In Pennsylvania, in a case where the deceased number holder openly held out the claimant as his child during his lifetime, received him into his home and supported him, the court would find that a parent-child relationship existed by the clear and convincing standard.

Since the evidence of the highest value was dated on November 5, 2007, that is the earliest possible date of entitlement.

QUESTIONS PRESENTED

On December 20, 2007, you requested our opinion as to (1) whether a parent-child relationship exists between Chris F. S~ (Number Holder) and Cayden J. S~; (2) the effective date of the parent-child relationship, if any; and (3) whether retroactive benefits should be paid.

On January 22, 2008, we requested additional evidence consisting of the following documents that were referenced in the file: (1) a copy of the lease showing that the mother and child had lived with the Number Holder; (2) a copy of the letter from the landlord confirming that the mother and child had lived in the same home as the Number Holder; (3) statements from family members addressing the Number Holder's acknowledgment of paternity; and (4) a copy of the acknowledgment of paternity form signed by the Number Holder and referenced on the "Social Security & Paternity & Acknowledgment" form dated March 27, 2006. In response, on June 5, 2008, you provided us with copies of affidavits from eight family members confirming that the Number Holder had acknowledged paternity.

CONCLUSION

We have reviewed the information you provided and have researched the relevant provisions of Pennsylvania law as it pertains to paternity. We have also reviewed the relevant regulations to determine the effective date of the parent-child relationship and whether retroactive benefits should be paid. Based on our review, we believe that a Pennsylvania court would likely determine that the evidence is sufficient to constitute clear and convincing evidence of a parent child relationship between the Number Holder and Cayden.

BACKGROUND

According to the information that you have provided, Cayden was born on March 27, 2006. Cayden's birth certificate indicates that his mother is Casey L. N. O~. The birth certificate does not include the name of his father, indicating only that the information was not recorded. It does, however, include his full name, Cayden J. S~, identifying his surname as that of the Number Holder. At the time of his birth, Ms. O~ and the Number Holder were not married.

On March 27, 2006, the Pottstown Memorial Medical Center issued a record of birth which certified that Cayden was born on that date to Ms. O~ and Chris F. S~, Jr., the Number Holder. The record of birth was signed by an authorized official and an attending physician, and affixed with the official hospital seal. According to the Pennsylvania Department of Health, Division of Vital Records, a record of birth such as this one is considered a hospital memento and is not an official record of birth.

Also on March 27, 2006, on a hospital form titled "Social Security & Paternity & Acknowledgment," a hospital official certified that the mother and father of Cayden J. S~ had signed acknowledgment of paternity forms. The hospital form provides for, and contains, the name of the mother, Ms. O~, but does not provide for the name of the father. The acknowledgment of paternity that the Number Holder allegedly signed was not itself included in the documents that you have forwarded to us. In addition, a memo from the New York regional office indicates that the hospital could not verify paternity from its records.

According to an Agency worksheet, on April 10, 2006, and March 14, 2007, Ms. O~ filed applications for a social security number on Cayden's behalf. Both applications included the name of Cayden's mother, but indicated that the name of his father was unknown.

On or about March 22, 2007, Ms. O~ and Cayden moved to the state of New York. On April 17, 2007, Ms. O~ filed a paternity petition with the family court in New York. At a default hearing on June 28, 2007, Ms. O~ testified that the Number Holder had signed an acknowledgment of paternity in the Commonwealth of Pennsylvania. The matter was adjourned for thirty days to await further notice from the department of social services regarding any prior paternity.

One month later, on July 27, 2007, the Number Holder died in the Commonwealth of Pennsylvania.

On August 14, 2007, Ms. O~ filed an application for surviving child's benefits on behalf of Cayden and for a lump sum death payment. This application is not contained in the materials that you have forwarded to us.

On August 22, 2007, a family court judge in the state of New York entered an order dismissing Ms. O~'s paternity petition. The judge indicated that there was no need for the matter to proceed because the Number Holder had acknowledged paternity.

An Agency worksheet also shows that Ms. O~ submitted as evidence a letter from a landlord, as well as a copy of a lease, indicating that she and Cayden had lived with the Number Holder until March 2007. Neither of these documents is contained in the materials that you have forwarded to us.

Finally, at our request, you have provided additional documents consisting of affidavits from eight relatives of the Number Holder and Ms. O~. These affidavits include individual statements from the Number Holder's parents and brother, as well as Ms. O~'s parents and brother, that the Number Holder had acknowledged that Cayden was his son. Both the Number Holder's parents and Ms. O~'s parents also stated that they and the Number Holder had been present at Cayden's birth. Sherry W~, the Number Holder's mother, stated that for approximately one year, Ms. O~ and the Number Holder had lived in the apartment above her home, and that the Number Holder had cared for Cayden in his first year before Ms. O~ took Cayden to live in New York. Chris F. S~, Sr., the Number Holder's father, confirmed that the Number Holder had supported Cayden until Ms. O~ had moved to New York.

James O~, Ms. O~'s brother, stated that he had known the Number Holder for several years and that the Number Holder had been present at Ms. O~'s baby shower.

DISCUSSION

The Social Security Act provides that, in determining whether an applicant is the child of an insured individual, the Commissioner will apply the inheritance law of the state in which the individual was domiciled at the time the application was filed or, if the insured individual is dead, of the state in which the insured individual was domiciled at the time of his death. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1)(2007). Because the Number Holder was domiciled in Pennsylvania at the time of his death, Pennsylvania intestacy law applies.

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

1. (a) 

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

2. (b) 

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

3. (c) 

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

In this case, the first condition has not been met because the Number Holder and Ms. O~ were not married. We believe, however, that a Pennsylvania court would likely find that the second condition has been met. That is, we believe that a court would find that there is clear and convincing evidence that the Number Holder openly held out Cayden as his child, received him into his home, and provided support for him. Under Pennsylvania law, the clear and convincing evidence standard requires "'proof greater than a mere preponderance, but less than beyond a reasonable doubt.'" Estate of Vanoni, 798 A.2d 203, 209 (Pa. Super. Ct. 2002) (citations omitted). "'Clear and convincing evidence' is the highest burden in our civil law and requires that the fact-finder be able to 'come to clear conviction, without hesitancy, of the truth of the precise fact in issue.'" In re Estate of Heske, 647 A.2d 243, 244 (Pa. Super. Ct. 1994) (citing Lessner v. Rubinson, 592 A.2d 678, 681 (Pa. 1991)). Here, the strongest evidence that the Number Holder openly held out Cayden as his child consists of affidavits from eight members of both his and Ms. O~'s families, including all four grandparents, in which they confirm that the Number Holder had acknowledged that Cayden was his child. In addition to the Number Holder's acknowledgment of paternity to his family, the parents of both the Number Holder and Ms. O~ stated that they and the Number Holder had been present at Cayden's birth. Furthermore, Ms. O~'s mother specifically stated that the Number Holder had acknowledged paternity to the hospital staff as well as to all who had been present.

In addition to evidence that the Number Holder openly held out Cayden to be his child by acknowledging paternity, the evidence shows that the Number Holder received Cayden into his home and provided support for him. Pennsylvania courts have considered providing a home and support for a child to be relevant factors in establishing that a father has openly held out a child as his under 20 Pa. Cons. Stat. Ann. § 2107(c)(2). See In re Estate of Simmons-Carton, 644 A.2d 791, 797 (Pa. Super. 1994) (finding, among other factors, that evidence that a relationship between the alleged father and the mother began several years before the child's birth, that the parties continued to live together after the birth, and that the alleged father treated the child as his and provided support for her met the criteria for determining paternity under § 2107); In re Montenegro, Jr., 528 A.2d 1381, 1384 (Pa. Super. 1987) (holding that a putative father was estopped from denying paternity where he had held himself out to be the child's father by marrying the mother and assuming responsibility for the care of their child).

In this case, Agency notes reference a copy of a lease which shows that Cayden and his mother lived with the Number Holder until March 2007. Although the copy of the lease was not included in the documents that we received, sworn affidavits from several family members attest to the fact that Cayden and his mother lived with the Number Holder for approximately the first year of Cayden's life. For example, the Number Holder's mother testified in her affidavit that the Number Holder and Ms. O~ lived together for approximately one year before Ms. O~ became pregnant. Similarly, Ms. O~'s mother testified in her affidavit that the Number Holder and her daughter had been in a relationship since 2002, and had lived together in her home before moving, together, to another home in October 2005. Moreover, separate affidavits from the Number Holder's mother and father, as well as from Ms. O~'s mother, show that the Number Holder provided support for Cayden until Ms. O~ moved to New York. Based on these affidavits, we believe that a Pennsylvania court would find that there is clear and convincing evidence that the Number Holder openly held out Cayden as his child, received him in his home, and provided support for him.

