2010. Consequently, the court proceedings against Alieu were canceled on May 24, 2010. 

Fanta then sought to establish that the NH was the father of L~ and M~, and to order child support from him.  The Superior Court of New Jersey in Hunterdon County rendered a default order on March 11, 2011, noting that the NH had been properly served to appear for the hearing, but failed to do so.  The default order notes that the NH was served by certified mail, which was returned unclaimed, and by regular mail, which was not returned. The NH’s address was not listed on the default order. The default order established the NH’s paternity of L~ and M~ only based on long-arm jurisdiction Long-arm jurisdiction allows a state to exercise jurisdiction over an out-of-state defendant when there exists such minimum contacts with the state to satisfy “traditional notions of fair play and substantial justice.” International Shoe Company v. Washington, 326 U.S. 310, 316 (1945). Specifically, New Jersey law states that New Jersey obtains personal jurisdiction over an out-of-state defendant by various means, including a court order consistent with due process of the law. 1B NJPRAC R 4:4-4(b)(3).

, and dismissed the complaint for support because the NH received Supplemental Security Income (SSI) benefits. Contrary to the language in the default order, CPS confirmed that the NH is receiving Social Security disability insurance benefits under Title II of the Social Security Act (Act), not SSI benefits under Title XVI of the Act.

Thereafter, Fanta applied for auxillary children’s benefits on behalf of L~ and M~ on the NH’s account on March 29, 2012.  In doing so, Fanta submitted a Child Relationship Statement dated June 10, 2012, which identified the NH as the wage earner and father of L~ and M~. But, she denied that the NH was ever decreed by a court to be the children’s father, and that the NH was ever ordered by a court to contribute to the children’s support. Fanta also denied a series of other questions that may have established a relationship between the NH and L~ and M~.  Also in this statement, Fanta described her history with the NH, stating that they met in 1998. She stated that she and the NH were a couple for about six months. She did not provide the dates of the relationship.  Fanta stated that she later discovered that she was pregnant. Fanta went on to say that the NH told her he was going back to school, and the two lost contact. An agency computer query noted that Fanta reported that she did not name the NH as the father of the twins on each twin's birth certificate due to her religious background. Instead, she chose to name Alieu on the certificates.  

The NH submitted a statement stating that he had a short relationship with Fanta but was not informed of her pregnancy or the birth of L~ and M~.  He stated that once he found out about their births, he inquired as to whether he was the father of the twins. He notes that Fanta “categorically” denied that the twins were his children. Fanta also told the NH that she had designated her boyfriend as the father and that his name was on the twins’ birth certificates. The NH pressed Fanta for blood or DNA testing.  She agreed to the testing but then relocated with the twins to live with her family in Africa. He and Fanta lost contact for about five years.  Then, in 2008, the NH was informed that Fanta sought to have him relinquish his paternal rights so that Fanta’s boyfriend could adopt the children. The NH reports that he was surprised and confused by this and arranged to meet Fanta in Elizabeth, New Jersey, and she agreed to bring the children. Yet, when Fanta and the NH met, she did not bring the children. The NH’s statement concluded that he was confused but still wished to resolve the situation.

To date, the NH has never acknowledged paternity of the children and has not been ordered to pay support.    

ANALYSIS

1. A. 

   Federal Law

   To qualify for child’s benefits on the earnings record of an insured individual, an applicant must be the “child” of the insured individual. The child must also (1) apply for child’s insurance benefits; (2) at the time such application is filed be unmarried and either be under age 18 or be under age 19 and a full-time elementary or secondary school student, or over 18 and under a disability which began before he attained the age of 22; and (3) be dependent on the NH. Act § 202(d)(1); 20 C.F.R. § 404.350.

