TN 22 (10-20)

PR 01120.034 New Mexico

A. PR 20-087 Use of Grandparent DNA Report, Court Adjudication, and Birth Certificate to Establish Child Relationship

Date: September 28, 2020

1. Syllabus

Once the parent-child relationship is established under New Mexico law, the effective date of the parent-child relationship is established as of the child’s birth regardless of the parents’ marital status and regardless of the method or type of evidence establishing the parent-child relationship.

2. Questions Presented

You requested an opinion on whether the evidence submitted in this case establishes a parent-child relationship between the deceased number holder J~ (NH) and the claimant L~ (Claimant), a child, for purposes of the Claimant’s application for child’s insurance benefits and the lump sum death payment (LSDP) under the Social Security Act (Act) on the NH’s record as his child. This claim involves evidence of a father-child relationship between the Claimant and the NH, as well as evidence of a father-child relationship between the Claimant and J1~. Applying section 216(h)(2)(A) of the Act, you asked whether, under New Mexico law, a deoxyribonucleic acid (DNA) test report of a paternal grandparent (paternal grandparent DNA report), birth certificate evidence, and evidence from a state court case adjudicating child support and paternity involving both J1~ and the NH is sufficient to establish a parent-child relationship under New Mexico law between the NH and the Claimant. If the evidence establishes a parent-child relationship, you asked what the beginning date of that relationship would be.

3. Answer

We believe that a New Mexico court would find that the Claimant has proven a parent-child relationship with the NH and the right to inherit from the NH under New Mexico intestate succession law with evidence from a state court case disestablishing J1~'s paternity and adjudicating the NH to be the Claimant’s father, paternal grandparent DNA report evidence supporting the NH’s paternity of the Claimant, and a new birth certificate identifying the NH to be the Claimant’s father. Thus, we believe there is legal support for the agency to find that the Claimant has proven a parent-child relationship with the NH under section 216(h)(2)(A) of the Act for purposes of his application for child’s insurance benefits on the NH’s record. Further, the effective date of the parent-child relationship between the NH and the Claimant is the Claimant’s date of birth of June XX, 2010.

4. Background

a. Overview of the Claimant’s Parent-Child Relationship with J1~ – Evidence Consisting of a Birth Certificate and Court Documents

The Claimant was born on June XX, 2010. His mother is R~. It is our understanding that R~ told the agency that she was not married at the time the Claimant was born, but that she was in a relationship with J1~ at that time. Further, she told the agency that J1~ acknowledged the Claimant as his child, and the State listed J1~ as the Claimant’s father on the Claimant’s New Mexico birth certificate. We were provided with a copy of the Claimant’s original New Mexico birth certificate listing J1~ as the Claimant’s father and listing the Claimant’s name as “L~” with J1~'s last name.

Online New Mexico state court case information indicates that in 2015, R~ and the State’s child support enforcement agency filed a petition seeking to require J1~ to pay child support for the Claimant and that the court ordered J1~ to pay child support for the Claimant through 2018. See State of New Mexico, (HSD) and R~ v. J1~, No. XXX, Second Judicial District Court, County of Bernalillo, State of New Mexico (New Mexico State Court Case).[1] We discuss the specifics of this case in a separate section below.

b. Overview of the Claimant’s Parent-Child Relationship with the NH – Evidence Consisting of Court Documents, a Birth Certificate, DNA Testing Report, and Obituary

The NH died on May XX, 2018, in New Mexico. A copy of his online obituary identifies the Claimant as the NH’s only son.[2] The obituary also identifies J3~ as the NH’s father and states that the NH had four surviving brothers.

R~ provided the agency with a motion and order from the New Mexico State Court Case indicating that after the NH died, she sought to have J1~ removed from the Claimant’s birth certificate and the NH declared to be the Claimant’s father on his birth certificate. We discuss the specifics of this case in a separate section below. As noted in the next section, she did not provide a copy of the final court orders entered in this case disestablishing J1~'s paternity and adjudicating the NH to be the Claimant’s father. However, she did provide the agency with a copy of the Claimant’s New Mexico birth certificate - newly issued in October 2019 - listing the NH as his father and listing the Claimant’s name as “L~.”