Finally, although we need not reach the third condition, we believe that a court would likely find that the evidence also satisfies the requirements of § 2107(c)(3). To meet this provision, Cayden must show by clear and convincing evidence that the Number Holder was his father, and such evidence may include a prior court determination of paternity. In this case, the evidence in support of paternity includes a hospital record of birth which certifies that the Number Holder was Cayden's father. Although this document is a hospital memento rather than an official birth record, it is consistent with the family members' affidavits stating that the Number Holder was Cayden's father. The evidence also includes a hospital form indicating that the Number Holder had signed an acknowledgment of paternity. Similarly, although this form is not the official acknowledgment of paternity, it too provides additional evidence consistent with the affidavits in support of the Number Holder's paternity. The evidence further includes a New York family court order dismissing Ms. O~'s petition for paternity based on evidence that the Number Holder had acknowledged paternity. Although the court order dismissing Ms. O~'s paternity petition does not meet the requirements of a court determination of paternity under § 2107(c)(3), it does show that a court considered the Number Holder's acknowledgment of paternity sufficient to render Ms. O~'s paternity petition moot. Finally, as discussed above, the evidence includes sworn affidavits from eight family members who attested to the Number Holder's acknowledgment of paternity. Based on the considerable favorable evidence, and in the absence of any directly contradictory evidence, it is our opinion that a Pennsylvania court would likely find clear and convincing evidence that the Number Holder was Cayden's father.

You have also requested our opinion as to the effective date of the parent-child relationship, if any, and whether retroactive benefits should be paid. Regarding the effective date of the parent child relationship, the regulations provide that, if the insured is deceased, the child is entitled to benefits beginning with the first month covered by the application in which he meets all other requirements for entitlement. 20 C.F.R. § 404.352(a)(1). The requirements for entitlement include establishing that you are the insured's child. 20 C.F.R. § 404.350(a)(1). Here, the date of Cayden's application for benefits is August 14, 2007. Although there is other evidence in the file to support a finding that Cayden was the Number Holder's child, the strongest evidence in support of paternity consists of affidavits from the Number Holder's family members which establish that the Number Holder openly held out Cayden as his child. Accordingly, the date of the latest necessary piece of evidence establishing the Number Holder's paternity is November 5, 2007, the latest date of the affidavits from the family members. It is our opinion, therefore, that a parent-child relationship was established effective November 5, 2007.

Regarding retroactive benefits, the regulations further provide that if a child files an application for benefits after the first month in which he could have been entitled to them, he may receive retroactive benefits for up to six months preceding the month in which his application was filed. 20 C.F.R. § 404.621(a)(2). Benefits may begin with the first month in this six-month period in which the claimant meets all the requirements for entitlement. 20 C.F.R. § 404.621(a)(2). In this case, Cayden did not file his application after the first month in which he could have been entitled to them. Rather, he filed his application for benefits on August 14, 2007, and met all of the requirements for entitlement to benefits on November 5, 2007. Therefore, because he filed his application for benefits three months before he met all of the requirements for entitlement, retroactive benefits are not applicable.

CONCLUSION

For the reasons stated above, it is our opinion that a Pennsylvania court would likely find the evidence sufficient to establish that the Number Holder was Cayden's father under Pennsylvania law. Therefore, the Agency should find that there was a parent-child relationship between the Number Holder and Cayden, with an effective date of November 5, 2007, but that retroactive benefits are not applicable.

Michael M~

Regional Chief Counsel

By: ___________________________

Anne von S~

Assistant Regional Counsel

A Pennsylvania court would likely find that DNA test results indicating a 99.99% probability that the Number Holder is the claimant's father, along with the additional evidence of a Pennsylvania court order establishing paternity and the acknowledgment of paternity by two sisters of the Number Holder, would constitute clear and convincing evidence sufficient to establish a parent-child relationship between the Number Holder and the claimant. The effective date of the parent-child relationship is July 19, 2007, the date of the DNA test results.

QUESTION PRESENTED

Upon receipt of additional evidence, on November 27, 2007 and December 5, 2007, respectively, you requested our updated opinion as to whether a parent-child relationship exists between Leonard K~, ("the Number Holder"), and the minor claimant, Lauren E. S~ ("the claimant"). If a parent-child relationship can be established, you also asked for the effective date of that relationship and whether retroactive benefits should be paid.

SUMMARY

Based upon our review of the facts of this case and our research of relevant Pennsylvania statutes and case law, we have determined that a Pennsylvania court applying the state's inheritance law would likely find that the July 19, 2007 deoxyribonucleic acid (DNA) test results indicating a 99.99% probability that the Number Holder is the claimant's father, along with the additional evidence of a Pennsylvania court order establishing paternity and the acknowledgment of paternity by two sisters of the Number Holder, would constitute clear and convincing evidence sufficient to establish a parent-child relationship between the Number Holder and the claimant. The effective date of the parent-child relationship is July 19, 2007, the date of the DNA test results.

BACKGROUND

According to the information you provided, the Number Holder was a resident of Dallas, Pennsylvania, and died there on April 23, 2005.

The claimant was born on December 7, 2005. The claimant's birth certificate lists her mother's maiden name as Michelle S. F~. It does not include the name of her father. The claimant's mother and the Number Holder were not married and did not cohabit. The claimant's mother, however, reported that she was expecting a child with the Number Holder at the time of his death.

An application for a social security number completed on February 21, 2006, indicates that Michelle S. F~ is the claimant's mother. The application does not include the name of the claimant's father.

The claimant's mother goes by the name of Michelle S~. Ms. S~ reported that she married John S~, Jr., in August 1997. The couple had two children, Taylor and Darren S~. They divorced in November 2002, and Ms. S~ claims she had no involvement with Mr. S~ after that time. Ms. S~ reported that she gave the claimant the last name "S~" so that she and all of her children would have the same last name.

On July 19, 2007, Ms. S~ and the claimant underwent deoxyribonucleic acid (DNA) testing with DNA evidence that had been collected from the Number Holder on July 3, 2007. The test results indicate a 99.99% probability that the Number Holder was the claimant's father.

On August 29, 2007, Ms. S~ filed an application on the claimant's behalf for surviving child's benefits on the Number Holder's account.

Ms. S~ subsequently filed a petition in the Court of Common Pleas of Bradford County, Pennsylvania requesting an order to determine the claimant's paternity.

On October 3, 2007, Ms. S~, the Administratrix of the Number Holder's Estate (hand-written signature appears to read as "Barbara M~"), and Patricia K~, signed a Stipulation wherein they agreed that: (1) the Number Holder had been determined to be the natural father of the claimant based upon paternity tests; (2) Ms. S~ would identify the Number Holder as the father of the minor child on the birth certificate; and (3) with the evidence from the DNA analysis and the birth certificate, Ms. S~ would be entitled to apply for social security death benefits on the claimant's behalf as an heir of the Number Holder.

Based upon the Stipulation, the Court of Common Pleas of Bradford County issued an order on October 12, 2007, finding the claimant to be the natural child of the Number Holder and entitled to all rights and privileges as the natural child of the Number Holder.

On December 5, 2007, Ms. S~ submitted two additional documents in support of the claimant's application for surviving child's benefits.

The first document is an undated letter to Ms. S~ from Sue L~, the Number Holder's sister. Ms. L~ initially writes that the Number Holder believed that Ms. S~ was unfaithful to him. She also states that the Number Holder's family did not believe that the claimant was his child. However, Ms. L~ then proceeds to acknowledge the Number Holder as the claimant's father. She writes that the Number Holder's parents were going to be told about the claimant, but they had not learned about her sooner because "we did not want to expose them to additional anxiety if the baby was not [the Number Holder's]." Ms. L~ offers to provide pictures of the Number Holder to Ms. S~ so that the claimant "will at least have some pictures of her Dad to have." Ms. L~ also requests to be involved in the claimant's life "so as she grows up she can have some kind of connection to her Dad."

The second document is an alleged e-mail from the Number Holder to Ms. S~ dated April 17, 2005, wherein the Number Holder expresses his love for Ms. S~.

DISCUSSION

As we advised you in our original memorandum dated October 26, 2007, the Social Security Act provides that, in determining whether an applicant is the child of an insured individual, the Commissioner will apply the inheritance law of the state in which the individual was domiciled at the time the application was filed or, if the insured individual is dead, of the state in which the insured individual was domiciled at the time of his death. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1)(2007). Because the Number Holder was domiciled in Pennsylvania at the time of his death, Pennsylvania intestacy law applies.

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

1. (a) 

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

2. (b) 

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

3. (c) 

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

In this case, the first two provisions of § 2107(c) have not been met. As noted above, the Number Holder and Ms. S~ were not married. Additionally, the Number Holder died before the claimant was born.

