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. Clear and convincing proof is not synonymous with undisputed proof. Instead, evidence amounts to clear and convincing proof when the court is clearly convinced of the affirmative of the proposition to be proved. Evidence can amount to clear and convincing proof even when contrary evidence exists.

Based on the available facts in this case, we do not believe the Claimant could establish paternity to inherit from number holder (NH) under Alabama intestacy law based on the DNA test results alone, though the results show a 99.997 percent probability that NH’s mother is the grandmother of Claimant. However, the DNA test results in addition to the non-DNA evidence provided by Claimant do provide clear and convincing evidence to establish that Claimant is NH’s child under intestate succession laws in Alabama.

Whether a DNA test that shows the mother of N~, the number holder (NH), is the grandmother of K~ (Claimant), is sufficient evidence to establish paternity for determining Claimant’s eligibility for child’s insurance benefits (CIB) on NH’s earnings record.^[1]

Based on the available facts, we do not believe Claimant could establish paternity to inherit from NH under Alabama intestacy law based on the DNA test results alone, though the results show a 99.997 percent probability that NH’s mother is the grandmother of Claimant. However, the DNA test results in addition to the non-DNA evidence provided by Claimant do provide clear and convincing evidence to establish that Claimant is NH’s child under intestate succession laws in Alabama. Thus, SSA could find Claimant eligible for CIB on NH’s record.

Claimant was born in 2014 in Birmingham, Alabama, before NH’s death. NH died on February XX, 2022. On April XX, 2022, V~ provided an SSA-795 statement indicating that she was NH’s mother. V~ also reported that NH was the “biological father” of Claimant.

Claimant’s mother, M~ applied for benefits for Claimant in March of 2022, alleging that Claimant was the child of NH. Claimant’s Alabama birth certificate lists M~ as her mother, but the field for “father” on the birth certificate is blank.

In support of her claim that Claimant was the child of NH, NH’s brother and only male sibling, O~, completed a SSA-795 statement on April XX, 2022, declaring that NH was the father of his “niece,” Claimant.

Claimant also provided a letter dated April XX, 2022, from the Registrar at Elementary School, indicating that NH had been added to the school checkout form for Claimant shortly after her enrollment for the 2021-2022 school year. On April XX, 2022, the director of the XXX School XXX XXX stated in a letter that NH, “father” of Claimant, was an authorized pick-up parent for Claimant, able to pick her up and drop her off to school. A portion of NH’s obituary was provided—it included a poem from Claimant who addressed the deceased NH as “dad.” In addition, photographs in the obituary excerpt of Claimant and NH together implied that NH openly acknowledged his relationship with Claimant during his lifetime.

Finally, Claimant’s mother submitted a DNA Test Report from DNA Diagnostics Center that shows a probability of 99.997 percent that NH’s mother J~ is the grandparent of Claimant. The report further explained that the likelihood that J~, the alleged grandparent, was a biological relative of Claimant was 36,077 to 1.

We believe Alabama courts would find that the evidence presented provides clear and convincing proof that NH is Claimant’s father under Alabama intestacy law. Therefore, the agency could find that Claimant is NH’s child for determining Claimant’s eligibility for CIB on NH’s earning record.

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 Jefferson, 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).^[8] “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).^[9] 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). ^[10] The DNA testing revealed a 99.99% probability that NH’s mother and NH’s father were Claimant’s grandparents. ^[11] 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).^[12] “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. ^[13] 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). ^[14] 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. ^[15]

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. ^[16] Thus, the DNA test results indicating a 99.99% probability that NH’s parents are Claimant’s grandparents ^[17] 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

Since May 21, 1992, Alabama statute and regulations do have a provision requiring the father's written consent in order for his name to appear on the birth certificate of a non-marital child.

QUESTION

You asked whether the Social Security Administration (SSA) should update the Program Operating Manual System (POMS) to reflect recent changes in Alabama law regarding the requirement for the father's written consent before the father's name may appear on a birth certificate.

OPINION

Yes. Current POMS GN ATL00306.120(B) states that Alabama has no provision for the father's written consent for the father's name to appear on the birth certificate of an illegitimate child. This is no longer true. The current statute and state regulations require such consent.

BACKGROUND

The question presented did not arise in the context of an individual claim. The Alabama Department of Public Health alerted the SSA Alabama Area Director's Office to a state regulation indicating that, for births to an unmarried mother, the father's name shall not be entered on the birth certificate unless the father has been legally established through a court order or proper affidavit. The Area Director's Office determined the regulation appeared to contradict the POMS and referred the matter to the regional office for guidance.

DISCUSSION

A claimant may be eligible for child's insurance benefits on the earnings record of an individual entitled to old-age or disability insurance benefits 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) (2009). "Child" includes the natural child of an insured individual. See Act § 216(e); 20 C.F.R. § 404.354 (2009). A claimant may show he or she is the natural child of the insured individual if the insured individual acknowledged in writing that the claimant was his son or daughter or the insured individual was decreed by a court to be the father of the claimant. See Act § 216(h)(3); 20 C.F.R. § 404.355(a)(3) (2009). SSA may use information from a child's birth certificate as evidence of a written acknowledgement or proof of a court order that the claimant is the child of the insured individual. See POMS GN 00306.120. If a birth certificate shows illegitimacy, SSA may presume a written acknowledgment or a court order of paternity exists only if (1) the Bureau of Vital Statistics confirms that the father has acknowledged paternity in a written statement or a court determination was filed, or (2) applicable state law or regulations require written acknowledgement by the father or a court determination of paternity for the father's name to appear on the birth certificate. See POMS GN 00306.120(B)(1), (2).

POMS GN ATL00306.120(B), effective from October 15, 2001, contains a chart indicating states for which SSA may presume that the appearance of the father's name on the birth certificate requires written acknowledgement by the father or a court determination of paternity. This chart states that Alabama has no provision that allows for such a presumption. However, on May 21, 1992, the State of Alabama passed Alabama Laws Act 92-607, which established the requirements at current Ala. Code § 22-9A-7 (2009). The relevant section of this statute states:

If the mother was not married at the time of either conception or birth or between conception and birth, the name of the father shall not be entered on the certificate unless paternity has been determined by a court of competent jurisdiction or unless the legitimation process specified in Sections 26-11-1 through 26-11-3, inclusive, or otherwise provided by law has been completed.

Ala. Code § 22-9A-7(f)(2). Ala. Code § 26-11-1 (2009) is not relevant to the question presented, as it pertains to legitimation by marriage; Ala. Code § 26-11-3 (2009) is not relevant as it pertains to changing the child's name at the time of legitimation. The relevant section, Ala. Code § 26-11-2 (2009), states, "A father of a bastard child may seek to legitimate it and render it capable of inheriting his estate by filing a notice of declaration of legitimation in writing attested by two witnesses . . . ." Ala. Code § 26-11-2(a).

Alabama regulations regarding the naming of the father on a birth certificate clarify the statutes, stating in relevant part:

(b) Mother is not married at the time of either conception or birth or between conception and birth:

1. As required in Code of Ala. 1975, § 22-9A-7(f), the name of the father shall not be entered for birth registration unless the father has been legally established prior to birth through an order from a court of competent jurisdiction or has been established by other legal means such as but not limited to, an Affidavit of Paternity as provided in Code of Ala. 1975, § 26-17-22.

Ala. Admin. Code r. 420-7-1.05(2) (2009).

Thus, the chart at POMS GN ATL00306.120(B) is no longer accurate, because Alabama does have a provision requiring a father's written consent for the father's name to appear on the birth certificate. Therefore, the "No Provision" statement under "Written Consent Father's Name" for Alabama in POMS GN ATL00306.120(B) should be changed to "Yes-05/21/92."

CONCLUSION

For the foregoing reasons, we believe POMS GN ATL00306.120(B) should be changed to reflect current Alabama law.

Very truly yours,

Mary Ann Sloan

Regional Chief Counsel

/s/ Rollin Mathis

Assistant Regional Counsel

DNA test results showing a 99.999% probability that the deceased number holder is the claimant’s father coupled with the husband’s incarceration during the period of probable conception is clear and convincing evidence to rebut the presumption of the husband’s paternity under Alabama law and establish the claimant as the child of the number holder for purposes of child’s insurance benefits.

QUESTION

You asked whether DNA test results showing a 99.999% probability that the deceased number holder is the claimant’s father and the deceased husband’s incarceration during the period of probable conception is sufficient evidence to rebut the presumption of the husband’s paternity under Alabama law and establish the claimant as the child of the number holder for purposes of child’s insurance benefits.

We also explored the question whether the actions of the claimant’s mother constitute fraud or similar fault to allow for reopening of the claimant’s award as the legitimate child of the mother’s husband.

OPINION

For the reasons stated below, a Social Security Administration (SSA) adjudicator could conclude, based on the facts presented, that the DNA evidence submitted was clear and convincing evidence to rebut the presumption that the mother’s husband is the father of the child and establish the claimant is the number holder’s child under Alabama law. The evidence of the husband’s incarceration during the period of probable conception was insufficient, alone, to rebut the statutory presumption of the husband’s paternity. However, the evidence of incarceration adds some support to the conclusion that the husband is not the claimant’s father. Based on the DNA evidence, we believe an SSA adjudicator could still conclude the claimant is the number holder’s child for purposes of child’s insurance benefits.

In regard to the actions of the claimant’s mother, the evidence presented is insufficient to show fraud or similar fault her part. Therefore, further development is needed before we can provide an opinion on whether an SSA adjudicator could initiate an action against the claimant’s mother for fraud or similar fault.

BACKGROUND

Betty (Claimant’s mother) and Matthew (Husband) married on October, 1988. Jessica (Claimant) was born on June. Claimant’s birth certificate lists Husband as Claimant’s father. On February, 2001, Husband died while domiciled in Alabama. The evidence indicates Husband and Claimant’s mother never divorced.

Husband filed an application for disability insurance benefits in September 1997 and listed Claimant as his child. After SSA granted Husband’s application, an application was filed on behalf of Claimant for child’s insurance benefits on Husband’s earnings record. The application stated Claimant was Husband’s “natural” child. Claimant’s mother stated that she did not fill out Claimant’s initial application; rather, she claims her sister filled out the application. (This information has not been verified.) Claimant received child’s insurance benefits on Husband’s earnings record from December 1997 through her eighteenth birthday, June .

Meanwhile, Fred, the number holder (NH), was granted disability insurance benefits and then retirement insurance benefits. He did not list Claimant as his child on his disability insurance benefits claim filed in December 1999. However, he did list Claimant as his child when he filed for retirement insurance benefits in March 2006. Claimant filed for child’s insurance benefits on NH’s record in July 2006. SSA denied her claim for failure to furnish evidence of paternity. Meanwhile, NH died in November 2007. Claimant filed a second application for child’s insurance benefits on NH’s record in November 2007.

As part of her second application, Claimant provided DNA test results dated July 2007, showing a 99.999% probability that NH was her father. Claimant’s mother also reported that Husband could not possibly be the biological father of Claimant as he was incarcerated at the time of Claimant’s conception and birth. She claimed, however, that Claimant would still have received benefits as Husband’s stepchild rather than his natural child, ¹ which was listed on the Claimant’s 1997 application. She also stated that Husband’s incarceration could be verified by Pamela in the Loxley Alabama Work Release Center. When the field office contact person spoke to Pamela stated that Husband was admitted on December 11, 1986, and remained there continuously until released on July 15, 1991.

DISCUSSION

A. Paternity

The Social Security Act (Act) establishes the criteria for entitlement to child’s insurance benefits. To qualify for child’s insurance benefits on the record of an individual who dies a fully or currently insured individual, a claimant must be that individual’s “child.” See Act § 202(d)(1); 20 C.F.R. § 404.350(a)(1) (2009). For this purpose, a “child” is an individual who is related to the insured person as a natural child, legally adopted child, stepchild, grandchild, step grandchild, or equitably adopted child. See Act § 216(e); 20 C.F.R. § 404.354 (2009). When determining entitlement to surviving child’s benefits, SSA applies the inheritance 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) (2009). Because NH was domiciled in Alabama at the time of his death, we look to Alabama law to determine if Claimant is NH’s child. If the applicable state inheritance law requires a court determination of paternity, SSA will not require a court determination, but will decide paternity by using the standard of proof that the state court would use as a basis for a determination of paternity. 20 C.F.R. § 404.355(b)(2) (2009).

Under Alabama law, intestate devolution of the estate of a decedent is controlled by Ala. Code §§ 43-8-41 through 43-8-58 (2009). The part of the intestate estate not passing to a surviving spouse passes to the issue of the decedent. See Ala. Code § 43-8-42 (2009). A decedent’s issue includes his lineal descendants, with the parent-child relationship determined by the definitions of child and parent contained in the Alabama probate code. See Ala. Code § 43-8-1 (2009). In cases not involving adoption, if a relationship of a parent and child must be established to determine succession by, through, or from a person:

[A] person born out of wedlock is a child of the mother. That person is also a child of the father, if: (a) The natural parents participated in a marriage ceremony before or after the birth of the child, even though the attempted marriage is void; or (b) The paternity is established by an adjudication before the death of the father or is established thereafter by clear and convincing proof. . . . Ala. Code § 43-8-48(2) (2009).