R~ also provided the agency with a copy of a paternal grandparent DNA report dated October 2018, which tested J3~ (the NH’s father) and the Claimant. The paternal grandparent DNA report concludes that there was a 99.99% probability of grandpaternity and a likelihood of grandpaternity of 96,823 to 1. The report concludes: “This study supports the allegation that a son of the grandfather is the biological father of the child.”

c. Overview of the New Mexico State Court Case Regarding Child Support and Paternity

As noted, online New Mexico state court case information indicates that in April 2015, R~ and the State filed a petition seeking to require J1~ to pay child support for the Claimant and that the court ultimately ordered J1~ to pay child support for the Claimant through 2018. See State of New Mexico, (HSD) and R~ v. J1~, No. XXX, Second Judicial District Court, County of Bernalillo, State of New Mexico. The online docket shows orders entered in March 2016, January 2017, February 2017, April 2017, and July 2017 approving of a child support hearing officer’s reports. We do not have a copy of any of the court orders, but assume the orders requiring that J1~ pay child support are based on the acknowledgment and original birth certificate naming J1~ as the Claimant’s father, as described above.

After the NH’s death in May 2018, the online docket reveals that both R~ and J1~ filed various motions seeking paternity testing, seeking to change the child support orders, seeking to remove J1~ from the Claimant’s birth certificate, and seeking to identify the NH as the Claimant’s father, but such motions were unsuccessful throughout 2018. R~ provided SSA with a copy of an “Emergency Motion to Remove J1~ off L~'s Birth Certificate” that she filed in this case on July XX, 2018. In this motion, she stated the following: “J1~ is not the biological father of L~. L~'s biological father is J~ and is deceased. [C]hild support and Social Security do need J1~ removed to d[o] further paper work for L~'s benefits. J1~ does agree to be removed from birth certificate.” However, a docket entry for this case on September XX, 2018, reflects that following a hearing, the court denied a request to “disestablish paternity.” The docket reflects that J1~ filed a motion for paternity testing on December XX, 2018, but that the court entered a memorandum order denying the motion for paternity testing on December XX, 2018. R~ provided SSA with a copy of this December XX, 2018 memorandum order in which the court denied J1~'s motion for paternity testing finding: “Paternity of the child has already been adjudicated (See Hearing Officer Report filed 02/XX/16 and adopted as a Court Order on 03/XX/16. See also Hearing Officer Report filed 09/XX/18 and adopted as a Court Order on 10/XX/18).”

In May 2019, the online docket shows that the State filed a motion to amend/modify child support and to update judgment and both R~and J1~ were served. On June XX, 2019, the online docket shows that R~ again filed an “Emergency Motion to Remove J1~ from L~’s Birth Certificate and Add Biological Father’s Name and Child’s Name Change.” Docket entries reflect that on September XX, 2019, a hearing was held “on motion to remove/add name on birth certificate and child’s name change” and “on motion to update judgment.” Further, the docket shows that a domestic relations hearing officer report was filed on September XX, 2019, and that “[Respondent’s (J1~'s)] Paternity Disestablished.” On October XX, 2019, the court entered an order approving hearing officer’s report and the child support case was closed. R~ provided SSA with a copy of the Claimant’s new birth certificate - issued in October 2019 - changing the Claimant’s father from J1~ to the NH and changing his last name to the NH’s last name. Although we do not have copies of the September 2019 hearing officer report and the October 2019 court order, it would appear from the final case filings, docket entries, and new birth certificate that the court disestablished J1’s paternity and established the NH’s paternity of the Claimant ordering the new birth certificate, as requested.

5. Analysis

a. Federal Law: Entitlement to Child’s Insurance Benefits under the Act as a “Child”

Under Title II of the Act, a claimant may qualify for child’s insurance benefits on an insured individual’s earnings record if, among other things, he is the insured individual’s “child” and was dependent on the insured individual at the time of the individual’s death.[3] SeeAct 202(d)(1); 42 U.S.C. § 402(d)(1); 20 C.F.R. §§ 404.350, 404.355. The Act and regulations define “child” as an insured individual’s natural child, legally adopted child, stepchild, grandchild, step grandchild, or equitably adopted child. See Act § 216(e), 42 U.S.C. § 416(e); 20 C.F.R. §§ 404.354 – 404.359. Our inquiry in this opinion focuses on whether the Claimant is the NH’s natural child, as there is no evidence that the other relationships would apply here.