In our original memorandum, we opined that the claimant had not satisfied § 2107(c)(3), the only provision that could apply in this case. As we explained, in order to satisfy this provision, the claimant had to prove by clear and convincing evidence that the Number Holder was her father. Under Pennsylvania law, the clear and convincing evidence standard requires "'proof greater than a mere preponderance, but less than beyond a reasonable doubt.'" Estate of Vanoni, 798 A.2d 203, 209 (Pa. Super. Ct. 2002) (citations omitted). "'Clear and convincing evidence' is the highest burden in our civil law and requires that the fact-finder be able to 'come to clear conviction, without hesitancy, of the truth of the precise fact in issue.'" In re Estate of H~, 647 A.2d 243, 244 (Pa. Super. Ct. 1994) (citing Lessner v. Rubinson, 592 A.2d 678, 681 (Pa. 1991)).

Initially, the evidence submitted by the claimant included the DNA test results establishing a 99.99% probability that the Number Holder is the claimant's father, and the statement of the claimant's mother, Ms. S~, that the Number Holder is the claimant's father.

As we previously explained, Pennsylvania case law generally establishes that in all civil matters, DNA test results should be considered as a factor in assessing whether there is clear and convincing evidence of paternity but the evidence, itself, is not conclusive to proving paternity by clear and convincing evidence. See Zearfoss v. Frattaroli, 646 A.2d 1238, 1241 (Pa. Super. Ct. 1994); Wawrykow v. Simonich, 652 A.2d 843, (Pa. Super. Ct. 1994). Accordingly, we opined that, while it was possible that a reviewing court would find that the DNA test results and Ms. S~ statement, along with the absence of contradictory evidence, comprised sufficient evidence to establish paternity by clear and convincing evidence, we were unable to determine for certain whether this would be the result. See Zearfoss, 646 A.2d at 1243 (holding that a court may find non-paternity despite DNA test results establishing a probability of paternity of 99.99% "if the other facts are supportive of such a verdict").

Upon receipt of additional evidence, however, we now believe that a court would likely find that there is clear and convincing evidence that the Number Holder was the claimant's father. The DNA test results establish a 99.99% probability that the Number Holder is the claimant's father. The additional evidence that has been submitted corroborates the DNA test results and Ms. S~ assertion that the Number Holder is the claimant's father. The October 12, 2007 order issued by the Court of Common Pleas of Bradford County declares the claimant to be the natural child of the Number Holder. In addition, two of the Number Holder's sisters have acknowledged the Number Holder's paternity. Patricia K~ signed a Stipulation on October 3, 2007 wherein she formally agreed that the Number Holder is the claimant's father. Sue L~ acknowledged the Number Holder's paternity, albeit less formally, in a letter to Ms. S~. Furthermore, no evidence has been presented, and we know of none, which contradicts the aforementioned evidence.

Regarding the effective date of the parent-child relationship, the regulations provide that, if the insured is deceased, the child is entitled to benefits beginning with the first month covered by the application in which she meets all other requirements for entitlement. 20 C.F.R. § 404.352(a)(1). Here, the date of the latest necessary piece of evidence establishing the Number Holder's paternity is July 19, 2007, the date of the DNA test results. Therefore, it is our opinion that a parent-child relationship was established effective July 19, 2007.

The regulations further provide that if a child files an application for benefits after the first month in which she could have been entitled to them, she may receive retroactive benefits for up to six months preceding the month in which her application was filed. 20 C.F.R. § 404.621(a)(2).

Benefits may begin with the first month in this six-month period in which the claimant meets all the requirements for entitlement. 20 C.F.R. § 404.621(a)(2). In this case, the application was filed on August 29, 2007. The DNA test results, which establish paternity, are dated July 19, 2007. As such, the claimant is entitled to retroactive benefits as of July 2007, when she met all of the requirements for entitlement.

CONCLUSION

For the reasons stated above, we believe that a court would likely find the evidence sufficient to establish that the Number Holder is the father of the claimant under Pennsylvania law. Hence, the Agency should find that there was a parent-child relationship between the Number Holder and the claimant, with an effective payment date of July 19, 2007.

Michael M~

By:__________________

Maija P~

Assistant Regional Counsel

In Pennsylvania, DNA test results showing a 99.99996% probability of paternity, along with three supporting statements and no contradictory evidence, is clear and convincing evidence of the parent-child relationship.

The effective date of the relationship is March 15, 2007, the date that the last piece of the evidence was obtained.

QUESTION PRESENTED

On July 20, 2007, you requested our opinion as to (1) whether a parent-child relationship exists between W~ A~ (Number Holder) and Skyler C~ W~ (Skyler); (2) the effective date of the parent-child relationship, if any; and (3) whether retroactive benefits should be paid.

SUMMARY

We have reviewed the information you provided and have researched the relevant provisions of Pennsylvania law as it pertains to paternity. We have also reviewed the relevant regulations to determine the effective date of the parent-child relationship and whether retroactive benefits should be paid. Based on our review, we believe that a reviewing court in Pennsylvania would likely determine that deoxyribonucleic acid (DNA) test results showing a 99.99996% probability of paternity, in addition to three statements in support of paternity and no contradictory evidence, is clear and convincing evidence of a parent-child relationship between the Number Holder and Skyler. We further believe that the effective date of the parent-child relationship was March 15, 2007, the date of the latest necessary piece of evidence establishing paternity, but that retroactive benefits should not be paid.

BACKGROUND

According to the information you provided, Skyler C~ W~ was born on March 24, 1996. Skyler's birth certificate indicates that her mother is Gwen M. W~. It does not include the name of her father. At the time of her birth, Ms. W~ and the Number Holder were not married and did not cohabit. An application for a social security number completed on April 16, 1996, also indicates that Ms. W~ is Skyler's mother, and does not include the name of her father.

The Number Holder was a resident of Pennsylvania and died there on December 31, 2006. Also on that date, the funeral director provided a written statement to the Agency indicating that Skyler was the Number Holder's daughter.

On March 15, 2007, Ms. W~ and Skyler underwent DNA testing with DNA evidence that had been collected from the Number Holder on January 2, 2007. The test results indicate a 99.99996% probability that the Number Holder was Skyler's father.

On March 26, 2007, Ms. W~ filed an application on Skyler's behalf for surviving child's benefits on the Number Holder's account.

On April 29, 2007, Sharon N~, a friend, provided a written statement to the Agency indicating that the Number Holder had told her that he was Skyler's father. According to her statement, the Number Holder had spent every available day with Skyler and she resembled him. The Number Holder had also expressed how proud he was that Skyler was his daughter.

Emmi D. B~, the Number Holder's mother, provided an undated written statement to the Agency indicating that Skyler was the Number Holder's daughter. She stated that on many occasions, the Number Holder had told her that Skyler was his daughter and her granddaughter, and that he had loved her very much.

DISCUSSION

The Social Security Act provides that, in determining whether an applicant is the child of an insured individual, the Commissioner will apply the inheritance law of the state in which the individual was domiciled at the time the application was filed or, if the insured individual is dead, of the state in which the insured individual was domiciled at the time of his death.

42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1)(2007). Because the Number Holder was domiciled in Pennsylvania at the time of his death, Pennsylvania intestacy law applies.

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

1. (a) 

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

2. (b) 

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

3. (c) 

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

Here, the first two conditions are not met. The Number Holder and Ms. W~ were not married and there is no evidence that the Number Holder openly held out Skyler as his child, received her into his home, or provided support for her. Although Ms. B~, the Number Holder's mother, and Ms. N~, a friend, provided statements that the Number Holder had acknowledged Skyler as his daughter, we do not believe that a Pennsylvania court would find that these two statements, alone, constitute clear and convincing evidence that the Number Holder openly held out Skyler as his child. Under Pennsylvania law, the clear and convincing evidence standard requires "'proof greater than a mere preponderance, but less than beyond a reasonable doubt.'" Estate of Vanoni, 798 A.2d 203, 209 (Pa. Super. Ct. 2002) (citations omitted). "'Clear and convincing evidence' is the highest burden in our civil law and requires that the fact-finder be able to 'come to clear conviction, without hesitancy, of the truth of the precise fact in issue.'" In re Estate of Heske, 647 A.2d 243, 244 (Pa. Super. Ct. 1994) (citing Lessner v. Rubinson, 592 A.2d 678, 681 (Pa. 1991)).

The only provision that could apply in this case would be § 2107(c)(3). To meet this provision, Skyler must prove by clear and convincing evidence that the Number Holder was her father.