In this case, Husband was married to Claimant’s mother at the time of Claimant’s birth. As, a man is presumed to be the father of a child if he and the mother of the child are married and the child is born during the marriage, Ala. Code § 26-17-204(a)(1)(2009), Husband is presumed to be Claimant’s father. As Claimant was born in wedlock, the parent-child relationship between Husband and Claimant was established and would not need to be established for purposes of intestate succession See Ala. Code § 43-8-48 (2009).

However, Claimant is now claiming NH is her biological father. Before establishing the parent-child relationship between NH and herself for purposes of intestate succession, Claimant needs to rebut the presumption of Husband’s paternity.

Here, Claimant presented DNA test results from NH showing a 99.999% probability that NH is her biological father. One way the presumption of paternity can be rebutted is by a court decree establishing paternity of the child by another man. See Ala. Code § 26-17-204(b) (2009). Therefore, the DNA test results from NH would be sufficient evidence to rebut Husband’s paternity. This statute also notes: “If two or more presumptions arise which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls.” Id. However, the Uniform Comment discussing this section notes, “Nowadays the existence of modern genetic testing obviates this old approach to the problem of conflicting presumptions when a court is to determine paternity. Nowadays, genetic testing makes it possible in most cases to resolve competing claims to paternity.” A man is rebuttably identified as the father of a child if genetic testing results disclose that the man has at least a 99 percent probability of paternity. See Ala. Code § 26-17-505(a)(1) (2009). The presumption may be overcome only by other genetic testing that excludes the man as the genetic father of the child or identifies another man as the possible father of the child. See Ala. Code § 26-17-505(b) (2009). Here, no genetic testing was done on Husband prior to his death or any other man. As previously noted, Claimant must establish NH as her parent for purposes of intestate succession. As NH is deceased, Claimant must present clear and convincing proof that NH is her biological father. See Ala. Code § 43-8-48(2)(b) (2009); Reid v. Flournoy, 600 So. 2d 1024, 1026 (Ala. Civ. App. 1992) (“Paternity proven after the death of father is required to be established by clear and convincing proof.”). Proof by clear and convincing evidence, requires a level of proof greater than a preponderance of evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt. See Ex parte C.V., 810 So.2d 700, 721 (Ala. 2001). As previously noted, Claimant presented DNA test results from NH showing a 99.999% probability that NH is her biological father.

Alabama’s intestacy statute does not address genetic testing, but its paternity statute does. Under the Alabama’s version of the Uniform Parentage Act (UPA), the paternity of a child having a presumed, acknowledged, or adjudicated father may be disproved only by admissible results of genetic testing excluding that man as the father of the child or identifying another man as the father of the child. Ala. Code § 26-17-631(1) (2009). Although we found no Alabama statute that expressly states that Alabama courts will use the UPA paternity presumption in an intestacy proceeding, case law indicates an Alabama court will apply the same rules of paternity adjudications under the UPA and the state’s intestacy statute. In Blackmon v. Brazil, 895 So. 2d 900 (Ala. 2004), the Supreme Court addressed whether an adjudication of paternity under the state’s intestacy statute, Ala. Code § 43-8-48(2)(b), was subject to the statute of limitations under Ala. Code § 6-2-33(2) (2009). Id. at 908. The Court noted first that the language of Ala. Code § 43-8-48(2)(b) neither exempted nor subjected a paternity proceeding for intestacy purposes to the statute of limitations. Id. Next, the court found the state legislature intended to subject a UPA proceeding for an adjudication of paternity to establish the right of inheritance in a child born out of wedlock to the statute of limitations. The Court concluded that Ala. Code § 43-8-48(2)(b) was subject to the statute of limitations, because an adjudication of paternity to establish inheritance rights for a child born out of wedlock under the UPA was subject to the same statute of limitations. Id. Because the Supreme Court of Alabama is willing to apply provisions applicable to UPA paternity determinations when determining the inheritance rights of children born out of wedlock under the intestacy statute, we conclude that the courts will look to the paternity provisions in the UPA to govern the paternity proceedings under the state’s intestacy statutes, and as such, would apply the UPA provisions on genetic testing.

Here, the DNA tests results from NH showed a 99.999% probability that NH is Claimant’s biological father. As previously noted, a man is rebuttably identified as the father of a child if genetic testing results disclose that the man has at least a 99 percent probability of paternity. See Ala. Code § 26-17-505(a)(1) (2009). The presumption may be overcome only by other genetic testing that excludes the man as the genetic father of the child or identifies another man as the possible father of the child. See Ala. Code § 26-17-505(b) (2009). In this case, no such evidence was submitted. Therefore, the DNA test results would be sufficient evidence under Alabama law to establish a presumption that NH is Claimant’s father.

Claimant’s mother also reported that Husband could not possibly be the biological father of Claimant as he was incarcerated at the time of her conception and, therefore, there was a lack of access. “[L]ack of access to the wife during the time that pregnancy would have occurred may overcome the presumption that the husband is the father.” Hampton v. Hampton, 597 So. 2d 233, 234 (Ala. Civ. App. 1992) (citations omitted). The party attempting to rebut the presumption of paternity must show that the husband could not have had sexual relations with the mother at the probable time of conception. See Leonard v. Leonard, 360 So. 2d 710, 713 (Ala. 1978). Also, the clear and convincing evidence test has been met where both the mother and her husband testified that she became pregnant before their relationship began. See C.T.J. v. A.S.J., 816 So. 2d 61, 64 (Ala. Civ. App. 2001). Here, due to Husband’s death, he is unable to provide a statement regarding the nature of his relationship to Claimant’s mother at the time of Claimant’s conception.

However, a mother can testify to circumstances from which nonaccess by her husband and the impossibility of his parenthood may be inferred. Leonard, 360 So. 2d at 713 (citing Franks v. State, 161 So. 2d 549 (1935)).

A lack of conjugal visits coupled with Husband’s continued incarceration could provide clear and convincing evidence that it was physically impossible for Husband to be Claimant’s father. See H~, 597 So.2d at 234-35 (husband moved out of state and did not see wife is clear and convincing evidence to rebut the presumption of paternity). Pamela in the Loxley Alabama Work Release Center, told a field office contact person that Husband was admitted on December 11, 1986, and remained there continuously until released on July 15, 1991. As this was a work release center and not a jail or prison, I contacted Pamela and asked her if it was possible that Husband left the facility at any time during his incarceration. She stated that it was possible and the records showed that from June 1988 through December 1988 Husband was on “work release” status, which allowed him to leave the center for work. Notably, this was during the same period that Claimant’s conception took place and the same period when Husband and Claimant’s mother were married. Therefore, there is a possibility that Husband had access to Claimant’s mother. Whether Husband actually was out on work release would require additional investigation. Such investigation is the responsibility of Claimant as she is the individual attempting to rebut the presumption of Husband’s paternity. Therefore, we believe an SSA adjudicator could not find that the evidence of Husband’s incarceration alone was sufficient evidence to rebut the statutory presumption of his own paternity.

B. Fraud

Social Security Regulations allow reopening of a determination or decision at any time, if it is obtained by fraud or similar fault. See 20 C.F.R. § 404.988(c)(1) (2009). If an individual “makes or causes to be made any false statement for representation of a material fact in any application for any payment or for a disability determination under this subchapter,” that individual is guilty of a felony. See Section 208(a) of the Act. In regard to reopening, fraud exists where a person “[w]ith intent to defraud, conceals or fails to disclose a material fact for use in determining rights to Social Security benefits.” POMS GN 04020.010.A.1.b. Similar fault exists when a person “[k]nowingly conceals information that is material to the determination. However, fraudulent intent is not required.” POMS GN 04020.010.A.2.b. Courts have found that misrepresentations about domestic or financial status constitute “fraud or similar fault” for purposes of reopening a Social Security claim. See, e.g., Heins v. Shalala, 22 F.3rd 157, 162 (7th Cir. 1994) (holding reopening justified on ground of similar fault when claimant failed to report remarriage and signed application which stated none other to question regarding other marriages); Marshall v. Chater, 75 F.3d 1421, 1427 (10th Cir. 1996) (holding reopening justified when claimant fraudulently, or at least knowingly, made incorrect statements regarding his income and hours and/or withheld such material information); Fowler v. Bowen, 876 F.2d 1451, 1455 (10th Cir.1989) (holding that substantial evidence supported ALJ’s finding that claimant’s incorrect statement regarding employment status and failure to reveal substantial earnings constituted fraud or similar fault).

Here, benefits were filed on behalf of Claimant in 1997 and Claimant was listed as the natural child of Husband. Claimant’s mother alleges that she was not the individual who filled out the application for Claimant’s benefits; rather, she claims Husband’s sister filled out the application. The accuracy of this statement has not been verified by SSA. A copy of 1997 application would need to be obtained to verify this statement. Claimant’s mother also alleges Husband could not possibly be the biological father of Claimant and he was aware of this, as he was incarcerated at the time of Claimant’s probable conception. However, as previously noted, due to Husband’s death, he is unable to provide a statement regarding the nature of his relationship to Claimant’s mother at the time of Claimant’s probable conception. Also, the source that Claimant’s mother stated could verify Husband’s incarceration provided insufficient evidence to support or discount the mother’s allegation. Therefore, we believe the evidence presented is insufficient to show fraud or similar fault on the part of Claimant’s mother. Further development of the evidence is needed before we can provide an opinion on whether an SSA adjudicator could initiate an action against Claimant’s mother for fraud or similar fault.

CONCLUSION

Therefore, we conclude that, under Alabama law, an SSA adjudicator could conclude that the DNA test results supported by the evidence of Husband’s incarceration during the period of probable conception provide clear and convincing evidence to rebut the presumption of Husband’s paternity and establish NH’s paternity. Consequently, Claimant would be NH’s child under Alabama intestacy law and for the purposes of child’s insurance benefits on NH’s record.

As the evidence presented is insufficient to show fraud or similar fault on the part of Claimant’s mother, further development is needed before we can provide an opinion on whether an SSA adjudicator could initiate an action against Claimant’s mother for fraud or similar fault.

Very truly yours,

Mary A. Sloan

Regional Chief Counsel

/s/ Simone D. Pereira

Assistant Regional Counsel

^1_/ We question whether Claimant can qualify as the stepchild of Husband, given that the marriage between a claimant’s parent and the stepparent must have occurred after the claimant’s birth (or at least after her conception). See 20 C.F.R. § 404.357. While an SSA adjudicator might consider the date Claimant’s mother and Husband were married, October XX, 1988, and the date of Claimant’s birth, June XX, 1989, and conclude Claimant was conceived before her mother and Husband were married, such a conclusion is by no means certain. Further development would be needed to determine Claimant’s status as Husband’s stepchild.

Because case law suggests Alabama courts would give full faith and credit to the Mississippi birth certificates, and those birth certificates show the sperm donor and his wife as the children's parents, we believe an adjudicator could determine that the couple are the parents of those children. Therefore, we believe an Alabama court would confer C1 and C2 the right to inherit from the donor and his wife in this situation.

QUESTION

Whether twins conceived from the sperm of the father and a donor egg and carried by a gestational surrogate mother are the children of the sperm donor and his wife and therefore eligible for child's benefits.

OPINION

For the reasons stated below, it is our opinion that the claimants could qualify for child's benefits on the records of either spouse.

BACKGROUND

On January XX, 2008, Donald, the first number holder (NH1), and Barbara , the second number holder (NH2), filed applications for child's benefits on their respective earnings records on behalf of both of the claimants, William (C1) and Jesse (C2). Before C1's and C2's conception, NH1 and NH2 entered into a gestational surrogacy agreement with a surrogate mother in Arkansas. NH1 and NH2 were domiciled in Alabama when they executed the surrogacy agreement and when they filed the children's applications. The file provides no information regarding the residency of the surrogate mother or her husband. C1 and C2 were conceived from the sperm of NH1 and an anonymous donor egg and the embryos were implanted in the surrogate mother. On August XX, 2007, an Arkansas court entered an order of paternity finding NH1 and NH2 were the intended parents of the C1 and C2. The court also found, after giving them an opportunity to be heard, that the surrogate mother and her husband were not the legal or biological parents of C1 or C2. C1 and C2 were born in Mississippi on September XX, 2007. The Mississippi birth certificates of C1 and C2 list NH1 as father and NH2 as mother.

AUTHORITY'

Federal Law

To qualify for child's insurance benefits on the record of an individual entitled to old-age or disability benefits, a claimant must be that individual's child. See Social Security Act (Act) § 202(d)(1), 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a)(1) (2007). A "child" is an individual who is related to the insured person as a natural child, legally adopted child, stepchild, grandchild, step grandchild, or equitably adopted child. See Act § 216(e), 42 U.S.C. § 416(e); 20 C.F.R. § 404.354 (2007).

