NH’s Certificate of Death indicates he was domiciled in Mississippi when he died, therefore, we look to Mississippi intestacy law to determine whether the Claimant is NH’s child for purposes of section 216(h)(2)(A) of the Act. DNA test results showed a 99.99% probability that the NH’s father is related to Claimant as a second-degree relative. A Mississippi Court issued an Order of Filiation and adjudged that the Claimant is NH’s biological, legitimate and legal child. Based on the information provided, the claimant is the child of the number holder for determining the claimant’s eligibility for CIB on the number holder’s earnings record, and the effective month of the relationship is August 2015, the month of the court order indicating that the claimant is related to the number holder.

QUESTION

You asked whether the claimant is the child of the number holder for determining the claimant’s eligibility for child’s insurance benefits (CIB) on the number holder’s earnings record based on an Order of Filiation from the Chancery Court of Harrison County, Mississippi, ordering and adjudging that the claimant is the legitimate and legal child of the number holder. If so, you also asked whether the first month of entitlement to benefits would be August 2015, the month the court issued the Order of Filiation.

OPINION

Based on the information provided, the claimant is the child of the number holder for determining the claimant’s eligibility for CIB on the number holder’s earnings record, and the effective month of the relationship is August 2015, the month of the court order indicating that the claimant is related to the number holder.

BACKGROUND

B~ (Claimant) applied for child’s survivor’s benefits on the earnings record of J~, the number holder (NH). According to the information provided, Claimant’s mother and NH were never married. Rather, an Alabama Certificate of Marriage dated July XX, 2010, shows Claimant’s mother married J2~. A Certificate of Death shows NH died on January XX, 2014, and lists H~ County, Mississippi, as NH’s county of residence. NH’s death certificate lists G~ as NH’s father. A Certificate of Live Birth shows Claimant was born on September XX, 2014, and lists Claimant’s mother and J2~ as the parents. At the time of NH’s death, Claimant’s mother stated she was separated from J2~ and lived with NH. Claimant’s mother provided no independent evidence that she lived with NH. DNA samples were collected on September XX, 2014, from Claimant, Claimant’s mother, and NH’s father. DNA test results showed a 99.99% probability that NH’s father is related to Claimant as a second-degree relative.

On August XX, 2015, the Chancery Court of H~ County, Mississippi, issued an Order of Filiation based on a joint petition filed by Claimant’s mother, NH’s father, NH’s mother, and NH’s brother. The court ordered and adjudged that Claimant is NH’s legitimate and legal child, and ordered that Claimant’s name be changed to B~ to reflect Claimant’s legitimacy. The court also ordered and adjudged that Claimant’s mother and NH are Claimant’s biological parents. The court noted that Claimant’s mother and NH’s survivors all acknowledged Claimant as NH’s biological child. The court found the DNA test results provided scientific evidence of a familial link between Claimant and NH’s father. The court also ordered and adjudged that Claimant shall receive Social Security benefits as NH’s legitimate, biological child, and shall inherit from NH under Mississippi statutes of descent and distribution.

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) (2015).^[1] “Child” includes “the child” of an insured individual. See Act § 216(e); 20 C.F.R. § 404.354; Astrue v. Capato, 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) of the Act, 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 at the time of his death. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4).^[2]

 

NH’s Certificate of Death indicates he was domiciled in Mississippi when he died. Therefore, we look to Mississippi intestacy law to determine whether Claimant is NH’s child for purposes of section 216(h)(2)(A) of the Act. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4). Under Mississippi law, the intestate personal property of a deceased person descends to his or her heirs. See Miss. Code Ann. § 91-1-11 (West 2015). Heirs include a decedent’s children. See Clark Sand Co., Inc. v. Kelly, 60 So. 3d 149, 159 (Miss. 2011) (citing Miss. Code Ann. §§ 91-1-1 to 91-1-11).

Mississippi law establishes a rebuttable presumption that a child born during a marriage is legitimate, i.e., the child is the child of the mother’s husband. See Rafferty v. Perkins, 757 So. 2d 992, 995 (Miss. 2000); Perkins v. Thompson (In re Estate of Taylor), 609 So. 2d 390, 394 (Miss. 1992). The presumption of legitimacy is one of the strongest known to Mississippi law. See Perkins, 609 So. 2d at 394. “A party challenging legitimacy may prevail if he proves beyond a reasonable doubt that the legal husband of the mother is not, in fact, the biological father.” Id. “The burden notwithstanding, (dis)proving paternity is a matter of fact, and courts proceed as with other issues of fact. Any evidence tending to support or deny the fact may be considered.” Id.

The question in the end is whether the court can say beyond a reasonable doubt, given the totality of the circumstances as shown by all of the evidence before it, that the husband is not the father. Necessarily, this standard requires a sensitive assessment of the evidence of each individual case.

Id. “At common law, [the presumption of legitimacy] was rebutted by showing either that the husband was incapable of procreating or that the mother and husband were physically separated at the time of conception.” M.A. v. M.D. (In re B.N.N.), 928 So. 2d 197, 200 (Miss. Ct. App. 2006); see Perkins, 609 So. 2d at 394. However, “the presumption has bowed to realism.” Perkins, 609 So. 2d at 394.

 

In particular, “[s]cientific and technological advancements have resulted in other means of rebutting this presumption, such as paternity testing.” M.A., 928 So. 2d at 200 (citing Miss. Code Ann. §§ 93-9-21, 93-9-27);^[3] Perkins, 609 So. 2d at 394 (noting that Mississippi courts “accept that blood tests can produce a high level of discrimination either excluding or including a given male as the father of a particular child”) (internal quotation marks omitted). While “[g]enetic test results are admissible as evidence of paternity, but are not necessarily conclusive,” In re Estate of Grubbs, 753 So. 2d 1043, 1052 (Miss. 2000), genetic testing “may rebut the presumption of legitimacy.” Rafferty, 757 So. 2d at 995.

Here, the information provided offers strong evidence to rebut the presumption that Claimant is the legitimate child of J2~, who is identified as the husband of Claimant’s mother on the Certificate of Marriage, and is identified as Claimant’s father on the Certificate of Live Birth. The DNA testing showed a 99.99% probability Claimant is related to NH’s father as a second-degree relative. The DNA testing does not specifically disprove that J2~ is Claimant’s child, but given the highly unlikely possibility that B~ is related to NH’s father, the DNA testing strongly indicates that J2~ is not Claimant’s father.

The court’s Order of Filiation also provides evidence that Claimant is not J2~’s child. However, the agency is not bound by a state trial court’s determination to which it was not a party. See Social Security Ruling (SSR) 83-37c. Nevertheless, the agency is not free to ignore an adjudication of a state court where the following prerequisites exist: (1) an issue in a claim for Social Security benefits previously has been determined by a State court of competent jurisdiction; (2) this 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. See SSR 83-37c (adopting Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973), as national policy).

 

Here, the court’s Order of Filiation does not meet all the prerequisites in SSR 83-37c. The court had jurisdiction to decide the issue of Claimant’s legitimacy, which fell within the general category of domestic relations law. See Miss. Code Ann. § 93-17-1(1) (stating that the chancery court shall have jurisdiction upon petition to make legitimate any offspring of petitioner not born in wedlock). Also, the court’s determination appears to be consistent with Mississippi law. However, nothing in the Order of Filiation suggests parties with opposing interests genuinely contested the issue of whether NH is Claimant’s father. No guardian ad litem was appointed to represent Claimant’s interests. See, e.g., Baker by Williams v. Williams, 503 So. 2d 249, 252-53 (Miss. 1987) (acknowledging that the interests of mother may not be the same as the interests of child in paternity matter, and lower court needed to consider appointing guardian ad litem for child). Also, there is no indication that J2~ was a party, despite being identified on the Certificate of Marriage as the husband of Claimant’s mother and on the Certificate of Live Birth as Claimant’s father. Further, although the court ordered and adjudged that Claimant shall receive Social Security benefits as NH’s legitimate biological child. However, the agency was not a party and court did not have jurisdiction to order the agency to take such action. Therefore, the court’s finding that Claimant is NH’s legitimate child is not entitled to any special significance.

Nevertheless, the court’s determination provides further evidence to rebut the presumption that J2~ is Claimant’s father. The court ordered and adjudged that Claimant is NH’s biological, legitimate, and legal child. The court noted that Claimant’s mother and all of NH’s survivors acknowledged Claimant as NH’s biological child. The court order, together with the DNA test results and the statements mentioned in the court order, provides evidence beyond a reasonable doubt to rebut the presumption that Claimant is the legitimate child of J2~. See Rafferty, 757 So. 2d at 995; Perkins, 609 So. 2d at 394.

Although the court legitimized Claimant in the same order, for purposes of the following legal analysis we assume Claimant is illegitimate because the evidence presented actually rebutted the presumption of legitimacy. Mississippi intestacy law provides that an illegitimate child shall inherit from her father if:

(a) The natural parents participated in a marriage ceremony before the birth of the child, even though the marriage was subsequently declared null and void or dissolved by a court; or

(b) There has been an adjudication of paternity or legitimacy before the death of the intestate; or

(c) There has been an adjudication of paternity after the death of the intestate, based upon clear and convincing evidence, in an heirship proceeding . . .

Miss. Code Ann. § 91-1-15(3) (West 2015).^[4] In the Order of Filiation, the court found that NH and Claimant’s mother were not married when Claimant was born and there is no other evidence showing that NH and Claimant’s mother participated in a marriage ceremony. Further, there is no information that a court adjudicated NH’s paternity or Claimant’s legitimacy before NH’s death. Therefore, Claimant could establish a right to inherit from NH only through an adjudication of paternity after NH’s death based on clear and convincing evidence. See Miss. Code Ann. § 91-1-15(3)(c).

An individual born out-of-wedlock seeking to establish inheritance rights from a deceased putative father “must offer clear and convincing proof of paternity.” Grubbs, 753 So. 2d at 1048 (citing Miss. Code Ann. § 91-1-15(3)(c)). “The requisite standard of clear and convincing evidence reflects the high degree of confidence society demands in adjudications of paternity. The standard serves the interests of legitimate heirs, and of society as a whole, in averting fraudulent claims.” Id. (internal citation, quotation marks, and brackets omitted). The evidence presented must be of sufficient quantity and quality and provide a substantial basis for the trier of fact to conclude that clear and convincing evidence establishes paternity. See Estate of Kendrick v. Gorden, 46 So. 3d 386, 390 (Miss. Ct. App. 2010) (citing Estate of Robinson v. Gusta, 540 So. 2d 30, 33 (Miss. 1989)).

Proving or disproving paternity “is a matter of fact, and . . . [a]ny evidence tending to support or deny the fact may be considered.” Perkins, 609 So. 2d at 394. Mississippi courts “accept that blood tests can produce a high level of discrimination either excluding or including a given male as the father of a particular child.” Id. “Genetic test results are admissible as evidence of paternity, but are not necessarily conclusive.” Grubbs, 753 So. 2d at 1052 (citing Chisolm v. Eakes, 573 So. 2d 764, 767 (Miss. 1990)). The fact finder “may consider the expert testimony [regarding the results of genetic testing] for what it feels the testimony is worth, and may even discard it entirely. Where non-genetic evidence is conflicting, the fact finder must engage in a determination of credibility.” Grubbs, 753 So. 2d at 1052 (citing Chisolm, at 767, 768). “[A]bsent some statutory pronouncement, paternity test results, even those showing a high probability of paternity, cannot be conclusive as a matter of law.” Chisolm, 573 So. 2d at 769. Because “the courts do not recognize blood tests as infallible nor do they accept blood tests as conclusive proof of paternity,” an individual claiming paternity must “produce other evidence to establish his claim of paternity.” Groves v. Slaton, 733 So. 2d 349, 352 (Miss. Ct. App. 1999) (citing Chisolm, 573 So. 2d at 767).

 

Here, the evidence indicated that the DNA testing showed a 99.99% probability that Claimant is related to NH’s father as a second-degree relative. However, NH had a brother, G2~. The DNA evidence did not rule out G2~ as Claimant’s father. Moreover, Claimant’s mother did not provide a statement indicating that NH’s brother, G2~, was not Claimant’s father. Other evidence provided revealed Claimant’s mother reported she no longer lived with J2~ at the time of NH’s death. She stated she was separated from J2~ and lived with NH prior to NH’s death. However, Claimant’s mother did not provide any other evidence to support her claim. Although Claimant’s mother did not provide additional evidence, the state court noted the testimony of Claimant’s mother and NH’s family members, including G2~, stating Claimant was the child of NH. The court ordered and adjudged that that Claimant is NH’s legitimate and legal child and shall inherit from NH under the statutes of descent and distribution of the State of Mississippi. The order did not contain a detailed legal analysis of how Claimant, as an illegitimate child, could inherit from NH based upon clear and convincing evidence. Nevertheless, the court reached that conclusion and legitimized Claimant as the child of NH. Based on the evidence provided, an adjudicator could conclude Claimant is NH’s child under section 216(h)(2)(A) of the Act.

You also asked whether the first month of entitlement to benefits would be August 2015, the month the court issued the Order of Filiation. “An act/event conferring inheritance rights generally has effect only from the date of such act/event.” Program Operations Manual System (POMS) GN 00306.055.A.3. If one piece of evidence satisfies the applicable standard of proof, the effective date is the date of that piece of evidence. See id. If an adjudicator needs more than one piece of evidence to satisfy the applicable standard of proof, the effective date is the date of the latest necessary piece of evidence. See id.

 

Here, establishing NH’s paternity under Mississippi Code Annotated § 91-1-15(3)(c) would confer inheritance rights on Claimant by finding that Claimant is NH’s legitimate child. The court’s order indicates it relied on more than one piece of evidence in reaching its decision, namely the DNA tests and the acknowledgement of Claimant’s mother and all of NH’s survivors that Claimant is NH’s biological child. The DNA tests were reviewed and sworn in September 2014, whereas the other evidence is not dated. In the absence of any other dates, the court Order of Filiation conferring inheritance rights represents the effective date. Thus, Claimant’s status as NH’s child could not be effective before August 2015. See POMS GN 00306.055.A.3.

CONCLUSION

Based on the evidence provided, we believe a Mississippi court would conclude the presumption of paternity is rebutted. We also believe that an adjudicator could determine that there is clear and convincing evidence establishes that Claimant is NH’s child for purposes of Mississippi intestacy law. Therefore, an adjudicator could find that Claimant is NH’s child for the purposes of determining Claimant’s eligibility for CIB on NH’s earnings record. The effective month of the relationship between Claimant and NH is August 2015, the date of the court order.

 

Mary Ann Sloan

Regional Chief Counsel

By: Jennifer L. Patel

Assistant Regional Counsel

 

The NH’s was domiciled in Mississippi at the time of his death, therefore, we look to Mississippi intestacy law to determine whether Claimant is NH’s child for purposes of section 216(h)(2)(A) of the Act. The Mississippi intestacy law provides that an illegitimate child shall inherit from his father if: (a) The natural parents participated in a marriage ceremony before the birth of the child, even though the marriage was eclared null and void or dissolved by a court; or (b) There has been an adjudication of paternity or legitimacy before the death of the intestate; or (c) There has been an adjudication of paternity after the death of the intestate, based upon clear and convincing evidence, in an heirship proceeding. In this case, the NH and claimant’s mother did not participate in a marriage ceremony nor a court adjudicated NH’s paternity or Claimant’s legitimacy before NH’s death. The Claimant can only establish the right to inherit from NH through an adjudication of paternity based on clear and convincing evidence.

The Mississippi’s Uniform Law of Paternity provides that genetic tests establishing a probability of paternity of 98% or greater create a rebuttable presumption of paternity that can be rebutted only by a preponderance of the evidence. The Claimant’s mother provided DNA test results indicating a 99.99% probability that NH is Claimant's father. The testing was based on DNA samples from Claimant and NH. None of the evidence or information provided suggests the DNA test results were not reliable and credible. Therefore, the DNA test results provide substantial evidence that Claimant is NH’s child and arguably create a rebuttable presumption that NH is Claimant’s father. Based on the evidence provided, we believe a Mississippi court would conclude the claimant is the number holder’s child under Mississippi intestacy law. Therefore, the claimant is the number holder’s child for determining the claimant’s eligibility for CIB on the number holder’s earnings record. The effective date of the relationship is the date of the DNA test results.

QUESTION

You asked whether the claimant is the number holder’s child based on DNA test results, statements from the claimant’s mother, and a court order establishing paternity for determining the claimant’s eligibility for child’s insurance benefits (CIB) on the number holder’s earnings record. You also asked whether the claimant would be entitled to retroactive benefits.

OPINION

We believe a Mississippi court would conclude the claimant is the number holder’s child under Mississippi intestacy law. Therefore, the claimant is the number holder’s child for determining the claimant’s eligibility for CIB on the number holder’s earnings record. The effective date of the relationship is the date of the DNA test results.

BACKGROUND

According to the information provided, on March XX, 2014, L~ (Claimant’s mother) applied for CIB on behalf of D~, (Claimant), on the earnings record of T~, the number holder (NH). NH’s death certificate shows he died on March XX, 2010, while domiciled in Mississippi. Claimant’s mother and NH were never married. Claimant’s birth certificate shows that he was born on December, and lists Claimant’s mother and D2~, as his parents. D2~ also signed the birth certificate. Claimant’s mother also reports that D2~ signed “something at child support” acknowledging Claimant as his child. Claimant’s mother and D2~ were never married.

According to Claimant’s mother, she later learned that NH had sexual relations with her on one occasion while she was sleeping, and she began to suspect NH was Claimant’s father. Claimant’s mother also reported NH planned to sign an acknowledgment that he was Claimant’s father but died before taking action. ^[5] Claimant’s mother obtained a court order to have NH’s body exhumed, and DNA samples were collected on January XX, 2014. Test results showed a 99.99% probability that NH was Claimant’s father. Claimant’s mother reports that because of these DNA test results, D2~ is no longer required to pay child support. On August XX, 2014, the Chancery Court of C~ County, Mississippi, issued an Order Establishing Paternity. The court ordered, adjudged, and confirmed Claimant to be NH’s “natural born son” and changed Claimant’s name to E~.