As noted above, DNA test results indicate a 99.99996% probability that the Number Holder was Skyler's father. Pennsylvania's Uniform Act on Blood Tests to Determine Paternity, which was adopted in 1990, establishes that blood test results proving non-paternity will be conclusive in all civil matters in Pennsylvania courts. 23 Pa. Cons. Stat. Ann. § 5104. However, under Pennsylvania case law, blood test results are not conclusive evidence of paternity. Rather, as the Superior Court of Pennsylvania has held, they are "but one factor to be weighed in the totality of the evidence presented on the question of paternity." Zearfoss v. Frattaroli, 646 A.2d 1238, 1241 (Pa. Super. 1994); see also Wawrykow v. Simonich, 652 A.2d 843, 848 (Pa. Super. 1994) (finding that DNA testing alone is not conclusive evidence of paternity, but is merely "a factor in a chain of elements which compose the parenting bond by clear and convincing evidence.").

Here, we believe that a court would likely find that there is clear and convincing evidence that the Number Holder was Skyler's father. The DNA test results establish a 99.99996% probability that the Number Holder was Skyler's father. Statements from three individuals, the funeral director, the Number Holder's mother, and the Number Holder's friend, support Ms. W~'s assertion that the Number Holder was Skyler's father. In the absence of any contradictory evidence, the high probability of paternity established by the DNA tests coupled with the supporting statements of three individuals is sufficient to establish a parent-child relationship between the Number Holder and Skyler. Accordingly, it is our opinion that a Pennsylvania court would find clear and convincing evidence that the Number Holder was Skyler's father.

Regarding the effective date of the parent-child relationship, the regulations provide that, if the insured is deceased, the child is entitled to benefits beginning with the first month covered by the application in which she meets all other requirements for entitlement. 20 C.F.R. § 404.352(a)(1). Here, the date of the latest necessary piece of evidence establishing the Number Holder's paternity is March 15, 2007, the date of the DNA test results. Therefore, it is our opinion that a parent-child relationship was established effective March 15, 2007.

The regulations further provide that if a child files an application for benefits after the first month in which she could have been entitled to them, she may receive retroactive benefits for up to six months preceding the month in which her application was filed. 20 C.F.R. § 404.621(a)(2). Benefits may begin with the first month in this six-month period in which the claimant meets all the requirements for entitlement. 20 C.F.R. § 404.621(a)(2). In this case, Skyler did not file her application for benefits after the first month in which she could have been entitled to them. As indicated above, she filed an application for benefits on March 26, 2007. She met all of the requirements for entitlement to benefits on March 15, 2007. Therefore, because she filed her application for benefits in the same month in which she met all of the requirements for entitlement, retroactive benefits are not applicable.

CONCLUSION

For the reasons stated above, it is our opinion that a Pennsylvania court would likely find the evidence sufficient to establish that the Number Holder was Skyler's father under Pennsylvania law. Therefore, the Agency should find that there was a parent-child relationship between the Number Holder and Skyler, with an effective date of March 15, 2007, but that retroactive benefits are not applicable.

Michael M~

By:__________________

Anne v. S~

Assistant Regional Counsel

In Pennsylvania, in a case where DNA test results show a 99.5 percent probability that the claimant is a full sibling of another child already found to the deceased number holder's child and where the mother, the number holder's parents and a friend have all confirmed that he was the father, the courts would find that a parent-child relationship has been established by the clear and convincing standard.

QUESTION PRESENTED

On December 22, 2006, you requested a legal opinion as to (1) whether a parent-child relationship exists between Walter L. B~, III (hereinafter referred to as "the Number Holder") and the minor claimant, Robert J. B~ (hereinafter referred to as "the claimant"); (2) the effective date of any such relationship; and (3) whether the claimant is entitled to retroactive benefits if such relationship is established.

SUMMARY

Based on our review of the facts of this case and our research of the relevant Pennsylvania statutes and case law, we have determined that a court would likely find that a parent-child relationship has been established between the Number Holder and the claimant. The effective date of the parent-child relationship is December 21, 2005, and the claimant is entitled to retroactive benefits starting on that date.

BACKGROUND

The Number Holder lived in Pennsylvania at the time of his death on June 5, 1990. The birth record, which documents that the claimant was born on February 4, 1989, lists the father as Walter L. B~ and the mother as Beverly A. O~ (hereinafter referred to as "O~"). The Number Holder was not required by the Bureau of Vital Statistics to sign an acknowledgment of paternity prior to being listed as the claimant's father on the birth record. O~ and the Number Holder were never married, but O~ indicated on a Statement Regarding Contributions form that they lived together and that he worked sporadically and contributed child support for the claimant. O~ indicated that the Number Holder's parents acknowledge the claimant as their grandchild; that the claimant is listed in the Number Holder's family bible; and that the Number Holder asked a friend to be the claimant's Godfather in a letter.

On February 14, 2006, O~ filed an application for surviving child's benefits and a lump sum death payment for the claimant on the record of the Number Holder. O~'s older son, Nathan B~, previously was proven to be the biological child of the Number Holder. Nathan B~ previously received surviving child's benefits from the Agency based on the Number Holder's account. On December 12, 2005, the DNA Diagnostic Center conducted a DNA Siblingship Test based on blood samples from the claimant and Nathan B~. DNA test results (dated December 21, 2005) indicated a 99.5% probability that the claimant and Nathan B~ - the Number Holder's biological child - had the same mother and father.

DISCUSSION

The Social Security Act provides that, in determining whether an applicant is the child of an insured individual, the Commissioner will apply the inheritance law of the state in which the insured individual was domiciled at the time the application was filed, or if the insured individual is dead, of the state in which the insured individual was domiciled at the time of his death. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1) (2006). Pennsylvania intestacy law applies because the Number Holder was domiciled in Pennsylvania at the time of his death.

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

1. (a) 

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

2. (b) 

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

3. (c) 

   If there is clear and convincing evidence that the man was the father of the child.

The Number Holder and O~ were never married. O~ stated on Agency forms that the Number Holder openly held out the claimant as his child and provided child support, but the file does not contain clear and convincing evidence that documents the same. Hence, the only provision that could apply in this case is § 2107(c)(3). To meet this provision, the claimant would have to prove by clear and convincing evidence that the Number Holder was his father.

In Pennsylvania, DNA test results are not conclusive evidence to establish paternity. Zearfoss v. Frattaroli, 646 A.2d 1238, 1241 (Pa. Super. 1994); Mastromatteo v. Harkins, 615 A.2d 390 (Pa. Super. 1992); Smith v. Shaffer, 515 A.2d 527, 529 (Pa. Super. 1986). DNA test results are merely one factor to be weighed in totality with other evidence presented on the question of paternity. Zearfoss v. Frattaroli, 646 A.2d at 1238; Mastromatteo v. Harkins, 615 A.2d at 390; Smith v. Shaffer, 515 A.2d at 529. Indeed, the Court has stated on more than one occasion that DNA test results indicating an extremely high probability of paternity (99.99%) were not conclusive evidence enough to establish paternity. Zearfoss v. Frattaroli, 646 A.2d at 1238; Smith v. Shaffer, 515 A.2d at 529.

In Zearfoss, the court determined that a lower court erred in finding that DNA test results established paternity conclusively, despite contradictory evidence of non-paternity. Zearfoss v. Frattaroli, 646 A.2d at 1241, 1244. Likewise, in Smith, the Court reinstated a verdict in favor of the alleged father due to abuse of discretion of the court below in placing greater emphasis on DNA test results instead of the jury's weighing of all of the evidence regarding paternity.

Smith v. Shaffer, 515 A.2d at 528-29.

Here, we believe that the Court would likely find that there is clear and convincing evidence that the Number Holder is the claimant's father. The DNA test results indicated a 99.5% probability that the claimant and Nathan B~ share the same father and the Number Holder was proven to be the latter's biological father. Next, the Number Holder is listed as the father on the claimant's birth record. O~ indicated that the Number Holder's parents hold out the claimant as their grandson. The extremely high probability of paternity established by the DNA test results, coupled with the other supporting evidence of record, in the absence of any contradictory evidence, is sufficient to establish a parent-child relationship between the Number Holder and the claimant. Accordingly, it is our opinion that a court would likely find that a parent-child relationship exists between the Number Holder and the claimant.

With regard to the effective date of the parent-child relationship, the regulations provide that, if the insured is deceased, the child is entitled to benefits beginning with the first month covered by the application in which he meets all other requirements for entitlement. 20 C.F.R. § 404.352(a)(1). In this case, the date of the latest necessary piece of evidence establishing the number holder's paternity is December 21, 2005, the date of the DNA siblingship test report.

Therefore, it is our opinion that a parent-child relationship was established effective December 21, 2005. The regulations further provide that a child may receive retroactive benefits for up to six months preceding the date of his application. 20 C.F.R. § 404.621(a) (2). In this case, the application was filed on February 14, 2006. The DNA test results, which establish paternity, are dated December 21, 2005. As such, the claimant is entitled to retroactive benefits as of December 2005, when he met all of the requirements for entitlement.