In assessing a claimant’s status as a natural child, the agency must determine whether the claimant could inherit the insured individual’s personal property as his child under the intestate succession laws of the State where the insured individual was domiciled at the time of his death. See Act § 216(h)(2)(A); 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b). If a claimant qualifies as a child of the insured individual under the foregoing analysis, the claimant is deemed dependent on the insured individual. 20 C.F.R. § 404.361(a). Because the NH was domiciled in New Mexico at the time of the NH’s death, we apply New Mexico’s intestate succession laws to determine whether the Claimant could inherit from the NH as his child.

b. New Mexico State Law: Inheritance under New Mexico Intestate Succession Laws

1. New Mexico Intestate Succession Law and Establishment of the Parent-Child under the New Mexico Uniform Parentage Act (UPA)

Article 2, Part 1 of New Mexico’s Uniform Probate Code (UPC), N.M. Stat. Ann. §§ 45-2-101 – 45-2-122, codifies New Mexico’s law of intestate succession. Any part of a decedent’s estate that is not disposed of by a will passes by intestate succession to the decedent’s heirs as provided for in the UPC, which includes the decedent’s surviving spouse and descendants. N.M. Stat. Ann. §§ 45-2-101(A), 45-2-103(A)(1). The UPC defines “descendant” as an individual who has established a parent-child relationship with the decedent. N.M. Stat. Ann. § 45-1-201(A)(9); see also N.M. Stat. Ann. § 45-1-201(A)(6) (defining “child” as “an individual entitled to take as a child pursuant to the [UPC] by intestate succession from the parent whose relationship is involved and excludes a person who is only a stepchild, a foster child, a grandchild or any more remote descendant”). If a parent-child relationship exists or is established, “the parent is a parent of the child and the child is a child of the parent for the purpose of intestate succession.” N.M. Stat. Ann. § 45-2-116. The UPC, however, does not set forth specific methods for establishing the parent-child relationship for purposes of intestate succession. Thus, we look to New Mexico’s Uniform Parentage Act (UPA), N.M. Stat. Ann. §§ 40-11A-101 – 40-11A-903, which determines parentage in New Mexico for all purposes under New Mexico law, including for intestate succession under the UPC.[4] See N.M. Stat. Ann. §§ 40-11A-103(A), 40-11A-203; see also Estate of Swift ex rel. v. Bullington, 309 P.3d 102, 105-106 (N.M. Ct. App. 2013) (recognizing that the UPA governs determinations of parentage in New Mexico, and that a parentage action could be maintained after a putative father’s death).

2. Establishment of the Father-Child Relationship, UPA Section 40-11A-201(B)

The UPA provides that the father-child relationship is established by:

(1) an unrebutted presumption of the man’s paternity of the child per § 40-11A-204;

(2) an effective acknowledgment of paternity by the man pursuant to Article 3 of the UPA, unless the acknowledgment has been rescinded or successfully challenged;

(3) an adjudication of the man’s paternity;

(4) adoption of the child by the man; or

(5) the man’s having consented to assisted reproduction by a woman pursuant to Article 7 of the UPA that resulted in the birth of the child.

N.M. Stat. Ann. § 40-11A-201(B)(1)-(5). Under the evidence provided here given the New Mexico State Court Case, the paternal grandparent DNA report, and the new birth certificate, the only relevant method to establish the father-child relationship between the NH and the Claimant is an adjudication of the man’s paternity.[5] See N.M. Stat. Ann. § 40-11A-201(B)(3). We next consider the evidence provided with the UPA provisions regarding adjudications of paternity.

3. Adjudication of Paternity, UPA Sections 40-11A-601 – 40-11A-643

Here, the New Mexico State Court Case involves proceedings to adjudicate paternity and child support with regard to both J1~,the NH, and the Claimant. Article 6 of the UPA sets forth the law regarding proceedings to adjudicate parentage. See N.M. Stat. Ann. §§ 40-11A-601 – 40-11A-643. The UPA authorizes civil proceedings to adjudicate the parentage of a child in a district court that has personal jurisdiction. See N.M. Stat. Ann. §§ 40-11A-601, 40-11A-604.

The UPA also authorizes court proceedings to adjudicate child support obligations. See N.M. Stat. Ann. §§ 40-11A-607(A), 40-11A-639(A). District courts have powers to enter orders adjudicating paternity and may enter judgments and orders addressing a variety of issues involving parents and children, including orders for child support. See N.M. Stat. Ann. § 40-11A-636(A), (G). Here, in determining the NH’s status as the Claimant’s parent, we consider the New Mexico State Court Case that relates to J1~’s father-child relationship with the Claimant and the NH’s father-child relationship with the Claimant. See State of New Mexico, (HSD) and R~ v. J1~, No. XXX, Second Judicial District Court, County of Bernalillo, State of New Mexico.[6]

R~ was not married at the time of the Claimant’s birth on June XX, 2010. If the child’s mother is unmarried, New Mexico law requires that the father complete an acknowledgement of paternity in order to be entered on the child’s birth certificate as the child’s father (unless there is a court determination of paternity). N.M. Stat. Ann. § 24-14-13(E), (F). The Claimant’s original birth certificate, which was provided to SSA, lists J1~ as the Claimant’s father and the Claimant’s last name as J1~’s last name. Thus, consistent with New Mexico law and R~’s statements to the agency, it is our understanding that J1~, who was in a relationship with R~ when the Claimant was born, completed such an acknowledgment of paternity.