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) (2014). ^[6] “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), by meeting the requirements listed in either section 216(h)(2)(A) or section 216(h)(3)(C) of the Act. ^[7] See id. at 2028. Under section 216(h)(2)(A) of the Act, 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 at the time of his death. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4).

NH’s death certificate shows he was domiciled in Mississippi when he died. Therefore, we look to Mississippi intestacy law to determine whether Claimant is NH’s child for purposes of section 216(h)(2)(A) of the Act. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4); Program Operations Manual System (POMS) PR 01115.027 (PR 13-101). Mississippi intestacy law provides that an illegitimate child shall inherit from his father if:

(a) The natural parents participated in a marriage ceremony before the birth of the child, even though the marriage was subsequently declared null and void or dissolved by a court; or

(b) There has been an adjudication of paternity or legitimacy before the death of the intestate; or

(c) There has been an adjudication of paternity after the death of the intestate, based upon clear and convincing evidence, in an heirship proceeding . . . .

Miss. Code Ann. § 91-1-15(3) (West 2014); see also Miss. Code Ann. § 91-1-15(1)(c) (“‘Illegitimate’ means a person who at the time of his birth was born to natural parents not married to each other and said person was not legitimized by subsequent marriage of said parents or legitimized through a proper judicial proceeding.”); POMS PR 01115.027 (PR 13-101). The information provided does not indicate NH and Claimant’s mother participated in a marriage ceremony or that a court adjudicated NH’s paternity or Claimant’s legitimacy before NH’s death. Therefore, Claimant could establish his right to inherit from NH only through an adjudication of paternity based on clear and convincing evidence. See Miss. Code Ann. § 91-1-15(3)(c). ^[8] An individual born out-of-wedlock seeking to establish inheritance rights from a deceased putative father “must offer clear and convincing proof of paternity.” In re Estate of G~, 753 So. 2d 1043, 1048 (Miss. 2000) (citing Miss. Code Ann. § 91-1-15(3)(c)). “The requisite standard of clear and convincing evidence reflects the high degree of confidence society demands in adjudications of paternity. The standard serves the interests of legitimate heirs, and of society as a whole, in averting fraudulent claims.” Id. (internal citation, quotation marks, and brackets omitted). The evidence presented must be of sufficient quantity and quality and provide a substantial basis for the trier of fact to conclude that clear and convincing evidence establishes paternity. See Estate of Kendrick v. Gorden, 46 So. 3d 386, 390 (Miss. Ct. App. 2010) (citing Estate of Robinson v. Gusta, 540 So. 2d 30, 33 (Miss. 1989)); POMS PR 01115.027 (PR 13-101).

Proving or disproving paternity “is a matter of fact, and . . . [a]ny evidence tending to support or deny the fact may be considered.” In re Estate of T~, 609 So. 2d 390, 394 (Miss. 1992). Mississippi courts “accept that blood tests can produce a high level of discrimination either excluding or including a given male as the father of a particular child.” Id. (internal quotations marks omitted). “Genetic test results are admissible as evidence of paternity, but are not necessarily conclusive.” G~, 753 So. 2d at 1052 (citing Chisolm v. Eakes, 573 So. 2d 764, 767 (Miss. 1990)). The fact finder “may consider the expert testimony [regarding the results of genetic testing] for what it feels the testimony is worth, and may even discard it entirely. Where non-genetic evidence is conflicting, the fact finder must engage in a determination of credibility.” G~, 753 So. 2d at 1052 (citing C~, at 767, 768). “[A]bsent some statutory pronouncement, paternity test results, even those showing a high probability of paternity, cannot be conclusive as a matter of law.” C~, 573 So. 2d at 769. Because “the courts do not recognize blood tests as infallible nor do they accept blood tests as conclusive proof of paternity,” an individual claiming paternity must “produce other evidence to establish his claim of paternity.” Groves v. Slaton, 733 So. 2d 349, 352 (Miss. Ct. App. 1999) (citing C~, 573 So. 2d at 767); POMS PR 01115.027 (PR 13-101).

Mississippi’s Uniform Law of Paternity provides that genetic tests establishing a probability of paternity of 98% or greater create a rebuttable presumption of paternity that can be rebutted only by a preponderance of the evidence. See Miss. Code Ann. § 93-9-27(2); Estate of Smith v. Smith ex rel. Rollins, 130 So. 3d 508, 513 (Miss. 2014). We have not found Mississippi case law that has applied the statutory presumption in cases involving the issue of paternity in determining heirs of an intestate’s estate; however, the Mississippi Supreme Court applied the presumption in determining a deceased’s heirs in wrongful death cases cases involving a wrongful death statute. See id.; Brown v. Jackson (In re Estate of C~), 711 So. 2d 878, 882 (Miss. 1998). An illegitimate child has all the benefits, rights, and remedies in a wrongful death action if he or she establishes the right to inherit from the deceased under Mississippi Code Annotated § 91-1-15. See Miss. Code Ann. § 11-7-13; In re Estate of B~, 755 So. 2d 1108, 1112-13 (Miss. Ct. App. 1999). In Estate of S~, the court considered DNA testing showing 0% possibility that the deceased was the child’s father and a 99.997% likelihood that another man was the father. Citing a paternity case, the Smith court held that “‘[w]here scientific evidence points overwhelmingly towards one man as the father of a child, paternity is established.’” Estate of S~, 130 So. 3d at 513 (quoting Griffith v. Pell, 881 So. 2d 227, 230-31 (Miss. Ct. App.2003)). Thus, we believe a Mississippi court presented with genetic testing showing a 98% or greater probability of paternity at least would need to consider the statutory presumption in Mississippi Code Annotated § 93-9-27(2) in determining paternity under Mississippi Code Annotated § 91-1-15(3)(c). See B~, 711 So. 2d at 882; see also Miss. Code Ann. § 91-1-15 (“The remedy created herein is separate, complete and distinct, but cumulative with the remedies afforded illegitimates as provided by the Mississippi Uniform Law on Paternity”).

Claimant’s mother provided DNA test results indicating a 99.99% probability that NH is Claimant's father. The testing was based on DNA samples from Claimant and NH. None of the evidence or information provided suggests the DNA test results were not reliable and credible. Therefore, the DNA test results provide substantial evidence that Claimant is NH’s child and arguably create a rebuttable presumption that NH is Claimant’s father. See Miss. Code Ann. §§ 91-1-15(3)(c), 93-9-27(2); G~, 753 So. 2d at 1052; B~, 711 So. 2d at 882. As noted above, however, the DNA test results are not conclusive evidence of paternity; and a Mississippi court would require additional evidence to establish NH’s paternity. See G~, 753 So. 2d at 1052; G~, 733 So. 2d at 352.

Although Claimant’s mother provided a chancery court order finding NH is Claimant’s natural parent based solely on the DNA test results, ^[9] Social Security Ruling (SSR) 83-37c provides the agency is not bound by a state trial court’s determination to which it was not a party. However, the agency 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. Because the chancery court’s decision was not genuinely contested, the decision does not satisfy the requirements of SSR 83-37c. Therefore, the agency is not bound by the chancery court order of paternity.

In addition to the DNA test results, the evidence includes statements of Claimant’s mother regarding the circumstances under which she had sexual relations with NH. Although another man, D2~, is listed as the father on Claimant’s birth certificate and had been ordered to pay child support after acknowledging Claimant, D2~ and Claimant’s mother were never married and never lived together. Earlier paternity orders “may be vacated once DNA testing establishes someone other than the named individual is the child’s biological father.” Estate of S~, 130 So. 3d at 513 (citations omitted). In this regard, Claimant’s mother reported that the child support order was rescinded after the DNA test results confirmed that D2~ was not Claimant’s father. Given the available evidence, we believe a Mississippi court, as the chancery court did here, would find that clear and convincing evidence establishes that NH is Claimant’s father for the purposes of Mississippi intestacy law. Therefore, the agency could conclude Claimant is NH’s child under section 216(h)(2)(A) of the Act.

You also asked whether Claimant would be entitled to retroactive CIB. “An act/event conferring inheritance rights generally has effect only from the date of such act/event.” POMS GN 00306.055.A.3. If State law confers inheritance rights based on an adjudication of paternity but does not legitimate the child, and the State law is prospective only, the effective date of the parent-child relationship depends on the evidence needed to satisfy the applicable standard of proof. See id. If one piece of evidence satisfies the applicable standard of proof, the effective date is the date of that piece of evidence. See id. If an adjudicator needs more than one piece of evidence to satisfy the applicable standard of proof, the effective date is the date of the latest necessary piece of evidence. See id.

In Claimant’s case, although establishing NH’s paternity under Mississippi Code Annotated § 91-1-15(3)(c) would confer inheritance rights on Claimant, the statute does not render Claimant NH’s legitimate child. See Miss. Code Ann. § 91-1-15(1)(c) (indicating a person is “illegitimate” if his parents were not married to each other at the time of his birth and “said person was not legitimized by subsequent marriage of said parents or legitimized through a proper judicial proceeding”); cf. Miss. Code Ann. § 93-17-1(1) (stating chancery court shall have jurisdiction upon petition to make legitimate any offspring of petitioner not born in wedlock); Miss. Code Ann. § 93-17-1(2) (conferring legitimacy when father marries mother and acknowledges child); Miss. Code Ann. § 93-17-13 (indicating final adoption decree confers legitimacy on child). Given the DNA test results are the latest necessary piece of evidence needed to establish clear and convincing proof of NH’s paternity, Claimant’s status as NH’s child could not be effective before January XX, 2014, the date of the DNA testing. See POMS GN 00306.055.A.3.

CONCLUSION

We believe a Mississippi court would conclude NH is Claimant’s father under Mississippi intestacy law, and Claimant would be entitled to inherit NH’s intestate property. Therefore, Claimant is NH’s child for determining Claimant’s eligibility for CIB on NH’s earnings record. The effective date of the relationship between Claimant and NH is January XX, 2014, the date of the DNA testing.

Mary Ann Sloan

Regional Chief Counsel

By: Joseph P. Palermo, III

Assistant Regional Counsel

Because the claimant was born after the NH died and the evidence does not indicate claimant was conceived before the NH died or that the claimant’s mother was married when the claimant was born, the claimant could inherit from the NH only if she can establish she is the NH’s child under Mississippi intestacy law regarding children born out-of-wedlock. The record does not provide clear and convincing evidence that the claimant was the NH’s child for the purposes of Mississippi intestacy law. The evidence does not establish that claimant is NH’s child for purposes of Mississippi intestacy law and section 216(h)(2)(A) of the Act. The evidence also does not indicate 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 her eligibility for child’s benefits on NH’s earnings record.

QUESTION

You asked whether the claimant is the child of the number holder for determining the claimant's eligibility for child's insurance benefits (CIB) on the number holder's earnings record where the claimant was born 306 days after the number holder's death.

OPINION

The claimant is not the child on the number holder for determining the claimant's eligibility for CIB on the number holder's earnings record.

BACKGROUND

According to the information provided, D~, the number holder (NH), married S~ (Claimant's mother) on April XX, 2011. SSA records show NH died on April XX, 2012, while a resident of Mississippi.  On February XX, 2013, T~ (Claimant) was born in Mississippi. Claimant's birth certificate does not include her father's name.

On March XX, 2013, Claimant's mother applied on Claimant's behalf for CIB on NH's earnings record. In a child relationship statement (form SSA-2519), an SSA claims representative indicated Claimant's mother reported no court decreed NH to be Claimant's parent and no court ordered NH to contribute to NH's support.  Claimant's mother also reported she had no evidence NH admitted or acknowledged Claimant was his child. Claimant's mother submitted a postpartum medical record indicating Claimant's gestational age was 38 weeks and 2 days; i.e., 268 days.

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) (2013). All references to the Code of Federal Regulations are to the 2013 edition unless otherwise noted. "Child" includes "the child" of an insured individual. See Act § 216(e)(1); 20 C.F.R. § 404.354; Astrue v. Capato, 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 C~, 132 S. Ct. at 2028.  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); Program Operations Manual System (POMS) GN 00306.055.A.1.  "If the mother's marriage ended before the child's birth, State laws generally presume that the child is the natural legitimate child of her husband at the time of conception." POMS GN 00306.020.A.1. However, even if a State's law establishes such a presumption, SSA may question the natural legitimate status of a child if "[t]he child was born more than 287 days after the death of the mother's husband." POMS GN 00306.020.B.5.

SSA records indicate NH was domiciled in Mississippi when he died. Therefore, we look to Mississippi intestacy law to determine whether Claimant is NH's child for the purposes of section 216(h)(2)(A) of the Act. Under Mississippi law, the intestate personal property of a deceased person descends to his or her heirs.  See Miss. Code Ann. § 91-1-11 (West 2013). Heirs include a decedent's children. See Clark Sand Co., Inc. v. Kelly, 60 So. 3d 149, 159 (Miss. 2011) (citing Miss. Code Ann. §§ 91-1-1 to 91-1-11).

A child born during a marriage is presumed to be the child of the mother's husband. See Perkins v. Thompson (In re Estate of T~), 609 So. 2d 390, 394 (Miss. 1992).  However, the marriage of NH and Claimant's mother terminated when NH died. See White v. Smith, 645 So. 2d 875, 880 (Miss. 1994) ("The general rule is that the death of a party in a divorce action prior to the final decree ends the marriage of the parties and cancels the bill of complaint for divorce."); Freeman v. Barnett, 112 So. 161, 162 (Miss. 1927) ("By an absolute divorce the marriage relation is as absolutely destroyed as if dissolved by death.").  Nevertheless, under Mississippi law a child is in existence from the time of conception for purposes of intestate succession, provided the child is born alive and is expected to live. See Harper v. Archer, 4 Smedes & M. 99, 12 Miss. 99, 1845 WL 1978, at *7 (Miss. Err. & App. 1845) ("from the time of conception the infant is in esse, for the purpose of taking any estate which is for his benefit, whether by descent, devise, or under the statute of distributions, provided, however, that the infant be born alive, and after such a period of foetal existence that its continuance in life might be reasonably expected"), cited in Childs v. General Motors Corp., 73 F. Supp. 2d 669, 675 (N.D. Miss. 1999) (holding non-viable fetus at time of decedent's death could recover under wrongful death statute as child of the decedent), and Fizer v. Davis (In re Estate of D~), 706 So. 2d 244, 247 (Miss. 1998) (holding "a preborn child who is viable at the time of a relative's death and is ultimately born alive, is 'living' such that he or she can be a wrongful death beneficiary under the law"); POMS GN 00306.020.A.1. Unlike many other States, Mississippi has not adopted a statute establishing a presumption that a child conceived during a marriage but born after the husband's death is the child of the husband for purposes of intestate succession. See Miss. Code Ann. §§ 91-1-1 to 91-1-31 (West 2013) (Miss. law regarding descent and distribution); Ex parte Ankrom, Nos. 1110176 & 1110219, 2013 WL 135748, at 21 n.11 (Ala. Jan. 11, 2013) (listing State statutes allowing a child born after the father's death to inherit from the father as if he or she had already been born at the time the father died, but citing H~ for Mississippi).

However, the evidence provided does not indicate Claimant was conceived prior to NH's death. Claimant was born 306 days (more than ten months) after NH's death, which is longer than the normal period of gestation. See H~, 1845 WL 1978, at *7 ("Nine months is the usual period of gestation"); see also POMS GN 00306.020.B.5 (stating that a child born more than 287 days of the death of the mother's husband draws into question whether the husband is the child's father).  In addition, the postpartum medical record Claimant's mother provided indicates Claimant's gestation age was 266 days, indicating Claimant was conceived after NH's death. Therefore, the evidence does not establish Claimant was conceived before NH's death or create a presumption that Claimant's is NH's child based on NH's marriage to Claimant's mother.

Because Claimant was born after NH died and the evidence does not indicate Claimant was conceived before NH died or that Claimant's mother was married when Claimant was born, Claimant could inherit from NH only if she can establish she is NH's child under Mississippi intestacy law regarding children born out-of-wedlock.  Under Mississippi intestacy law, an illegitimate child shall inherit from his or her father if:

(a) The natural parents participated in a marriage ceremony before the birth of the child, even though the marriage was subsequently declared null and void or dissolved by a court; or

(b) There has been an adjudication of paternity or legitimacy before the death of the intestate; or

(c) There has been an adjudication of paternity after the death of the intestate, based upon clear and convincing evidence, in an heirship proceeding . . . .

Miss. Code Ann. § 91-1-15(3) (West 2013); see also Miss. Code Ann. § 91-1-15(1)(c) ("'Illegitimate' means a person who at the time of his birth was born to natural parents not married to each other and said person was not legitimized by subsequent marriage of said parents or legitimized through a proper judicial proceeding.").  Although the marriage certificate of NH and Claimant's mother indicates they participated in a marriage ceremony, the evidence provided does not establish that NH was Claimant's natural parent or indicate that the marriage of NH and Claimant's mother was declared null and void or dissolved by a court. See Miss. Code Ann. § 91-1-15(3)(a). The evidence also does not indicate a court adjudicated NH's paternity or Claimant's legitimacy before NH's death. See Miss. Code Ann. § 91-1-15(3)(b). Therefore, Claimant could establish her right to inherit from NH only through an adjudication of paternity based on clear and convincing evidence. See Miss. Code Ann. § 91-1-15(3)(c). Miss. Code Ann. § 91-1-15(3)(c) indicates the action seeking an adjudication of paternity generally must be filed within one year after the death of the intestate. However, Miss. Code Ann. § 91-1-15(5) states the one-year limitation does not apply when determining paternity for the purposes of Social Security benefits. Moreover, SSA "will not apply any State inheritance law requirement that an action to establish paternity must be taken within a specified period of time measured from the worker's death or the child's birth, or that an action to establish paternity must have been started or completed before the worker's death." 20 C.F.R. § 404.355(b)(2).  Furthermore, "[i]f applicable State inheritance law requires a court determination of paternity, [SSA] will not require [the claimant to] obtain such a determination but will decide [the claimant's] paternity by using the standard of proof that the State court would use as the basis for a determination of paternity." Id.