A claimant can qualify as the insured person's natural child if, among other methods, he or she could inherit the insured person's personal property as his or her child under the intestacy laws of the state where the insured has his permanent home when the claim for child's benefits was filed. See Act § 216(h)(2)(A), 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b) (2007). Because NH1 and NH2 were domiciled in Alabama at the time of the application, we look to Alabama law. However, because the children were born in Mississippi, we look to Mississippi laws to determine the validity of the children's birth certificates, and then address how Alabama would view those documents.

Alabama Law

Under Alabama law, if a deceased individual was unmarried, his intestate estate would pass to his linear descendants beginning with his surviving children. See ALA. CODE §§ 43-8-1(15), 43-8-42(1) (2007). A child may inherit from the father through intestate succession, if paternity is established by an adjudication before the father's death or, thereafter, by clear and convincing evidence. See ALA. CODE § 43-8-48(2)(b) (2007); Cotton v. Terry, 495 So.2d 1077, 1079 (Ala. 1986). Clear and convincing evidence is "[e]vidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion. Proof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt." ALA. CODE § 16-11-20(4) (2007); see also Ex parte C.V., 810 So.2d 700, 721 (Ala. 2001).

Alabama also provides a person born out of wedlock is a child of the mother. See ALA. CODE § 43-8-48(2) (2007). This chapter of Alabama's code does not define the term "mother." It does, however, define parent as, "any person entitled to take, or who would be entitled to take if the child died without a will. . . ." ALA. CODE § 48-8-1(22) (2007). The term "parent" "excludes any person who is a stepparent, foster parent, or grandparent." Id.

Alabama law also provides that a certified copy of a vital record, such as a birth certificate, shall be prima facie evidence of the facts stated in the copy. See ALA. CODE § 22-9A-22(a)(2) (2007); McCoy v. McCoy, 549 So.2d 53, 56-57 (Ala. 1989) (a certificate of birth is prima facie evidence of the facts contained therein, but competent evidence can refute the prima facie case established).

Mississippi Law

According to Mississippi law, a birth certificate is prima facie evidence of the facts contained in the document in all courts and places. See MISS. CODE ANN. § 41-57-9 (2007).

DISCUSSION

The birth certificates issued by Mississippi State Department of Health named NH1 as the father and NH2 as the mother of C1 and C2. Mississippi birth certificates are prima facie evidence of the facts contained therein. See MISS. CODE ANN. § 41-57-9 (2007). Generally, states must give full faith and credit to a public record of another state as the public record has by law or usage in the state from which the record is taken. See U.S. Const. art. IV, § 1; 28 U.S.C. § 1738; Baker by Thomas v. General Motors Corp., 522 U.S. 222, 233 (1998). However, a state need not give full faith and credit to the public records or law of another state if doing so would violate the state's legitimate public policy. See Nevada v. Hall, 440 U.S. 410, 422 (1979); but see Baker, 522 U.S. at 233-34 (noting the public policy exception does not apply to judgments of other states). Alabama law also provides that a certified copy of a vital record, such as a birth certificate, shall be prima facie evidence of the facts stated in the copy. See ALA. CODE § 22-9A-22(a)(2) (2007); McCoy v. McCoy, 549 So.2d 53, 56-57 (Ala. 1989) (a certificate of birth is prima facie evidence of the facts contained therein, but competent evidence can refute the prima facie case established). Thus, we believe Alabama would accept the birth certificates of C1 and C2 as prima facie evidence that NH1 and NH2 are the parents of C1 and C2.

Because the case law discussed above suggests Alabama courts would give full faith and credit to the Mississippi birth certificates, we believe an adjudicator could determine NH1 and NH2 are the parents of C1 and C2. Therefore, we believe an Alabama court would confer C1 and C2 the right to inherit from NH1 and NH2 in this situation.

CONCLUSION

C1 and C2 are the children of NH1 and NH2 under Alabama intestacy law and section 216(h)(2)(A) of the Act for purposes of child's insurance benefits on the accounts of NH1 and NH2.

Mary A. Sloan

Regional Chief Counsel

Jennifer L. Patel

Assistant Regional Counsel

Under Alabama intestacy law, the presumption of paternity based on DNA test results is retroactive to the date of those results.

QUESTION

You asked whether a presumption of paternity established under Alabama intestacy law by DNA testing performed after the number holder (NH) died and before the claimant applied for benefits would allow payment of benefits under section 216(h)(2)(A) of the Social Security Act (Act), 42 U.S.C. § 416(h)(2)(A), retroactive to the date of the DNA test results.

ANSWER

To the extent a child claimant's entitlement to survivors benefits is based on the Alabama intestacy law paternity presumption based on DNA test results, and to the extent those test results occurred within the potential retroactive period of the child's application, we believe the child could be paid prospectively from the date of the DNA test results.

BACKGROUND

According to the file, Marvin (NH) filed a claim for retirement benefits on April XX, 2001 stating he had no children under the age of 18. On October XX, 2006, NH died while domiciled in Alabama. On December XX, 2006, Debra protectively filed an application for child's benefits on NH's account on behalf of her daughter, Jasmine (Claimant), who was born on June. To support her claim, Claimant provided a Lawrence County, Alabama court order of paternity dated December XX, 2006. Claimant also provided DNA test results dated November XX, 2006 showing a 99.82% probability of paternity by NH.

DISCUSSION

When determining entitlement to surviving child's benefits, the Agency applies the inheritance laws of the state where the insured had his permanent home when he died. See § 216(h)(2)(A) of the Act; 20 C.F.R. § 404.355(a)(1), (b)(1) (2006). Agency regulations further provide that if applicable state inheritance law requires a court determination of paternity, the Agency will not require a court determination, but will decide paternity by using the standard of proof that the state court would use. See 20 C.F.R. § 404.355(b)(2). NH was domiciled in Alabama when he died.

Alabama law permits a child to inherit from the father through intestate succession, if paternity is established by an adjudication supported by clear and convincing evidence. PR 01115.001C. Moreover, the Alabama paternity statute presumption of paternity, arising when genetic test results indicate a 97 percent or greater probability of paternity, also applies when determining whether a child can inherit through intestacy. Id. In this case, the DNA test results yield a "probability of paternity" that is greater than 97%. Therefore, we conclude, based on Alabama law, Claimant established a presumption of paternity that can only be rebutted by clear and convincing evidence. See ALA. CODE § 26-17-13(a)(3).

One could assert NH's statement on his April XX, 2001 application for benefits that he had no children under age 18, coupled with the decision Claimant's mother made to wait until after NH died to bring this claim, provide some basis for contesting paternity in this case. Nevertheless, nothing in the material you sent us would seem to rise to the level of clear and convincing proof needed to overcome the presumption that NH is Claimant's father. You now asked, therefore, whether the Claimant could be paid retroactively.

Under 20 C.F.R. § 404.621(a)(2) (2005), an applicant for child's benefits can receive benefits for up to six months immediately before the month in which the application is filed. However, no child is entitled to benefits for any period prior to satisfying all entitlement factors for child's benefits. See § 202(d)(1) of the Act; 42 U.S.C. 402(d)(1); 20 C.F.R. § 404.352(a). Child status is one of the entitlement factors. See § 202(d)(1) of the Act; 20 C.F.R. § 404.350(a)(1). If the child applicant is the legitimate child of an insured individual and entitled to benefits, the period of entitlement will include the full retroactive period of the application (six months prior to the application or the child's birth, whichever occurs later). See POMS GN 00306.050 and GN 00306.085. Although legitimacy establishes the child's status as of birth, an out-of-wedlock child generally is not entitled to retroactive benefits because the out-of-wedlock child must prove child status under state law and benefits are prospective from the event which conferred the inheritance rights. See POMS GN 00306.055A.3.

As noted in POMS GN 00306.405(4), Alabama confers inheritance rights based on an adjudication of paternity after the death of the father, but this does not legitimate the child. A illegitimate child with intestate inheritance rights is a child of the number holder for the purposes of survivors benefits only from the time inheritance rights arose. See POMS PR 01120.001A. Where, as here, a state law confers inheritance rights based on an adjudication of paternity (but does not legitimate the child), and the law has no retroactive effect, the claimant's status as the NH's child is established effective with the date of the latest necessary piece of evidence (if more than one piece of evidence is needed to satisfy the applicable standard of proof). See POMS GN 00306.055. To the extent Claimant qualifies as NH's child under Alabama law based on DNA test results, she should be paid prospectively from the date of the DNA test results. Since the DNA test results occurred within the retroactive reach of Claimant's application (that is, less than two months before the application), the Agency could pay Claimant benefits retroactive to the date of the DNA test results.

CONCLUSION

For the foregoing reasons, we believe Claimant can be entitled to benefits retroactive to the date of the DNA test results that give rise to the presumption of paternity upon which her claim for benefits is established.

Mary A. Sloan

Regional Chief Counsel

Jennifer L. Patel

Assistant Regional Counsel

Under Alabama law, evidence that the deceased number holder acknowledged the claimant as his child to friends and family, that the family accepts the claimant as the number holder's child, that the claimant was listed as the number holder's child by his family on his funeral program, and that the hospital where the claimant was born listed the number holder as the claimant's father are sufficient to establish the parent-child relationship by the clear and convincing standard.

In considering this child's claim for survivor's benefits, you asked whether Alabama intestacy law confers inheritance rights when there has been an informal (e.g. oral) acknowledgment or recognition of paternity.

Having considered the evidence presented, and the applicable federal and state law, it is our opinion that the oral acknowledgments coupled with the other evidence of record may satisfy the clear and convincing evidentiary standard for proving paternity for inheritance purposes under Alabama law.

FACTS

Deceased number holder Frank (NH) died domiciled in Alabama on December XX, 2005. Janiya (Claimant) was born to Felicia on September. There is no evidence that NH and Claimant's mother were ever married. There is no evidence that the NH was living with Claimant's mother at the time of his death.

The evidence of record consists of NH's death certificate, Claimant's birth certificate which does not list NH as father, a certificate from Southeast Alabama Medical Center from Claimant's birth which lists NH as father, a funeral program, an alleged photocopy of a handwritten letter from NH in which NH indicated that Claimant was his child, and signed statements from Claimant's mother, NH's niece, and NH's cousin. The photocopy of the handwritten letter from NH is not an original and could not be verified by the claims representative. The statements from Claimant's mother and NH's relatives indicate that NH verbally acknowledged on multiple occasions that Claimant was his child. The funeral program indicates Claimant was NH's child.

Statutory Authority

For purposes of child's survivor's benefits under the Section 202(d) of the Social Security Act (Act), 42 U.S.C. § 402(d), a child is defined as the child, adopted child or stepchild of an insured individual. See § 216(e) of the Act, 42 U.S.C. § 416(e). If the insured individual dies prior to the child applicant's birth and the putative father never married the child's mother, the child claimant's status as the surviving child of the insured individual is governed by either section 216(h)(3)(C) of the Act or section 216(h)(2)(A) of the Act. To establish child status under section 216(h)(3)(C) of the Act, the child claimant must be the insured individual's child and show one of the following: (1) that the insured individual acknowledged in writing that the child claimant is his daughter, (2) that a court decreed the insured individual to be the child claimant's father, (3) that the insured individual had been ordered by a court to contribute to the support of the child claimant, or (4) that the insured individual is the father and was living with or contributing to the support of the child claimant when the putative father died. None of these conditions are met in this case. The claims representative was unable to verify the copy of the handwritten letter from NH.

To establish his/her status as the surviving child of the an insured individual under section 216(h)(2)(A) of the Act, the child claimant must show that he/she would be entitled to a child's share of the insured individual's intestate personal property under the law of the state in which the insured was domiciled at the time of his death. According to the record, NH was a resident of Alabama at the time of his death. So, Alabama's law of intestate succession applies in determining the child claimants' status as the lineal descendant of the NH for purposes of section 216(h)(2)(A) of the Act. For a person born out of wedlock to establish the status of lineal descendant, the relevant Alabama statute provides as follows:

If, for purposes of intestate succession, a relationship of parent and child must be established to determine succession by, through, or from a person:

(2) [a] person born out of wedlock is a child of the mother. That person is also the child of the father, if:

a. The natural parents participated in a marriage ceremony before or after the birth of the child, even though the attempted marriage is void; or

b. The paternity of the father is established by an adjudication before the death of the father, or is established thereafter by clear and convincing proof. . . .

ALA. CODE § 43-8-48(2) (2006). Claimant does not qualify under subparagraph (2)(a) because the evidence does not support a finding that NH married or attempted to marry Claimant's mother. To qualify under subparagraph (b), paternity must be established by an adjudication before or after the death of the father. Although there has been no actual paternity adjudication under subparagraph (2)(b), SSA adjudicators must apply Alabama intestacy law under these circumstances as follows:

If applicable State inheritance law requires a court determination of paternity, we will not require that you obtain such a determination but will decide your paternity by using the standard of proof that the State court would use as the basis for a determination of paternity.

20 C.F.R. § 404.355(b)(2)(2006); Drake v. Apfel, 2001 WL 705784 (N.D. Tex. 2001) (notes 20 C.F.R. § 404.355(b)(2) removes obligation to obtain an actual state court determination of paternity).