The online docket for the New Mexico State Court Case shows that in 2015, R~ and the State’s child support-enforcement agency were petitioners in this child support proceeding filed in district court with J1~ as the respondent.[7] The online docket reflects that the court ordered J1~ to pay child support for the Claimant presumably based upon the acknowledgment of paternity, consistent with New Mexico law. See N.M. Stat. Ann. § 40-11A-305(A) (a valid acknowledgment of paternity filed with the bureau is equivalent to an adjudication of paternity of a child); N.M. Admin. Code 8.50.107.8(G) (“[a] determination of parentage is necessary for the establishment of child support” and if a child has an acknowledged, presumed, or adjudicated father, then parentage has been determined and the state agency will pursue the establishment of support on behalf of or against the parent), 8.50.108.8 (if parentage has been determined, and there is no support order in existence, the state agency will pursue the establishment of a support order); see also Human Services department, Child Support Enforcement Division v. Toney, 444 P.3d 1074, 1080 (N.M. Ct. App. 2019) (finding that the unchallenged acknowledgment of paternity was the functional equivalent of an adjudication of paternity,and the UPA authorizes district courts to order retroactive child support when an acknowledgment of paternity has established the parent-child relationship).

In this same New Mexico State Court Case, the online docket indicates that after the NH died in May 2018, both R~ and J1~ sought to have J1~ removed from the Claimant’s birth certificate and the NH declared to be the Claimant’s father on his birth certificate. New Mexico law requires a court order determining paternity to issue a new birth certificate identifying a new father and the law requires a court order to change a child’s last name on the birth certificate.[8] See N.M. Stat. Ann. §§ 24-14-17(A)(2) (new birth certificate following paternity determination), 24-14-25(B) (amendment to name on a birth certificate upon receipt of court order changing name), 40-8-1 (petition and order required for name change), 40-11A-636(E), (F) (order to issue amended birth certificate consistent with order adjudicating parentage), 40-11A-643 (the new birth certificate reflecting the adjudication of parentage is a substitute for the original birth certificate); N.M. Admin. Code 7.2.2.17(D) (amendments to birth certificates). In general, if a proceeding to adjudicate parentage is brought in court, the district court is required to issue an order adjudicating whether a parent alleged or claiming to be the parent is the child’s parent. N.M. Stat. Ann. § 40-11A-636(A). The order adjudicating parentage must identify the child by name and date of birth. N.M. Stat. Ann. § 40-11A-636(B). The court may order that the name of the child be changed and if so, require the issuance of a new birth record, if the existing one is at odds with the adjudication. N.M. Stat. Ann. §§ 40-11A-636(E), (F), 40-11A-643.

In the New Mexico State Court Case, after various unsuccessful filings by R~ and J1~ in 2018, in which the court denied a motion for paternity testing, found that paternity had already been adjudicated, and denied a motion to disestablish J1~'s paternity, the online docket shows that in May 2019, the State filed a motion to amend/modify child support and to update judgment. On June XX, 2019, the online docket shows that R~ again filed an “Emergency Motion to Remove J1~ from L~'s Birth Certificate and Add Biological Father’s Name and Child’s Name Change.” Docket entries reflect that on September XX, 2019, a hearing was held “on motion to remove/add name on birth certificate and child’s name change” and “on motion to update judgment.” Further, the docket shows that a domestic relations hearing officer report was filed on September XX, 2019, and that “[Respondent’s (J1~'s)] Paternity Disestablished.” On October XX, 2019, the court entered an order approving hearing officer’s report and the child support case was closed. R~ provided a copy of the new birth certificate issued in October 2019, changing the Claimant’s father from J1~ to the NH and changing his last name from J1~'s last name to the NH’s last name.

Thus, although we do not have copies of the September 2019 hearing officer’s report or the October 2019 court order to view the court’s exact language, given New Mexico law discussed above requiring court orders to make such changes to birth certificates, it would appear from the 2019 case filings and docket entries, particularly the one expressly noting that J1~’s paternity was disestablished, and the issuance of a new birth certificate for the Claimant that these final 2019 orders both disestablished J1~'s paternity and established the NH’s paternity of the Claimant. Therefore, even though we do not have the September 2019 hearing officer’s report and the October 2019 court order, the law and evidence indicates that a state court has adjudicated the NH to be the Claimant’s father. See N.M. Stat. Ann. 40-11A-201(B)(3).