An individual born out-of-wedlock seeking to establish inheritance rights from a deceased putative father "must offer clear and convincing proof of paternity." Jacks v. Woods (In re Estate of G~), 753 So. 2d 1043, 1048 (Miss. 2000) (citing Miss. Code Ann. § 91-1-15(3)(c)).  "The requisite standard of clear and convincing evidence reflects the high degree of confidence society demands in adjudications of paternity.  The standard serves the interests of legitimate heirs, and of society as a whole, in averting fraudulent claims." Id. at 1048 (internal citation, quotation marks, and brackets omitted); see also Niebanck v. Block, 35 So. 3d 1260, 1264 (Miss. Ct. App. 2010) (stating in adverse possession context, "Clear and convincing evidence is such a high standard of proof that even the overwhelming weight of the evidence does not rise to the same level." (internal quotation marks and brackets omitted)).  Proving or disproving paternity "is a matter of fact," and "[a]ny evidence tending to support or deny the fact may be considered." P~, 609 So. 2d at 394. 

In Claimant's case, the only evidence suggesting Claimant is NH's child is their shared last name, as indicated on Claimant's birth certificate and CIB application.  However, Claimant's birth certificate does not list NH (or anyone else) as Claimant's father. Claimant's mother also did not report or provide any other evidence suggesting Claimant is NH's child.  Thus, the record does not provide clear and convincing evidence that Claimant was NH's child for the purposes of Mississippi intestacy law. Therefore, Claimant is not NH's child under section 216(h)(2)(A) of the Act. Claimant could not be deemed NH's child under section 216(h)(2)(B) of the Act because the marriage certificate indicates NH and Claimant's mother were actually married. See Act § 216(h)(2)(B); 20 C.F.R. § 404.355(a)(2).

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, a 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's mother did not provide evidence to satisfy the other requirements of section 216(h)(3)(C), and she reported no such evidence exists. 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

The evidence does not establish that Claimant is NH's child for purposes of Mississippi intestacy law and section 216(h)(2)(A) of the Act. The evidence also does not indicate Claimant could be deemed NH's child under section 216(h)(3)(C) of the Act. Therefore, Claimant is not NH's child for determining her eligibility for CIB on NH's earnings record.  

Mary Ann Sloan

Regional Chief Counsel

By: Brian C. Huberty

Assistant Regional Counsel

 

Under the Mississippi Intestacy Law, the Claimant is not NH’s child for determining Claimant’s eligibility for CIB on NH’s earnings record. NH’s was domiciled in Mississippi when he died, therefore, we look to Mississippi intestacy law to determine whether Claimant is NH’s child for purposes of section 216(h)(2)(A) of the Act. On the Mississippi Law, an illegitimate child can inherit from and through the illegitimate’s natural father and his kindred if: (a) The natural parents participated in a marriage ceremony before the birth of the child, even though the marriage was subsequently declared null and void or dissolved by a court; or (b) There has been an adjudication of paternity or legitimacy before the death of the intestate; or (c) There has been an adjudication of paternity after the death of the intestate, based upon clear and convincing evidence. None of the information provided indicates NH and Claimant’s mother participated in a marriage ceremony or that a court adjudicated NH’s paternity or Claimant’s legitimacy before NH’s death. Therefore, Claimant could establish his right to inherit from NH only through an adjudication of paternity based on clear and convincing evidence.

In Mississippi, proving or disproving paternity is a “matter of fact”, and any evidence tending to support or deny paternity may be considered but genetic tests are admissible as evidence of paternity, they are not necessarily conclusive. In Claimant’s case, Claimant’s mother provided DNA test results indicating a 98.1% probability Claimant and NH’s mother were related. However, the DNA test results may be probative of paternity, but the DNA test results, alone do not satisfy Mississippi’s clear and convincing standard. The DNA testing at issue here establishes a 98.1% probability that Claimant and NH’s mother are related, but does not establish or identify a probability of paternity. In addition, the evidence provided also includes conflicting non-genetic evidence on whether NH was Claimant’s father and the Claimant’s mother also provided a statement that NH never acknowledged in writing Claimant was his child and she apparently informed the Tupelo, District Office that she did not take NH to court for child support, NH never sent anything on his own to Claimant such as birthday or Christmas cards and NH never acknowledged in writing that the Claimant was his child and no court ordered NH to pay child support. The DNA test results and other evidence do not provide clear and convincing evidence that NH is Claimant’s father for purposes of Mississippi intestacy law and section 216(h)(2)(A) of the Act. The evidence provided also does not establish that Claimant is 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 CIB on NH’s earnings record.

QUESTION

You asked whether DNA test results showing a 98.1% probability of relatedness between the claimant and the number holder’s mother is sufficient, when considered with other evidence presented, to establish the claimant as the child of the number holder for determining the claimant’s eligibility for child’s insurance benefits (CIB) on the number holder’s earnings record.

OPINION

The grandparent DNA test results, even when considered with the other evidence of record, do not provide clear and convincing evidence that the number holder is the father of the claimant for the purposes of Mississippi intestacy law. Therefore, the claimant is not the number holder’s child for determining the claimant’s eligibility for CIB on the number holder’s earnings record.

BACKGROUND

Based on the information provided, we understand the facts to be as follows. J~ (Claimant) was born on November, in Mississippi. Claimant’s birth certificate identifies B~ as his father. The death certificate of J~, the number holder (NH), indicates he died on December XX, 2011, while domiciled in Mississippi. NH’s death certificate also indicates NH was married to L~ when he died. NH and Claimant’s mother, T~, never married.

On May XX, 2013, Claimant’s mother applied on Claimant’s behalf for CIB on NH’s earnings record. In support of her claim that Claimant was NH’s child, Claimant’s mother submitted DNA test results based on samples taken from Claimant, Claimant’s mother, and NH’s mother (Claimant’s purported grandmother). The results showed Claimant’s probability of relatedness to NH’s mother was 98.1%. Claimant’s mother also provided a genetic test report based on samples from Claimant, Claimant’s mother, and B~. The report states the genetic tests revealed a 0% probability of paternity and concludes B~ could not be the biological father of Claimant. Claimant’s mother also signed a statement that she never had sexual relations with any of NH’s family members.

The Tupelo, Mississippi District Office also received a Child Relationship Statement on June XX, 2013, presumably completed by Claimant’s mother. The statement indicated NH never acknowledged in writing Claimant was his child. Specifically, NH did not make any statement to any agency asserting Claimant was his child; had never written any letters to anyone acknowledging Claimant as his son or he as Claimant’s father; never listed Claimant in a family tree or family record; did not list Claimant as a dependent on his tax records; did not take any insurance policies out on Claimant or make Claimant the beneficiary of an insurance policy; did not make a will listing Claimant as a beneficiary; did not list Claimant as his child on any applications for employment; did not register Claimant in a school or place of worship; never took Claimant to a doctor, dentist, or hospital or list himself as a parent; and did not accept responsibility or pay for Claimant’s hospital expenses at birth. The statement asserted that NH’s obituary listed Claimant as NH’s child. However, a review of NH’s obituary, found on the internet, shows Claimant was not listed as one of the five children that survived NH. The statement also stated NH orally admitted that Claimant was his child to his aunt, mother, and step-father.

In connection with a previous application filed in December 2011, Claimant’s mother also provided a statement that she did not have any written acknowledgement from NH that Claimant was his child or any court order. The Tupelo, District Office also stated NH’s mother informed the office that she never took NH to court for child support, and NH never voluntarily sent anything on his own to Claimant. Claimant’s mother also apparently reported NH did not act as if Claimant was his child, and she apparently had no birthday or Christmas cards or pictures indicating NH treated Claimant as his child.

DISCUSSION

Child status under § 216(h)(2)(A) of the Social Security Act (Act)

To qualify for CIB on the earnings record of an insured individual, a claimant must be that individual’s “child.” See Act § 202(d); 20 C.F.R. § 404.350(a)(1) (2013). “Child” includes “the child” of an insured individual. See Act § 216(e)(1); 20 C.F.R. § 404.354; Astrue v. Capato, 132 S. Ct. 2021, 2027-28 (2012). When the insured individual and claimant’s mother have not gone through a marriage ceremony, the claimant may show he is “the child” of a deceased insured individual, within the meaning of section 216(e)(1) of the Act, under either section 216(h)(2)(A) or section 216(h)(3)(C) of the Act. See C~, 132 S. Ct. at 2028. Under section 216(h)(2)(A), a claimant must show he 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 individual was domiciled when he died. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4); Program Operations Manual System (POMS) GN 00306.055.A.1.

NH’s death certificate indicates he was domiciled in Mississippi when he died. Therefore, we look to Mississippi intestacy law to determine whether Claimant is NH’s child for purposes of section 216(h)(2)(A) of the Act. Under Mississippi intestacy law,

An illegitimate shall inherit from and through the illegitimate’s natural father and his kindred . . . if:

(a) The natural parents participated in a marriage ceremony before the birth of the child, even though the marriage was subsequently declared null and void or dissolved by a court; or

(b) There has been an adjudication of paternity or legitimacy before the death of the intestate; or

(c) There has been an adjudication of paternity after the death of the intestate, based upon clear and convincing evidence.

Miss. Code Ann. § 91-1-15(3) (West 2013). None of the information provided indicates NH and Claimant’s mother participated in a marriage ceremony or that a court adjudicated NH’s paternity or Claimant’s legitimacy before NH’s death. Therefore, Claimant could establish his right to inherit from NH only through an adjudication of paternity based on clear and convincing evidence. See Miss. Code Ann. § 91-1-15(3)(c).

An illegitimate child seeking to establish inheritance rights from a deceased putative father must offer “clear and convincing” evidence of paternity. See id.; Estate of Kendrick v. Gorden, 46 So. 3d 386, 390 (Miss. Ct. App. 2010). The clear and convincing standard is a heavy burden of proof that is higher than the preponderance of the evidence standard, see Estate of G~, 753 So. 2d 1043, 1052 (Miss. 2000), but lower than the beyond a reasonable doubt standard, see Estate of Taylor v. Thompson, 609 So. 2d 390, 394 (Miss. 1992). “This standard reflects the high degree of confidence society demands in such adjudications. And it serves the interests of legitimate heirs, and of society as a whole, in averting fraudulent claims.” Estate of K~, 46 So. 3d at 390 (internal citation and quotation marks omitted). The evidence presented must be “of sufficient quantity and quality that a rational trier of fact could have concluded that the claimant had proved by clear and convincing evidence that the decedent was his natural father.” Id. (internal quotation marks and brackets omitted); see also Estate of J~, 767 So. 2d 181, 185 (Miss. 2000) (holding trial judge correctly applied clear and convincing standard where trial judge stated issue was “whether or not the evidence presented . . . is sufficiently credible, is sufficiently clear, and sufficiently convincing” to determine if the appellee was the deceased’s child).

Proving or disproving paternity is a “matter of fact, and “[a]ny evidence tending to support or deny” paternity may be considered. Estate of T~, 609 So. 2d at 394. Mississippi Courts “accept that blood tests can produce a high level of discrimination either excluding or including a given male as the father of a particular child.” Id. (internal quotation marks omitted). However, although genetic tests are admissible as evidence of paternity, they “are not necessarily conclusive.” Estate of G~, 753 So. 2d at 1052 (citing Chisolm v. Eakes, 573 So. 2d 764, 767 (Miss.1990)). The fact finder “may consider the expert testimony [regarding the results of genetic testing] for what it feels the testimony is worth, and may even discard it entirely. Where non-genetic evidence is conflicting, the fact finder must engage in a determination of credibility.” Id. (citing C~, 573 So. 2d at 767-68). “[A]bsent some statutory pronouncement, paternity test results, even those showing a high probability of paternity, cannot be conclusive as a matter of law.” C~, 573 So. 2d at 769. Because “the courts do not recognize blood tests as infallible nor do they accept blood tests as conclusive proof of paternity,” an individual claiming paternity must “produce other evidence to establish his claim of paternity.” See Groves v. Slaton, 733 So. 2d 349, 352 (Miss. Ct. App. 1999) (citing C~, 573 So. 2d at 767).

In Claimant’s case, Claimant’s mother provided DNA test results indicating a 98.1% probability Claimant and NH’s mother (i.e., Claimant’s purported grandmother) were related. At least one Mississippi case suggests blood matching may be done between grandparents and the children to establish the children’s paternity. See Estate of Stowers v. Jones, 678 So. 2d 660, 661-62 (Miss. 1996). Nevertheless, although the DNA test results may be probative of paternity, the DNA test results, alone, do not satisfy Mississippi’s clear and convincing standard. The DNA testing at issue here establishes a 98.1% probability that Claimant and NH’s mother are related, but does not establish or identify a probability of paternity. In C~, 573 So. 2d at 767, 769, the court held paternity tests indicating a 99.59649% probability of paternity, even when performed on the putative father, did not amount to a preponderance of the evidence, a lower standard of proof than the clear and convincing standard. See also POMS PR 01115.027.B (PR 07-183) (concluding DNA testing establishing a 98.15% probability that deceased number holder’s brother was claimant’s uncle, would not, alone, satisfy the clear and convincing evidence standard of paternity for inheritance purposes under Mississippi law).

The information provided also includes conflicting non-genetic evidence on whether NH was Claimant’s father. While Claimant’s mother stated she did not have sexual relations with any of NH’s family members, eliminating other members of the family as Claimant’s father, she did not identify NH as Claimant’s father on his birth certificate or indicate she had sexual relations exclusively with NH during the time Claimant was conceived. See C~, 573 So. 2d at 766-67 (affirming jury’s verdict finding paternity not established despite genetic testing showing a 99.59649% probability of paternity where mother did not list purported father on birth certificate and waited a long time to bring paternity suit). Thus, it remains possible that non-relative individuals could be the father.

Claimant’s mother also provided a statement that NH never acknowledged in writing Claimant was his child and she apparently informed the Tupelo, District Office that she did not take NH to court for child support, and NH never sent anything on his own to Claimant such as birthday or Christmas cards. See Estate of G~, 753 So. 2d at 1053-55 (affirming a chancellor’s finding that appellants did not establish clear and convincing evidence of paternity despite genetic testing where appellants’ mother indicated other men may have been their father and putative father never acknowledged they were his children). Conversely, in Estate of K~, 46 So.3d at 389, 390-91, the Mississippi Court of Appeals found evidence a putative father openly acknowledged and treated the claimant as his own child and evidence claimant’s mother engaged in sexual relations exclusively with the putative father during the time claimant was conceived was sufficient to show clear and convincing evidence of paternity despite genetic testing showing it was unlikely the claimant was related to putative father’s brother. Although the Child Relationship Statement states that NH’s obituary listed Claimant as NH’s child, a review of NH’s obituary found on the internet fails to list Claimant as one of NH’s children. This statement, presumably completed by NH’s mother, also states NH informed family members Claimant was his child, but it is unclear how NH’s mother learned of this information or whether she was a witness to NH’s oral acknowledgement. The agency does not have statements from Claimant’s relatives confirming he informed them Claimant was his child.

Thus, while the DNA evidence and some of the non-genetic evidence would be probative of paternity, the evidence provided does not show clear and convincing evidence of NH’s paternity.

Child status under § 216(h)(3)(C) of the Act

To establish child status under section 216(h)(3)(C) of the Act, the claimant must show he is the biological child of the number holder and one of the following: (1) the number holder acknowledged in writing that the claimant is his child; (2) a court decreed the number holder to be the claimant’s father; (3) a court ordered the number holder to contribute to the support of the claimant; or (4) the number holder is the claimant’s father and was living with or contributing to the support of the claimant when the number holder died. See Act § 216(h)(3)(C); 20 C.F.R. § 404.355(a)(3), (a)(4); POMS GN 00306.100. According to Claimant’s mother, NH never acknowledged in writing that Claimant was his child and no court ordered NH to pay child support. The information provided also does not include a court order decreeing NH to be Claimant’s father or evidence that NH was living with or contributing to Claimant’s support. Thus, the available evidence also does not establish that Claimant is NH’s child under section 216(h)(3)(C) of the Act.

CONCLUSION

The DNA test results and other evidence do not provide clear and convincing evidence that NH is Claimant’s father for purposes of Mississippi intestacy law and section 216(h)(2)(A) of the Act. The evidence provided also does not establish that Claimant is NH’s child under section 216(h)(3)(C) of the Act. Therefore, Claimant is not NH’s child for determining Claimant’s eligibility for CIB on NH’s earnings record.

Mary Ann Sloan

Regional Chief Counsel

By: Laura Verduci

Assistant Regional Counsel

 

A Mississippi court judgment of paternity based only on the custodial mother’s statement and issued after the death of the number holder is not entitled to deference by the Social Security Administration (SSA), because the judgment does not indicate the issue of paternity was contested before the court or that the judgment was rendered in accordance with Mississippi intestacy law.

QUESTION

You asked whether a Mississippi state court judgment of paternity based only on the custodial mother’s statement and issued after the death of the number holder is clear and convincing evidence that the number holder is the father of the child for the purposes of Mississippi intestacy law and child’s insurance benefits.

OPINION

We do not believe the evidence presented constitutes clear and convincing evidence that the number holder is the father of the child. The Mississippi court judgment is not entitled to deference by the Social Security Administration (SSA), because the judgment does not indicate the issue of paternity was contested before the court or that the judgment was rendered in accordance with Mississippi intestacy law.