ANALYSIS

Under Alabama law, a child may inherit from the father through intestate succession, if paternity is established by an adjudication commenced after the father's death by clear and convincing evidence. See § 43-8-48(2)(b); Cotton v. Terry, 495 So.2d 1077, 1079 (Ala. 1986). Proof by clear and convincing evidence requires a level of proof greater than a preponderance of evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt. See Ex parte C.V., 810 So.2d 700, 721 (Ala. 2001). Evidence that is clear and convincing requires a stronger showing than merely substantial evidence. See Reid v. Flournoy, 600 So.2d 1024, 1026 (Ala. Civ. App. 1992) (citing Lowman v. Piedmont Executive Shirt Manu. Co., 547 So.2d 90 (Ala.1989)). Clear and convincing evidence is "that 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.Al. 2000). The J~ court further noted that clear and convincing proof is not necessarily undisputed proof. See 105 F.Supp.2d at 1221; see also D.D.P. v. State, 595 So.2d 528, 538 (Ala. Crim. App. 1991). Instead, that standard is met 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." D.D.P., 105 F.Supp.2d at 1221-22 (quoting D.D.P., 595 So.2d at 538). According to the J~ court, "'[c]onvincing' evidence by definition requires a weighing of the evidence." Id. (quoting D.D.P., 595 So.2d at 538).

The question in this case is whether there is clear and convincing evidence that NH was the Claimant's father. The evidence offered to support Claimant's allegations consists of NH's death certificate, a birth certificate from Southeast Alabama Medical Center that lists NH as father, a funeral program, an alleged photocopy of a handwritten letter from NH in which NH indicated that Claimant was his child, and signed statements from Claimant's mother, NH's niece, and NH's cousin. The photocopy of NH's alleged handwritten letter not an original and could not be verified by the claims representative. The funeral program indicates Claimant was NH's child. The statements from Claimant's mother and NH's relatives indicate that NH verbally acknowledged on multiple occasions that Claimant was his child. In a signed statement, the NH's cousin reported that NH asked the cousin to "kiss my baby. Tell my daughter I love her and I love you to." In another signed statement, NH's niece reported that when Claimant was born, the NH "came over to my house with about 4 or 5 boxes of cigars (saying that it's a girl) to celebrate the birth of his daughter. On that night, he called me over to show me all the things he bought for Janiya."

We believe that under Alabama law, the above-mentioned evidence may be sufficient to meet the clear and convincing standard. For instance, in J~, the district court of Alabama held that SSA erred in denying child survivor's benefits based on the child's mother's testimony that the decedent was child's father and based on the acts of the decedent's surviving family members which evidenced their acceptance of the child to the whole world. J~, 105 F.Supp.2d at 1223. Specifically, the family members listed the child as a survivor in the obituary and funeral program. Id. They continued a relationship with the child. Id. The J~ court took judicial notice that it would be contrary to human nature for the family members to accept the child if the decedent was not the child's father. Id. Based on this evidence, the court found that the child had proven paternity by clear and convincing evidence. Id. Similarly, in C~, the decedent's biological child admitted that the decedent never denied the illegitimate child as his. C~, 495 So.2d at 1079-80. Additionally, the decedent's obituary listed the illegitimate child as a surviving daughter; the illegitimate child's maiden name was "C~;" and testimony from all witnesses indicated that the illegitimate child was the decedent's daughter. C~, 495 So.2d at 1079-80. The Supreme Court of Alabama in that case held this undisputed evidence demonstrated that the illegitimate child had proven paternity by clear and convincing evidence. See id.

However, in R~, numerous witnesses testified about the relationship between the decedent and the alleged illegitimate daughter. R~, 600 So.2d at 1026. The illegitimate child also asserted that she attended the decedent's funeral and sat with the family but that fact was contested. Id. Additionally, the illegitimate child's witnesses testified that they heard the decedent refer to the illegitimate child as his daughter while other members of the family testified that they never heard such rumors until after the deaths of the decedent's wife and biological sons. Id. The R~ court also noted evidence that weighed against the illegitimate daughter's claim of paternity. This evidence included: 1) handwritten wills which were identified as being written by the decedent and which demonstrated who the decedent believed to be his children; 2) the fact that the illegitimate child waited until all persons who could best refute or support her claims were deceased; 3) the fact that the illegitimate child never used the decedent's last name; 4) the illegitimate child did not initiate proceedings during the decedent's lifetime to establish paternity; and 5) the illegitimate child and her witnesses appeared confused about certain dates and events. Id. The R~ court held that clear and convincing evidence had not been shown.

In the instant matter, we believe that the evidence here is most analogous to the facts in J~ and C~ in that NH acknowledged Claimant as his child to his family and others, NH's family has accepted Claimant as NH's child, NH's family listed Claimant as a child of NH in the funeral program, and the certificate from Southeast Alabama Medical Center lists NH as father. Under these circumstances, it is our opinion that an SSA adjudicator would be justified in concluding that the children's status as the natural child of NH has been established by clear and convincing evidence under Alabama law.

Mary A. Sloan

Regional Chief Counsel

Samuel J. Childs

Assistant Regional Counsel

In Alabama, evidence that the deceased number holder orally acknowledged the claimants as his own, attended the claimant's birth, provided occasional support and, at time, actually lived in the same household with the claimants meets the State's clear and convincing standard for paternity barring the presence of any contradictory evidence.

In considering this child's claim for survivor's benefits, you asked whether Alabama intestacy law confers inheritance rights when there has been an informal (e.g. oral) acknowledgment or recognition of paternity.

Having considered the evidence presented, and the applicable federal and state law, it is our opinion that the oral acknowledgments coupled with the other evidence of record may satisfy the clear and convincing evidentiary standard for proving paternity for inheritance purposes under Alabama law.

FACTS

Demetrius (NH) died domiciled in Alabama on January XX, 2006. Mariah (C1) and Demetrius. (C2) were born on March, and April, respectively, to Feleshia (M1). Demeah (C3) was born on September to Sherica (M2). There is no evidence that NH and the children's mothers were ever married. There is no evidence that NH was living with either M1 or M2 at the time of his death; NH's mother revealed that he lived with her all his life. However, there is evidence that NH provided support for the children by giving their mothers' $100 to $150 every two weeks or "when he had it" and by buying food and other items "as needed." The children also periodically lived with NH in the same household in a parent-child relationship from 2003 to 2004. M1 and M2 applied for child's benefits on behalf of their respective child(ren) on the deceased NH's earnings record on January 17, 2006, and February 2, 2006, respectively. The evidence of record consists of NH's death certificate, birth certificates for the children, a funeral program, and statements from M1, M2, and NH's mother, niece, brother, cousin, and nephew. The January XX, 2006 funeral program indicates NH was born and died in Alabama and that NH "enjoyed spending time with people, especially his children and other relatives." The obituary included on the funeral program also states that NH was survived by "his children, Demetris , Mariah (mother Feleshia) and Demeah (mother: Sherita [sic])." The birth certificates do not list a father's name.

According to NH's mother's written statement, NH was at the birth of all three children, vowed not to be a "dead beat dad," and acknowledged to anyone that asked that he was the children's father. She indicated that the children frequently spent the night with her and NH for several days at a time and attended family gatherings on holidays and birthdays. The statements of NH's niece, cousin and brother indicate NH was happy about being a father. NH's niece said NH took his children wherever he went and told "almost everyone in the world" that he was the father. NH's cousin and brother stated that NH told family members about the circumstances of him becoming the children's father and NH's cousin said that the family accepted the children with opened arms. All the statements indicate that the children lived with NH "off and on" in 2003 and/or 2004 and that he provided money, food and other necessities to both mothers for the children every two weeks or whenever he had it. M2 said NH occasionally gave her money for the child's support while M1 stated that NH "always" contributed to the children's welfare. Both mothers indicated that there may be some written proof of acknowledgment but neither mothers provided this proof.

Statutory Authority

For purposes of child's survivor's benefits under Section 202(d) of the Social Security Act (Act), 42 U.S.C. § 402(d), a child is defined as the child, adopted child or stepchild of an insured individual. See § 216(e) of the Act, 42 U.S.C. § 402(e). If the putative father is deceased and never married the child's mother, the child claimant's status as the surviving child of the putative father is governed by either section 216(h)(3)(C) or section 216(h)(2)(A) of the Act. To establish child status under section 216(h)(3)(C) of the Act, the child claimant must show one of the following: (1) that the putative father acknowledged in writing that the child claimant is his daughter, (2) that a court decreed the putative father to be the child claimant's father, (3) that the putative father had been ordered to contribute to the support of the child claimant, or (4) that the putative father is the father and was living with or contributing to the support of the child claimant when the putative father died. The evidence here revealed that NH and all three children lived together only from 2003 through 2004 and not when NH died in 2006. Thus, even if we assumed that NH is the father, the children would not qualify under the "living with" provision since there is no evidence that they lived together at the time NH died. However, there is some evidence that NH contributed to each child's support by providing food, clothing, and money to M1 and M2 every two weeks or whenever he had it. Should a Social Security Administration (SSA) adjudicator decide, contrary to our analysis below, that the children here have not established their status as NH's surviving child under 216(h)(2)(A), then the adjudicator would need further information regarding NH's support of the children and the "ordinary living costs" the mothers incurred with their children to determine whether the children would qualify under 216(h)(3)(C). See generally 20 C.F.R. § 404.366 (2006).

To establish his/her status as the surviving child of a deceased insured individual under section 216(h)(2)(A) of the Act, a child claimant must show that he/she would be entitled to a child's share of the insured individual's intestate personal property under the law of the state in which the insured was domiciled at the time of his death. According to the record, NH was born in Alabama and was a resident of Alabama at the time of his death. There is no evidence suggesting that the NH's domicile was other than Alabama. We conclude NH was domiciled in Alabama when he died and that Alabama's law of intestate succession determines the child claimants' status as the lineal descendant of the NH for purposes of sections 216(h)(3)(C) and 216(h)(2)(A) of the Act. For a person born out of wedlock to establish the status of lineal descendant, the relevant Alabama statute provides as follows:

If, for purposes of intestate succession, a relationship of parent and child must be established to determine succession by, through, or from a person:

(2) [a] person born out of wedlock is a child of the mother. That person is also the child of the father, if:

a. The natural parents participated in a marriage ceremony before or after the birth of the child, even though the attempted marriage is void; or

b. The paternity of the father is established by an adjudication before the death of the father, or is established thereafter by clear and convincing proof. . . .

ALA. CODE § 43-8-48(2) (T~/W~ 2006). The claimants do not qualify under subparagraph (2)(a) because the evidence does not support a finding that NH married or attempted to marry the children's mother. To qualify under subparagraph (2)(b), paternity must be established by an adjudication before or after the death of the father. Although there has been no actual paternity adjudication under subparagraph (2)(b), SSA adjudicators must apply Alabama intestacy law under these circumstances as follows:

If applicable State inheritance law requires a court determination of paternity, we will not require that you obtain such a determination but will decide your paternity by using the standard of proof that the State court would use as the basis for a determination of paternity.

20 C.F.R. § 404.355(b)(2)(2006); See Drake v. Apfel, 2001 WL 705784 (N.D. Tex. 2001) (notes 20 C.F.R. § 404.355(b)(2) removes obligation to obtain an actual state court determination of paternity).

ANALYSIS

Under Alabama law, a child may inherit from the father through intestate succession, if paternity is established by clear and convincing evidence by an adjudication commenced after the father's death. See § 43-8-48(2)(b); Cotton v. Terry, 495 So.2d 1077, 1079 (Ala. 1986). Proof by clear and convincing evidence requires a level of proof greater than a preponderance of evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt. See Ex parte C.V., 810 So.2d 700, 721 (Ala. 2001). Evidence that is clear and convincing requires a stronger showing than merely substantial evidence. See Reid v. Flournoy, 600 So.2d 1024, 1026 (Ala. Civ. App. 1992) (citing Lowman v. Piedmont Executive Shirt Manu. Co., 547 So.2d 90 (Ala.1989)). Clear and convincing evidence is "that 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.Al. 2000)(citing McBaine, Burden of Proof: Degrees of Belief, 32 Calif.L.Rev. 242, 253-54 (1944)).The J~ court further noted that clear and convincing proof is not necessarily undisputed proof. See 105 F.Supp.2d at 1221; see also D.D.P. v. State, 595 So.2d 528, 538 (Ala. Crim. App. 1991). Instead, that standard is met 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." 105 F.Supp.2d at 1221-22 (quoting D.D.P., 595 So.2d at 538). According to the J~ court, "'[c]onvincing' evidence by definition requires a weighing of the evidence." Id. (quoting D.D.P., 595 So.2d at 538).

