Question Presented
Is K~ (claimant) entitled to child survivor’s benefits on the record of number holder
T~ (NH) based on the DNA evidence submitted? If so, what is the effective filing date
of the application?
Short Answer
No. The evidence submitted to the agency is insufficient to establish that the NH
is the claimant’s father under the Social Security Act (the Act). As a result, the
claimant is not entitled to child survivor’s benefits on the NH’s record.
Background
The opinion below assumes the following facts are accurate. The claimant was born
on October XX, 2008. His NUMIDENT shows the father as unknown. His mother J~ began
receiving disability insurance benefits in December 2002, and the claimant has received
auxiliary child benefits on his mother’s record since his birth.
The NH and J~ had at least one child together, K2~, born in 2002. Paternity for that
child was previously established. K2~’s NUMIDENT lists the NH as his father. K2~ received
auxiliary child benefits on his mother’s record until the NH’s death on August XX,
2008, when he started to receive benefits as a surviving child on the NH’s record.
J~ first contacted SSA about surviving child benefits for the claimant on August 18, 2015,
but did not file an application until January XX, 2016. At the time of application,
J~ provided a DNA test report dated December XX, 2015, for herself, the claimant,
and K2~ showing a probability of 99.999996% full siblingship between the children.
This opinion assumes there are no other pertinent facts about the relationship between
the NH, the claimant, or the claimant’s mother. For instance, the opinion assumes
the NH and J~ were never married or never went through a legally invalid marriage
ceremony; the NH and J~ did not live together when J~ was pregnant with the claimant;
the NH was not contributing to the support of the claimant at the time of his death;
the NH never acknowledged paternity of the claimant in writing; the NH was neither
decreed to be the claimant’s father nor ordered to contribute to the support of the
claimant by a court; and the claimant was not the legally adopted child, stepchild,
or equitably adopted child of the NH.
Discussion
Federal Law on Child’s Benefits
The Act provides that the child of an insured individual who dies fully or currently
insured is entitled to benefits if he has applied for benefits, is unmarried and under
18, and was dependent on the insured individual at the time his application was filed.
See 42 U.S.C. § 402(d); 20 C.F.R. § 404.350. To qualify as the child of an insured individual,
the child must be the natural child, legally adopted child, stepchild, grandchild
or stepgrandchild, or equitably adopted child of the insured individual. See 20 C.F.R. §§ 404.350(a), 404.355-.359.
In this case, the relevant inquiry is whether the claimant qualifies as the NH’s natural
child under the Act. An applicant can qualify as the natural child of an insured individual
if the child could inherit the individual’s personal property as his child under the
intestacy laws (i.e., the laws that apply when the decedent has no will) of the state
in which the individual was domiciled at the time of his death. See 42 U.S.C. §§ 416(e), 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1). If the applicant qualifies
as the insured individual’s child, he is deemed dependent upon the individual for
purposes of determining eligibility for child’s benefits. See 20 C.F.R. § 404.361(a).
“The place where a man lives is properly taken to be his domicile until facts adduced
establish the contrary.” District of Columbia v. Murphy, 314 U.S. 441, 455 (1941) (citations omitted). Lacking any evidence to the contrary,
we take Washington to be NH’s domicile at the time of his death. The agency applies
the version of State law that is most beneficial to the claimant. 20 C.F.R. § 404.355(b)(4).
Although the agency does not require that a state adjudication of parentage have taken
place prior to applying the state’s intestacy laws, the agency does require evidence
sufficient to meet the “the standard of proof that the State court would use as the
basis for a determination of paternity.” Id. § 404.355(b)(2); see Program Operations Manual System (POMS) GN 00306.665.A.
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. See 42 U.S.C. §§ 416(h)(2)(B), 416(h)(3)(C)(i)(I)-(III). To qualify as “the child” of
a deceased insured individual under 42 U.S.C. § 416(h)(3)(C), a claimant must be the
son or daughter of the insured individual and meet one of several other requirements.
See 42 U.S.C. § 416(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.
Washington State Law
Washington law provides that an intestate estate shall descend to a decedent’s spouse
and issue. Wash. Rev. Code § 11.04.015(2)(a) (2015).[1] “Issue” means all the lineal descendants of an individual and, therefore, includes
children. Wash. Rev. Code § 11.02.005(8). Washington law specifically provides that
“[a] child conceived prior to the death of a parent but born after the death of the
deceased parent is considered to be the surviving issue of the deceased parent . .