BACKGROUND

According to the information provided, D~ (Claimant) was born to N~ , now N~ (Claimant’s mother), out of wedlock on December. Claimant’s last name on his birth certificate corresponds to the last name of the number holder, J~ (NH), but the birth certificate does not list a father. NH and Claimant’s mother were never married and NH was never decreed by a court to pay child support. In September 2008, NH died while domiciled in Mississippi. Subsequently, Claimant’s mother filed a claim on behalf of Claimant for child’s insurance benefits and the lump-sum death payment on NH’s earnings record. At that time, Claimant’s mother alleged NH orally acknowledged paternity to his mother, but Claimant’s mother was unable to obtain a statement from NH’s mother to support her allegation. On October XX, 2008, SSA denied the claim because Claimant failed to establish that he was NH’s child. On December XX, 2008, the Chancery Court of T~ County, Mississippi, entered a “Judgment Determining Paternity and Other Relief” finding NH was Claimant’s father. The judgment cites the basis for the establishment of paternity as “testimony from the custodial parent.” On September XX, 2009, Claimant’s mother filed a new claim for benefits on behalf of Claimant on NH’s earnings record.

DISCUSSION

A claimant may be eligible for child’s insurance benefits 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) (2009). “Child” includes the natural child of an insured individual. See Act § 216(e); 20 C.F.R. § 404.354 (2009). In determining whether a claimant is the child of a deceased individual, the Commissioner will apply the law that would be applied in determining the devolution of intestate property by the courts of the state in which the insured was domiciled at the time of his death. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4) (2009). Alternatively, a claimant may establish he is the child of a deceased insured individual under section 216(h)(3) of the Act by showing he is a natural child of the insured individual and one of the following: (1) the number holder acknowledged in writing that the claimant is his child; (2) a court decreed the number holder to be the father of the claimant; (3) a court ordered the number holder to contribute to the support of the claimant; or (4) the number holder is the father and was living with or contributing to the support of the claimant when the number holder died. See Act § 216(h)(3)(C); 20 C.F.R. § 404.355(a)(3), (a)(4) (2009). The acknowledgement, court decree, or court order must be made before the death of the insured individual. See Act § 216(h)(3)(C); 20 C.F.R. § 404.355(a)(3), (a)(4) (2009).

The record indicates NH died while domiciled in Mississippi. Therefore, we consider Mississippi intestacy law to determine whether Claimant could inherit from NH for the purposes of section 216(h)(2)(A). See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4) (2009).

Mississippi intestacy law states that an illegitimate child shall inherit from his father if:

(a) The natural parents participated in a marriage ceremony before the birth of the child,

even though the marriage was subsequently declared null and void or dissolved by

a court; or

(b) There has been an adjudication of paternity or legitimacy before the death of the intestate; or

(c) There has been an adjudication of paternity after the death of the intestate, based upon clear and convincing evidence, in an heirship proceeding under Sections 91-1-27 and 91- 1-29. ^[10]

Miss. Code Ann. 91-1-15(3) (2009).

NH did not marry Claimant’s mother, and the record does not include an adjudication of paternity or legitimacy before NH’s death. Therefore, the only relevant provision of Miss. Code Ann. § 91-1-15(3) (2009) is (c). The record includes a “Judgment Determining Paternity and Other Relief” finding NH was Claimant’s father. However, the judgment does not indicate it was adjudication in an heirship proceeding under section 91-2-27 and 91-2-29. Section 91-2-27 requires the claimant to file a petition asking to “be recognized and decreed to be the heir at law of said deceased.” Miss. Code Ann. § 91-2-27 (2009). Section 91-2-29 requires, as a part of the proceeding to establish heirship, that “[a]ll the heirs at law and next of kin of said deceased who are not made parties plaintiff to the action shall be cited to appear and answer the same.” Miss. Code Ann. § 91-1-29 (2009). Additionally, this section requires that notice be published for unknown heirs of the decedent. Id. Neither the judgment nor any other evidence in this case indicates that these requirements were met in this case, so the judgment does not appear to satisfy the requirements of Miss. Code Ann. § 91-1-15(3)(c) (2009).

Furthermore, even if the judgment was an adjudication in an heirship proceeding, we believe the judgment was not entitled to any deference. Generally, SSA is not bound by a state court decision to which it was not a party. See Social Security Ruling (SSR) 83-37c. However, the Agency cannot ignore and usually must accept a state court decision if all four of the following prerequisites are met: “(1) an issue in a claim for Social Security benefits previously has been determined by a State court of competent jurisdiction; (2) this 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 (implementing Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973)).

However, no such claim of inheritance shall be recognized unless the action seeking an adjudication of paternity is filed within one (1) year after the death of the intestate or within ninety (90) days after the first publication of notice to creditors to present their claims, whichever is less; and such time period shall run notwithstanding the minority of a child. This one-year limitation shall be self-executing and may not be tolled for any reason, including lack of notice.

However, because SSA does not, when making child status determinations, apply state limitations, measured from the insured individual’s death, on when a child must bring a paternity action, see 20 C.F.R. § 404.355(b)(2), we do not consider this limitation here.

The court apparently had jurisdiction to consider the issue and the judgment concerns an issue within the general category of domestic relations law. See The Guide to Mississippi Courts, (http://www.courtreference.com/Mississippi-Courts.htm#169) (last visited on December 7, 2009). However, the judgment does not indicate that the issue of NH’s paternity was genuinely contested in the state court by parties with opposing interests. The judgment indicates the matter was brought by the Mississippi Department of Human Services, which likely had an interest in seeing NH declared Claimant’s father. Nothing in the judgment suggests that anyone represented NH’s interests or the interests of anyone opposing a finding of paternity.

The judgment also was not consistent with Mississippi law to the extent the judgment can be viewed as an adjudication of paternity for the purposes of intestate succession in Mississippi. The judgment does not indicate that the adjudication was based on clear and convincing evidence. To be adjudicated a lineal descendant under Mississippi intestacy law, a child born out of wedlock must prove paternity by clear and convincing evidence. See Miss. Code Ann. § 91-1-15(3) (2009); see also In re Estates of D~ 794 So.2d 261, 265 (Miss. App. 2001); Estate of Robinson v. Gusta, 540 S.2d 30, 33 (Miss. 1989); Matter of Estate of K~, 447 So.2d 1278, 1283 (Miss. 1984). The clear and convincing standard is a heavy burden of proof that is higher than the preponderance of the evidence standard, see In re Estate of G~, 753 So.2d 1048, 1052 (Miss. 2000), but lower than the beyond a reasonable doubt standard, see Estate of Taylor v. Thompson, 609 So.2d 390, 394 (Miss. 1992). “The requisite standard of clear and convincing evidence reflects the high degree of confidence society demands in adjudications of paternity.” G~, 753 So.2d at 1048 (citing In re Estate of F~, 552 So.2d 1065, 1067 (Miss. 1989)). In G~, the Mississippi Supreme Court gave some examples of how, without actual blood test or direct testimony of the alleged father by way of an affidavit or will, the court could be convinced that an appellant is the illegitimate child of the decedent whose estate is in question. G~, 540 So.2d at 34. Examples the court noted included an “intimate, sexual relationship” between the decedent and the child’s mother approximately during the nine month period before the child’s birth; the “absence of the remotest suggestion that [the child’s mother] had sexual relations with any other male during that period of time;” the decedent’s income tax returns; or any other documentation that would tend to show a parent/child relationship between the decedent and the child. Id. Here, the only evidence offered to support the allegation that NH was Claimant’s father was a statement made by Claimant’s mother. Given the types of evidence considered sufficient to establish clear and convincing evidence of paternity, the statement by Claimant’s mother alone does not appear to be sufficient to establish clear and convincing evidence of paternity. Therefore, we believe the judgment was not made in accordance with Mississippi intestacy law. We also believe the lack of clear and convincing evidence would preclude an SSA adjudicator from concluding Claimant is NH’s child for the purposes of intestate succession in Mississippi. See 20 C.F.R. § 404.355(b)(2) (2009). Thus, Claimant is not NH’s child under section 216(h)(3) of the Act.

We also believe Claimant cannot establish that he is NH’s child under section 216(h)(3)(C) of the Act. Claimant’s mother specifically denied the existence of a written acknowledgement of paternity by NH, the court issued its paternity order after the NH’s death, the record provides no evidence that a court ordered NH to contribute to Claimant’s support, and the record contains no evidence that NH was living with or contributing to Claimant’s support when he died. See Act § 216(h)(3)(C); 20 C.F.R. § 404.355(a)(3), (a)(4) (2009). Thus, the record does not indicate Claimant is NH’s child under section 216(h)(3)(C) of the Act.

CONCLUSION

Therefore, we conclude that an SSA adjudicator could not find the evidence constituted clear and convincing evidence that Claimant is NH’s child for the purposes of Mississippi intestacy law and section 216(h)(2)(A) of the Act. Claimant also failed to provide evidence that he could be considered NH’s child under section 216(h)(3) of the Act.

Mary A. Sloan

Regional Chief Counsel

Simone D. Pereira

Assistant Regional Counsel

 

In a Mississippi case where DNA testing establishes that there is a 98.15% probability that the deceased number holder's brother is the claimant's uncle it is our opinion that while the DNA test results are probative of paternity, they would not by themselves satisfy Mississippi's clear and convincing standard of proof. In fact given the degree of confidence required under Mississippi law, paternity tests by themselves, even when performed on the putative father, do not amount to a preponderance of the evidence; a lower standard of proof than the clear and convincing standard.

Instead, paternity tests must be coupled with additional, convincing evidence to meet the clear and convincing standard of proof.

Paternity tests combined with statements from the number holder's family would not qualify under the statute in a case such as this where the number holder was not listed a father on the birth certificate and no other non-genetic evidence was submitted.

QUESTION

You asked whether DNA test results showing a relationship between the child claimant and the number holder's brother and statements from the number holder's family members constitute clear and convincing evidence to establish the child claimant is the child of the number holder under Mississippi intestacy laws.

ANSWER

Having considered the evidence presented, and the applicable federal and state law, it is our opinion that DNA tests alone do not satisfy the clear and convincing evidence standard of paternity for inheritance purposes under Mississippi law. Moreover, given Mississippi law, we do not believe the DNA test results coupled with statements from the number holder's relatives qualify as clear and convincing evidence of paternity.

FACTS

On October XX, 1996, E~, the number holder (NH), died while domiciled in Mississippi. T~ (Claimant) was born October, in Mississippi. Claimant's mother and NH never married. Claimant's birth certificate does not identify any individual as Claimant's father. The evidence does not indicate that court has ordered NH to pay child support for Claimant or issued a paternity order establishing NH as Claimant's father. To support her claim, Claimant has included a signed statement from NH's brothers and sister indicating NH supported Claimant and died before her could legally change her name. According to the file, NH's surviving spouse stated NH told her he had an affair with Claimant's mother and Claimant was his daughter. In April 2007, Claimant and NH's brother underwent DNA testing that yielded a 98.15% probability that NH's brother is the uncle of Claimant. The DNA test report indicates that a brother of the alleged paternal uncle who was tested could be the biological father of Claimant, but provides no information regarding the probability that a brother of the alleged paternal uncle is the biological father of Claimant. Additionally, the file is devoid of any statement alleging Claimant's mother had exclusive sexual intercourse with NH.

DISCUSSION

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 Act § 216(e), 42 U.S.C. § 416(e). Where as here, a claimant's mother and putative father never married, the child claimant's status as the surviving child of a number holder is governed by either section 216(h)(3)(C) of the Act, 42 U.S.C. § 416(h)(3)(C) or section 216(h)(2)(A) of the Act, 42 U.S.C.§ 416(h)(2)(A). To establish child status under section 216(h)(3)(C) of the Act, 42 U.S.C. § 416(h)(3)(C) the claimant must show she is the natural child of the number holder and one of the following: (1) the number holder acknowledged in writing that the claimant is his child; (2) a court decreed the number holder to be the father of the claimant; (3) the court ordered the number holder to contribute to the support of the claimant; or (4) the number holder is the father and was living with or contributing to the support of the claimant at the time the number holder died. We are aware of no evidence that satisfies any of the required conditions in section 216(h)(3)(C) of the Act, 42 U.S.C. § 416(h)(3)(C).

To establish her status as the surviving child of the deceased NH under section 216(h)(2)(A) of the Act, Claimant must show she would be entitled to a child's share of NH's intestate personal property under the law of the state in which NH was domiciled at the time of his death. According to the record, NH was a resident of Mississippi when he died. Thus, Mississippi's law of intestate succession is applicable in determining the child claimant's status as the lineal descendent of NH for purposes of section 216(h)(2)(A) of the Act.

Under the applicable Mississippi statute,

An illegitimate shall inherit from and through the illegitimate's natural father and his kindred . . . if:

(a) The natural parents participated in a marriage ceremony before the birth of the child, even though the marriage was subsequently declared null and void or dissolved by

a court; or

(b) There has been an adjudication of paternity or legitimacy before the death of the intestate; or

(c) There has been an adjudication of paternity after the death of the intestate, based upon clear and convincing evidence, in an heirship proceeding under Sections 91-1-27 and 91-1-29.

This provision, Miss. Code Ann. § 91-1-15(3)(c) also includes the following language: However, no such claim of inheritance shall be recognized unless the action seeking an adjudication of paternity is filed within one (1) year after the death of the intestate or within ninety (90) days after the first publication of notice to creditors to present their claims, whichever is less; and such time period shall run notwithstanding the minority of a child. This one-year limitation shall be self-executing and may not be tolled for any reason, including lack of notice. However, because SSA does not, when making child status determinations, apply state limitations, measured from the insured individual’s death, on when a child must bring a paternity action, see 20 C.F.R. § 404.355(b)(2), we do not consider this limitation here.

CONCLUSION

Given the case law discussed above and the degree of confidence required under Mississippi law, we do not believe the DNA test results coupled with statements from NH's relatives could qualify as clear and convincing evidence of paternity. Again, proof by clear and convincing evidence reflects "the high degree of confidence society demands in adjudications of paternity" and requires a level of proof greater than a preponderance of evidence, but less than beyond a reasonable doubt. See Estate of G~, 753 So.2d at 1048; Bell, 876 So. 2d at 1090-91.

Mary A. Sloan

Regional Chief Counsel

Danielle F. Forte

Assistant Regional Counsel

Under Mississippi law, the amendment of a father's name on a birth certificate only creates a rebuttable presumption that the number holder had acknowledged the child or that a valid court order had established the child's paternity. If the facts of the case rebut that presumption; that is, they establish that neither acknowledgement nor a court determination of paternity took place, no parent-child relationship should be found to exist.

QUESTION

You have asked whether photocopies of an individual's alleged written acknowledgement of paternity along with an oral acknowledgement constitutes clear and convincing evidence under Mississippi intestacy law and Section 216(h)(2)(A) of the Social Security Act (Act), 42 U.S.C. § 416(h)(2)(A).

ANSWER

For the reasons set forth below, an SSA adjudicator could conclude that the oral acknowledgment(s) and written acknowledgement accompanied by the specific facts in this case would provide a basis for establishing clear and convincing evidence of paternity under Mississippi intestacy law.

BACKGROUND

According to your inquiry, number holder, K~ (NH) died on September XX, 2006. At the time of his death, he was domiciled in Mississippi. On the behalf of K~ (Claimant), A~ Claimant's guardian, filed for child's benefits on NH's record on September XX, 2006. Claimant's mother never married NH and is also deceased. No court has ordered NH to pay child support for Claimant or issued a paternity order establishing NH as Claimant's father. To support her claim, Claimant has included signed statements from NH's father, stepmother, and brother indicating NH acknowledged Claimant as his daughter. Claimant also submitted a photocopy of a statement acknowledging paternity allegedly signed by NH. According to the file, NH never had a driver's license or state I.D. card. However, the file contains four documents with NH's actual signature: a statement from the B~ County food stamp office containing a copy of NH's signature, a copy of a statement submitted by NH as he paid a fine, and two copies of NH's signature on applications for a new social security card dated January XX, 2002 and June XX, 2004.

DISCUSSION

Prior to 1981, the former Miss. CODE ANN. § 91-1-15 and interpretive case law required the illegitimate child to prove paternity and then prove that the alleged father acknowledged the child and married the child's mother. See Ivy v. Illinois Central Gulf Railroad Co., 510 So.2d 520, 523 (Miss. 1987) (citing Nichols v. Sauls Estate, 165 So.2d 352 (1964) and Hulitt v. Jones, 72 So.3d 204 (1954)). Thus, in these older cases based on the former statute, proof of acknowledgement of paternity was an issue separate from proof of paternity. See, e.g. Thomas v. Thomas, 25 So.2d 710, 710 (Miss. 1946) (noting that for the plaintiff to become a lawful heir in Mississippi, "it must be shown first that she was and [sic] natural daughter of [the decedent], that both parents were later lawfully married and that the father acknowledged her as his daughter in this State"). Open acknowledgement by the putative father is no longer a prerequisite to a child's right to inherit. See I~, 510 So.2d at 525. Thus, these older cases are only mentioned to provide some guidance as to what types of evidence would show an acknowledgment of paternity.

These older cases address what constitutes clear and convincing evidence of a father's acknowledgment of paternity under Mississippi law. For example, in Crosby v. Triplett, 195 So. 2d 69 (Miss. 1967), the Mississippi Supreme Court considered the pre-1981 statute and held that clear and convincing evidence had shown that the decedent over a long period of time freely acknowledged the child as his daughter. The court found the decedent's "words, acts, and continuous conduct evidencing his love for the appellant and his abiding belief that she was his daughter" demonstrated the father's acknowledgment. Id. at 71. The Crosby court considered testimony from an eighty-seven year old school teacher that, when the child was six years old, the alleged father brought the child to school and enrolled her as his daughter, that when the weather was inclement, he would come and pick the child up, and that the alleged father recognized the child as his daughter at all times, and concluded the testimony was clear and convincing evidence of the father's acknowledgment. Id. The father also frequently visited his daughter and her husband, built a house for his daughter, addressed the child as "Dear Daughter" or "Baby" in correspondence, and signed his letters to her "Your daddy" or "Dad." Id. This evidence was deemed clear and convincing evidence of acknowledgement of paternity.