The question thus in this case is whether there is clear and convincing evidence that NH was the children's father. In the present matter, the evidence offered to support the children's allegations that they are NH's natural children consists of birth certificates for the children, a funeral program, and statements from M1, M2, and NH's mother, niece, brother, cousin, and nephew. The January XX, 2006 funeral program indicates NH "enjoyed spending time with people, especially his children and other relatives." The obituary included on the funeral program also states that NH was survived by "his children" and lists all three children and their respective mothers. The birth certificates do not identify a father. The statements from NH's relatives revealed NH was at the birth of all three children, vowed not to be a "dead beat dad," and acknowledged to others that he was the children's father. The statements also reveal that the children were accepted by NH's family, frequently spent the night with NH for several days at a time, and attended family gatherings on holidays and birthdays. NH's relatives further stated that NH was happy about being a father and took his children wherever he went. All the statements from NH's relatives indicate that the children lived with NH "off and on" in 2003 and/or 2004 and that he provided money, food and other necessities to both mothers for the children every two weeks or whenever he had it. M2 said NH occasionally gave her money for C3's support while M1 stated that NH "always" contributed to C1's and C2's welfare. Both mothers indicated that there may be some written proof of NH's acknowledgment of paternity of their respective child(ren) but neither mothers provided this proof.

We believe that under Alabama law, the above-mentioned evidence may be sufficient to meet the clear and convincing standard. For instance, in J~, the district court of Alabama held that SSA erred in denying child survivor's benefits based on the child's mother's testimony that the decedent was child's father and based on the acts of the decedent's surviving family members which evidenced their acceptance of the child to the whole world. 105 F.Supp.2d at 1223. Specifically, the family members listed the child as a survivor in the obituary and funeral program. Id. They continued a relationship with the child. Id. The J~ court took judicial notice that it would be contrary to human nature for the family members to accept the child if the decedent was not the child's father. Id. Based on this evidence, the court found that the child had proven paternity by clear and convincing evidence. Id. Similarly, in C~, the decedent's legitimate child admitted that the decedent never denied the illegitimate child as his. 495 So.2d at 1079-80. Additionally, the decedent's obituary listed the illegitimate child as a surviving daughter; the illegitimate child's maiden name was "C~;" and testimony from all witnesses indicated that the illegitimate child was the decedent's daughter. C~, 495 So.2d at 1079-80. The Supreme Court of Alabama in that case held that this undisputed evidence demonstrated that the illegitimate child had proven paternity by clear and convincing evidence. See id.

However, in R~, numerous witnesses testified about the relationship between the decedent and the illegitimate daughter. 600 So.2d at 1026. The illegitimate child also asserted that she attended the decedent's funeral and sat with the family but that fact was contested. Id. Additionally, the illegitimate child's witnesses testified that they heard the decedent refer to the illegitimate child as his daughter while other members of the family testified that they never heard such rumors until after the deaths of the decedent's wife and biological sons. Id. The R~ court also noted evidence that weighed against the illegitimate daughter's claim of paternity. Indeed, this evidence included: 1) handwritten wills which were identified as being written by the decedent and which demonstrated who the decedent believed to be his children; 2) the fact that the illegitimate daughter waited until all persons who could best refute or support her claims were deceased; 3) the fact that the illegitimate daughter never used the decedent's last name; 4) the illegitimate daughter did not initiate proceedings during the decedent's lifetime to establish paternity; and 5) the illegitimate daughter and her witnesses appeared confused about certain dates and events. Id. The R~ court held that clear and convincing evidence had not been shown.

In the instant matter, we believe that the evidence here is most analogous to the facts in J~ and C~ in that NH acknowledged the child as his to his family and others; NH's family has accepted the children as NH's children; NH's family listed the children as surviving children of NH in the funeral program and obituary; and C1 and C2 both have NH's last name. We also think that R~ is distinguishable since there is no written evidence tending to show that NH only acknowledged certain children and not others; the claimants' witnesses are fairly consistent as to certain dates and times; and at least C1 and C2 have NH's last name. While C3's last name is that of his mother's, we do not believe that this single fact would prevent an Alabama court from finding clear and convincing evidence of paternity of C3 in light of the other evidence of oral acknowledgement by NH and NH's family recognition and acceptance of C3 as NH's child. Under these circumstances, it is our opinion that you would be justified in concluding that the children's status as the natural children of NH has been established by clear and convincing evidence under Alabama law.

Mary Ann. Sloan

Regional Chief Counsel

Arthurice T. Brundidge

Assistant Regional Counsel

Under Alabama law, the DNA testing of a father and sibling of a deceased number holder yielding a probability of paternity that is greater than 97% create a presumption under Alabama law that can only be rebutted by clear and convincing evidence. It is not, however, great enough to overcome the presumption of legitimacy in cases where the claimant is presumed to be the legitimate child of the mother's husband.

In cases where the presumption of legitimacy is not an issue, the claimant would only be entitled prospectively from the date of the DNA testing.

Also, Alabama has no expressed accreditation requirements for genetic laboratories. Such accreditation may be considered, however, when weighing the significance of DNA results.

QUESTION

You asked several questions concerning whether Damonicka (C1) may be entitled to child's insurance benefits on the record of the deceased number holder, Broderick (NH), on the basis of DNA testing of NH's father, Lawrence , and NH's sister, Michelle . Specifically, you asked:

What are the accreditation requirements of DNA testing laboratories per Alabama State Intestacy Law?

Is the DNA evidence submitted from the father and sibling of NH sufficient to rebut the presumption of paternity for C1?

Since [the precedent in PR 01115.001C states that the DNA from a brother is sufficient to establish a presumption of paternity that can only be rebutted by clear and convincing evidence under Alabama Law, would this presumption also apply to DNA from a parent and/or sister of the NH?

If the children meet the requirements of an illegitimate child with inheritance rights of the NH, can the children be paid retroactively or prospectively from the date of the DNA?

If the children can be paid retroactively, should the previous denials be reopened to allowances?

In October 2005, we spoke with Betty to clarify the questions asked, and agreed that the questions should reflect whether both C1 and Broderick (C2) are entitled to benefits. We also agreed that our opinion should address whether the DNA testing is sufficient to rebut the presumption that Donald is the children's legitimate father. Thus, the questions to be answered are:

Can C1 and C2 be entitled to child's insurance benefits on NH's record on the basis of DNA testing of NH's father and sister?

Is this DNA testing sufficient to rebut the presumption that Donald is the children's father?

If the children are entitled to benefits on NH's record, can the children be paid retroactively or would their benefits be prospective from the date of the DNA testing?

If the children could be paid retroactively, should the Agency reopen the children's previous denials?

What are the accreditation requirements for genetic testing laboratories under Alabama law?

ANSWER

Generally, the DNA testing of a father and sibling of a deceased number-holder that yield a probability of paternity that is greater than 97% create a presumption of paternity under Alabama law that can only be rebutted by clear and convincing evidence.

The DNA testing in this case cannot alone rebut the controlling presumption that Donald is both children's father. Thus, when taking into account the evidence before the Agency, an Alabama court would find C1 and C2 to be the children of Donald , and an Agency adjudicator could not conclude that C1 and C2 are NH's children for entitlement purposes.

C1 and C2 are not entitled to benefits on NH's record, and thus, payment is not at issue; however, a child born out of wedlock does not inherit under Alabama law in the same manner as though legitimate. Children who meet the requirements of an illegitimate child with inheritance rights of a number-holder would be paid prospectively from the date of the DNA testing.

The children's prior applications should not be reopened, because they are not entitled to benefits on NH's record; however, only C2's prior application could have been reopened pursuant to the regulations, if he could be paid retroactively.

Alabama does not expressly require an accredited laboratory to conduct genetic testing to establish paternity rights. The lack of accreditation of the laboratory conducting the DNA tests, standing alone, does not render the test results inadmissible. Rather, a laboratory's accreditation is a factor that can be considered by the trier of fact when assessing the weight it assigns to the DNA tests. Because the testing facility here appears to be accredited, the issue of accreditation does not seem to be an issue in this case.

BACKGROUND

On January XX, 2001, NH died while domiciled in Alabama. C1 was born on June. C2 was born on August. The children's mother, Ronda , has been married to Donald since December 1988. There is no evidence that they ever divorced.

On September XX, 2004, the children's grandmother, Beulah (Applicant), applied for surviving child's benefits on the children's behalf. Applicant submitted the results from a DNA kinship test dated April XX, 2005. The DNA samples were taken from Ronda, C1, and C2 as well as Lawrence, NH's father, and Michelle, NH's sister. The results showed that NH was not excluded as the children's biological father and that the probability of paternity was of 99.71%. The conclusion was based upon the assumption that Michelle was NH's biological full sibling and Lawrence was NH's biological father. This DNA test was conducted by Reliagene Technologies, Inc. Reliagene's stationary claims that it is accredited by "the Parentage Testing Committee of the American Association of Blood Banks."

The record also includes copies of the children's birth certificates. C1's birth certificate lists Donald as the father. C2's birth certificate does not list a father.

Furthermore, the record includes a form SSA-795 signed by Donald in July 2001 that states he is not the father of C1 or "the unborn child that Ronda is carrying." We can infer that the referenced unborn child is C2 (who was born on August).

Under Alabama law, a child may inherit from the father through intestate succession, if paternity is established by an adjudication supported by clear and convincing evidence, even if commenced after the father's death. See Ala. Code § 43-8-48(2)b (2005); Cotton v. Terry, 495 So.2d 1077, 1079 (Ala. 1986). Proof by clear and convincing evidence requires a level of proof greater than a preponderance of evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt. See Ex parte C.V., 810 So.2d 700, 721 (Ala. 2001).

DISCUSSION

1. Sufficiency of DNA testing of the father and sister of NH to establish a presumption of paternity under Alabama law.

When determining entitlement to surviving child's benefits, the Agency applies the inheritance laws of the state where the insured had his permanent home when he died. See § 216(h)(2)(A) of the Social Security Act (Act), 42 U.S.C. § 416(h)(2)(A) (2005); 20 C.F.R. § 404.355(a)(1), (b)(1) (2005). Agency regulations further provide that if applicable state inheritance law requires a court determination of paternity, the Agency will not require a court determination, but will decide paternity by using the standard of proof that the state court would use. 20 C.F.R. § 404.355(b)(2). NH was domiciled in Alabama when he died.

Under Alabama law, a child may inherit from the father through intestate succession, if paternity is established by an adjudication supported by clear and convincing evidence, even if commenced after the father's death. See Ala. Code § 43-8-48(2)b (2005); Cotton v. Terry, 495 So.2d 1077, 1079 (Ala. 1986). Proof by clear and convincing evidence requires a level of proof greater than a preponderance of evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt. See Ex parte C.V., 810 So.2d 700, 721 (Ala. 2001).

Alabama's intestacy statute does not address genetic testing, but its paternity statute does. Under the Alabama version of the Uniform Parentage Act (UPA), genetic test results that "indicate a 97 percent or greater probability of paternity" create a presumption of paternity that may only be rebutted by clear and convincing evidence. See Ala. Code § 26-17-13(a)(3). While there is no statute that expressly states that Alabama courts will use the UPA paternity presumptions in an intestacy proceeding, there is supporting caselaw that an Alabama court will apply the same rules for paternity adjudications under the UPA and the state's intestacy statute. In Blackmon v. Brazil, 895 So.2d 900 (Ala. 2004), the Supreme Court addressed whether an adjudication of paternity under the state's intestacy statute, Ala. Code § 43-8-48(2)b, was subject to the statute of limitations under Ala. Code § 6-2-33(2). Id. at 908. The Court noted first that the language of Ala. Code § 43-8-48(2)b neither exempted nor subjected a paternity proceeding for intestacy purposes to the statute of limitations. Id. Next, the court found that the state legislature intended to subject a UPA proceeding for an adjudication of paternity to establish the right of inheritance in a child born out of wedlock to the statute of limitations. The Court concluded that Ala. Code § 43-8-48(2)b was subject to the statute of limitations, because an adjudication of paternity to establish inheritance rights for a child born out of wedlock under the UPA was subject to the same statute of limitations. Id. Because the Supreme Court of Alabama is willing to apply provisions applicable to UPA paternity determinations when determining the inheritance rights of children born out of wedlock under the intestacy statute, we conclude that the courts will look to the paternity provisions in the UPA to govern the paternity proceedings under the state's intestacy statutes, and as such, would apply the UPA provisions on genetic testing.

In this case, the DNA test results yield a "probability of paternity" that is greater than 97%; however, these results were based on the DNA from the father and sister of NH. We found no statute or controlling caselaw precluding the use of DNA tests on relatives. Nothing in Alabama law limits DNA test results that yield a probability of paternity to tests performed on the putative father; the statute merely requires tests results that "indicate a 97 percent probability that the alleged father is the biological or natural father of the minor." See Ala. Code § 26-17-13(a)(3). Therefore, we conclude that the statute is satisfied by tests on relatives that yield a probability of paternity, as opposed to tests that yield a probability of siblingship, grandpaternity, relatedness, or some other relationship. Furthermore, POMS PR 01115.001C provides that DNA genetic testing conducted on a number holder's brother, which established a 99.71% probability of paternity for the number holder, is sufficient under Alabama law to establish a presumption of paternity that can only be rebutted by clear and convincing evidence. See id. (citing Ala. Code § 26-17-13(a)(3)).

Given this authority, it is our opinion that the DNA testing on NH's father and sibling that shows a 99.71% probability that NH is the father of the children in this case could create a presumption of paternity under the Alabama paternity statute and that such a presumption could only be rebutted by clear and convincing evidence. However, this conclusion must be weighed against the clear and convincing evidence in the record that would establish Donald as the children's father.