   See Act § 202(d)(1); 42 U.S. C. 402(d)(1); 20 C.F.R. § 404.350(a) (2012). “Child” includes the natural child of an insured individual. See Act § 216(e); 42 U.S.C. § 416(e); 20 C.F.R. § 404.355 (2012). Under section 216(h)(2)(A) of the Act, in determining whether an applicant is the child of an insured individual, the Commissioner applies the law governing the devolution of intestate personal property applied by the courts of the state in which the insured individual was domiciled at the time such applicant files the application. Act § 216(h)(2)(A).  Because the NH was domiciled in Pennsylvania at the time of the March 2012 application, Pennsylvania State law of intestate succession applies in determining the claimants’ status as the children of the NH for purposes of section 216(h)(2)(A) of the Act. 20 C.F.R. §§ 404.355(a)(1), 404.355(b) (2012). 

2. B. 

   Analysis of Paternity under Pennsylvania Intestacy Law

We first turn to the question of whether the evidence would permit L and M~ to inherit the NH’s personal property under Pennsylvania intestacy law.  The Pennsylvania intestacy statute provides that children born out of wedlock will be considered the children of a putative father if one of the following conditions is met:

1. 1. 

   If the parents of a child born out of wedlock shall have married each other; or

2. 2. 

   If during the lifetime of the child, the father openly holds out the child to be his and receives the child into his home, or openly holds the child out to be his and provides support for the child which shall be determined by clear and convincing evidence; or

3. 3. 

   If there is clear and convincing evidence that the man was the father of the child, which may include a prior court determination of paternity.

20 Pa. Cons. Stat. Ann. § 2107(c).  Here, the first two conditions have not been met. The NH and Fanta were never married, and the NH never openly held out L~ and M~ as his children. Therefore, the question becomes whether a Pennsylvania court would find clear and convincing evidence that the NH was the father of L~ and M~.

Under Pennsylvania law, the clear and convincing evidence standard requires “‘proof greater than a mere preponderance, but less than beyond a reasonable doubt.’” Estate of V~, 798 A.2d 203, 209 (Pa. Super. 2002). “‘Clear and convincing evidence’ is the highest burden in our civil law and requires that the fact-finder be able to ‘come to clear conviction, without hesitancy, of the truth of the precise fact in issue.’” In re Estate of H~, 647 A.2d 243, 244 (Pa. Super. 1994) (citing Lessner v. Rubinson, 592 A.2d 678, 681 (Pa. 1991)). Clear and convincing evidence means “‘testimony that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.’” Paulshock v. Bonomo, 661 A.2d 1386, 1388 (Pa. Super. 1995). For purposes of paternity, clear and convincing evidence may be proven through genetic testing or by a prior court determination of paternity. In re Estate of G~, 587 A.2d. 749, 752 (Pa.Super. 1991).

Here, there was no paternity testing. Fanta listed Alieu as the father on the children’s birth certificates, and only sought to establish the NH’s paternity of the twins after her child support complaint against Alieu failed. In addition, Fanta initially denied that the NH was the twins’ father, and refused to cooperate with the NH when the NH voluntarily offered to undergo paternity testing. Moreover, the NH never asserted paternity of the twins. We believe this evidence falls short of the clear and convincing evidence standard.  Therefore, L~ and M~ could not inherit the NH’s personal property under Pennsylvania intestacy law. 

Moreover, we believe that agency policy would not give deference to the New Jersey default order. When determining whether to accept a trial court’s findings on domestic relations issues, we look to Social Security Ruling (SSR) 83-37c, which adopted the 6th Circuit’s ruling in Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973). Under this Ruling, although SSA is not bound by a state trial court’s decision in a case where the Commissioner was not a party, SSA must only give deference to a trial court’s decision when the issue was genuinely contested in state court by parties with opposing interests. SSR 83-37c. 