In interpreting the same pre-1981 statute in H~, the Mississippi Supreme Court noted that the evidence to support a finding of acknowledgement of paternity should be clear, convincing and unambiguous. H~, 72 So.2d at 206. The court determined that despite the fact that recognition of paternity is often proven by manner of treatment of the child, a reputed father may admit that the child is his and thereby recognize such child, even though he neglects to perform duties of a father. Id. According to the H~ court, the acknowledgement contemplated by statute respecting acknowledgement of paternity may consist of acts or conduct as well as declarations. Id. Acknowledgment need not be specifically of the child's right to inherit but merely the fact of paternity. Id. Whether there was an acknowledgment of paternity is a question of both law and fact. Id. The Hulitt court held that the trial court erred when it found that the evidence in that case was insufficient to establish an acknowledgement of paternity where the grandchildren offered six witnesses who testified categorically that the grandfather had acknowledged to them on various occasions that he was their mother's father. Id. The court found particularly significant the fact that these witnesses' testimony was uncontradicted, either by direct evidence or by circumstances, and its finding that, by law, the court did not have an "arbitrary right to disregard testimony which is undisputed and uncontradicted, and which is not inherently improbable, incredible, or unreasonable." Id. at 206-07. Therefore, the H~ court held that the trial court erred in rejecting this uncontradicted testimony of several witnesses that the putative father acknowledged the child as his. Id. at 207. However, we noted that in both C~ and H~, both parties conceded paternity; the issue was the father's recognition or acknowledgment that he was the child's father. These cases show that acts and conduct, as well as evidence of declarations (including oral declarations) can establish an acknowledgement. However, even if the evidence presented here constituted clear and convincing evidence of acknowledgment under the pre-1981 statute, there is no guarantee that a Mississippi court would find that acknowledgment to be clear and convincing evidence of paternity, especially since acknowledgement and paternity were then separate elements in the intestacy determination.

In recent Mississippi cases where the putative father was deceased and clear and convincing evidence of paternity was shown, the claimant presented both oral testimony and written documentation of acknowledgement of paternity by the putative father. For instance, the Mississippi Court of Appeals in In re Estates of D~ looked to Estate of Robinson v. Gusta, 540 So.2d 30, 34 (Miss. 1989), for examples of the type of evidence that the Mississippi Supreme Court has indicated could establish paternity by clearing and convincing evidence where, as here, there was no blood test or direct testimony of the alleged father via an affidavit or will. In re Estates of D~, 794 So.2d at 265. As noted in In re Estates of D~, the examples included proof of "an intimate, sexual relationship" between the alleged father and the child's mother during the nine months or so before the child's birth; the "absence of the remotest suggestion that [the child's mother] had sexual relations with any other male during that period of time;" and "implied acknowledgments," such as the decedent's income tax returns or food stamp applications. In re Estates of D~, 794 So.2d at 266-67 (citing Estate of R~, 540 So.2d at 34). Because the child in Estate of R~ had provided oral testimony from several relatives and non-relatives as well as income tax returns and food stamp applications where the decedent had listed the minor as his son, the Mississippi Supreme Court concluded there was clear and convincing evidence that the decedent was the child's natural father. Estate of R~, 540 So.2d at 34.

Additionally, an individual in Mississippi can prove paternity by clear and convincing evidence, with oral testimony as well as additional written evidence that establish the putative father is the only possible father. See e.g., Smith v. Bell, 876 So.2d 1087 (Miss. Ct. App. 2004)(clear and convincing evidence that the child was the decedent's son based on the testimony of the illegitimate child, the child's mother and two of the decedent's sisters showing acts and conduct of the alleged father towards his alleged son and based on school and military records that listed the decedent as the father and bore the name "Francis B~, III," and the decedent's obituary which also listed the child as a survivor). We believe that to meet the clear and convincing standard of proof, oral acknowledgements by the putative father must be accompanied by some other documentation tending to show the putative father is the father. Examples of written documentation that Mississippi courts have deemed adequate include income tax returns showing that the father claimed the child as a dependent, a birth certificate with the father's name on it, military records or school records with the father's name, cards with the words "Daddy" or "daughter" and the decedent's signature, and applications for welfare assistance that list the child as the father's.

Here, Claimant submitted a photocopy of a statement acknowledging paternity allegedly signed by NH. A Mississippi court would look at this evidence when the original is lost or destroyed. See MISS. R. EVID. 1004 (2006). Moreover, this statement of paternity is probative. The file also contains corroborating evidence in the form of signed statements from witnesses to the NH's signature on the original document acknowledging paternity. Furthermore, there is no evidence to contradict these witnesses. Based on Mississippi law, we find that the photocopy, if an SSA adjudicator can determine its authenticity, would be an adequate written documentation to show the putative father is the father. Here, the adjudicator would need to compare the signature on the acknowledgement to the other four signature samples in the file and consider the statements by witnesses to the signing.

CONCLUSION

Based on Mississippi case law and rules of evidence, we find support for an SSA adjudicator to determine the photocopy of an acknowledgement of paternity allegedly signed by NH coupled with oral acknowledgements by NH found in written statements from NH's relatives constitutes clear and convincing evidence of paternity in Mississippi.

Mary A. Sloan

Regional Chief Counsel

Jennifer L. Patel

Assistant Regional Counsel

In a case where both the number holder and the claimant's mother are deceased, the Mississippi courts would consider statements from the deceased number holder's father, brother, and stepmother indicating the number holder acknowledged the claimant as his child along with a photocopy of a signed statement from the deceased acknowledging the child as his own as clear and convincing evidence under Mississippi intestacy law, provided that the photocopy can be authenticated.

QUESTION

You have asked whether photocopies of an individual's alleged written acknowledgement of paternity along with an oral acknowledgement constitutes clear and convincing evidence under Mississippi intestacy law and Section 216(h)(2)(A) of the Social Security Act (Act), 42 U.S.C. § 416(h)(2)(A).

ANSWER

For the reasons set forth below, an SSA adjudicator could conclude that the oral acknowledgment(s) and written acknowledgement accompanied by the specific facts in this case would provide a basis for establishing clear and convincing evidence of paternity under Mississippi intestacy law.

BACKGROUND

According to your inquiry, number holder, K~ (NH) died on September XX, 2006. At the time of his death, he was domiciled in Mississippi. On the behalf of K~ (Claimant), A~, Claimant's guardian, filed for child's benefits on NH's record on September XX, 2006. Claimant's mother never married NH and is also deceased. No court has ordered NH to pay child support for Claimant or issued a paternity order establishing NH as Claimant's father. To support her claim, Claimant has included signed statements from NH's father, stepmother, and brother indicating NH acknowledged Claimant as his daughter. Claimant also submitted a photocopy of a statement acknowledging paternity allegedly signed by NH. According to the file, NH never had a driver's license or state I.D. card. However, the file contains four documents with NH's actual signature: a statement from the B~ County food stamp office containing a copy of NH's signature, a copy of a statement submitted by NH as he paid a fine, and two copies of NH's signature on applications for a new social security card dated January XX, 2002 and June XX, 2004.

DISCUSSION

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 Act § 216(e), 42 U.S.C. § 416(e). Where, as here, a claimant's mother and putative father never married, the claimant's status as the surviving child of a number holder 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 claimant must show she is a natural child of the number holder and one of the following: (1) the number holder acknowledged in writing that the claimant is his child; (2) a court decreed the number holder to be the father of the claimant; (3) the court ordered the number holder to contribute to the support of the claimant; or (4) the number holder is the father and was living with or contributing to the support of the claimant when the number holder died.

To establish her status as the surviving child of the deceased NH under Section 216(h)(2)(A) of the Act, Claimant must show that she would be entitled to a child's share of the NH's intestate personal property under the law of the state in which the NH was domiciled at the time of his death. According to the record, the NH was a resident of Mississippi when he died, so Mississippi's law of intestate succession applies in determining the child claimant's status as the lineal descendant of the NH for purposes of Section 216(h)(2)(A) of the Act.

Under the applicable Mississippi statute,

An illegitimate shall inherit from and through the illegitimate's natural father and his kindred . . . if:

(a) The natural parents participated in a marriage ceremony before the birth of the child, even though the marriage was subsequently declared null and void or dissolved by a court; or

(b) There has been an adjudication of paternity or legitimacy before the death of the intestate; or

(c) There has been an adjudication of paternity after the death of the intestate, based upon clear and convincing evidence, in an heirship proceeding under Sections 91-1-27 and 91-1-29. However, no such claim of inheritance shall be recognized unless the action seeking an adjudication of paternity is filed within one (1) year after the death of the intestate or within ninety (90) days after the first publication of notice to creditors to present their claims, whichever is less; and such time period shall run notwithstanding the minority of a child. This one-year limitation shall be self-executing and may not be tolled for any reason, including lack of notice. No claim of inheritance based on an adjudication of paternity, after death of the intestate, by a court outside the State of Mississippi shall be recognized unless:

(i) Such court was in the state of residence of the intestate at the time of the intestate's death;(ii) The action adjudicating paternity was filed within ninety (90) days after the death of the intestate;

(iii) All known heirs were made parties to the action; and

(iv) Paternity or legitimacy was established by clear and convincing evidence.

MISS. CODE ANN. § 91-1-15(3) (2006).

NH did not marry Claimant's mother and is now deceased. No court adjudicated Claimant's paternity or legitimacy before NH died. Consequently, Claimant can inherit from the NH under Mississippi intestacy law only if there is an adjudication of paternity based upon clear and convincing evidence. See § 91-1-15(3); see also, In re Estates of Davidson v. Shannon 794 So.2d 261, 265 (Miss. Ct. App. 2001); In re Estate of Grubbs v. Woods, 753 So.2d 1043, 1052 (Miss. 2000). Although § 91-1-15 specifically requires an adjudication of paternity in an "heirship proceeding," brought, at least, within one year after the insured's death, SSA does not consider limitations to adjudication by a particular state court or time limits of the sort included here when it determines child status under § 216(h)(2)(A) of the Act. See 20 C.F.R. § 404.355(b)(2)(2006). Rather, SSA uses the standard of proof that the state court would use as the basis for the SSA child-status determination. See id.

To be adjudicated a lineal descendant under Mississippi intestacy law, a child born out of wedlock must prove paternity by clear and convincing evidence. See MISS. CODE ANN. § 91-1-15(3); see also In re Estates of D~ 794 So.2d at 265; Estate of G~, 753 So.2d at 1052. The clear and convincing standard is a heavy burden of proof that is higher than the preponderance of the evidence standard, see Estate of G~, 753 So.2d at 1048, 1052, but lower than the beyond a reasonable doubt standard, see Estate of Taylor v. Thompson, 609 So.2d 390, 394 (Miss. 1992). Proof by clear and convincing evidence reflects "the high degree of confidence society demands in adjudications of paternity. . . ." See In re Estate of G~, 753 So.2d 1043, 1048 (Miss. 2000); Smith v. Bell, 876 So.2d 1087, 1090-91 (Miss. Ct. App. 2004). Here, the evidence offered to support Claimant's allegation that she is the natural child of the deceased NH consists of statements made by NH's father, stepmother, and brother, and a statement acknowledging Claimant is NH's child allegedly signed by NH.

You have asked whether the photocopy of a written acknowledgement allegedly signed by NH, along with evidence of oral acknowledgements by NH found in written statements from NH's relatives can constitute clear and convincing evidence of paternity in Mississippi. We found no cases that address whether a photocopy of a written acknowledgement coupled with other evidence constitutes clear and convincing evidence. However, case law related to an earlier version of MISS. CODE ANN. § 91-1-15, though not directly on point, may be instructive.

Prior to 1981, the former Miss. CODE ANN. § 91-1-15 and interpretive case law required the illegitimate child to prove paternity and then prove that the alleged father acknowledged the child and married the child's mother. See Ivy v. Illinois Central Gulf Railroad Co., 510 So.2d 520, 523 (Miss. 1987) (citing Nichols v. Sauls Estate, 165 So.2d 352 (1964) and Hulitt v. Jones, 72 So.3d 204 (1954)). Thus, in these older cases based on the former statute, proof of acknowledgement of paternity was an issue separate from proof of paternity. See, e.g. Thomas v. Thomas, 25 So.2d 710, 710 (Miss. 1946)(noting that for the plaintiff to become a lawful heir in Mississippi, "it must be shown first that she was and [sic] natural daughter of [the decedent], that both parents were later lawfully married and that the father acknowledged her as his daughter in this State"). Open acknowledgement by the putative father is no longer a prerequisite to a child's right to inherit. See I~, 510 So.2d at 525. Thus, these older cases are only mentioned to provide some guidance as to what types of evidence would show an acknowledgment of paternity.

These older cases address what constitutes clear and convincing evidence of a father's acknowledgment of paternity under Mississippi law. For example, in Crosby v. Triplett, 195 So. 2d 69 (Miss. 1967), the Mississippi Supreme Court considered the pre-1981 statute and held that clear and convincing evidence had shown that the decedent over a long period of time freely acknowledged the child as his daughter. The court found the decedent's "words, acts, and continuous conduct evidencing his love for the appellant and his abiding belief that she was his daughter" demonstrated the father's acknowledgment. Id. at 71. The C~ court considered testimony from an eighty-seven year old school teacher that, when the child was six years old, the alleged father brought the child to school and enrolled her as his daughter, that when the weather was inclement, he would come and pick the child up, and that the alleged father recognized the child as his daughter at all times, and concluded the testimony was clear and convincing evidence of the father's acknowledgment. Id. The father also frequently visited his daughter and her husband, built a house for his daughter, addressed the child as "Dear Daughter" or "Baby" in correspondence, and signed his letters to her "Your daddy" or "Dad." Id. This evidence was deemed clear and convincing evidence of acknowledgement of paternity.

In interpreting the same pre-1981 statute in H~, the Mississippi Supreme Court noted that the evidence to support a finding of acknowledgement of paternity should be clear, convincing and unambiguous. H~, 72 So.2d at 206. The court determined that despite the fact that recognition of paternity is often proven by manner of treatment of the child, a reputed father may admit that the child is his and thereby recognize such child, even though he neglects to perform duties of a father. Id. According to the H~ court, the acknowledgement contemplated by statute respecting acknowledgement of paternity may consist of acts or conduct as well as declarations. Id. Acknowledgment need not be specifically of the child's right to inherit but merely the fact of paternity. Id. Whether there was an acknowledgment of paternity is a question of both law and fact. Id The H~ court held that the trial court erred when it found that the evidence in that case was insufficient to establish an acknowledgement of paternity where the grandchildren offered six witnesses who testified categorically that the grandfather had acknowledged to them on various occasions that he was their mother's father. Id. The court found particularly significant the fact that these witnesses' testimony was uncontradicted, either by direct evidence or by circumstances, and its finding that, by law, the court did not have an "arbitrary right to disregard testimony which is undisputed and uncontradicted, and which is not inherently improbable, incredible, or unreasonable." Id. at 206-07. Therefore, the H~ court held that the trial court erred in rejecting this uncontradicted testimony of several witnesses that the putative father acknowledged the child as his. Id. at 207. However, we noted that in both C~ and H~, both parties conceded paternity; the issue was the father's recognition or acknowledgment that he was the child's father. These cases show that acts and conduct, as well as evidence of declarations (including oral declarations) can establish an acknowledgement. However, even if the evidence presented here constituted clear and convincing evidence of acknowledgment under the pre-1981 statute, there is no guarantee that a Mississippi court would find that acknowledgment to be clear and convincing evidence of paternity, especially since acknowledgement and paternity were then separate elements in the intestacy determination.

In recent Mississippi cases where the putative father was deceased and clear and convincing evidence of paternity was shown, the claimant presented both oral testimony and written documentation of acknowledgement of paternity by the putative father. For instance, the Mississippi Court of Appeals in In re Estates of D~ looked to Estate of Robinson v. Gusta, 540 So.2d 30, 34 (Miss. 1989), for examples of the type of evidence that the Mississippi Supreme Court has indicated could establish paternity by clearing and convincing evidence where, as here, there was no blood test or direct testimony of the alleged father via an affidavit or will. In re Estates of D~, 794 So.2d at 265. As noted in In re Estates of D~, the examples included proof of "an intimate, sexual relationship" between the alleged father and the child's mother during the nine months or so before the child's birth; the "absence of the remotest suggestion that [the child's mother] had sexual relations with any other male during that period of time;" and "implied acknowledgments," such as the decedent's income tax returns or food stamp applications. In re Estates of D~, 794 So.2d at 266-67 (citing Estate of R~, 540 So.2d at 34). Because the child in Estate of R~ had provided oral testimony from several relatives and non-relatives as well as income tax returns and food stamp applications where the decedent had listed the minor as his son, the Mississippi Supreme Court concluded there was clear and convincing evidence that the decedent was the child's natural father. Estate of R~, 540 So.2d at 34.

Additionally, an individual in Mississippi can prove paternity by clear and convincing evidence, with oral testimony as well as additional written evidence that establish the putative father is the only possible father. See e.g., Smith v. Bell, 876 So.2d 1087 (Miss. Ct. App. 2004)(clear and convincing evidence that the child was the decedent's son based on the testimony of the illegitimate child, the child's mother and two of the decedent's sisters showing acts and conduct of the alleged father towards his alleged son and based on school and military records that listed the decedent as the father and bore the name "Francis, III," and the decedent's obituary which also listed the child as a survivor). We believe that to meet the clear and convincing standard of proof, oral acknowledgements by the putative father must be accompanied by some other documentation tending to show the putative father is the father. Examples of written documentation that Mississippi courts have deemed adequate include income tax returns showing that the father claimed the child as a dependent, a birth certificate with the father's name on it, military records or school records with the father's name, cards with the words "Daddy" or "daughter" and the decedent's signature, and applications for welfare assistance that list the child as the father's.