2. Sufficiency of DNA testing to rebut the presumption that Donald is the children's father.

The presumption of paternity established by the DNA testing in this case does not rebut the presumption that Donald is the legitimate father of both C1 or C2. Consequently, an Agency adjudicator could not conclude that C1 and C2 are NH's children for entitlement purposes based on the facts provided to the Agency.

Under Alabama law, a man is presumed to be the natural father of a child if he and the child's mother are or have been married to each other and the child is born during the marriage. Ala. Code § 26-17-5(a)(1). The statute further provides that "[i]n the event two or more conflicting presumptions arise, that which is found upon the weightier considerations of public policy and logic, as evidenced by the facts, shall control." See id. at § 26-17-5(b).

In this case, the record shows that Ronda , the children's mother, married Donald in December 1988, and the file provides no indication that the couple divorced. In fact, Applicant signed an SSA-795 stating that, to her knowledge, Ronda and Donald never divorced. Because both C1 and C2 were born to Ronda while she was married to Donald , is presumed to be the children's natural father under Alabama law. This presumption conflicts with the presumption established by the DNA testing.

The Alabama Supreme Court addressed the issue of conflicting presumptions, like those in the instant case, and held that the "public policy considerations" in which a husband is presumed to be the father of the wife's child are weightier than other presumptions of paternity. See Ex parte Presse, 554 So.2d 406, 412 (Ala. 1989). "[I]t is not logical that two men could be presumed to be the child's father. The presumption in favor of the [husband] is an ancient one, supported by logic, common sense, and justice." Id. The Alabama Supreme Court addressed this issue again in Ex parte C.A.P., 683 So.2d 1010 (Ala. 1996), and elaborated that the presumption in Ala. Code § 26-17-5(a)(1) is established if the child is born during the marriage. See id. at 1012.

Given this authority, and the fact that Ronda and Donald are still married, an Alabama court would find C1 and C2 to be the children of Donald . An Agency adjudicator, therefore, could not conclude that either C1 or C2 is NH's child for entitlement purposes.

In addition, Applicant, the maternal grandmother of C1 and C2, would not have standing to bring an action seeking to declare NH as the father of these children, because the law restricts who may bring an a paternity action when the presumption of legitimacy has been established under Ala. Code § 26-17-5(a)(1). In Presse, the Alabama Supreme Court held that when a child's presumed father is the husband, a third party would not have standing under the law. See 554 So.2d at 413. In M.H.E. v. B.E., 864 So.2d 351 (Ala. Civ. App. 2002), the alleged father was deceased, and the court held that his mother did not have standing to bring an action on his behalf. See id. at 354. Given this authority, Applicant has no standing to challenge the paternity of Donald .

Only NH or Ronda conceivably would have standing to challenge the paternity action, only if the presumed father, Donald , does not "persist in the presumption that he is the father." In Cravens v. Cravens, - So.2d - (Ala. Civ. App. 2005), the court held that "no one, including the mother of the child, has standing to challenge a presumed father's paternity as long as the presumed father persists in claiming paternity of the child." Id. (citing Ex parte C.A.P., 683 So.2d 1010 (Ala.1996), and Ex parte Presse, 554 So.2d 406 (Ala.1989)). The Court in Presse explained:

the legal question is whether is a man has standing to bring an action seeking to declare a child illegitimate and to have himself declared the father of that child. This is not permitted under [Alabama Law], as long as there is a presumed father, pursuant to § 26-17-5(a)(1), who has not disclaimed his status as the child's father.

554 So.2d. at 418 (emphasis added). In R.O.M. v. T.W.J., 768 So.2d 397 (Ala. Civ. App. 2000), the court found by clear and convincing evidence that the man who claimed to be the child's biological father had standing to challenge the paternity of the child, because the husband "disclaimed his status as the presumed father." Id. at 399. In reaching this conclusion, the court focused on the fact that the husband disclaimed "all legal rights" to the child, and submitted a waiver of those rights to the court. See id. In addition, the court considered that the husband did not hold the child out as his own, while the man claiming to be the father "pursued all legal avenues to establish paternity." Id.

In this case, the evidence is insufficient to demonstrate that Donald disclaimed his status as the presumed father. While Donald signed a statement for the Agency in July 2001 indicating that C1 was not his child, this does not constitute a disclaimer or waiver of his legal rights to C1 as described in R.O.M. Moreover, there is no evidence that Donald did not hold himself out as the father of the child, other than his signed statement. Contrarily, C1's birth certificate lists Donald as the father of the child, and they both share the same last name. Finally, there is no evidence that NH pursued any "legal avenues to establish paternity" of C1. With regard to C2, there is some evidence, albeit not very probative, from C2's kindergarten teacher which suggested NH held himself out as the father; however, there is no evidence that NH made any effort, legal or otherwise, to establish paternity, despite the fact that they share the same name. In addition, there is no evidence that Donald disclaimed his legal rights to C2 or that such a legal waiver was made. However, the statement provided to the Agency makes reference to "the unborn child that Ronda is carrying," and it can only be inferred that he is referring to C2 who was born one month after this statement was signed in July. Thus, the evidence of record falls short of demonstrating that Donald disclaimed his legal rights as the presumed father of C1 or C2, and an Alabama court would find C1 and C2 to be the children of Donald . An Agency adjudicator could not conclude that C1 and C2 are NH's children for entitlement purposes.

Alabama law does not treat illegitimate and legitimate children the same, and an established illegitimate relationship would have a prospective effect from the date of DNA testing.

In this case, C1 and C2 are not entitled to benefits on the record of NH, and thus, payment is not at issue. However, if C1 and C2 met the requirements of an illegitimate child with inheritance rights of NH and were entitled to benefits on the record of NH, you asked whether the children could be paid retroactively, or could they only receive benefits prospectively from the date of the DNA testing.

As noted in POMS GN 00306.405(4), Alabama confers inheritance rights based on an adjudication of paternity after the death of the father, but this does not legitimate the child. A non-legitimated applicant with intestate inheritance rights is a child only from the time inheritance rights arose. See POMS PR 01120.001A. Where a state law confers inheritance rights based on an adjudication of paternity (but does not legitimate the child), and the law has no retroactive effect, the claimant's status as the nameholder's child is established effective with the date of the latest necessary piece of evidence (if more than one piece of evidence is needed to satisfy the applicable standard of proof). See POMS GN 00306.055. Thus, if C1 and C2 had qualified as NH's children under Alabama law based on DNA test results, they would not have inherited in the same manner as if they were legitimate, and would have been paid prospectively from the date of the DNA testing.

4. The children's prior applications should not be reopened.

In this case, C1 and C2 are not entitled to benefits on the record of NH. Even if they were entitled to benefits, they would be paid prospectively from the date of DNA testing. Thus, whether to reopen C1 and C2's prior applications is not at issue. However, if C1 and C2 could be paid retroactively, you asked whether the children's prior applications should be reopened.

With regard to C1's prior application, there is no regulatory authority to reopen her prior claim even if she were to be paid retroactively. The regulations permit the Agency to reopen the determination within four years of the notice of the initial determination, provided there is good cause. See 20 C.F.R. § 404.988(b). The regulations provide that there is good cause to reopen a determination or decision if "new and material evidence is furnished." 20 C.F.R. § 404.989(a)(1). In this case, however, the initial determination denying C1's prior claim was dated June XX, 2001, more than four years after the initial determination. Although 20 C.F.R. § 404.991a permits the Agency to revise a determination if an investigation into whether to revise the determination began before the applicable time period expired, there is no evidence that such an investigation took place. Furthermore, 20 C.F.R. § 404.988(c) permits the Agency to reopen a determination at any time if one of the conditions in the regulation are met. However, none of these conditions would have been applicable.

With regard to C2's prior application, there would have been authority under 20 C.F.R. § 404.988(b) to reopen this claim if he were to be paid retroactively. The initial determination denying C2's prior claim was dated January 20, 2003, and the receipt of DNA testing establishing that NH is the father of C2 would most certainly qualify as "new and material evidence." Thus, the Agency could have found "good cause" to reopen the January XX, 2003 determination that C2 was not entitled to benefits.

5. Alabama accreditation for genetic testing.

Under Alabama law, there are no specific accreditation requirements for genetic testing in connection with establishing paternity. However, as stated in POMS PR 01115.001C, genetic identification technology through DNA testing is specifically recognized by Alabama statute as generally accepted by the relevant scientific community. See id.; see also Ala. Code § 36-18-20 (the statute declaring DNA testing as generally accepted by the relevant scientific community). In addition, DNA tests are recognized by Alabama statute for the purpose of establishing paternity. See Ala. Code § 26-17-12.

Although there is no statutory or case law in Alabama that specifically addressed the accreditation of laboratories conducting DNA testing to establish paternity, we note that the issue of accreditation for genetic testing laboratories was addressed in J.H.H. v. State, 897 So.2d 419 (Ala. Crim. App. 2004), and may serve as useful guidance for addressing accreditation issues in connection with paternity rights. In J.H.H., the court noted that:

[o]ur research has not revealed any case where the appellate courts of this State have addressed whether the laboratory's accreditation, or lack of accreditation, affects the admissibility of its DNA test results. However, we agree … that the accreditation status of the laboratory conducting the DNA tests, standing alone, does not render the test results inadmissible, but that the laboratory's accreditation status is a factor that can be considered by the trier of fact when assessing the weight it assigns to this evidence.

Id. Thus, Alabama does not require genetic testing to be conducted by an accredited laboratory to establish paternity rights, and a lack of accreditation appears to affect only the weight of such evidence, not its admissibility.

In this case, Reliagene's stationary notes that it is "accredited by the Parentage Testing Committee of the American Association of Blood Banks." Likewise, Reliagene's website identifies that it is also accredited by the National Forensic Science Technology Center for compliance with the Quality Standards of the DNA Advisory Board, the College of American Pathologists, and the American Society of Crime Lab Directors/Laboratory Accreditation Board in the discipline of DNA. See Reliagene Technologies, Inc., http://www.reliagene.com/index.asp?content_id=accred&menu_id=aboutus (last visited Nov. 2, 2005).

CONCLUSION

The genetic testing performed in this case can establish a rebuttable presumption of paternity that NH is the father; however, this DNA testing cannot rebut the controlling presumption that Donald is the father of either C1 or C2. Thus, when taking into the account the evidence before the Agency, an Alabama court would find C1 and C2 to be the children of Donald , and an Agency adjudicator could not conclude that C1 and C2 are NH's children for entitlement purposes. If C1 and C2 had qualified as NH's children under Alabama law, they would not have inherited in the same manner as if they were legitimate, and would have been paid prospectively from the date of the DNA testing. Because these children would not have been paid retroactively, the Agency would not need to reopen their prior applications. Furthermore, Alabama does not require genetic testing to be conducted by an accredited laboratory to establish paternity rights, and a lack of accreditation appears to affect only the weight of such evidence, not its admissibility.

Mary Ann Sloan

Regional Chief Counsel

Brian Seinberg

Assistant Regional Counsel

Under Alabama law a DNA test showing a 99.97% probability that the claimant is the half sibling of the deceased number holder's previously legitimized child is, when considered with other evidence, sufficient to exceed the clear and convincing standard for the claimant to be able to inherit from the deceased.

Although the genetic standard of 97% probability or better outlined in the Alabama Uniform Parentage Act has never been applied to an intestacy case, the Alabama Supreme Court statement that genetics tests received into evidence are "virtually conclusive" on the issue of paternity indicates that such evidence should satisfy the "clear and convincing" standard of the intestacy statute.

QUESTION

Can the Agency use genetic testing on a claimant and his apparent half-sibling to entitle the claimant to survivor's benefits as the child of a deceased number holder (DNH), when the half-sibling is receiving survivor's benefits as the DHN's legitimized child?

ANSWER

Yes, on the particular facts of this case. Although there is no clear blanket rule for the use of genetic testing of siblings to determine paternity, under the facts presented, the claimant could inherit from the DNH under Alabama law, and therefore may be treated as the DNH's child for Agency purposes.

BACKGROUND

Duane , the DNH, died on December XX, 2004. He was domiciled in Alabama when he died. Tyler (C1) was born on May, and the DNH is shown on the birth certificate as C1's father. The DNH and C1's mother were married on January XX, 2000. C1 receives benefits as the DNH's legitimated child.

Justin (C2) also claimed benefits as the child of the DNH. DNA testing on C1 and C2 indicate a 99.97% probability of half-siblingship. The Agency has no evidence that contradicts DNH's paternity of C2.