CONCLUSION

For the reasons stated above, it is our opinion that a court would likely find the evidence sufficient to establish that the Number Holder is the father of the claimant under Pennsylvania law. Hence, the Agency should find that there was a parent-child relationship between the Number Holder and the claimant, with an effective payment date of December 21, 2005.

Michael M~

By:__________________

Roxanne A~

Assistant Regional Counsel

Under Pennsylvania's intestacy statute, a court order of paternity issued as a result of the number holder's failure to appear at a full support conference constitutes clear and convincing evidence of the number holder's paternity.

The date of the parent-child relationship is the date of the court order.

QUESTION PRESENTED

This is in response to your request for an opinion as to whether Linda F. B~ (Linda) is entitled to child's benefits on the account number of Anthony M. B~ (Number Holder). If a parent-child relationship is established, you have asked for the effective date of that relationship and whether it entitles Linda to retroactive benefits.

CONCLUSION

Based on our review of the facts of this case and our research of the relevant Pennsylvania statutes and case law, we have determined that a parent-child relationship has been established between the Number Holder and Linda as of April 27, 2005, but that Linda is not entitled to retroactive benefits.

BACKGROUND

The following is a summary of the relevant facts in this matter. Based on a December 1994 application, the Number Holder became entitled to disability benefits in January 1995. Linda was born on February 10, 2000, to Lisa M. G~ (Ms. G~). The Number Holder and Ms. G~ were never married. Linda's birth certificate indicates that Ms. G~ is Linda's mother and the Number Holder is listed as Linda's father.

On February 2, 2001, the Court of Common Pleas of Philadelphia County temporarily ordered that the Number Holder pay $25.00 per week in child support payments. On March 16, 2005, the Court directed the Number Holder to appear at a full support conference on April 5, 2005. The Court's order admonished the Number Holder that his failure to appear on April 5 could result in an order establishing his paternity. On April 27, 2005, after failing to appear, the Court issued a paternity order adjudicating Mr. B~ as Linda's father. On July 5, 2005, the Court amended the temporary support order to a final order of support.

On April 25, 2005, Ms. G~ filed applications for child's benefits and for a social security number which identify the Number Holder as Linda's father. The Number Holder is contesting his paternity, stating that Ms. G~ forged his name on Linda's birth certificate.

DISCUSSION

Child's benefits may be granted based on the earnings record of an insured person who is entitled to disability benefits if the applicant is the insured's child and is dependent on the insured.

42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a) (2005). In determining whether an applicant is the insured's child, the Commissioner will determine whether any of four conditions is met. Under 20 C.F.R. § 404.355(a)(3) (2005), Linda is the insured's natural child because the Number Holder has been ordered by a Pennsylvania court to contribute to Linda's support. In addition, Linda could be eligible for benefits as the Number Holder's natural child if she could inherit the Number Holder's property under state inheritance laws. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. §§ 404.355(a)(1), 404.355(b) (2005). Under this method for determining whether Linda is the Number Holder's natural child, the Commissioner looks to the law of the state where the Number Holder had his permanent home at the time the application was filed. 20 C.F.R. § 404.355(b)(1) (2005). Because the Number Holder was domiciled in Pennsylvania at the time Ms. G~ filed the application for child's benefits, Pennsylvania law applies.

Under Pennsylvania's intestacy statute, persons born out-of-wedlock will be considered the child of a putative father if one of the following three conditions is met:

1. a. 

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

2. b. 

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

3. c. 

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

20 Pa.C.S.A. § 2107(c) (West 2005). Linda cannot be considered the Number Holder's child pursuant to Paragraph (1) because the Number Holder and Ms. G~ never married. Paragraph (2) is also inapplicable because the Number Holder has contested his paternity. Accordingly, the only applicable provision is § 2107(c)(3), which requires clear and convincing evidence of paternity to determine whether Linda was the Number Holder's child such that she could take a share of his intestate property.

We believe that clear and convincing evidence of paternity exists such that the Number Holder is Linda's father. Pursuant to 23 Pa.C.S.A. § 5104(c), a Pennsylvania court may order any party to submit to blood tests to resolve the question of paternity and, if any party refuses to submit to the tests, the Court may resolve the question of paternity against the party. Rule 1910.15 of the Pennsylvania Rules of Civil Procedure states that if a defendant refuses to execute an acknowledgment of paternity, the court shall enter an order directing the parties to appear for genetic testing. The order advises the defendant that his failure to appear for the testing will result in entry of an order finding that he is the father of the child.

We have spoken with staff at the Domestic Relations Branch, who indicated that the Number Holder did not appear for genetic testing as ordered. As noted above, the Court thereafter entered a paternity order on April 27, 2005, adjudicating the Number Holder as Linda's biological father. The Court also entered a final support order against the Number Holder in July 2005. In addition to the court orders, Linda's birth certificate identifies the father as the Number Holder, and Linda and the Number Holder share the same surname. Based on all of this evidence, Linda is the Number Holder's child for purposes of obtaining child's benefits.

The POMS GN 00306.055 directs that where 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 effective date of the claimant's status as the Number Holder's child is as follows:

if one piece of evidence satisfies the applicable standard of proof (e.g., blood test results constitute clear and convincing evidence), the date of that piece of evidence[.]

POMS GN 00306.055. Since the April 27, 2005 paternity order constitutes clear and convincing evidence of paternity under Pennsylvania inheritance laws, and confers child status upon Linda pursuant to 20 C.F.R. § 404.355(a)(3) (2005), the parent-child relationship is effective that date. Because Linda applied for benefits in April 2005, the same month in which all requirements for entitlement were met, she is not entitled to retroactive benefits.

CONCLUSION

For the above reasons, we conclude that a parent-child relationship has been established between the Number Holder and Linda. The effective date of that relationship is April 27, 2005.

Donna L. C~

Regional Chief Counsel

By:

Elizabeth A. C~

Assistant Regional Counsel

Under Pennsylvania law, a posthumous DNA test showing a 99.99% probability that the number holder is the claimant's father combined with a statement from the number holder's twin brother that he himself had no sexual relationship with the claimant's mother and that he believed the late number holder to be the father of the claimant constitute clear and convincing evidence of paternity. Since the provision does not legitimate the child under Pennsylvania law, the parent-child relationship is determined to have existed since June 24, 2005, the date that the last piece of the clear and convincing evidence was obtained.

QUESTION PRESENTED

On September 19, 2005, you asked for our advice as to whether:(1) DNA test results performed on Amir L. A~ (number holder), Amir B~ A~, and Nicole P~, and a statement from Malek A~, the number holder's twin brother, meet the Commonwealth of Pennsylvania'a legal requirement for clear and convincing evidence of paternity for inheritance purposes;

(2) if so, what is the effective date of the relationship; and (3) whether retroactive benefits can be paid on behalf of the child.

SUMMARY

Based on our review of the facts of this case and our research of the relevant Pennsylvania statutes and case law, we have determined that a court could find that the evidence provided to us constitutes clear and convincing evidence of paternity under Pennsylvania intestacy law.

BACKGROUND

In your request, you indicated that Aaron L~ (L~), the number holder, died in an automobile accident on July 13, 2002, while domiciled in Pennsylvania. Dominic A~ L~ (Dominic), a minor child, was born on January 14, 2003. Dominic's birth certificate does not identify a father. In July 2003, Amber N~ (N~), Dominic's mother, filed a claim for surviving child's benefits on behalf of Dominic, on the earnings record of L~. In her application, N~ stated that Dominic was born out of wedlock.

On October 8, 2003, N~'s claim was denied because it was determined that the facts did not show that Dominic was L~'s child. On October 31, 2003, N~ filed a request for reconsideration of the denied claim.

In support of her application, N~ stated that she had DNA testing performed on herself, Dominic and family members. The information which you provided to us contains a Genetic Test Report, based upon blood drawn from N~; Dominic; Cindy D. M~, aka Cynthia D. H~, L~'s mother; and Nicole B~, aka Lynn B~, L~'s sister. The report shows that the probability of paternity is 98.48%. N~ also stated that DNA testing could not be performed on L~ (that no body fluids were available), and that she had been notified that no other testing could be performed because of the formaldehyde which had been used by the funeral director.

In support of her application, N~ also submitted a November 15, 2003, notarized statement from Cynthia D. M~, L~'s mother, attesting to her belief that Dominic is the child of her deceased son, Aaron C~ L~. According to Ms. M~, L~ specifically stated, on July 12, 2002, one day prior to his death, that "he planned on taking care of his responsibilities concerning Amber N~ and his unborn child." Ms. M~ referred to the "DNA test" which had been performed, and verified that she had no other biological sons who could have fathered Dominic. In addition, Ms. M~ reported that Dominic looks like her son, Aaron L~, when he was a baby, and that she has pictures which show a resemblance to her son. Ms. M~ also stated that Dominic spends time with her family, and that he is very much a part of her family.