Here, Claimant submitted a photocopy of a statement acknowledging paternity allegedly signed by NH. A Mississippi court would look at this evidence when the original is lost or destroyed. See MISS. R. EVID. 1004 (2006). Moreover, this statement of paternity is probative. The file also contains corroborating evidence in the form of signed statements from witnesses to the NH's signature on the original document acknowledging paternity. Furthermore, there is no evidence to contradict these witnesses. Based on Mississippi law, we find that the photocopy, if an SSA adjudicator can determine its authenticity, would be an adequate written documentation to show the putative father is the father. Here, the adjudicator would need to compare the signature on the acknowledgement to the other four signature samples in the file and consider the statements by witnesses to the signing.

CONCLUSION

Based on Mississippi case law and rules of evidence, we find support for an SSA adjudicator to determine the photocopy of an acknowledgement of paternity allegedly signed by NH coupled with oral acknowledgements by NH found in written statements from NH's relatives constitutes clear and convincing evidence of paternity in Mississippi.

Mary A. Sloan

Regional Chief Counsel

Jennifer L. Patel

Assistant Regional Counsel

In Mississippi, DNA testing showing a 99.99 percent probability that the number holder is father of the claimant is sufficient to reopen a prior disallowance within four years of the initial determination.

The relationship may be established effective with the date of the testing.

In considering this child's claim for survivor's benefits, you asked whether an earlier application for benefits which was previously denied, should be reopened based on new DNA evidence that established the claimant as number holder's child?

Having considered the evidence presented, and the applicable federal and state law, it is our opinion that the addition of the DNA test results would allow reopening of the claimant's earlier determination.

FACTS

Deceased number holder (NH) R~, Jr. died on October XX, 2000, while domiciled in Mississippi. R2~ (Claimant) was born on May. SSA originally denied survivor's benefits to Claimant on January XX, 2003, because Claimant failed to prove Claimant's relationship to NH. Claimant then filed a request for reconsideration on March XX, 2003, which was denied on September XX, 2003. Claimant's mother said she thought she filed a request for hearing for Claimant at the same time that she filed one for another one of her children. SSA could not find a request for hearing for Claimant. At the hearing on the other child, the judge instructed Claimant's mother to have both Claimant and her other child DNA tested. DNA testing revealed a 99.99% probability that NH was Claimant's biological father.

Claimant's mother waited for a letter of approval on Claimant. She made an appointment with the local field office with a protective filing date of November XX, 2005. At the initial interview on November XX, 2005, she brought a copy of the DNA test results. SSA ordered the prior file to determine if there was a copy of a hearing request in the file but none was located. SSA approved benefits for Claimant beginning May 2005 (six months retroactive from the filing date). Besides the DNA testing, we are unsure of what additional evidence Claimant presented to establish his relationship to NH.

ANALYSIS:

Retroactivity

Under 20 C.F.R. § 404.621(a)(2), an applicant for child's benefits can receive benefits for up to six months immediately before the month in which he or she files his or her application. If a child proves he or she is the legitimate child of an insured individual and entitled to benefits, that entitlement will extend through the full retroactive period of his or her application (that is, from six months before the application or the child's birth, whichever occurs later), because a child is considered legitimate from birth. See POMS GN 00306.050 and GN 306.085. On the other hand, an illegitimate child might not be entitled to retroactive benefits because an applicant is not entitled to benefits before he proves he meets all entitlement factors, and an illegitimate child has not proven child status (in this case, would not be able to inherit a child's share of NH's intestate estate) until he meets the evidence requirements for proving that status under state law. So, "[a]n act/event conferring inheritance rights generally has effect only from the date of such act/event." POMS GN 00306.055A.3. The only exception to this policy is for cases where the state law granting inheritance rights to an illegitimate child also accords those rights for periods before the act or event that confers those rights, such as when the child has been legitimated (see POMS GN 00306.050). You asked whether, since Claimant qualifies as NH's child, the evidence would entitle Claimant to benefits before the DNA testing or event established his child status.

Even though an illegitimate child in Mississippi establishes entitlement to inheritance rights from and through the illegitimate's natural father and his kindred under Section 91-1-15 of the Mississippi code, see MISS. CODE ANN. § 91-1-15, that statute does not confer legitimacy to the illegitimate child. See MISS. CODE ANN. § 91-1-15. On the other hand, section 93-17-1 provides for legitimation of Claimant if the natural father marries the natural mother and acknowledges Claimant. See MISS. CODE ANN. § 93-17-1 (West. Ann. 2005). Since Claimant's mother and NH never married, this statute would not legitimate Claimant. Another way to legitimate offspring is under the "adoption statute, § 93-17-1 MISS.CODE ANN. (Supp.1988) under which procedure the Chancery Court is authorized to make legitimate any living child of the petitioner not born in wedlock and to decree the offspring an heir of the petitioner." See Perkins v. Thompson, 551 So.2d 204, 207 (Miss. 1989). Here, there was no paternity action, no adoption action, and no legitimation proceeding prior to NH's death. Therefore, this statute would not legitimate Claimant either. Accordingly, since an SSA adjudicator has determined Claimant established paternity for inheritance purposes, then the claimant here is entitled to benefits as an illegitimate child with inheritance rights. Therefore, as an illegitimate child, he is not entitled to benefits prior to the date of the DNA test or whatever event determined paternity.

Reopening

Under the relevant Social Security regulations, 20 C.F.R. §§ 404.987, 404.989 (2006), a decision may be reopened under certain circumstances. A decision may be reopened within 12 months of the date of the notice of the initial determination for any reason. See 20 C.F.R. § 404.988(a). A decision may be reopened within four years of the initial determination, if SSA finds good cause for reopening. See 20 C.F.R. § 404.988(b). Here, the initial application on Claimant's behalf was denied on January 21, 2003, and the DNA testing was presented to SSA on November 28, 2005, which is within four years of the initial 2003 determination. Good cause for reopening includes receipt of "new and material evidence." 20 C.F.R. § 404.989(a)(1)(2006). Evidence is "new" if it is "not duplicative or cumulative" and is "material" if there is a "reasonable possibility that the new evidence would have changed the outcome." Sizemore v. Secretary of Health and Human Services, 865 F.2d 709, 711 (6th Cir. 1988). This court standard, applicable to remands under sentence six of § 205(g) of the Social Security Act, 42 U.S.C. § 406(g), is similar to the regulatory standard at 20 C.F.R. § 404.989, POMS GN 04010.030 (new and material evidence is evidence that was not part of the file when the final determination was made, relates back to the time of the original determination, and shows facts that would result in a conclusion different from the conclusion originally reached). The DNA test results here are "new" given that they did not exist at the time of the initial determination.

The next issue is whether the DNA test results are material. Mississippi's intestacy statute applicable to persons born out-of-wedlock is silent on the use of scientific tests for purposes of establishing paternity. See MISS. CODE ANN. § 91-1-15(3). However, Mississippi courts do recognize "any" evidence tending to prove or disprove paternity for inheritance purposes, including blood tests. Taylor v. Perkins, 609 So.2d 390, 394 (Miss. 1992) ("Today we accept that blood tests can 'produce a high level of discrimination either excluding or including a given male as the father of a particular child'") (quoting Baker by Williams v. Williams, 503 So.2d 249, 253 (Miss. 1987)). While DNA tests results in general are probative evidence of paternity in Mississippi, they are not conclusive. See Chisolm v. Eakes, 573 So.2d 764, 766 (Miss. 1990) ("[t]he general rule appears to be that (genetic) results, properly authenticated and supported by other evidence, are admissible as evidence of paternity, but are not necessarily conclusive") (emphasis added). The C~ court quoted with approval the Texas Court of Appeals holding in In re E.G.M., 647 S.W.2d 74, 78 (Tex. Civ. App. 1983)(emphasis added):

While paternity may be conclusively disproved, conclusive proof of paternity remains an unattainable goal ... Even probabilities that are high do not necessarily compel a particular finding as a matter of law. Nor do we think that the results of high probability standing alone necessarily equate to a preponderance of the evidence. A trial of paternity is essentially a trial of the complaining mother's credibility … blood testing assists in the truth finding process but does not compel a decision in a non-exclusion case.

The C~ court concluded that "absent some statutory pronouncement, paternity test results, even those showing a high probability of paternity, cannot be conclusive as a matter of law." 573 So.2d at 768; see also Estate of G~, 753 So.3d at 1052 ("Genetic test results are admissible as evidence of paternity, but are not necessarily conclusive.")(citing C~). Based on this reasoning in C~ then, paternity tests by themselves, even paternity tests done on the putative father do not even amount to a preponderance of the evidence, a lower standard of proof than the clear and convincing standard that is required in cases where paternity must be established after the putative father's death. See Estate of G~, 753 So.2d at 1048, 1052. Instead, paternity tests which are done on the putative father must be coupled with additional, convincing evidence to meet the clear and convincing standard of proof in Mississippi.

We assume the SSA adjudicator did not determine that Claimant was NH's child based on the DNA testing results alone. We assume that Claimant's mother initially provided SSA with non-DNA testing evidence during the initial determination and then later provided SSA with the DNA test results. We assume that the corroborative DNA testing, coupled with that additional evidence, was the basis for the SSA adjudicator's decision that Claimant proved he was NH's biological child. If those assumptions are correct, then the DNA test results would be material evidence.

However, an illegitimate child cannot qualify for benefits before the evidence necessary for a determination of child status is presented. That is, even if SSA reopened the January 2003 determination, Claimant could not qualify for benefits before March 1, 2004, the date of the DNA test results at the earliest. SSA approved benefits for Claimant beginning May 2005 (six months retroactive from the filing date). Therefore, based on the assumptions above, Claimant's prior determination can be reopened and Claimant can be allowed benefits beginning on March 1, 2004.

Mary A. Sloan

Regional Chief Counsel

Arthurice T. Brundidge

Assistant Regional Counsel

In Mississippi, evidence of oral acknowledgment can be used, along with other evidence in a record, to establish clear and convincing evidence of child status under Mississippi intestacy law. Such evidence by itself would not, however, constitute clear and convincing evidence.

If all the potential heirs to NH's estate were either made parties in an heirship proceeding or given notice of such proceedings and all either agreed or failed to deny that NH was the child's father, then paternity could be established by clear and convincing evidence.

In such a case, the relationship would be effective with the date of the evidence allowing the clear and convincing standard to be met. No retroactivity would be applicable.

You have requested our opinion on the effect, under Mississippi intestacy law, of evidence that number holder ("NH"), R~, orally acknowledged J~ ("Claimant") as his child. Noting evidence found in written statements from Claimant's mother and NH's mother, sister, daughter, and cousin that NH had orally acknowledged Claimant as his child, you asked:

• •

  Can oral acknowledgement be used to establish clear and convincing evidence under Mississippi intestacy law?

• •

  Is the evidence submitted sufficient to establish that Claimant is the child of NH?

• •

  If the evidence is sufficient, can the child be paid retroactively or prospectively from the date the evidence was submitted?

We conclude that evidence of oral acknowledgment can be used, along with other evidence in a record, to establish clear and convincing evidence of child status under Mississippi intestacy law, but do not believe the oral acknowledgments present here would alone satisfy that standard. However, if all the potential heirs to NH's estate were either made parties in an heirship proceeding or given notice of such proceedings and all either agreed or failed to deny that NH was the child's father, then paternity could be established by clear and convincing evidence. Furthermore, if Claimant did qualify for benefits in this case, she would not qualify for benefits for months before the Social Security Administration (SSA) determined eligibility.

FACTS

NH died on May XX, 2004, domiciled in Mississippi. He and Claimant's mother never married. Claimant's mother applied for child's benefits on March XX, 2004, on Claimant's behalf. No court has ever ordered NH to pay child support to Claimant or issued a paternity order establishing that NH was Claimant's father. Claimant's mother alleges that NH provided periodic cash support but she has no documentation of this support. She said NH took out health insurance with a prior employer for Claimant but she has no documentation to show that he did. She presented no insurance cards verifying coverage or benefits explanations indicating that NH's insurance provider ever paid for Claimant's medical care. Claimant's mother claims the employer has closed and moved overseas and she has no contact information for them nor does she know the name of the insurance carrier. Claimant's mother says NH always acknowledged Claimant as his child to family and friends. She submitted signed statements from five individuals, namely NH's mother, sister, daughter, and cousin and Claimant's maternal grandmother, indicating that NH orally acknowledged Claimant to them. NH's mother also noted that when NH died, he had birthday cards for Claimant in his car. Apparently, NH's mother never provided these birthday cards as evidence. Claimant's maternal grandmother also reported that NH said that he wanted to take care of Claimant and that he left her money for school supplies. There is no evidence that NH was the only person with whom Claimant's mother had sexual intercourse prior to Claimant's birth.

ANALYSIS:

Paternity Issues

Section 216(h)(2)(A) of the Social Security Act (Act), 42 U.S.C. 416(h)(2)(A) (2005), provides the only possible basis for the claimant's entitlement.* That section states, "[i]n determining whether an applicant is the child . . . of a fully or currently insured individual for purposes of this title, the Commissioner of Social Security shall apply such law as would be applied in determining the devolution of intestate personal property . . . if such insured individual is dead, by the courts of the State in which he was domiciled at the time of his death . . . ." § 216(h)(2)(A). NH was domiciled in Mississippi when he died; therefore Mississippi law applies.

Under the applicable Mississippi statute,

An illegitimate shall inherit from and through the illegitimate's natural father and his kindred . . . if:

1. (a) 

   The natural parents participated in a marriage ceremony before the birth of the child, even though the marriage was subsequently declared null and void or dissolved by a court; or

2. (b) 

   There has been an adjudication of paternity or legitimacy before the death of the intestate; or

3. (c) 

   There has been an adjudication of paternity after the death of the intestate, based upon clear and convincing evidence, in an heirship proceeding under Sections 91-1-27 and 91-1-29. However, no such claim of inheritance shall be recognized unless the action seeking an adjudication of paternity is filed within one (1) year after the death of the intestate or within ninety (90) days after the first publication of notice to creditors to present their claims, whichever is less; and such time period shall run notwithstanding the minority of a child. This one-year limitation shall be self-executing and may not be tolled for any reason, including lack of notice. No claim of inheritance based on an adjudication of paternity, after death of the intestate, by a court outside the State of Mississippi shall be recognized unless:

   1. (i)  

      Such court was in the state of residence of the intestate at the time of the intestate's death;

   2. (ii)  

      The action adjudicating paternity was filed within ninety (90) days after the death of the intestate;

   3. (iii)  

      All known heirs were made parties to the action; and

   4. (iv)  

      Paternity or legitimacy was established by clear and convincing evidence.
      
      

MISS. CODE ANN. § 91-1-15(3) (2005).

NH did not marry Claimant's mother and is now deceased. No court adjudicated Claimant's paternity or legitimacy before NH died. Consequently, Claimant can inherit from the NH only if there is an adjudication of paternity based upon clear and convincing evidence. Id. See also, In re Estates of Davidson v. Shannon 794 So.2d 261, 265 (Miss. Ct. App. 2001); In re Estate of Grubbs v. Woods, 753 So.2d 1043, 1052 (Miss. 2000). Although § 91-1-15 specifically requires an adjudication of paternity in an "heirship proceeding," brought, at least, within one year after the insured's death, SSA does not consider limitations to adjudication by a particular state court or time limits of the sort included here when it determines child status under § 216(h)(2)(A) of the Act. See 20 C.F.R. § 404.355(b)(2)(2005). Rather, SSA uses the standard of proof that the state court would use as the basis for the SSA child-status determination. Id.

The clear and convincing standard is a heavy burden of proof that is higher than the preponderance of the evidence standard, see Estate of G~, 753 So.2d at 1048, 1052, but lower than the beyond a reasonable doubt standard, see Estate of Taylor v. Thompson, 609 So.2d 390, 394 (Miss. 1992). You have asked whether oral acknowledgement by the father as evidenced by written statements from NH's relatives and Claimant's mother and maternal grandmother constitute clear and convincing evidence of paternity in Mississippi. We found no cases that address whether evidence of oral acknowledgement, alone, constitutes clear and convincing evidence. However, case law related to an earlier version of MISS. CODE ANN. § 91-1-15, though not directly on point, may be instructive.

Prior to 1981, the former MISS. CODE ANN. § 91-1-15 and interpretive case law required the illegitimate child to prove paternity and then prove that the alleged father acknowledged the child as well as married the child's mother. See Ivy v. Illinois Central Gulf Railroad Co., 510 So.2d 520, 523 (Miss. 1987) (citing Nichols v. Sauls Estate, 165 So.2d 352 (1964) and Hulitt v. Jones, 72 So.3d 204 (1954)). Thus, in these older cases based on the former statute, proof of acknowledgement of paternity was an issue separate from proof of paternity. See, e.g. Thomas v. Thomas, 25 So.2d 710, 710 (Miss. 1946)(noting that for the plaintiff to become a lawful heir in Mississippi, "it must be shown first that she was and [sic] natural daughter of [the decedent], that both parents were later lawfully married and that the father acknowledged her as his daughter in this State"). Open acknowledgement by the putative father is no longer a prerequisite to a child's right to inherit. I~, 510 So.2d at 525. Thus, these older cases are only mentioned to provide some guidance as to what types of evidence would show an acknowledgment of paternity.

These older cases address what constitutes clear and convincing evidence of a father's acknowledgment of paternity under Mississippi law. For example, in Crosby v. Triplett, 195 So. 2d 69 (Miss. 1967), the Mississippi Supreme Court considered the pre-1981 statute and held that clear and convincing evidence had shown that the decedent over a long period of time freely acknowledged the child as his daughter. The court found the decedent's "words, acts, and continuous conduct evidencing his love for the appellant and his abiding belief that she was his daughter" demonstrated the father's acknowledgment. Id. at 71. The C~ court considered testimony from an eighty-seven year old school teacher that, when the child was six years old, the alleged father brought the child to school and enrolled her as his daughter, that when the weather was inclement, he would come and pick the child up, and that the alleged father recognized the child as his daughter at all times, and concluded the testimony was clear and convincing evidence of the father's acknowledgment. Id. The father also frequently visited his daughter and her husband, built a house for his daughter, addressed the child as "Dear Daughter" or "Baby" in correspondence, and signed his letters to her "Your daddy" or "Dad." Id. This evidence was deemed clear and convincing evidence of acknowledgement of paternity.