DISCUSSION

A claimant may prove that he is a "child" of a deceased number holder by showing he could inherit the number holder's property as the number holder's child under the intestacy law of the state where the number holder was domiciled when he died, in this case Alabama. See § 216(h)(2)(A) of the Social Security Act (Act), 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1). Under Alabama intestacy law, a person born out of wedlock is the child of the father, if paternity is established by clear and convincing proof. See Ala. Code § 43-8-48(2) (1982). Under the Alabama Uniform Parentage Act, proof of paternity may be established by genetic test results that show a 97 percent or greater probability of paternity. See Ala. Code § 26-17-13(a)(3) (1994). While there does not appear to be an Alabama case applying the Uniform Parentage Act standard to intestacy cases, the Georgia Court of Appeals has applied the 97% genetic test standard to establish a rebuttable presumption that "a child born out of wedlock could still have inherited from his father . . . ." Moore v. Mack, 598 S.E.2d 525, 529 (Ga. App. 2004). Furthermore, the Supreme Court of Alabama has declared, "The genetics test results received into evidence are virtually conclusive . . . " on the issue of paternity. Re C.V. v. J.M.J and T.F.J., 810 So.2d 700, 716 (Ala. 2001). "Virtually conclusive" evidence should satisfy the "clear and convincing" standard of the intestacy statute.

Proof of siblingship to the child of a number holder does not automatically equal proof of a right to inherit from that number holder through intestacy. An individual may be deemed the child of a number holder for reasons other than his right to inherit under state intestacy law. See sections 216(h)(2)(B), 216(h)(3)(C) of the Act, 42 U.S.C. §§ 416(h)(2)(B), 416(h)(3)(C)(ii); 20 C.F.R. §§ 404.355(a)(2), 404.355(a)(4). Such an individual's siblings would not necessarily acquire a right to inherit simply by their status as siblings.

However, we believe that on the facts of this case, the evidence of siblingship together with the other evidence can establish C2 as the child of the DNH for purposes of intestate succession under Alabama law. The DNH is C1's father under Alabama intestacy law. An individual is the father of a child if "[a]fter the child's birth, he and the child's natural mother have married . . . and . . . With his consent, he is named as the child's father on the child's birth certificate . . . ." Ala. Code § 26-17-5(a)(3)(b). C1 and C2 have different mothers and therefore may only be half-siblings through the father. Thus, the necessary implication of the 99.97% probability of siblingship is a 99.97% probability that C1's father is C2's father. Since the DNH is C1's father, and since C1 and C2 can only be half-siblings though the father, we interpret the genetic test result here to show a 99.97% likelihood that the DNH is the C2's natural father.

There does not appear to be any requirement under Alabama law for accreditation for testing laboratories in uncontested intestacy proceedings. Therefore, we do not believe this is an issue in the present case.

CONCLUSION

For the foregoing reasons, we recommend that Justin be treated as Duane 's for Agency purposes

Mary Ann. Sloan

Regional Chief Counsel

Rollin Mathis

Assistant Regional Counsel

Under Alabama law, DNA test results showing a high probability of grandparentage are not sufficient to establish a presumption of paternity. Additionally, the testing of grandparents would not be sufficient to establish legitimation of the child as only the father can file a petition to legitimate the child.

Although the grandparents' DNA tests are not sufficient to establish paternity, if an SSA adjudicator were to find the claimant entitled based on DNA test results submitted with an application, benefits would be payable from the date of the testing.

QUESTION

Whether DNA evidence obtained from the alleged grandparents of a deceased number holder is sufficient to establish a presumption of paternity under Alabama Law?

Whether the probability of grandpaternity meets the legal standard of the law?

Whether a child can be legitimated or acquire inheritance rights based on the grandparent's DNA?

If the child meets the requirements for an illegitimate child with inheritance rights, can the child be paid retroactively from the date of the DNA findings?

BACKGROUND

Anthony (the number holder) died on March XX, 1992 in Talladega, Alabama. Diletha (Claimant's mother) filed for surviving child's benefits for Brandy (Claimant) on the number holder's wage record on March 19, 1992. This claim was denied for lack of child relationship evidence. Another application, filed on November XX, 2004, was also denied for similar reasons. A third application was filed on March XX, 2005. This application was submitted with DNA testing results performed on the number holder's alleged parents (Nellie and Harold ), the Claimant and her mother. The DNA test results concluded that there was a 99.9999% probability of grandparentage.

DISCUSSION

DNA test results that show a high probability of grandparentage do not establish a presumption of paternity under Alabama law. Section 26-17-5 of the Alabama Code enumerates all the factual situations where the presumption of paternity would arise. For example, the presumption arises when the child is born during a marriage or within 300 days after the end of a marriage, where there is an invalid marriage under state law, where there has been a written acknowledgement of paternity or when an individual is obligated to support the child voluntarily or through a court order. A presumption of paternity also arises through DNA testing. Ala. Code § 26-17-13(3) states: "Genetic test results which indicate a 97 percent or greater probability that the alleged father is the biological or natural father of the minor child shall create a presumption of paternity that the alleged father is in fact the father of the child. This presumption may be rebutted only by clear and convincing evidence." The probability of the grandpaternity would not meet the legal definition of the law for the presumption of paternity. The statue provides that the testing should demonstrate the father's relationship with the child.

Furthermore, the DNA testing done on the purported grandparents would not satisfy the legal requirements for legitimation of the child under Alabama law. The father of the child is the only one who can file a petition to legitimate a child. There are no statutory provisions for posthumous legitimation. See Ala. Code § 26-11-2 (2005).

We have also concluded that the results of DNA testing done on grandparents, with no additional supporting information, would not likely establish that Brandy is the illegitimate child of the number holder. Alabama Code § 43-8-48 states that for purposes of intestate succession, a relationship of parent and child must be established to determine succession and the paternity must be established by an adjudication before the death of the father or established thereafter by clear and convincing proof (emphasis supplied). Clear and convincing evidence is defined in Alabama statutes as "evidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion. Proof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt." Ala. Code § 6-11-20(b)(4) (2005).

We reviewed several Alabama cases where a paternity determination was an issue and the clear and convincing evidence standard was applied. None of the cases relied on DNA testing on the putative father's relatives. The genetic testing was always done on the father. See e.g. K.H.M. v. D.L.I., Jr., 895 So.2d 950 (Ala. 2003). As a result, we have further concluded that a DNA test done on grandparents does not clearly establish that the Claimant is the child of the number holder. At a minimum, additional evidence would be necessary to verify that the individuals tested were the biological parents of the number holder and to also exclude the possibility that other individuals in the family could be the father of the child. As a result, we do not feel that Alabama courts would determine that Claimant was entitled to inherit a share of the number holder's intestate estate based solely on evidence of DNA testing done on "alleged" grandparents. Additional evidence would be necessary to satisfy the clear and convincing evidentiary standard.

You also asked whether a child status finding based on grandparent DNA tests results would entitle a child to benefits for a period prior to the DNA test results. POMS RS 00203.005 states that a child entitled to surviving child's benefits will be entitled to a monthly benefit effective with the first month in which all of the eligibility requirements are met during any part of that month. As noted above, granting benefits in this case, based on the evidence in the record, seems unlikely. Nevertheless, if an SSA adjudicator were to find Claimant entitled based on the DNA test results submitted with the application for benefits, benefits would be payable from the date of the testing.

CONCLUSION

 

Evidence of DNA testing excluding the NH as the father of the entitled child constitutes clear and convincing evidence rebutting the presumption of legitimacy under Alabama law. In this case the decision to entitle the child may be reopened.

You have requested our opinion on whether DNA testing can be utilized to rebut the presumption of legitimacy under the laws of the state of Alabama. Your specific query is whether a DNA test presented in the following factual scenario would warrant a reopening of the original determination. Robert was born on July to James and Grace. They were married on May XX, 1984 and divorced in December 1986. James died in the state of Alabama on September XX, 2000 and an application for survivor's benefits was filed on behalf of Robert on November XX, 2000. Benefits were awarded based on the submission of a birth certificate with the application showing James as the father of Robert.

In September 2001, Virginia, (James's widow), requested a re-opening of the application filed on behalf of Robert . She submitted a copy of a DNA test with her request. The test was performed by the University of Alabama Health Services Foundation and dated December XX, 1998 (prior to the wage earner's death). The DNA testing excluded James as the father of Robert . You further noted that when James applied for disability benefits in November 1998, he did not list Robert as his child.

Alabama Code Section 26-17-5(a)(1) provides that:

(a) A man is presumed to be the natural father of a child if any of the following apply:

(1) He and the child's natural mother are or have been married to each other and the child is born during the marriage."

(b) A presumption of paternity under this section may be rebutted in an appropriate action only by clear and convincing evidence.

It has long been established in Alabama that the presumption of legitimacy from marriage may be rebutted. McCrary v. Matthews, 179 So. 367 (Ala. 1938). The presumption may be rebutted by competent and relevant evidence or clear and convincing evidence showing that it is naturally, physically, or scientifically impossible for the husband to be the father of the child. Leonard v. Leonard, 360 So.2d 710 (Ala.1978) citing Arthur v. Arthur, 77 So.2d 477 (Ala. 1955). Alabama courts have determined that DNA testing is acceptable evidence to determine the paternity of a child. See e.g. State ex rel. C.T.G. v. M.A.B., 723 So.2d 644 (Ala. 1997). Therefore, evidence of DNA testing excluding James as the father of Robert would be permissible evidence in rebutting the presumption of legitimacy in the state of Alabama. Since benefits were awarded based on the November 2000 application and James's widow requested reopening in September 2001, SSA may reopen the decision for any reason. 20 C.F.R. §404.988(a). The date SSA begins an investigation into whether to reopen, rather than the date of the actual reopening, generally governs which reopening provision applies. 20 C.F.R. §404.991a. Moreover, even if Virginia's reopening request had arrived more than 12 months after the initial determination, the DNA test results would qualify as new and material evidence that would establish good cause for reopening pursuant to 20 C.F.R. §§ 404.988(b) and 404.989(a)(1).

After the NH's death, an Alabama District Court issued an order adjudging the NH to be the child claimant's father. The court indicated that its order was based on DNA test results. Although the test results were not submitted to SSA, the court found that they constituted clear and convincing evidence, and clearly relied on Alabama's statutory presumption of paternity. Inasmuch as the child's paternity has been established through an adjudication supported by clear and convincing evidence, she may inherit from NH through intestate succession, and would be entitled to child's benefits under section 216(h)(2)(A) of the Act.

CAUTION: If, in another case, an Alabama court order results from uncontested proceedings and is not based on a statutory presumption of paternity or other State law, the claim should be referred to the regional chief counsel for a determination of whether the court order is based on clear and convincing evidence.

You have requested our opinion as to whether, under Alabama law, Tamera is entitled to child's benefits on the earnings of the deceased number holder (NH), Keoandra . It is our opinion that paternity has been established through an adjudication supported by clear and convincing evidence, and that Tamera is entitled to child's benefits on the NH's record.

The facts presented are that on March XX, 2000, Christina applied for child's benefits on behalf of her minor daughter, Tamera, based on the earnings record of the deceased NH. No father is named on Tamera's Alabama Certificate of Live Birth. Her date of birth is November. On February 17, 2000, the District Court for Colbert County, Alabama, issued an order adjudging the deceased NH to be Tamera's natural father based on paternity DNA test results. The DNA test results are not in the submitted materials.

In 1982, the Alabama legislature adopted a version of the Uniform Probate Code which became effective January 1, 1983. The uniform code provides, at Ala. Code 1975 § 43-8-48(2)(b), that paternity of an illegitimate may be established after the death of the father through an adjudication supported by clear and convincing evidence. When so established, such a child may inherit from the father through intestate succession. Cotton v. Terry, 495 So. 2d 1077, 1078-79 (Ala. 1986). "(A)t least two Alabama statutes provide for a determination of the paternity of a child after the death of the alleged father." Valley Forge Insurance Company v. Alexander, 640 So. 2d 925, 930 (Ala. 1994). The Probate Code allows the probate court to determine paternity for the purposes of intestate succession, Ala. Code 1975 §§ 43-8-1, 43-8-48, and the Alabama Uniform Parentage Act (UPA) allows the juvenile or family court division of the district or circuit court to determine paternity in proceedings filed under the UPA. Ala. Code 1975 §§ 26-17-5, 26-17-10. Section 26-17-13(3) of the Alabama UPA provides that evidence relating to paternity may include:

Genetic test results, weighed in accordance with evidence, if available, of the statistical probability of the alleged father's paternity. Genetic test results which indicate a 97 percent or greater probability that the alleged father is the biological or natural father of the minor child shall create a presumption of paternity that the alleged father is in fact the father of the child. This presumption may be rebutted only by clear and convincing evidence.

As previously stated, the District Court for Colbert County, Alabama, issued an order dated February 17, 2000, adjudging the NH to be Tamera's natural father. The Court indicated its order was based on DNA test results. Although the DNA test results supporting the District Court's order are not in the materials submitted to SSA, the Court based its adjudication on these test results and found they constituted clear and convincing evidence.

Inasmuch as Tamara's paternity has been established through an adjudication supported by clear and convincing evidence, she may inherit from the NH through intestate succession, and would be entitled to child's benefits pursuant to 42 U.S.C. § 416(h)(2)(A).

We note that in this claim, the Court cited to DNA testing in its ruling and clearly relied on Alabama's statutory presumption of paternity. If, in another case, an Alabama Court order results from uncontested proceedings and is not based on a statutory presumption of paternity or other State law, the claim should be referred to this office for a determination of whether the Court order is based on clear and convincing evidence. Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1967).