In addition to the evidence from the New Mexico State Court Case and the birth certificates, R~ has also provided DNA testing in support of her claim that the NH is the Claimant’s father. It is unclear whether the October 2018 paternal grandparent DNA report provided to SSA was the basis for the 2019 court order. However, we do know that New Mexico law requires genetic testing results to determine a man to be a child’s father where the child already has an acknowledged or adjudicated father, such was the case here with J1~. See N.M. Stat. Ann. § 40-11A-631(A) (the paternity of a child having a presumed, acknowledged, or adjudicated father may be disproved only by admissible results of genetic testing excluding that man as the child’s father or identifying another man as the child’s father). The man identified as the child’s father by the genetic tests shall be adjudicated to be the child’s father, and the man excluded as the child’s father by genetic tests shall be adjudicated not to be the child’s father. N.M. Stat. Ann. § 40-11A-631(D). Given that J1~ was either the Claimant’s acknowledged or adjudicated father, the court would have had to have relied on the paternal grandparent DNA report (or other genetic testing establishing the NH as the father) to adjudicate that the NH was the Claimant’s father.

This paternal grandparent DNA report appears to comply with New Mexico law regarding genetic testing in paternity proceedings. See N.M. Stat. Ann. §§ 40-11A-501 – 40-11A-511 (UPA provisions governing genetic testing). New Mexico law allows for genetic testing of a man’s relatives, including his parents, if his specimen is not available. N.M. Stat. Ann. § 40-11A-508(A). Here, the paternal grandparent DNA report reflects that specimen from the NH’s father J3~ was tested. The genetic testing must be the type reasonably relied on by experts in the field of genetic testing and performed in an accredited testing laboratory and meet other certain requirements. N.M. Stat. Ann. § 40-11A-503(A). Here, the paternal grandparent DNA Report reflects that “Testing performed and report generated at Laboratory Corporation of America. Laboratory Corporation of America is accredited by the AABB.” The report of genetic testing must be in a record and signed under penalty of perjury by a designee of the testing laboratory. N.M. Stat. Ann. § 40-11A-504(A). Here, the paternal grandparent DNA report was in a record and signed under penalty of perjury by M~, authorized by Laboratory Corporation of America to execute the report. Further, the laboratory’s documentation must establish a reliable chain of custody by including: (1) the names and photographs of the persons whose specimens have been taken; (2) the names of the persons who collected the specimens; (3) the places and dates the specimens were collected; (4) the names of the persons who received the specimens in the testing laboratory; (5) the dates the specimens were received; and (6) the accreditation of the testing facility. N.M. Stat. Ann. § 40-11A-504(B). Here, the documentation shows the names and photographs of the Claimant and J3~; shows that S~ collected the specimens at LabCorp on September XX, 2018, from J3~ and on September XX, 2018, from the Claimant; shows that A~ received the Claimant’s specimen and another individual (whose signature is illegible) received J3~'s; and that the LabCorp testing facility is accredited by the AABB. Finally, the law provides that results of genetic testing that complies with the UPA showing that a man has at least a 99 percent probability of paternity and a combined paternity index of at least 100 to 1 rebuttably identifies the man as the child’s father. N.M. Stat. Ann. § 40-11A-505. Here, the genetic testing results showed a probability of grandpaternity of 99.99% and that the likelihood of grandpaternity was 96,823 to 1. Further, the report concludes: “This study supports the allegation that a son of the grandfather is the biological father of the child.” Thus, the paternal grandparent DNA report appears to substantially comply with New Mexico law and further supports of the NH’s parent-child relationship with the Claimant.[9] Indeed, as noted, it is likely that the court considered this DNA evidence in disestablishing J1~’s paternity and establishing the NH’s paternity in the New Mexico State Court Case.

In summary, although we do not have copies of the September 2019 hearing officer report and October 2019 court order themselves in this New Mexico State Court Case, in light of the docket entries for the 2019 orders reflected on the online docket, copies of the motion and order filed earlier in the case, the paternal grandparent DNA report, and the birth certificates (both the original and the newly issued one in 2019), it would appear that this court adjudicated the NH to be the Claimant’s father consistent with New Mexico law. Considering the totality of the evidence, we believe there is legal support for the agency to find that the NH has been adjudicated to be the Claimant’s father and therefore, has established the father-child relationship and the right to inherit from the NH as his descendant under intestate succession law. See N.M. Stat. Ann. §§ 40-11A-201(B)(3) (the father-child relationship is established between a man and a child by an adjudication of the man’s paternity), 45-2-101(A) (any part of a decedent’s estate not disposed of by will passes by intestate succession to the decedent’s heirs), 45-2-103(A)(1) (any part of the intestate estate not passing to the surviving spouse passes to the decedent’s descendants), § 45-1-201(A)(9) (a “descendant” is an individual who has established a parent-child relationship with the decedent), § 45-2-116 (if a parent-child relationship exists or is established, “the parent is a parent of the child and the child is a child of the parent for the purpose of intestate succession”).