We believe that the second requirement of SSR 83-37c was not met, i.e., the issue of whether paternity was genuinely contested by parties with opposing interests in the proceeding before the court. The New Jersey court resolved the issue of paternity on the basis of Fanta’s allegations of paternity after the NH was properly served with notice of the hearing, but failed to appear. Thus, the issue of paternity was not genuinely contested in court.  The court did not resolve the issue of paternity upon the presentation of evidence by parties with opposing interests. While there is no specific agency guidance relating to New Jersey default orders, the agency’s Program Operations Manual System (POMS) contains an opinion finding that a default order of paternity issued in Pennsylvania was not genuinely contested for purposes of SSA recognition. POMS PR 01210.042 (PR 12-012).  There, an unmarried mother sought auxiliary benefits for her child on the account of a deceased putative father. The Court of Common Pleas in Lancaster County entered a default judgment for paternity and support, after the putative father was properly served and failed to show up for the hearing. The finding was based solely on the mother’s allegation that the putative father had admitted paternity to her over the phone, but with no written evidence of such a declaration.  Ultimately, the agency refused to recognize the judgment, finding that the default order was not genuinely contested by parties with opposing interests. POMS PR 01210.042 (PR 12-012). Similarly, another Pennsylvania opinion found that a court’s unsubstantiated finding of a common law marriage was not generally contested between opposing parties, due to a lack of evidence identifying parties and witnesses in a contested hearing. POMS PR 05605.042 (PR 08-131). As such, we conclude that SSA is not bound by New Jersey Superior Court default order of paternity in determining whether the NH is the twins’ father. 

C. Alternative Sections of the Act

Finally, we consider whether the twins are entitled to benefits under any alternative sections of the Act. When a claimant cannot establish that he is the wage earner’s child under state intestate succession laws, the Act allows alternative avenues to establish child status for survivorship benefits. First, under section 216(h)(2)(B), an applicant can be deemed a child under the Act if his parents went through a marriage ceremony that turned out to be legally invalid. See 42 U.S.C. § 416(h)(2)(B). This section of the Act is not applicable here because there is no evidence that Fanta ever went through a marriage ceremony with the NH.     

Second, under section 216(h)(3)(B)(i), an applicant can be deemed to be a child under the Act where 1) the NH acknowledged paternity in writing, 2) the NH was decreed a parent by a court, or 3) the NH was ordered by a court to contribute to the support of the applicant. 42 U.S.C. § 416(h)(3)(B)(i)(I)-(III). In this case, the NH never acknowledged paternity in writing.  Although Fanta presented a New Jersey Superior Court default order finding the NH to be the father of L~ and M~, we will not give deference to this Order.  As explained in detail above, pursuant to SSR 83-37c, SSA should not give deference to the New Jersey Superior Court default order because the issue of the NH’s paternity was not genuinely contested by the NH in the court proceeding.  Finally, the NH has not been ordered by a court to contribute to the support of L~ and M~. The New Jersey Superior Court default order clearly articulated that the default order only makes a finding of paternity, and that the default order does not call for support. In fact, the default order even states “ORDERED: DEFAULT ORDER FOR PATERNITY ONLY BASED ON LONG-ARM JURISDICTION, COMPLAIN [sic] FOR SUPPORT DISMISSED AS DEFENDANT IS SSI RECIPIENT.”  Thus, the New Jersey default order does not compel the NH to contribute to the support of L~ and M~.

Third, under section 216(h)(3)(B)(ii), an applicant can be deemed a child under the Act if the NH was living with or contributing to the support of the child. See 20 C.F.R. § 416(h)(3)(B)(ii). In the instant matter, there is no evidence that the NH was living with or contributing to the support of L~ and M~.  Therefore, we find that L~ and M~ cannot be deemed children of the NH under sections 216(h)(2)(B) and 216(h)(3)(B) of the Act.

CONCLUSION

We conclude that no parent-child relationship existed between the NH and L~ and M~ under the Act, and therefore, L~ and M~ are not entitled to benefits on the NH's record.

Stephen P. Conte

Regional Chief Counsel

By:_____________

Daniel R. Janes

Assistant Regional Counsel