. .” Id.; see also id. § 11.04.081 (noting the parent-child relationship does not depend on the parents being
married); see Matter of Estate of Sherry, 698 P.2d 94, 99 (Wash. App. 1985) (holding that paternity can be determined within
a probate proceeding if the procedure of the Uniform Parentage Act is incorporated
into the proceeding); Rabb v. Estate of McDermott, 803 P.2d 819, 822 (Wash. App. 1991) (providing that “it is clear from the language
of [Wash. Rev. Code §] 26.26.080(3) that the Legislature intended that a paternity
action survives the putative father’s death”). Thus, if the claimant is the NH’s child
under Washington law, then the claimant would be entitled to inherit through intestacy
and would therefore meet the Act’s definition of “child.”
Washington’s Uniform Parentage Act provides for the establishment of a parent-child
relationship via adjudication. Wash. Rev. Code § 26.26.101(2); see also id. § 26.26.505 (authorizing civil proceeding to adjudicate the parentage of a child). Genetic testing
is admissible evidence in such adjudications. Id. § 26.26.570. Washington law anticipates that genetic samples may be taken from individuals
other than the purported father. See id. §§ 26.26.405(1)(“other designated individuals”), 26.26.435 (providing for testing
of “other children of the man and their mothers”). When genetic testing establishes
parentage, the man identified as the father of the child is adjudicated to be the
father of the child unless the results of another genetic test rebut the results of
the first test. Id. § 26.26.600(2); see also id. § 26.26.420 (providing how a person is rebuttably identified as the parent of a child);
see also POMS GN 00306.665.C (discussing Washington’s intestacy laws).
In the present case, the agency has not been presented with any evidence of adjudication
of parentage. Thus, the agency applies Washington’s standards of proof for such an
adjudication. Washington has various requirements for genetic testing, including:
(1) the testing must be performed by an accredited laboratory, Wash. Rev. Code § 26.26.410(1);
(2) the report of genetic testing must be signed under penalty of perjury by a designee
of the testing laboratory, id. § 26.26.415(1); and (3) the report of genetic testing must include a reliable chain
of custody, including testimony or documentation showing:
(a) The names and photographs of the individuals whose specimens have been taken;
(b) The names of the individuals who collected the specimens;
(c) The places and dates the specimens were collected;
(d) The names of the individuals who received the specimens in the testing laboratory;
and
(e) The dates the specimens were received.
Id. § 26.26.415(2). In other words, a testing report that satisfies the above criteria
and establishes paternity constitutes a preponderance of evidence establishing paternity.
State on Behalf of McMichael v. Fox, 937 P.2d 1075, 1078 (Wash. 1997) (explaining that “[t]he appropriate burden of proof
in paternity actions under [Wash. Rev. Code §] 26.26 is preponderance of evidence”).
Here, it appears that DDC/DNA Diagnostics Center is accredited by AABB, which meets
the accreditation requirements for the State of Washington.[2] Wash. Rev. Code § 26.26.410(1). The report of genetic testing, however, fails to
satisfy the declaration and chain of custody provisions. The declaration states, “I,
the undersigned Laboratory Director, verify that the interpretation of the results
is correct as reported on 12/XX/2015.” Although signed and notarized, this statement
was not made under penalty of perjury and is not an equivalent “oath” under Washington
law. See Wash. Rev. Code §§ 9A.72.010(2), 9A.72.085. Further, besides the dates that the specimens
were collected, there is no documentation or testimony supporting a reliable chain
of custody. Consequently, there is insufficient evidence to meet “the standard of
proof that [a Washington] State court would use as the basis for a determination of
paternity.” 20 C.F.R. § 404.355(b)(2); see POMS GN 00306.665.A.
To be clear, the fact that a report of genetic testing itself does not satisfy the
criteria set forth above may not be fatal to a claim for benefits in all cases. It
is well-recognized that chain of custody and foundation go to the weight of the evidence,
not the ability to use the evidence. See, e.g., State v. Lui, 315 P.3d 493, 504 (Wash. 2014), cert. denied, 134 S. Ct. 2842 (2014) (stating, “gaps in the chain of custody go to the weight of
the evidence and not the admissibility”); Johnston-Forbes v. Matsunaga, 311 P.3d 1260, 1265 (Wash. App. 2013), aff'd, 333 P.3d 388 (Wash. 2014) (stating the challenge to “testimony for lack of foundation
go to the weight of the evidence, not its admissibility”). Indeed, United States Courts
of Appeal have applied genetic testing in cases in which the chain of custody is imperfect.