4. SSR 83-37c: The State Court Adjudication Does Not Bind the Agency

Finally, consistent with Social Security Ruling (SSR) 83-37, we consider whether this state court adjudication of parentage is binding on the agency by considering certain factors (the Gray factors): (1) whether a State court of competent jurisdiction has determined an issue in a claim for Social Security benefits; (2) whether parties with opposing interests genuinely contested the issue before the State court; (3) whether the issue falls within the general category of domestic relations law; and (4) whether the State court’s resolution is consistent with the law enunciated by the State’s highest court. See SSR 83-37c (adopting Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973) as national policy); see also POMS GN 00306.015(B)(2) (providing that when determining a child’s relationship under state law, where the evidence includes a state court decision on the issue, SSA is not necessarily bound by the court decision; referring the agency to SSR 83-37c for the applicable criteria of Gray v. Richardson).

As to the first and third Gray factors, the New Mexico State Court Case order satisfies these Gray factors because a state district court has jurisdiction to adjudicate paternity and order changes to birth certificates as to the father and last name changes, and the NH’s paternity of the Claimant is the issue in this claim for child’s insurance benefits on the NH’s record. See N.M. Stat. Ann. §§ 40-8-1, 40-11A-104, 40-11A-636, 40-11A-643. The issue of parentage falls within the general category of domestic relations law. Thus, the first and third Gray factors appear satisfied.

As to the second Gray factor, while it is clear from the online docket for the New Mexico State Court Case that J1~'s paternity of the Claimant was contested, we are unable to say with certainty that the NH’s paternity as to the Claimant was genuinely contested within the proceedings in the New Mexico State Court Case. Accordingly, we are unable to determine whether the second Gray factor was met.

As to the fourth Gray factor, and as explained above, because we do not have copies of the September 2019 hearing officer report and October 2019 court order, it is unknown if the orders disestablishing J1~'s paternity and adjudicating the NH’s paternity of the Claimant comply with all of the specific New Mexico statutory provisions regarding adjudications of parentage. See N.M. Stat. Ann. §§ 40-11A-601 – 40-11A-643. However, as set out above, we do know that district courts are authorized to make these paternity adjudications based upon genetic testing and to order changes to birth certificates consistent with such paternity determinations. Thus, although we do not have a copy of the underlying orders themselves in this New Mexico State Court Case, in light of the entries for the 2019 orders reflected on the online docket, the paternal grandparent DNA report, the Claimant’s original birth certificate and the Claimant’s new birth certificate identifying the NH as his father, it would appear that this court adjudicated the NH to be the Claimant’s father in a manner consistent with New Mexico law. Without the full court documents, we are unable to determine with certainty whether this fourth Gray factor was met.

Although the state court’s orders are not binding on the agency given the uncertainties as to the second and fourth Gray factors, we believe the agency may reasonably rely upon the 2019 orders, along with the full online docket for the New Mexico State Court Case, the paternal grandparent DNA report, and the new birth certificate naming the NH to be the Claimant’s father, in finding the Claimant to be the NH’s child for purposes of his application for child’s insurance benefits on the NH’s record.[10] See Hanson v. Astrue, 733 F.Supp.2d 214, 218 (D. Mass. 2010) (“It would not be inconsistent with [SSR 83-37c] for the Commissioner to follow a state adjudication even though fewer than all the conditions were met, subject to bounds of reason and good faith.”).