A DNA genetic test conducted on the NH's brother, which established a 99.71% probability of paternity for the NH, is sufficient under Alabama law to establish a presumption of paternity that can only be rebutted by clear and convincing evidence. There is no clear and convincing evidence to rebut the presumption in this case.

This is in response to your memorandum dated May 13, 1999, requesting an opinion regarding whether a DNA test performed on the brother of the deceased number holder is sufficient to establish paternity and entitle a child to survivor's benefits on the number holder's record. We believe that under Alabama law, the DNA genetic testing evidence is sufficient to establish the number holder's paternity, and that the application for survivor's benefits should be granted.

Tamika (the "mother") filed for benefits for Kavon as the child of Mark (the "number holder"). The mother alleged that the number holder, who was domiciled in Alabama and died on May XX, 1991, was the father of Kavon , who was born on October. The mother alleged that Kavon was conceived during a time when she was dating and having sexual relations with the number holder, and that she was not having sexual relations with anyone else during that time. The evidence offered to establish paternity consisted of the mother's oral statements, and statements by the deceased number holder's mother and brother that the number holder told them the child was his. The Agency found this evidence insufficient to establish paternity under Alabama law. Subsequent to the reconsideration denial, the number holder's brother underwent DNA testing at a laboratory certified by the American Association of Blood Banks. The DNA test results established the probability of paternity for the number holder as 99.71%, as compared to that of an unrelated, untested male of the black population.

Our research establishes that under Alabama law, any scientific test recognized by the courts that has been conducted in accordance with established scientific principles is admissible in court to establish paternity. Ala. Code § 26-17A-1(a) (1975). A presumption of paternity that can be "rebutted only by clear and convincing evidence" is created by genetic test results that indicate a 97 percent or greater probability that the alleged father is the biological father of the child. Ala. Code § 26-17-13(a)(3) (1975). Genetic identification technology through DNA testing is specifically recognized by Alabama statute as generally accepted by the relevant scientific community. Ala. Code § 36-18-20 (1975). In addition, DNA tests are identified by Alabama statute as tests that may be ordered by a court for the purpose of establishing paternity. Ala. Code § 26-17A-1(a) (1975).

Our research revealed no statutory or case law in Alabama that specifically addressed the acceptability of results from a DNA test conducted on a relative to establish paternity. Nonetheless, in light of the statutory recognition granted to DNA testing, we believe that the Alabama courts would accept the report of the accredited laboratory that conducted the test in this case that a 99.71% probability of paternity by the number holder exists. The courts have recognized the statement of the statistical probability of paternity as being a critical factor in the admissibility of blood test results into evidence. Scott v. State of Alabama, 500 So. 2d 469, 470 (1986). In this case, the statistical probability of the number holder's paternity (99.71%) was provided in the conclusion of the DNA test report, on the basis of tests performed on his brother.

As there was no Alabama law directly on point, we researched the law in surrounding states on this issue. The Mississippi Supreme Court has recognized that DNA blood matching can be performed on the parents of a deceased putative father to determine paternity. In the Matter of the Estate of R~ , 678 So. 2d 660, 661 (1996). In Sudwischer v. Estate of Paul Hoffpauir, 589 So. 2d 474, 476 (1991), the Louisiana Supreme Court held that the trial court should order DNA testing of the deceased putative father's daughter to determine the probability that the daughter and the alleged putative daughter were related. The court held that results establishing that the two daughters were related would be relevant evidence that could be considered in evaluating the putative daughter's paternity claim. Id. at 475. In Tipps v. Metropolitan Life Insurance Company, 768 F. Supp. 577, 580 (S.D. Tex. 1991), the court, applying Texas law, held that DNA testing conducted on the deceased putative father's parents, legitimate son, and putative daughter was admissible to establish that the putative father was not the biological father of the putative daughter. The New Jersey courts have acknowledged the inherent power of the courts to order relatives of deceased individuals to submit to DNA testing if it is needed to adjudicate a genuine issue of paternity. In the Matter of the Estate of P~ , 245 N.J. Super. 39, 44, 583 A.2d 782, 784 (1990). Our research did not reveal any case or statutory law precluding the use of DNA or other genetic test results on relatives of a putative father to establish paternity.

We are attaching hereto an opinion from the Office of General Counsel, Region V, Chicago, that the results of blood tests performed on the father and brother of a deceased wage earner can be used to establish paternity under Minnesota law.

Alabama law does not have specific accreditation requirements for test laboratories. The relevant statutes require only that the test be conducted by a "qualified expert approved by the court" and state that the expert, if called to testify, will be subject to cross-examination by the parties. Ala. Code §§ 26-17-12 (b), 26-17A-1(b) (1975).

It is our opinion that the DNA genetic test conducted on the number holder's brother, which established a 99.71% probability of paternity for the number holder, is sufficient under Alabama law to establish a presumption of paternity that can only be rebutted by clear and convincing evidence. Ala. Code § 26-17-13 (a)(3) (1975). There is no clear and convincing evidence to rebut the presumption in this case. Accordingly, we recommend that the applications for surviving child's benefits for Kavon be granted.

PARENT AND CHILD — FEDERAL DEFINITION OF "CHILD" — AL

PARENT AND CHILD — FEDERAL DEFINITION OF "CHILD" — ACKNOWLEDGMENT OF PATERNITY — AL

Under Alabama law, the "clear and convincing" evidence standard requires that the trier of facts be more than reasonably satisfied by the evidence and requires that the evidence be clear, unequivocal and free from suspicion.

( Gregory (DNH) - A/N ~ - RAIV [W~] - to ARC, Progs., Atl., 08/29/85)

According to your memorandum the child applicants (Gregory) cannot be entitled to child's benefits pursuant to any of the provisions in Section 216(h) (3) of the Social Security Act because there is no evidence of any support, acknowledgment, court order or decree. The only remaining statutory basis for entitlement is Section 216(h) (2). Since there is no evidence that the wage earner went through a marriage ceremony with either mother of the child applicants, the child applicants must satisfy the inheritance criteria of Section 216(h) (2) (A) of the Social Security Act 'to be entitled to child's benefits on the earnings record of the deceased insured. According to Section 216(h) (2) (A) where the insured is deceased, an applicant is the child of the insured if the courts of the state in which the insured died domiciled would entitle such applicant(s) to an intestate share of the deceased wage earner's personal property.

You have specifically asked whether the evidence outlined in your memorandum was sufficient to entitle either of the applicants under Alabama law.

Since the insured died domiciled in Alabama on July XX, 1984, the inheritance rights of the child applicants would be governed by the Alabama intestacy law in effect at the time of the insured's death. Pursuant to Ala.Code Ann. § 43-8-48(2), paternity may be established for purposes of intestate succession by an adjudication after the death of the father provided paternity is established by "clear and convincing" evidence. Although an adjudication is specifically required by the subject statute and there is no evidence of any judicial determination of paternity regarding either child applicant in the present matter, the Social Security Administration, nevertheless, must apply Alabama law to determine whether the Alabama courts would find the evidence of record sufficient to establish paternity for purposes of intestate succession. (Henry , Roosevelt ; L.C. - OGC [S~] - to Regional Attorney, Atl., 11/23/82). A copy of this opinion is attached. The applicable standard of proof for establishing paternity pursuant to Ala.Code Ann. §43-8-48(2) is "clear and convincing" evidence.

Under Alabama law, paternity proceedings generally are civil actions wherein the trier of facts must be reasonably satisfied from the evidence that the defendant is the father of the child involved. Keener v. State, 347 So.2d 398 (1977); Chew v. State of Alabama, 394 So.2d 65 (1981). In Everage v. Gibson, 372 So.2d 829 (1979), the Alabama Supreme Court made it clear that the adjudication of paternity under the reasonably satisfied civil evidence standard also legitimated that child for purposes of establishing that child's right to intestate succession. However, the paternity action must have been commenced within two years of the child's birth and during the father's lifetime. Everage v. Gibson supra; Shelly v. Woodyard, 382 So.2d 516 (1980).

Effective January 1, 1983, however, the Alabama legislature through Ala.Code Ann. §43-8-48(2)b changed the rule set out in Everage v. Gibson, supra, by allowing for the adjudication of paternity for purposes of intestate succession after the death of the father but required that paternity in such event be established by a higher judicial standard of evidence described as "clear and convincing".

This office has found no cases defining "clear and convincing" for purposes of Ala.Code Ann. §43-8-48(2)b. In a prior opinion from this office, a similar Tennessee inheritance statute was analyzed for purposes of applying the "clear and convincing" evidence standard. Although not controlling in Alabama, the discussion in that opinion is instructive in the application of the "clear and convincing" evidence standard. ( John - SSN ~ ; Jesse - SSN ~ - RAIV - Stephens] - to Deputy Assistant Regional Commissioner - May 27, 1980). A copy of this opinion is attached.

To satisfy the "clear and convincing" standard, Alabama case law has used the terms "clear", "definite", and "unequivocal", to describe this higher quality of evidence but has also conceded that a precise definition of the phrase "clear and convincing" is difficult. Edwards v. Sentell, 208 So.2d 914 (1968).

In Edwards v. Sentell, supra, the court wrestled with the "clear and convincing" evidence standard and made the following observation which is equally applicable to the evaluation of the evidence which is the subject of this opinion:

"While a precise definition of the phrase 'clear and convincing' is difficult, it serves as a strong admonition to the trier of fact to bear in mind that the deceased is not available and that those supporting the claim have the field to themselves, limited only by their own conscience and the practiced eye and ear of the trial judge." Edwards v. Sentell, supra, p. 916.

Although the "clear and convincing" standard of proof is somewhat nebulous and denies a precise definition, it requires that the trier of fact be more than reasonably satisfied by the evidence. It is the opinion of this office that you would be justified in concluding that the "clear and convincing" evidence standard has been met if you are satisfied that the evidence of paternity regarding the applicants Gregory and W~ is credible, clear, unequivocal and free from suspicion.

ILLEGITIMACY AS AFFECTING INHERITANCE RIGHTS —ALABAMA

Handley v. Schweiker, 697 ?.2d 999 (11th Cir. 1983) should be limited to its facts.

(Alabama Legitimation and Inheritance Law - POMS GN T00306.135 - Handley V. Schweiker - RAIV [W~], to Asso. Comm., OPP, 11/18/83)

ILLEGITIMACY AS AFFECTING INHERITANCE RIGHTS — ALABAMA

Effective January 1, 1983, the relationship of father and child is established in Alabama for purposes of intestate succession if paternity is established by an adjudication before the death of the father or is established thereafter by clear and convincing proof.

(Alabama Legitimation and Inheritance Law - POMS GN T00306.135 - Handiey V. Schweiker - RAIV [W~], to Asso. Comm., OPP, 11/18/83)

In your memorandum you stated that the Alabama entry in Program Operations Manual System (POMS) GN T00306.135 should be revised to reflect the decision in Handley v. Schweiker, 697 F.2d 999 (11th Cir. 1983) and asked us to provide language for revising the Alabama entry to include applicable effective dates. In addition, you made reference to a request from the Southeastern Program Service Center for language revising the Alabama entry following the recent amendments to the Alabama intestacy statute. However, we are unaware of any such request.

Subsequent to your memorandum, the Secretary voiced her disagreement with the H~ decision and sought a rehearing. The rehearing was denied on April 21, 1983. An Order of Reversal was entered by the United States District Court, Northern District of Alabama, on May 18, 1983 in accordance with the May 6, 1983 mandate from the United States Court of Appeals for the Eleventh Circuit. In a transmittal to the Department of Justice dated June 24, 1983 the Office of General Counsel, Department of Health and Human Services, recommended against seeking a writ of certiorari in H~ although expressing concern about several aspects of the H~ decision. The General Counsel was of the opinion H~ can be limited to its facts. Should H~ be troublesome to the Social Security Administration in the future, the General Counsel advised an appeal of a similar case would be considered.

Since your memorandum preceded by several months the final resolution of H~ and the General Counsel's view of the limited application of H~, we are reluctant to suggest any revision of the POMS entry for Alabama based upon the H~ decision under these circumstances. Should a case similar to H~ arise, it should be submitted to this office for consideration.

However, a revision of the Alabama entry of POMS GN 00306.135 does appear to be appropriate. The Alabama legislature has recently expanded by statutory amendment the opportunities for children born out of wedlock to take an intestate child's share of their natural father's estate. The new legislation permits establishing paternity even after the death of the alleged natural father provided paternity is established by clear and convincing evidence. Effective January 1, 1983, Ala. Code. Ann. §43-8-48(2), states that the relationship of father and child is established for purposes of intestate succession if:

(a) the natural parents participated in a marriage ceremony before or after the birth of the child, even though the attempted marriage is void; or,

(b) the paternity is established by an adjudication before the death of the father or is established thereafter by clear and convincing proof ....

Therefore, it is recommended that POMS GN 00306.135 entry and specifically the language "(3)(I) effective June 1, 1979, father before his death is adjudged to be the father in a paternity proceeding under Alabama law' be amended by adding thereto the following: 'Effective January 1, 1983, paternity is established by an adjudication before the death of the father or is established thereafter by clear and convincing proof.'