We have reviewed the materials you provided and researched the relevant portions of Pennsylvania's domestic relations and inheritance law as they relate to establishing paternity. Our research indicates that the results of the Genetic Test Report and inferences from other evidence, in the absence of contradictory evidence, constitute clear and convincing evidence of paternity.

DISCUSSION

The Social Security Act provides that, in determining whether an applicant is the child of an insured individual, the Commissioner will apply the inheritance law of the state in which the insured individual was domiciled at the time the application was filed or, if the insured individual is dead, of the state in which the insured individual was domiciled at the time of his death. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1) (2003). Because L~ was domiciled in Pennsylvania at the time of his death, Pennsylvania intestacy law applies.

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

1. (a) 

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

2. (b) 

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

3. (c) 

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

Because there is no information indicating that N~ and L~ ever married, and because L~ died before Dominic was born, the only provision that might apply in this case is § 2107(c)(3). To meet this provision, Dominic would have to prove by clear and convincing evidence that L~ was his father.

The Uniform Act on Blood Tests to Determine Paternity establishes that blood test results proving non-paternity will be conclusive in all civil matters in Pennsylvania State courts. 20 Pa. Cons. Stat. Ann. § 5104. The Act does not address the situation where blood test results establish paternity. Id. However, relevant case law has addressed this issue. In Zearfoss v. Frattaroli, 646 A.2d 1238, 1241 (Pa. Super. 1994), the Superior Court of Pennsylvania held that blood test results were not conclusive, but were "one factor to be weighed in the totality of the evidence presented on the question of paternity." The Court determined that a lower court had erred in finding that DNA test results establishing paternity conclusively outweighed contradictory evidence of non-paternity. Id. at 1241, 1244. The Court stated that a court may hold for a putative father/defendant against a natural mother/plaintiff in a paternity action, regardless of DNA test results establishing a 99.99% probability of paternity, "if other facts are supportive of such a verdict." Id. at 1243. The Court then remanded the case to the lower court for a jury trial, during which the totality of the evidence would be considered.

The Court reached a similar conclusion in Wawrykow v. Simonich, 652 A.2d 843 (Pa. Super. 1994). The Court held that a lower court may order exhumation of a deceased putative father for DNA testing if certain conditions were met. Id. at 847. The Court noted that blood tests previously submitted were not conclusive, but may be used as "some evidence" of paternity, and that DNA testing was material and relevant to proving paternity. Id. at 845, 847. The Court ultimately concluded that DNA testing was material to, but not conclusive of, paternity. Id. at 848. Thus, Pennsylvania case law establishes that DNA test results should be considered as one factor in assessing whether there is clear and convincing evidence of paternity.

In this case, we have the results of the Genetic Test Report which shows, based upon blood drawn from Dominic, his mother, L~'s mother, and L~'s sister that the probability of paternity is 98.48%. In addition, we have L~'s mother's statement which excludes the issue of paternity of Dominic by a brother of L~. Absent the possibility of paternity of Dominic by a biological brother of L~, the results of the Genetic Test Report are strong evidence of L~'s paternity of Dominic.

In addition, L~'s mother's statement attesting to her belief that Dominic is the child of her deceased son is strong evidence of paternity, particularly in light of the fact that it was based, in part, upon L~'s reported acknowledgement of his responsibilities toward N~ and his unborn child. This statement strongly suggests that had L~ lived, he would have received Dominic into his home and provided support for him. Thus, absent L~'s premature demise, it is likely that Dominic would have been able to establish paternity pursuant to 20 Pa. Cons. Stat. Ann. § 2107(c)(2).

In her statement, L~'s mother also indicated that Dominic looks like her son when he was a baby. In Tyler v. King, 496 A.2d 16, 25, (Pa. Super. 1985), the Superior Court of Pennsylvania found that a comparison of a child's traits to the putative father's traits was a valid comparison in paternity cases. See also Mitchell v. Hopson, 545 A.2d 371, 374 (Pa. Super. 1988) (providing that a party seeking to establish paternity should be given the opportunity to offer evidence regarding factors relevant to paternity such as the child's physical resemblance to the putative father).

The only other evidence of paternity in the documents provided is Dominic's birth certificate. Although the name of Dominic's father is not recorded on his birth certificate, his surname is recorded as L~ and his middle name is recorded as Aaron, L~'s first name. The birth certificate, in and of itself, is of limited probative value in establishing paternity.

In the absence of contradictory evidence, a reviewing court could find that the results of the Genetic Test Report, L~'s mother's statement attesting to her belief that Dominic is the child of her deceased son, L~'s reported statement to his mother just one day prior to his death acknowledging his responsibilities toward N~ and his unborn child, Dominic's resemblance to L~, and the surname and middle name on Dominic's birth certificate sufficient to establish clear and convincing evidence of paternity and that Dominic is L~'s child pursuant to 20 Pa. Cons. Stat. Ann. § 2107(c)(3).

CONCLUSION

For the foregoing reasons, we conclude that there is clear and convincing evidence of paternity under Pennsylvania intestacy law and that the agency should find that Dominic is L~'s child for purposes of 42 U.S.C. § 416(h)(2) and award Surviving Child's benefits.

Patricia M. S~

Regional Chief Counsel

By:

Beverly H. Z~

Assistant Regional Counsel

The facts in this case satisfy the requirement of Pennsylvania intestacy law that a child born out of wedlock will be considered the child of her father if there is clear and convincing evidence of paternity, which may include a prior court determination of paternity. The Acknowledgment signed by the NH and a Pennsylvania family court judge satisfies the requirement of a prior court determination of paternity. The effective date of the parent-child relationship is the date the Acknowledgment was signed.

QUESTIONS PRESENTED

You asked our advice as to whether an October 2002 court sanctioned Acknowledgment of Paternity signed by Charles R~ (number holder) stating that he is the father of Ashley M. H~ (Ashley) and a deoxyribonucleic acid (DNA) paternity test indicating a 99.95% probability that the number holder is Ashley's father are sufficient to establish a parent-child relationship between the number holder and Ashley. You have also asked our advice on the effective date of this relationship and whether this effective date allows for the payment of retroactive child's insurance benefits.

SUMMARY

We have reviewed the material that you provided and have researched the relevant provisions of Pennsylvania law as it pertains to establishing paternity for purposes of intestate succession. We conclude that, in this case, the evidence provided to us constitutes clear and convincing evidence of paternity under Pennsylvania intestacy law. We have also determined that the effective date of the parent-child relationship between the number holder and Ashley for purposes of entitlement to child's insurance benefits was October 8, 2002 and that Ashley would be entitled to retroactive child's benefits beginning on this date.

BACKGROUND

On December 6, 2000, Susan A. C~ (Nee H~) (Ashley's mother) gave birth to Ashley. Ashley's father's name is not recorded on Ashley's birth certificate. Ashley's mother applied for a social security number for Ashley, which the Agency issued on March 13, 2001. Ashley's application for a social security number does not identify her father.

On July 16, 2002, Ashley's mother filed an application for child's insurance benefits on behalf of Ashley as the child of the number holder. On August 13, 2002, Ashley, Ashley's mother, and the number holder underwent a DNA paternity test. The results of the paternity test show a 99.95% statistical probability of paternity between Ashley and the number holder. On October 8, 2002, the number holder signed an Acknowledgment of Paternity and Waiver of Trial (Acknowledgment). A Lackawanna County, Pennsylvania family court judge also signed the Acknowledgment, thereby accepting the number holder's acknowledgment of paternity of Ashley.

APPLICABLE LAW

The Social Security Act provides that a child born out of wedlock can qualify for child's insurance benefits if the child is entitled to inherit personal property under “such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which [the] insured individual is domiciled at the time such applicant files application.” 42 U.S.C. § 416(h)(2)(A). In the present case, the number holder was domiciled in Pennsylvania at the time he filed his application and, therefore, Pennsylvania intestacy law applies. The Pennsylvania intestacy statute addressing persons born out of wedlock, provides in pertinent part:

(c) Child of father.- For purposes of descent by, from and through a person born out of wedlock, he shall be considered the child of his father when the identity of the father has been determined in any one of the following ways:

1. (a) 

   If the parents of a child born our [sic] of wedlock shall have married each other.