5. The Effective Date of the Parent-Child Relationship

You have asked when the parent-child relationship between the NH and the Claimant began. Agency policy distinguishes among legitimate, illegitimate, and legitimated children and provides for differences in the effective date of the parent-child relationship based on the child’s status. See POMS GN 00306.001(H) (defining “illegitimate child”), (M) (defining “legitimate child”), (N) (defining “legitimizing event”), GN 00306.050(A)(3) (“a child legitimated after birth is considered to be legitimate from birth”), GN 00306.055(A)(1) (distinguishing between a legitimated child and an illegitimate child with inheritance rights), (3) (“An act/event conferring inheritance rights generally has effect only from the date of such act/event. . . . If a provision . . . shows that a State law confers inheritance rights based on an adjudication of paternity (but does not legitimate the child), and the provision is effective prospectively only, the claimant’s status as the NH’s child is established effective with” the dates of the evidence submitted.). However, New Mexico law does not use the terms legitimate or illegitimate or provide a mechanism for legitimating a child. Once the parent-child relationship is established under New Mexico law, the effective date of the parent-child relationship is established as of the child’s birth regardless of the parents’ marital status and regardless of the method or type of evidence establishing the parent-child relationship.[11] See N.M. Stat. Ann. §§ 40-11A-103(A) (the New Mexico UPA applies to determinations of parentage in New Mexico), 40-11A-202 (“A child born to parents who are not married to each other has the same rights pursuant to the law as a child born to parents who are married to each other.”), 40-11A-203 (“a parent-child relationship established pursuant to the New Mexico [UPA] applies for all purposes”), 45-2-116 (“if a parent-child relationship exists or is established” under the Uniform Probate Code, “the parent is a parent of the child and the child is a child of the parent for purposes of intestate succession”), 45-2-117 (“a parent-child relationship exists between a child and the child’s genetic parents, regardless of the parents’ marital status”). Thus, as the Claimant has established a parent-child relationship with the NH under New Mexico law, this relationship began with the Claimant’s date of birth, June XX, 2010.

6. Conclusion

We believe that a New Mexico court would find that the Claimant has proven a parent-child relationship with the NH and thus the right to inherit from the NH under New Mexico intestate succession law. Thus, we believe there is legal support for the agency to find that the Claimant has proven a parent-child relationship with the NH under section 216(h)(2)(A) of the Act for purposes of his application for child’s insurance benefits on the NH’s record. The parent-child relationship between the NH and the Claimant began on June XX, 2010, the Claimant’s date of birth.


Footnotes:

[1]

 

R~ provided SSA with a copy of a motion and order filed in this case in 2018, and we were able to locate the online docket with this case information. The full online docket for this case with docket entries describing case filings and orders is accessible through New Mexico State Judiciary Case Lookup, but the underlying case documents are not accessible. Seehttps://caselookup.nmcourts.gov/caselookup/app (last visited August 13, 2020).

[2]

 

See XXX (last visited August 3, 2020).

[3]

The Claimant must satisfy other criteria for his application for benefits as the NH’s child that are outside the scope of this legal opinion request. See Act § 202(d)(1); 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350. Consistent with your legal opinion request, we focus only on the requirement of whether the Claimant and the NH have a parent-child relationship. See 20 C.F.R. § 404.350(a)(1).

[4]

The current version of the UPA, effective January 1, 2010, applies to the facts here where the Claimant was born in June 2010 and the New Mexico State Court Case proceedings were commenced in 2015. The New Mexico Supreme Court described the history of this statute: “New Mexico first enacted the Uniform Parentage Act in 1986. See Uniform Parentage Act (UPA), NMSA 1978, §§ 40-11-1 to -23 (1986, as amended through 2004) (repealed 2009). The Legislature repealed the original UPA in 2009 and adopted the New Mexico Parentage Act, effective January 1, 2010. See NMSA 1978, §§ 40-11A-101 to -903 (2009).” Tue Thi Tran v. Bennett, 411 P.3d 345, 351 (N.M. 2018).

[5]

None of the circumstances giving rise to a presumption of paternity apply to the facts here as to the NH and the Claimant because there was no marriage or attempted marriage between R~ and the NH and no evidence that the NH resided with the Claimant for the first two years of his life. See N.M. Stat. Ann. §§ 40-11A-201(B)(1), 40-11A-204(A). There is no evidence that the NH and R~ executed an acknowledgment of the NH’s paternity as to the Claimant in accordance with the UPA. See N.M. Stat. Ann. §§ 40-11A-201(B)(2), 40-11A-301. There is no adoption here. See N.M. Stat. Ann. § 40-11A-201(B)(4). Further, there is no evidence indicating that this case involves a child resulting from assisted reproduction. See N.M. Stat. Ann. §§ 40-11A-201(B)(5), 40-11A-703.

[6]

The docket reflects entries of reports by a child support hearing officer and a domestic relations hearing officer, both of whom are authorized to act in proceedings related to child support and paternity matters. See N.M. Stat. Ann. §§ 40-4B-1 – 40-4B-10 (Child Support Hearing Officer Act); N.M. R. Civ. Pro. Rule 1-053.2 (provisions relating to requirements and duties of domestic relations hearing officers).