In interpreting the same pre-1981 statute in H~, the Mississippi Supreme Court noted that the evidence to support a finding of acknowledgement of paternity should be clear, convincing and unambiguous. H~, 72 So.2d at 206. The court determined that despite the fact that recognition of paternity is often proven by manner of treatment of the child, a reputed father may admit that the child is his and thereby recognize such child, even though he neglects to perform duties of a father. Id. According to the H~ court, the acknowledgement contemplated by statute respecting acknowledgement of paternity may consist of acts or conduct as well as declarations. Id. Acknowledgment need not be specifically of the child's right to inherit but merely the fact of paternity. Id. Whether there was an acknowledgment of paternity is a question of both law and fact. Id. The H~ court held that the trial court erred when it found that the evidence in that case was insufficient to establish an acknowledgement of paternity where the grandchildren offered six witnesses who testified categorically that the grandfather had acknowledged to them on various occasions that he was their mother's father. Id. The court found particularly significant the fact that these witnesses' testimony was uncontradicted, either by direct evidence or by circumstances, and its finding that, by law, the court did not have an "arbitrary right to disregard testimony which is undisputed and uncontradicted, and which is not inherently improbable, incredible, or unreasonable." Id. at 206-07. Therefore, the H~ court held that the trial court erred in rejecting this uncontradicted testimony of several witnesses that the putative father acknowledged the child as his. Id. at 207. However, we noted that in both C~ and H~, both parties conceded paternity; the issue was the father's recognition or acknowledgment that he was the child's father under the pre-1981 legitimacy and inheritance statute. These cases show that acts and conduct, as well as evidence of declarations (including oral declarations), can establish an acknowledgement. However, even if the evidence presented here constituted clear and convincing evidence of acknowledgment under the pre-1981 statute, there is no guarantee that a Mississippi court would find that acknowledgment to be clear and convincing evidence of paternity, especially since acknowledgement and paternity were separate elements in the intestacy determination.

While we found cases that treat evidence of oral acknowledgment as probative of paternity, we found no Mississippi cases directly on point where an illegitimate child submitted only evidence of oral statements by the putative father. Instead, in almost every recent Mississippi case where the putative father was deceased and clear and convincing evidence was shown, the claimant presented both oral testimony and written documentation of acknowledgement of paternity by the putative father. For instance, the Mississippi Court of Appeals in In re Estates of D~ looked to Estate of Robinson v. Gusta, 540 So.2d 30, 34 (Miss. 1989), for examples of the type of evidence that the Mississippi Supreme Court has indicated could establish paternity by clearing and convincing evidence where, as here, there was no blood test or direct testimony of the alleged father via an affidavit or will. In re Estates of D~, 794 So.2d at 265. As noted in In re Estates of D~, the examples included proof of "an intimate, sexual relationship" between the alleged father and the child's mother during the nine months or so before the child's birth; the "absence of the remotest suggestion that [the child's mother] had sexual relations with any other male during that period of time;" and "implied acknowledgments," such as the decedent's income tax returns or food stamp applications. In re Estates of D~, 794 So.2d at 266-67 (citing Estate of R~, 540 So.2d at 34). Because the child in Estate of R~ had provided oral testimony from several relatives and non-relatives as well as income tax returns and food stamp applications where the decedent had listed the minor as his son, the Mississippi Supreme Court in Estate of R~ concluded there was clear and convincing evidence that the decedent was the child's natural father. 540 So.2d at 34. We too have found other cases in Mississippi where, because there was oral testimony as well as additional written evidence which all tended to establish that the putative father was the only possible father, the individual was able to prove paternity by clear and convincing evidence. See e.g., Smith v. Bell, 876 So.2d 1087 (Miss. Ct. App. 2004)(clear and convincing evidence that the child was the decedent's son based on the testimony of the illegitimate child, the child's mother and two of the decedent's sisters showing acts and conduct of the alleged father towards his alleged son and based on school and military records that listed the decedent as the father and bore the name "Francis Bell, III," and the decedent's obituary which also listed the child as a survivor); Jordan v. Baggett, 791 So.2d 308 (Miss. 2001) (finding clear and convincing evidence that four children were the alleged father's children where the father's will (though defective) listed them as children and they presented oral testimony that the alleged father visited the children, introduced them to other siblings and took them places, and the mother indicated that the alleged father was the only person with whom she had sexual intercourse prior to the conception of one of the children); Estate of Johnson v. Johnson, 767 So.2d 181 (Miss. 2000), cert. denied Harris v. Johnson, 532 U.S. 959, 121 (2001) (holding that paternity had been shown by clear and convincing evidence where the alleged child had been told from birth that the decedent was his father, the child's mother testified she had not been intimate with any other man prior to conception, several witnesses testified that it was general knowledge in the community that the decedent was the child's father, the mother's friend testified that she actually saw the mother and the decedent engage in sexual intercourse prior to the child's birth, and the child's birth certificate showed the decedent's first and middle initial and last name); Bullock v. Thomas, 659 So.2d 574, 576 (Miss. 1995) (putative father who wanted to inherit from his illegitimate child proved he was child's natural father by clear and convincing evidence where mother engaged in sexual intercourse exclusively with father at time the child was conceived, the child greatly resembled father, mother openly claimed to relatives that he was the father, and mother named him as father on an assistance application). We believe that these cases seem to suggest that where there is conflicting evidence about paternity and there is no will or blood tests presented, that evidence of oral acknowledgments by the father must be accompanied by some additional documentary evidence which sufficiently shows a child-father relationship before a Mississippi court would conclude that paternity has been proven under the clear and convincing standard.

In contrast to the above-mentioned cases, we note the following cases where the Mississippi courts determined that the illegitimate child or the illegitimate child's mother had not established paternity by the requisite proof. For example, a mother in I~ offered only oral testimony that the putative father impregnated her, that the child was born five months after she met the putative father, and that he visited her periodically, gave her cash every two weeks, and bought presents for the child. 510 So.2d at 522. There was no documentation of any kind supporting the daughter's claim that she was the decedent's daughter. Id. The decedent's mother, however, offered proof that her son had never acknowledged the child as his, that she had never met the child's mother, and that she had never heard of her until she appeared in court. Id. Additionally, the decedent's family corroborated his mother's testimony. Id. After hearing the testimony, the lower court ruled that paternity had not been established because the decedent never acknowledged the child as his, which the lower court believed was required by law, and because there was not sufficient proof that he supported the child. The Mississippi Supreme Court in I~ noted that the 1981 revision to the intestacy statute had removed the prior requirement that the natural father marry the child's mother and acknowledge the child as his. Id. at 523, 525. Accordingly, the I~ court held that "open acknowledgement by the putative father is not a prerequisite to a child's right to inherit." Id. at 525. However, the I~ court further indicated, that "no doubt an open acknowledgement by a putative father that a child is his natural child has great bearing in determining the factual issue, but there is now no statutory requirement that he do so in order for a child to establish its right to inherit." Id. The I~ court then ruled that the evidence and circumstances heavily supported a finding that the decedent was not the child's father not because of the absence of an acknowledgement by the decedent but because some of the remaining evidence suggested that someone else was the child's father.

Similarly, in Estate of G~, the Mississippi Supreme Court held that the trial court did not err in finding that 60-year old twins failed to show by clear and convincing evidence that they were the decedent's children where genetic testing of the decedent was inconclusive and indicated a probability of paternity as 83.7% for one twin and 71.97% for the other. Estate of G~, 753 So.2d at 1048-49. The court further noted that the non-genetic testing consisted of conflicting testimony from many witnesses that the court determined amounted to "60 years of rumors and gossip" as to community knowledge of the twins' paternity but the only witnesses old enough to have any personal knowledge testified that the mother named four other men as fathers and the putative father never acknowledged that he had any children. Id. at 1048-57. Additionally, the court in Estate of G~ upheld the trial court's determination that paternity had not been established by clear and convincing evidence where the trial court determined that there had been no acknowledgement of paternity by the putative father "through acts, conduct, or declarations . . . ." Id. at 1055. Since the mother had claimed that five other men were possibly the father of her twins and not just the decedent, the Estate of G~ court further stated that the mother's claim that the alleged father was the father of the twins did not necessarily satisfy the children's burden of proof to show clear and convincing evidence. Id. at 1056. In re Estates of D~, the illegitimate child submitted only her own testimony and "hearsay" claims that the putative father and mother, who were both then deceased, acknowledged her as the putative father's biological daughter before their deaths. D~, 794 So.2d at 265. The In re Estates of D~ court compared the evidence presented to that found to constitute clear and convincing evidence by the court in Estate of R~, above. The In re Estates of D~ held that the illegitimate child in that case had not proven by clear and convincing evidence that she was the daughter of the decedent, reasoning that the plaintiff had not provided any "definitive evidence" that she was the decedent's daughter. Id., at 266-67.

In summation, we believe the cases noted above tend to suggest that where there is no blood tests or direct testimony of the alleged father by way of an affidavit or will, a Mississippi court will consider such evidence as: 1) an intimate, sexual relationship between the alleged father and the child's mother around the time the child was conceived; 2) the absence of the remotest suggestion that the child's mother had sexual relations with any other male during that period; and 3) documentation that would tend to show a parent/child relationship between the alleged father and the child. However, the Mississippi court outlining these three factors clearly noted that these factors were only examples of the type of evidence that the Mississippi Supreme Court considered sufficient proof of paternity in cases where there is no will or blood test results. Therefore, we cannot say definitively that all three elements are required in every case to prove paternity by clear and convincing evidence. A Mississippi court, in a future case, might find that evidence of oral acknowledgments of paternity by the putative father is persuasive enough to establish paternity by clear and convincing evidence.

However, based on the current cases, we believe that to meet the clear and convincing standard of proof, there must be oral acknowledgements by the putative father along with some other documentation tending to show the putative father is the father. Examples of written documentation that Mississippi courts have deemed adequate include income tax returns showing that the father claimed the child as a dependent, a birth certificate with the father's name on it, military records or school records with the father's name, cards with the words "Daddy" or "daughter" and the decedent's signature, applications for welfare assistance which list the child as the father's. Additional evidence in the form of photographs that shows a resemblance between the putative father and the claimant along written documentation that the mother herself listed the putative father as the child's father on some sort of form or application may also help establish paternity by clear and convincing evidence. See Bullock v. Thomas, 659 So.2d at 576. As noted above, individuals wanting to establish paternity have attempted to establish paternity through other means, such as rumors, gossip, the claimant's own statements or hearsay statements, and/or inconclusive DNA testing. However, Mississippi courts have determined that the evidence in those particular cases was insufficient to establish paternity by clear and convincing evidence because there was other equally strong evidence that at least suggested that someone other than the putative father could be the child's father. One might argue that those cases are distinguishable from this case since all of the written evidence tending to show paternity is uncontradicted. However, the applicable standard is not "preponderance of the evidence" (under which a lack of contradiction would be more significant), so we believe these cases are all best read to require more than evidence of oral acknowledgment.

However, we do note that there is some support in Mississippi case law that if the parties stipulate to Claimant's paternity or the testimony as to paternity is uncontradicted, then paternity has been established. For example, in at least three Mississippi Supreme Court cases, the parties stipulated the child's paternity and the court either upheld that stipulation or ruled that the trial court erred in finding that paternity had not been established. See Williams v. Farmer, 876 So.2d 300, 305-06 (Miss. 2004) (paternity was uncontested in a case involving a putative father's entitlement to inherit from his illegitimate child upon showing that the father openly treated the child as his own and has not refused or neglected to support the child); Miller v. Watson, 467 So. 2d 672 (Miss. 1985) (illegitimate grandson should have been adjudged heir of estate of paternal grandmother where his answer included a cross-petition which alleged that he was the illegitimate son of decedent's son, the parties stipulated that he was the illegitimate son of decedent's son and the parties agreed that they were the only two interested parties in the estate); H~, 72 So.2d at 831 (paternity established where the bill of complaint charged specifically that the child was the natural daughter of the decedent and the answer did not deny this fact but instead only contested whether the child was born in wedlock). In fact, the H~ court noted that the "rule is well-established that the testimony of a witness which is not contradicted, either by direct evidence or by circumstances, must be taken as true. Neither the chancellor nor a jury has an arbitrary right to disregard testimony which is undisputed and uncontradicted, and which is not inherently improbable, incredible, or unreasonable." 72 So.2d at 833 (citing several prior Mississippi cases).

However, because SSA will not actually require a determination by a State court, 20 C.F.R. § 404.355(b)(2)(2005), it may be difficult for SSA to determine all of the potential heirs to NH's estate and whether they agree or contest paternity in this case. Ordinarily, there must be an adjudication of paternity in an heirship proceeding under sections 91-1-27 and 91-1-29 for an illegitimate child to be entitled to inherit in Mississippi from his or her natural father after the father's death. See MISS. CODE ANN. § 91-1-15(3)(c). Both sections 91-1-27 and 91-1-29 are the procedures used to determine the heirs of a deceased person. See MISS. CODE ANN. §§ 91-1-27; 91-1-29. The purpose for requiring an heirship proceeding is to establish a remedial procedure by which heirs or "anyone interested in the decedent's property" could obtain binding adjudication of heirs. Shepherd v. Townsend, 163 So.2d 746, 746 (Miss. 1964). Moreover, section 91-1-29 ensures that all heirs at law and next of kin of the decedent who are nonparties to the action are cited to appear and answer the cite. See § 91-1-29. That section further requires that a summons by publication is addressed to all heirs at law of the deceased and published to absent and unknown defendants. See § 91-1-29. Although Section 91-1-29 contemplates notice to potential heirs by publication, the court in Smith by and through Young v. Estate of King, instructs that the administrator of the estate must give actual notice to known or reasonably ascertainable illegitimate children who were potential heirs and whose claims would otherwise be barred by the running of the 90-day time period from notice of publication to creditors under 91-1-15(3)(c). 579 So.2d 1250, 1254 (Miss. 1991). "Heirship proceedings are usually heard within the administration of estates, but this is not an absolute requirement." Perkins v. Thompson, 551 So.2d 204, 207 (Miss. 1989) (citing Estate of S~, 530 So.2d 18, 24-25 (Miss.1988)). Therefore, while oral acknowledgement by the father without written documentation of that oral acknowledgement may not suffice in Mississippi to establish a child's paternity by clear and convincing evidence, if all of the potential heirs to the decedent's estate were made parties in an heirship proceeding or given notice of such and all agreed or failed to deny that the alleged father was the child's father, then arguably paternity could then be established by clear and convincing evidence.

Applying this case law to the case at hand, the evidence presented would not seem to be clear and convincing evidence of paternity. Although Claimant's mother states that NH always acknowledged Claimant to family and friends and she submitted signed statements in support from five relatives, Claimant's mother has not provided any written documentation showing that there was a parent/child relationship between Claimant and NH. Claimant's mother alleges that NH provided periodic cash support but she has no documentation of this support. She stated that NH took out health insurance with a prior employer for Claimant, but she has no documentation of this. There are no insurance cards verifying coverage or benefits explanation indicating that NH's insurance provider ever paid for Claimant's medical care. The birthday cards mentioned in NH's mother's statement were not provided. The maternal grandmother reported that NH said that he wanted to take care of Claimant and that he left her money for school supplies, but provided no written confirmation of this gift. Claimant's mother submitted no school or other records listing NH as Claimant's father. Though we can reasonably presume that Claimant's mother had an intimate relationship with NH because she named NH as the child's father, there is no evidence that NH was the only person with whom Claimant's mother had sexual intercourse prior to Claimant's birth. On the other hand, if all of the potential heirs to the decedent's estate were made parties in an heirship proceeding or given notice of such and all agreed or failed to deny that the alleged father was the child's father, then arguably paternity could then be established by clear and convincing evidence.

Retroactivity

Under 20 C.F.R. § 404.621(a)(2), an applicant for child's benefits can receive benefits for up to six months immediately before the month in which she files her application. If a child proves she is the legitimate child of an insured individual and entitled to benefits, that entitlement will extend through the full retroactive period of her application (that is, from six months before the application or the child's birth, whichever occurs later), because a child is considered legitimate from birth. See POMS GN 00306.050 and GN 306.085. On the other hand, an illegitimate child might not be entitled to retroactive benefits because an applicant is not entitled to benefits before she proves she meets all entitlement factors, and an illegitimate child hasn't proven child status (in this case, would not be able to inherit a child's share of NH's intestate estate) until she meets the evidence requirements for proving that status under state law. So, "[a]n act/event conferring inheritance rights generally has effect only from the date of such act/event." POMS GN 00306.055A.3. The only exception to this policy is for cases where the state law granting inheritance rights on an illegitimate child also accords those rights for periods before the act or event that confers those rights, such as when the child has been legitimated (see POMS GN 00306.050). You asked whether, if the claimant can qualify as the NH's child, the evidence would entitle the claimant to benefits before the act or event by which she established her child status. That is, you asked whether the claimant might be entitled to retroactive benefits.

Section 91-1-15 does not confer legitimacy. We were unable to find any cases which indicate that an illegitimate child is legitimated by establishing paternity under section 91-1-1. On the other hand, section 93-17-1 provides for legitimation of Claimant if the natural father marries the natural mother and acknowledges Claimant. See MISS. CODE ANN. § 93-17-1 (West. Ann. 2005). Since Claimant's mother and NH never married, this statute would not legitimate Claimant. The court in P~, also noted that another way to legitimate offspring is under the "adoption statute, § 93-17-1 MISS.CODE ANN. (Supp.1988) under which procedure the Chancery Court is authorized to make legitimate any living child of the petitioner not born in wedlock and to decree the offspring an heir of the petitioner." See, P~, 551 So.2d at 207. Here, there was no paternity action, no adoption action, and no legitimation proceeding prior to NH's death. Therefore, this statute would not legitimate Claimant either. Accordingly, if Claimant submits the proper written documentation establishing she is NH's illegitimate child, Claimant here would probably be entitled to benefits only as an illegitimate child with inheritance rights and not as a legitimated child.