2. (b) 

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

3. (c) 

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

20 Pa. Cons. Stat. Ann. § 2107 (West Supp. 2002).

ANALYSIS

In the present case, Ashley can demonstrate that she would be considered the number holder's child for purposes of intestate succession in Pennsylvania. As a result, Ashley is considered the child of the number holder for purposes of entitlement to child's insurance benefits. The facts in this case satisfy the requirements of title 20, section 2107(c)(3) of the Pennsylvania intestacy statute. As stated above, this section provides that a child born out of wedlock will be considered the child of her father if there is clear and convincing evidence of paternity, which may include a prior court determination of paternity. Here, the Acknowledgment signed by the number holder and a Lackawanna County, Pennsylvania family court judge on October 8, 2002, satisfies the requirement of a prior court determination of paternity. Accordingly, Ashley has demonstrated by clear and convincing evidence that the number holder is her father for purposes of intestate succession and has thus satisfied the requirements of title 20, section 2107(c)(3) of the Pennsylvania intestacy statute. By satisfying the requirements of this statute, Ashley is considered the child of the number holder for purposes of entitlement to child's insurance benefits. See 42 U.S.C. § 416(h)(2)(A).

With respect to the effective date of the parent-child relationship, the Program Operations Manual System (POMS) states the Agency's position that in Pennsylvania, where inheritance rights are conferred by statute based on an adjudication of paternity (but the statute does not legitimate the child), and the act or event conferring inheritance rights is prospective only, if more than one piece of evidence is needed to satisfy the applicable standard of proof, the date of the latest necessary piece of evidence is the effective date that the claimant's status as the number holder's child is established. POMS GN 00306.055. In this case, the date of the latest necessary piece of evidence establishing the number holder's paternity, under title 20, section 2107(c)(3) of the Pennsylvania intestacy statute is October 8, 2002, the date the number holder and a Lackawanna County, Pennsylvania family court judge signed the Acknowledgment. Therefore, it is our opinion that the parent-child relationship was established effective October 8, 2002.

You have further asked whether Ashley is entitled to retroactive benefits. The regulations provide that if the insured is living, the child is entitled to benefits beginning with the first month covered by the child's application throughout which the child meets all the other requirements for entitlement, if the child's first month of entitlement is September 1981 or later. 20 C.F.R. § 404.352(a)(2)(i)(2002). The regulations further provide that child's benefits based on the earnings record of a person entitled to disability benefits may be paid retroactively for up to twelve months beginning with the first month in which all requirements for entitlement are met. 20 C.F.R. § 404.621(a)(i)(2002). According to the information provided by you, Ashley's mother filed an application for child's insurance benefits on July 16, 2002. The date that Ashley established she was the child of the number holder, and thus met all other requirements for entitlement, was October 8, 2002, the date the number holder and the Lackawanna County, Pennsylvania family court judge signed the Acknowledgment. Therefore, because Ashley met all of the requirements for entitlement on October 8, 2002, three months after filing her application for child's insurance benefits, she would be entitled to retroactive benefits effective October 8, 2002.

CONCLUSION

Based on the above information, we conclude there is clear and convincing evidence of paternity under Pennsylvania intestacy law and, thus, a parent-child relationship can be established between the number holder and Ashley. We also conclude that Ashley would be entitled to retroactive child's benefits as of October 8, 2002.

James A. W~

Regional Chief Counsel

By:___________________________

Nicole L. A~

Assistant Regional Counsel

In this case there is a DNA Parentage Test Report showing a 99.995% probability that the NH is the child claimant's father. A Pennsylvania court would require additional evidence to substantiate the child's claim that the NH is the child's father “by clear and convincing evidence.” The NH's brother's statement that the NH told him that the child's mother was pregnant with his child, and (although less persuasive) the child's maternal grandmother's statement, coupled with the DNA test results, would likely satisfy the clear and convincing standard. Since the child's inheritance rights are conferred prospectively based on an adjudication of paternity, and the statute does not legitimate the child, the date of the latest necessary piece of evidence (the NH's brother's statement) is the effective date upon which the claimant's status as the NH's child is established.

INTRODUCTION

This is in response to your March 19, 2002 request for our advice as to whether: (1) DNA test evidence from the Number Holder, as well as statements from the Number Holder's brother and Dakota R~ M~'s (Dakota) grandmother, are sufficient to establish a parent-child relationship between the Number Holder and Dakota under Pennsylvania law; (2) if so, what is the effective date of that relationship; and (3) whether retroactive benefits can be paid on behalf of Dakota.

Based on our review of the information you have provided and our research of the applicable law, we have concluded that a parent-child relationship was established between the Number Holder and Dakota, effective November 29, 2001, the date of the signed statement from Lynn C~ R~, the Number Holder's brother. We further conclude that retroactive benefits should not be allowed.

BACKGROUND

In your request, you indicated that Loren J. R~, the Number Holder, died on April 26, 2001. Mr. R~ was a resident of Pennsylvania at the time of his death. Dakota R~ M~, a minor child, was born on May 14, 2001. Mr. R~ and Tammy M~, Dakota's mother, never married and did not cohabit.

On November 26, 2001, Linda J. M~, Tammy M~'s mother, filed an application for surviving child's benefits on behalf of Dakota, on the earnings record of Mr. R~. 1/ In support of this application, Ms. M~ submitted a DNA Parentage Test Report dated November 8, 2001 which indicated that the blood drawn from the Number Holder, Tammy M~, and Dakota showed a 99.995% probability that the Number Holder was Dakota's father as compared to an untested, unrelated man. Ms. M~ also submitted Dakota's birth certificate, issued on May 14, 2001, which does not include father information. Finally, Ms. M~ submitted a signed statement, dated December 1, 2001, in which she stated that the Number Holder told her that he was the father of the child that Tammy M~ was expecting in May 2001 and told her that he hoped the baby was a boy. Further, Ms. M~ stated that the Number Holder was "the only one she [Tammy] went with."

The file also contains a signed statement from Lynn C~ R~, the Number Holder's brother, dated November 29, 2001, in which Mr. R~ states that in April 2001, two weeks before the Number Holder's death, the Number Holder told him that Tammy M~ was pregnant with his child.

DISCUSSION

The Social Security Act (Act) provides that an illegitimate child can qualify for benefits if the child is entitled to inherit personal property under "such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which [the] insured individual . . . was domiciled at the time of his death." 42 U.S.C. § 416(h)(2)(A). In the present case, the Number Holder resided in the Commonwealth of Pennsylvania at the time of his death. Therefore, Pennsylvania intestacy law applies.

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

1. (1) 

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

2. (2) 

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

3. (3) 

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

Conditions (1) and (2) are clearly not applicable in the instant case. The only applicable provision in this case is number (3). Consequently, under the intestacy statute, a Pennsylvania court would look for "clear and convincing" evidence of paternity to determine if Dakota is the daughter of the Number Holder.

In this case, the most significant evidence submitted is the DNA Parentage Test Report which shows a 99.995% probability that the Number Holder is Dakota's father. However, we are cautioned by the Pennsylvania case law interpreting § 2107(c)(3) which provides that "DNA testing . . . might be material to (but not conclusive of) proving paternity by clear and convincing evidence . . . [and] is merely a factor in a chain of elements which compose the parenting bond by clear and convincing evidence." Wawrykow v. Simonich, 652 A.2d 843, 848 (Pa. Super. Ct. 1994); see also Zearfoss v. Frattaroli, 646 A.2d 1238, 1241-44 (Pa. Super. Ct. 1994)(DNA evidence is not conclusive of paternity and "is but one factor to be weighed in the totality of the evidence presented on the question of paternity."). 2/ Therefore, for purposes of the intestacy statute, we believe that the Pennsylvania court would require additional evidence beyond the DNA testing in this case to substantiate Ms. M~'s claim that the Number Holder is Dakota's father by "clear and convincing evidence."

However, we believe that the other supporting evidence in this case, coupled with the DNA test results, would likely satisfy the "clear and convincing" evidence standard. Namely, the Number Holder's brother acknowledged and confirmed that in April 2001, the Number Holder told him that Tammy was pregnant was his child. Second, although not as persuasive because she has a vested interest in the outcome, Ms. M~, Dakota's grandmother, stated that the Number Holder told her that he was the father of the child that Tammy was carrying and that he hoped the child would be a boy. Further, Ms. M~ stated that the Number Holder was the only man that Tammy "went with." Finally, the evidence of record does not provide any other evidence that rebuts the claim that Dakota is the Number Holder's daughter.

Furthermore, although we do not have a court order of paternity in this case, we believe that, if petitioned, a Pennsylvania court would likely issue a court order of paternity finding that the Number Holder is Dakota's father. The section of the Pennsylvania statute regarding domestic relations provides the following guidance:

Genetic test results indicating a 99% or greater probability that the alleged father is the father of the child shall create a presumption of paternity which may be rebutted only by clear and convincing evidence that the results of the genetic tests are not reliable in that particular case.

23 Pa. Cons. Stat. Ann. § 4343(c)(2). The Pennsylvania courts have determined that the presumption of paternity may be rebutted by proving non-access to the mother or that an identical twin had access to the mother, that controls failed in testing, the chain of custody was breached, the blood sample was contaminated, the mechanical or laboratory processes were flawed, the computations or computer analyses were incorrect, or that the process was compromised in some other way. Reed v. Boozer, 693 A.2d 233, 241 (Pa. Super. Ct. 1997), appeal denied, 703 A.2d 1275.