See, e.g., United States v. Brooks, 727 F.3d 1291, 1299 (10th Cir. 2013); United States v. Vallie, 284 F.3d 917, 920 (8th Cir. 2002). Nevertheless, the problem here is that the report
of genetic testing (and the record as a whole) does not contain sufficient evidence
to support the reliability of the testing much less to establish paternity by a preponderance
of the evidence using the report.
Had the report been reliable, it appears the results would have established a parent-child
relationship between the claimant and NH. Washington law recognizes that parentage
has been established if genetic testing shows (a) “at least a ninety-nine percent
probability of parentage, using a prior probability of 0.50, as calculated by using
the combined parentage index obtained in the testing” and (b) “a combined parentage
index of at least one hundred to one.” Wash. Rev. Code § 26.26.420(1). Although the
report of genetic testing here does not yield a “combined parentage index” per se, we believe a Washington court would likely accept a calculation of “full-siblingship”—meaning
both siblings share the same parents—as functionally equivalent. Here, the probability
of full-siblingship is 99.999996% and the likelihood of sharing the same biological
father is 26,410,494 to 1. The probability of full siblingship was calculated using
a prior probability of 0.50. Thus, because there is no dispute that NH is K2~’s father,
a reliable report of genetic testing establishing that the claimant has full siblingship
with K2~ would be sufficient to establish NH is the claimant’s father. See State ex rel. Wise v. Taylor, 828 P.2d 1143, 1144 (Wash. App. 1992) (stating that “obviously, a 99.55 percent
probability of paternity, when not contraindicated by other evidence . . . , far exceeds
the applicable standard of proof by a preponderance of the evidence”).
Alternatives to State Law Under 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. 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. 42 U.S.C.
§ 416(h)(2)(B). Alternatively, an applicant can be deemed to be a child under the
Act where prior to the NH’s death (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)(C)(i)(I)-(III). Finally, an
applicant can be deemed a child under the Act if the NH was living with or contributing
to the support of the child at the time the NH died. 42 U.S.C. § 416(h)(3)(C)(ii).
The agency construes this provision to apply even if the NH was living with or contributing
to the support to a child still in the womb. Based on the facts provided, none of
these alternative avenues apply. Therefore, we find that the claimant cannot be deemed
a child of the NH under sections 416(h)(2)(B) and 416 (h)(3)(C) of the Act.
Effective Date of the Claim
It is evident that J~ obtained child benefits for the claimant based on her disability
insurance benefits shortly after the claimant was born in 2008. Generally, an application
“cover[s] all classes of benefits for which the claimant is eligible on all SSNs regardless
of the title of the application unless it is specifically limited by the claimant.”
POMS GN 00204.020.A. Nevertheless, there does not appear to be a basis to reopen this earlier determination.
See 20 C.F.R. § 404.988. Although NH was deceased when the claimant was born, it is not
clear whether the claimant’s entitlement to child benefits based on the father’s insured
status was explored at this time. See POMS GN 00204.022. Absent evidence that the claimant failed to seek benefits based on the father’s
insured status as a result of misinformation provided by the agency, there is no basis
to treat this 2008 application as the effective date for the present claim. See POMS GN 00204.008 (discussing 42 U.S.C. § 402(j)).
Thus, we look to J~’s contact with the agency in August 2015. There is no indication
that a written statement was submitted in August 2015 to make this the protective
filing date. See POMS GN 00204.010.A.1. Absent evidence that the claimant failed to seek benefits based on the father’s
insured status as a result of misinformation provided by the agency at this time,
August 2015, cannot be the effective filing date. See POMS GN
00204.008.G.1.
Thus, had paternity been established in this matter, we would treat J~’s application,
dated January XX, 2016, as the effective filing date.
Conclusion
As set forth above, the claimant is not entitled to child survivor’s benefits on the
record of the NH because paternity has not been established by a preponderance of
evidence.