Mary A. Sloan

Regional Chief Counsel

Arthurice T. Brundidge

Assistant Regional Counsel

DNA testing performed on the deceased worker's parents indicated a 99.99% probability that the worker's parents were the paternal grandparents of the child claimant. The Mississippi statutory standard of proof of paternity after the alleged father's death is clear and convincing evidence. Mississippi cases have accepted genetic testing as clear and convincing evidence of paternity where there is a 99.9% probability established by the test. While no Mississippi cases involving the testing of paternal grandparents could be found, other jurisdictions have recognized the validity of testing of paternal grandparents in paternity determinations where the putative father is deceased and exhumation of the body is not feasible. Therefore, the child (whose claim was pending when the new Social Security regulations became effective on 11/27/98) should be entitled to child's insurance benefits as the worker's child.

You have requested our opinion in a child's benefits application situation where the applicant submitted genetic testing done on the parents of the putative father in an effort to establish paternity. The putative father, J~, III died on September XX, 1993 domiciled in the state of Mississippi. On September XX, 1998, H~ filed a child's insurance benefits claim on the wage record of J~ on behalf of K~. K~ was born on April and you noted that no reason was given for the late filing. The claim was denied on September XX, 1998 and H~ requested reconsideration on December XX, 1998.

In the initial claim, H~ stated that she was never married to J~, III. She also stated that the wage earner never lived with her or the child and he never contributed to their support. However, she submitted evidence of a genetic test that was performed on the parents of the wage earner. A contact with the Calhoun County DHS, Child Support Division, revealed that the DNA testing was done by voluntary agreement with the deceased worker's parents. The test began on May XX, 1998 and was completed August XX, 1998. The evidence from the test indicated a 99.99% probability that the wage earner's parents were the paternal grandparents of K~.

Your initial inquiry is whether the state of Mississippi would recognize the blood test in determining paternity. Section 93-9-23 of the Mississippi Code specifically provides for genetic testing in paternity determinations and states in part: (1) Genetic testing shall be made by experts qualified as examiners of genetic tests who shall be appointed by the court pursuant to Section 93-9-21(5). The expert shall attach to the report of the test results an affidavit stating in substance: (a) that the affiant has been appointed by the court to administer the test and shall give his name, address, telephone number, qualifications, education and experience; (b) how the mother, child and alleged father were identified when the samples were obtained; (c) who obtained the samples and how, when and where obtained; (d) the chain of custody of the samples from the time obtained until the tests were completed; (e) the results of the test and the probability of paternity as calculated by an expert based on the test results; (f) the amount of the fee for performing the test; and (g) the procedures performed to obtain the test results. In cases initiated or enforced by the Department of Human Services pursuant to Title IV-D of the Social Security Act, the Department of Human Services shall be responsible for paying the costs of any genetic testing when such testing is required by law to establish paternity, subject to recoupment from the defendant if paternity is established.

This statute has been the subject of several lawsuits involving the use of blood tests to determine paternity. See e.g. Matter of Estate of C~, 711 So.2d 878 (Miss. 1998); Department of Human Services v. Moore, 632 So. 2d 929 (Miss. 1994). Mississippi has recognized a 99.99% probability as being conclusive on the issue of paternity. See M~, supra. While we could not find any Mississippi cases involving the testing of paternal grandparents, other jurisdictions have recognized the validity of testing of paternal grandparents in paternity determinations where the putative father is deceased and exhumation of the body is not feasible. See Wawrykow v. Simonich , 652 A.2d 843 (Pa. 1994); William M. v. Superior Court, 225 Cal. App. 3d (1990).

Mississippi statutes provide for an adjudication of paternity after the death of the intestate in section 91-1-15(3)(c) as follows:

(c) There has been an adjudication of paternity after the death of the intestate, based upon clear and convincing evidence, in an heirship proceeding under sections 91-1-27 and 91-1-29. However, no such claim of inheritance shall be recognized unless the action seeking an adjudication of paternity is filed within one (1) year after the death of the intestate or within ninety (90) days after the first publication of notice to creditors to present their claims, whichever is less; and such time period shall run notwithstanding the minority of a child.

Based on the foregoing statutory provision, K~ would be unable to inherit the personal property of the wage earner under the laws of the state of Mississippi because there was no adjudication of paternity within the statutory time limit. However, 20 C.F.R. §404.355(2), which became effective on November 27, 1998, provides that in determining eligibility for child's insurance benefits, the Commissioner:

". . . will not apply any State inheritance law requirement that an action to establish paternity must be taken within a specified period of time measured from the worker's death or the child's birth, or that an action to establish paternity must have been started or completed before the worker's death. 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."

Mississippi statutes provide for genetic testing in paternity determinations. The statutory standard of proof is clear and convincing evidence. See also Matter of Estate of R~, 695 So.2d 587 (Miss. 1997). As noted previously, Mississippi cases have accepted genetic testing as clear and convincing evidence of paternity where there is a 99.9% probability of paternity established with the test. Therefore, it is our opinion that K~ should be entitled to child's insurance benefits as the child of the wage earner, J~, III, since her claim was pending when the new regulations became effective on November 27, 1998.

You also requested that we review the Mississippi state law language in POMS GN 00306.080 to determine if any changes are necessary. We reviewed that section and it has been updated to include a reference to the new regulations. Therefore, we do not feel that any changes are necessary at this time.

We found that where an applicant filed an application for child's insurance benefits on January XX, 1989, and submitted a court order establishing paternity, granting inheritance rights and changing the child's name dated October XX, 1988, the court order could not serve as a basis for reopening a prior application since the pertinent Mississippi statutes did not provide for retroactivity, the child had no inheritance rights under Mississippi law prior to the issuance of the court order and there were no other facts presented in the record to warrant a reopening of any prior applications.

( G~ - SSN ~ - CCIV [A~] - to Asso. Comm., RSI, Balt., 04/03/91)

Your office has raised some additional questions regarding our September XX, 1989, opinion in the above matter. The earlier request to our office stated that G~, the number holder, died on June XX, 1986, and was domiciled in the State of Mississippi. An application for child's insurance benefits was filed on his wage record on January XX, 1987, on behalf of G2~. G2~ was born on October. This application was denied. A new application was filed on January XX, 1989, with a Mississippi court order being submitted as evidence.

We were also presented with the October XX, 1988, Mississippi court order that provided:

". . . the prayer of the Complaint to establish Paternity should be granted. . . ,,

1. This court finds that it has jurisdiction over the parties and the subject matter.

2. That the minor child, G2~, born October is the child of Decedent, G~ , and paternity has been established through the testimony and other evidence offered at the hearing. ^[11]

3. That the minor child is entitled to all rights of inheritance from and through decedent, G~

4. That the minor child's birth certificate shall be changed to reflect that the child's name is G2~.

The Court Order

There is some continuing concern with respect to the validity of the court order and the statute(s) that provided the jurisdictional basis for the court's paternity, inheritance and legitimation actions. You are concerned because inheritance rights are usually granted pursuant to Section 91-1-15(3) (c) of the Mississippi Code which provides that:

(3) An illegitimate shall inherit from and through the illegitimate's natural father and his kindred, . . . according to the statutes of descent and distribution if:

(c) There has been an adjudication of paternity after the death of the intestate, based upon clear and convincing evidence, in an heirship proceeding under Sections 91-1-27 and 91-1-29. However, no such claim of inheritance shall be recognized unless the action seeking an adjudication of paternity is filed within one (1) year after the death of the intestate . . . (emphasis added)

We previously noted that this action could not have been brought pursuant to Section 91-1-15(3)(c) of the Mississippi Code because claims for inheritance under this statute cannot be instituted unless the action seeking the adjudication of paternity is filed within one year after the death of the intestate. The father of G2~ died on June XX, 1986, more than one year prior to the issuance of the court order.

Since the court order specifically stated that it was issued pursuant to a complaint to establish paternity, we looked at other Mississippi statutes to find another statute which might have been the jurisdictional basis for the complaint that was filed and the resulting court order. We agree with your assessment of Section 93-9-9 of the Mississippi Code. It is part of the State's Uniform Law On Paternity and is not normally a legitimation statute. However, we are still of the opinion that the Mississippi court probably used this statute to obtain jurisdiction over the paternity action.

Section 93-9-9, as amended, provides in part:

Paternity may be determined upon the petition of the mother, the child, or any public authority chargeable by law with the support of the child provided that such an adjudication after the death of the defendant must be made only upon clear and convincing evidence However, proceedings hereunder shall not be instituted after the child has reached the age of eighteen years. ^[12]

While jurisdiction was precluded under 91-1-15(3) (c), jurisdiction was still possible pursuant to Section 93-9-9 with respect to the establishment of paternity. We are assuming that once paternity was established, the court went on to grant inheritance rights. We also assumed that the name change on G2~'s birth certificate, was an attempt to legitimize G2~ after the death of the putative father because that act was not necessary for the establishment of paternity or inheritance rights. Even though Section 93-9-9 is not a legitimation statute or inheritance statute, we are of the opinion that it was indirectly used as such in this case.

Although the court had obtained jurisdiction over the parties, we are still unable to determine the specific statutory basis for the inheritance and questionable legitimation determinations. The court may have relied on Sections 91-1-27 and 91-1-29 which are applicable to heirship proceedings, but Section 91-1-15(3) (c) precludes inheritance claims not instituted within one year of the individual's death. Nonetheless, we note that the provisions of Section 91-1-31, prohibit a collateral attack on court orders with issues relating to inheritance rights except for fraud. We explained in our earlier opinion that we felt there was not enough information available for us to attack the validity of this court order with respect to the inheritance issues and no evidence of fraud has been presented. Absent evidence of fraud, the court order must be considered a valid grant of inheritance rights to G2~ pursuant to Mississippi law.

We further concluded that the court attempted to legitimize G2~ by changing her name on the birth certificate. After an exhaustive review of Mississippi statutes and cases, we are unable to find anything to support a legitimization of G2~ pursuant to this court order. The court order clearly established paternity and any inheritance rights which were established are statutorily protected, absent fraud. However, we do not feel that G2~ can use this court order as evidence that she has been legitimized pursuant to Mississippi law. ^[13] You had also inquired about changes to POMS GN 00306.080 if Section 93-9-9 were deemed to be a legitimation statute. Despite the approach the court used in this matter with regard to Section 93-9-9, it is a paternity and support statute and our opinion does not necessitate amendments to the Mississippi entry for POMS GN 00306.080.

Retroactivity

Once the validity of the court order was acknowledged, the question arose as to whether it should have retroactive effect so that the earlier application can be reopened. In stating that the court did not provide for retroactivity, we were focusing on the paternity and inheritance aspects of the court order rather than the legitimation question because we were of the opinion that the claimant was attempting to establish entitlement pursuant to Section 216(h) (2)(A) of the Social Security Act, 42 U.S.C. §416(h)(2). Consequently, our opinion in this matter should not be deemed to be a reversal of the 1946 OGC opinion on legitimation that you attached to your request. Likewise, no changes to POMS GN 00306.085 are warranted based on our opinion.

Since no evidence of inheritance rights existed at the time of the first application, the claimant could not have provided the requisite evidence to support her application. The court did not provide for retroactivity of inheritance rights so we concluded that claimant did not establish a basis for reopening. Conversely, your main emphasis is on the legitimation portion of the order (probably due to the error in the syllabus) and that is the portion of the court order where we have the greatest concern with respect to validity since we could find no statutes to support that portion of the court order.

Bruce R. G~

Chief Counsel

Sharon F. Young

Assistant Regional Attorney

We found that where an applicant for child's insurance benefits obtained a court order of paternity and inheritance rights with respect to a deceased wage earner, and the order was presumably in accordance with Mississippi statutes, then the applicant was entitled to child's insurance benefits on the wage record of the deceased wage earner.

( S~ - A/N ~ - RAIV [A~] to RCALJ, OHA, Atl., 10/25/88)

Your office has requested assistance in determining entitlement to child's insurance benefits with respect to S~ on the wage record of J~, a deceased wage earner. The mother of S~, B~ and the decedent, J~, were married but subsequently divorced. The date of the divorce was not contained in the record. There is a statement by the mother of J~ indicating that he went to Louisiana where B~ was living and brought her back to Mississippi where they lived together from November 1984 until May 1985. S~ was born on November. J~ died in W~, Mississippi, on June XX, 1987.

An application for child's benefits has been filed for S~ and this application was denied and a hearing was held. During the hearing, the administrative law judge was informed that an action had been filed to establish the paternity of S~. An order dated March XX, 1988, from the Chancery Court of George County, Mississippi, has now been presented. The court found that J~. J~ was the natural father of "A~" and she was declared an heir-at-law of the decedent. Your specific inquiry is whether the judgment rendered after the wage earner's death, would establish inheritance rights in and to the decedent's estate under Mississippi law.

We have reviewed Mississippi statutes and feel that the following pertinent portion of Section 91-1-15 of the Mississippi Code is applicable. Section 91-1-15(3)(c) provides that:

(3) An illegitimate shall inherit from and through the illegitimate's natural father and his kindred, and the natural father of an illegitimate and his kindred shall inherit from and through the illegitimate according to the statutes of descent and distribution if:

(c) There has been an adjudication of paternity after the death of the intestate, based upon clear and convincing evidence, in an heirship proceeding under Sections 91-1-27 and 91-1-29. However, no such claim of inheritance shall be recognized unless the action seeking an adjudication of paternity is filed within one (1) year after the death of the intestate or within ninety (90) days after the first publication of notice to creditors to present their claims, whichever is less; and such time period shall run notwithstanding the minority of a child . . .

The record lacks information on the date, if any, of the first publication of notice to creditors. However, the action was certainly brought within one (1) year of the death of the wage earner as required in the above statutory provision. There is a recital in the court's order indicating that the court had jurisdiction of the parties and the subject matter. We are, therefore, assuming that Mississippi law has been complied with and that the court had the statutory authority to issue the order. Consequently, it is our opinion that S~ has provided sufficient evidence of her inheritance rights under Mississippi law and is, therefore, entitled to child's insurance benefits on his account.

LEGITIMACY AS AFFECTING INHERITANCE RIGHTS — MISSISSIPPI

When a local Mississippi Chancery Court issued a decree indicating that a minor was a lawful heir of the deceased, we held that this was the equivalent of a determination of paternity "in a heirship proceeding."

( L~ (DNH) - ~ - RAIV [A~] - to ARC, Progs., Atl., 02/12/87.)

Your office has raised a question with respect to a determination of paternity subsequent to the death of a wage earner in Mississippi. The wage earner died domiciled in Mississippi on June XX, 1984. The Chancery Court of Newton County, Mississippi, issued a decree filed on October XX, 1985 which stated;

That L~ died intestate on June XX, 1984, and left surviving as his sole lawful heirs the following minors: Y~, address; S~, address."

An application for child's benefits had been filed on behalf of S~ on July XX, 1984, and was denied. Child's benefits were subsequently awarded effective July 1985 based on a subsequent application filed January XX, 1986, with the court decree as evidence of paternity. Programs Operations Manual System (POMS) GN00306.135, Mississippi (5) provides that a child acquires the status of a child if, effective 07/01/81, paternity is established after the death of the father in a Mississippi heirship proceeding.

You have stated that Section 91-1-15(3)(b) of the Annotated provides that:

"An illegitimate child shall inherit from and through the illegitimate natural father and his kindred . . . according to the statutes of descent and distribution if: (b) there has been an adjudication of paternity after the death of the intestate, based upon clear and convincing evidence, in an heirship proceeding under sections 91-1-27 and 91-1-29 ..." Your initial concern is whether the court order in the file constitutes and "heirship proceeding".

Section 91-1-27 provides that:

In all cases in which persons have died, or may hereafter die, wholly or partially intestate, having property, real or personal, any heir at law of such deceased person, or any one interested in any of the property as to which he shall have died intestate, may petition the chancery court of the county in which said deceased had his mansion house or principal place or residence, or in which any part of his real estate may be situated, in case he was a nonresident, setting forth the fact that said person died wholly or partially intestate, possessed of real or personal property in the State of Mississippi, the names of the heirs at law or next of kin, and praying that the person named in said petition be recognized and decreed to be the heir at law of said deceased.

Section 91-1-29 further provides that:

All the heirs at law and next of kin of said deceased who are not made parties complainant to the suit or petition, shall be cited to appear and answer the same. And in addition thereto a summons by publication shall be made addressed to "the heirs at law of ~ deceased," and shall be published as other publications to absent or unknown defendants, and the cause shall be proceeded with as other causes in chancery, and upon satisfactory evidence as to death of said person and as to the fact that the parties to said suit are his sole heirs at law, the court shall enter a decree that the persons so described be recognized as the heirs at law of such a decedent, and as such be placed in possession of his estate. And said decree shall be evidence in all the courts of law and equity in this state that the persons therein named are the sole heirs at law of the person therein described as their ancestor.

After a review of these statutes and other Mississippi statutes pertaining to descent and distribution, we are of the opinion that the chancery court must have made an adjudication of paternity in designating Steve to be an heir of L~. We have no way of knowing what evidence was presented to the court to establish that S~ was an heir. However, there is a recitation in the order which states that "the court having heard and considered said petition and making a thorough examination of the facts and being fully advised in the premises . . . " These statements could be an indication that some inquiry was made as to whether persons represented as "heirs" of L~ were entitled to share in his estate under Mississippi law. A determination of paternity with respect to S~ would have been an integral factor in the designation of him as an heir. As a result, we feel that paternity has been established through this proceeding.

Furthermore, we do not see where a change in the POMS section previously cited is warranted at present.