[7]

R~ and the State of New Mexico, Human Services Department (HSD) are listed as petitioners in this child support case. New Mexico HSD’s Child Support Enforcement Division can help establish paternity and child support obligations. See N.M. Stat. Ann. § 27-2-27 (HSD is the single state agency for New Mexico to bring an action to establish child support orders); see also https://www.hsd.state.nm.us/LookingForAssistance/Child_Support.aspx (last visited Aug. 5, 2020).

[8]

The New Mexico State Registrar does not amend the original birth certificate, but issues a new birth certificate to change the parents identified on the birth certificate. Specifically, New Mexico law provides that the State Registrar shall establish a new birth certificate when he or she receives a request that a new certificate of birth be established and evidence proving that a court has determined paternity of the person. N.M. Stat. Ann. §§ 24-14-17(A)(2), 40-11A-643. The new birth certificate is substituted for the original birth certificate. N.M. Stat. Ann. §§ 24-14-17(B), 40-11A-643. In addition, as to last name changes, upon receipt of a certified copy of a court order changing the name of a person born in New Mexico and upon request of the person’s parent, guardian, or legal representative, the State Registrar shall amend the birth certificate to reflect the new name. N.M. Stat. Ann. § 24-14-25(B); see also N.M. Stat. Ann. §§ 40-8-1, 40-8-2 (process for obtaining a court order for a name change); N.M. Admin. Code 7.2.2.17(D)(1) (any application for an amendment to change a last name shall be accompanied by a court order).

[9]

We note that the NH’s obituary indicates that he had four surviving brothers, and we do not have evidence regarding the brothers’ relationship with R~. However, this is not a claim in which the sole evidence of paternity is DNA testing and where it is questionable as to whether one of the NH’s brothers could be the Claimant’s father. Here, we have the evidence from the New Mexico State Court Case, the newly issued birth certificate naming the NH as the father, and the NH’s obituary identifying the Claimant as his son. It is the totality of all of this evidence that supports the NH’s paternity as to the Claimant.

[10]

The Fifth

Circuit’s test for determining when a state court order binds the agency is generally consistent with SSR 83-37c, but it places an emphasis upon the fourth Gray factor. See Warren v. Sec’y of Health & Human Servs., 868 F.2d 1444, 1446-47 (5th Cir. 1989); Garcia v. Sullivan, 883 F.2d 18, 19-20 (5th Cir. 1989). In Garcia , the Commissioner declined to accept a state court determination regarding paternity because parties with opposing interests did not genuinely contest the issue. Garcia , 883 F.2d at 20. Thus, the agency relied upon the second Gray criteria to find that the state court order did not bind the agency. The Fifth Circuit stated in Garcia that because the agency is required to determine how the state courts would decide the matter, “where a state trial court has adjudicated the issue in an adversarial setting the [agency’s] inquiry is manifestly simplified: the [agency] should follow the decision of the state court, absent extraordinary reasons.” Id. (citing Warren , 868 F.2d at 1444). The Fifth Circuit further noted it that the agency should only disregard a state court’s decision when the agency is convinced that the decision is in conflict with what the state supreme court has held or would hold were it presented with the issue. Id. In reversing the Commissioner’s decision to disregard the state court order, the Fifth Circuit thus emphasized that the agency should disregard a state court order only when the order does not meet the fourth Gray criteria.

 

[11]

New Mexico first adopted the UPA in 1986, N.M. Stat. Ann. 1978, §§ 40-11-1 to -23 (1986, as amended through 2004) (repealed 2009). The Legislature repealed the original UPA in 2009 and adopted the present version of the UPA, effective January 1, 2010. See N.M. Stat. Ann. 1978, §§ 40-11A-101 to -903 (2009). Present New Mexico intestacy laws and UPA laws do not use the language of legitimacy, do not provide methods for legitimating a child, and provide for equal rights for children regardless of their parents’ marital status. Similar to our interpretation of Texas and Oklahoma laws (both of which adopted the UPA, as New Mexico did), we have determined that once the parent-child relationship is established under New Mexico UPA and thus, under New Mexico intestacy law, it is established as of the child’s birth and not prospectively only from the date of the act/evidence provided to prove that parent-child relationship. See N.M. Stat. Ann. § 40-11A-901 (“In applying and construing the Uniform Parentage Act, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.”). This legal opinion supersedes any prior opinions issued on the effective date of the parent-child relationship under New Mexico law. See POMS PR 01115.034 New Mexico, A. PR 12-097 New Mexico Law – New Mexico State Law Clarification of Legitimating Acts for Child Relationship (NH Reynel, SSN~) – REPLY (May 4, 2012).


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PR 01120.034 - New Mexico - 10/16/2020
Batch run: 10/16/2020
Rev:10/16/2020