In the instant case, the DNA test results showed a 99.995% probability that the Number Holder was Dakota's father, and there is no evidence that we are aware of that would rebut the validity of the test. Thus, we believe that a Pennsylvania court would find that the Number Holder is the father of Dakota. Accordingly, for the above reasons, we believe that Dakota would likely be able to inherit from the Number Holder, pursuant to 20 Pa. Cons. Stat. Ann. § 2107(c), and she would be entitled to benefits under the Act as the child of the Number Holder. 42 U.S.C. § 416(h)(2).

With regard to the effective date of the parent-child relationship, the POMS state the Agency's position that in Pennsylvania, where inheritance rights are conferred by statute based on an adjudication of paternity (but the statute does not legitimate the child), and the act or event conferring inheritance rights is prospective only, if more than one piece of evidence is needed to satisfy that applicable standard of proof, the date of the latest necessary piece of evidence is the effective date that the claimant's status as the number holder's child is established. POMS GN 00306.055. In this case, the date of the latest necessary piece of evidence establishing the number holder's paternity is November 29, 2001, the date of the signed statement from Lynn C~ R~, the Number Holder's brother. Therefore, it is our opinion that a parent-child relationship was established effective November 29, 2001.

Finally, you have asked whether Dakota is entitled to retroactive benefits. The regulations provide that if the insured is deceased, the child is entitled to benefits beginning with the first month covered by the application in which she meets all other requirements for entitlement. 20 C.F.R. § 404.352(a)(1). The regulations further provide that a child may receive retroactive benefits for up to six months beginning with the first month in which all requirements are met. 20 C.F.R. § 404.621(a)(1)(ii); see also POMS GN 00204.030. In this case, however, the application date is the same month that all requirements for entitlement were met, November 2001. Hence, retroactive benefits should not be allowed.

CONCLUSION

For the above reasons, it is our opinion that DNA test evidence indicating that the blood drawn from the Number Holder, Tammy M~, and Dakota show a 99.995% probability that the Number Holder is Dakota's father as compared to an untested, unrelated man, in conjunction with the other evidence of record, would likely constitute clear and convincing evidence of paternity under Pennsylvania intestacy law. Therefore, it is our opinion that a parent-child relationship was established between the Number Holder and Dakota, effective November 29, 2001, the date of the signed statement from Lynn C. R~, the Number Holder's brother. We further conclude that retroactive benefits should not be allowed.

James A. W~

Regional Chief Counsel

By:__________________________

Amanda M. K~

Assistant Regional Counsel

Under Pennsylvania's domestic relations statute, 23 Pa. Cons. Stat. Ann. section 5103(a), the father of a child born to an unmarried woman may file an acknowledgment of paternity of the child that includes the consent of the mother of the child supported by her witnessed statement. Under these very specific factual circumstances, the father has all of the rights and duties with respect to the child which he would have had if he had been married to the mother at the time of the birth of the child. Therefore, written acknowledgement pursuant to 23 Pa. Cons. Stat. Ann. section 5103(a) confers inheritance rights retroactive to birth.

QUESTION PRESENTED

You asked us to advise you whether the acknowledgment of paternity executed by Irwin A. S~ in March 1999 has any retroactive effect under Pennsylvania state law that would permit an earlier date of entitlement to child's benefits.

CONCLUSION

Our research shows, that in the special circumstances of this case, where a Pennsylvania probate court would accept the acknowledgment of paternity signed by Mr. S~ on March 4, 1999, pursuant to 23 Pa. Con. Stat. § 5103(a), as clear and convincing evidence that he is the father from whom Alayna could inherit, that the acknowledgment has retroactive effect because section 5103(a) expressly confers to Alayna all the rights to which she is entitled as if her parents were married at the time of her birth. Consequently, since the Pennsylvania probate court would rely upon the Pennsylvania acknowledgment statute that confers rights retroactive to birth, an earlier date of entitlement to child's benefits is permissible.

BACKGROUND

In your request, you indicated that Cindy G~ filed an application on behalf of her daughter, Alayna K. G~, on Mr. S~'s Social Security record on March 11, 1999. Alayna's date of birth is April 27, 1998. Mr. S~ has been collecting retirement benefits since May 1998.

Based upon Mr. S~'s acknowledgment of paternity dated March 3, 1999, that a state court accepted, the Agency awarded Alayna benefits beginning March 1999 under section 216(h)(3) of the Social Security Act (Act), 42 U.S.C. § 416. Under the provisions of sections 202(d) and 216(h)(3) of the Act, March 1999 is Alayna's earliest month of entitlement to child's benefits. Ms. G~ filed a Request for Reconsideration on Alayna's behalf requesting six months of retroactive benefits on the March 1999 application.

We have reviewed the material you provided and have researched the relevant provisions of Pennsylvania state law as they pertain to establishing paternity and inheritance, as well as the POMS. Our research reveals that Pennsylvania state law provides a basis for retroactive benefits because an acknowledgment of paternity that complies with 23 Pa. Cons. Stat. Ann. § 5103(a) considers a child born out of wedlock to have all the rights of a child as if the parents were married at the time of the child's birth. Therefore, we conclude that, in the very specific factual circumstances of this case (i.e. a written acknowledgment pursuant to 23 Pa. Cons. Stat. Ann. § 5103(a)), the Pennsylvania statute regarding acknowledgments of paternity provides Alayna an earlier date of entitlement to child's benefits under section 216(h)(2) of the Act.

DISCUSSION

Under section 216(h)(2) of the Act, to determine whether an applicant is the child of a fully or currently insured individual, the Commissioner first applies the state law as would be applied in determining the devolution of intestate personal property. If a child would be considered a child under the state intestacy law then the child is deemed as such for purposes of entitlement to benefits.

The Pennsylvania inheritance statute addressing persons born out of wedlock, 20 Pa. Cons. Stat. Ann. § 2107, provides:

For purposes of descent by, from and through a person born out of wedlock, he shall be considered the child of his father when the identity of the father has been determined in any one of the following ways:

1. (a) 

   If the parents of a child born our [sic] of wedlock shall have married each other.

2. (b) 

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

3. (c) 

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

A Pennsylvania court would look for clear and convincing evidence of paternity to determine whether Alayna was entitled to take an intestate share of Mr. S~'s estate. In the present case, we believe that a Pennsylvania court would find the acknowledgment of paternity executed on March 4, 1999, to be clear and convincing evidence of paternity under Pennsylvania state law. Under Pennsylvania's domestic relations statute, 23 Pa. Cons. Stat. Ann. § 5103(a), the father of a child born to an unmarried woman may file an acknowledgment of paternity of the child that includes the consent of the mother of the child supported by her witnessed statement. Id. In such a case, the father has all of the rights and duties as to the child which he would have had if he had been married to the mother at the time of the birth of the child. Id. Similarly, the child has all the rights and duties as to the father which the child would have had if the father had been married to the mother at the time of birth. Id.

In this case, the file contains an acknowledgment of paternity dated March 4, 1999, on the form prescribed by the Department of Public Welfare required under 23 Pa. Cons. Stat. Ann. § 5103(a). Accordingly, under Pennsylvania law, this document confers to Alayna all the rights and duties as to Mr. S~ that she would have had if Mr. S~ had been married to her mother at the time of her birth. Consequently, the acknowledgment of paternity acts to provide the child all the rights as if her parents were married at the time of her birth under Pennsylvania state law. Furthermore, we believe that a Pennsylvania probate court would consider the effect of an acknowledgment of paternity executed in accordance with 23 Pa. Cons. Stat. Ann. § 5103(a) in determining whether such an acknowledgment would qualify as clear and convincing evidence.

We believe that a Pennsylvania Court in determining the rights of a child born out of wedlock to take an intestate share would find that the acknowledgment of paternity in this case would be clear and convincing evidence of paternity in accordance with the Pennsylvania intestacy statute. 20 Pa. Cons. Stat. Ann. § 2107(c)(3). We note, however, that this conclusion presumes that there has been no recission of the acknowledgment during the sixty day recission period provided by 23 Pa. Cons. Stat. Ann. § 5103(g). Consequently, we conclude that based upon the acknowledgment of paternity, Alayna would be permitted to take an intestate share of Mr. S~'s estate under 20 Pa. Cons. Stat. Ann. § 2107(c)(3). In addition, although the question is not typically addressed by a probate court, we also believe that a Pennsylvania probate court would recognize that the legal effect of such an acknowledgment under Pennsylvania law is to provide rights retroactive as though the child's parents were married at the time of his or her birth. Therefore, we also conclude that since 23 Pa. Cons. Stat. Ann. § 5103(a) provides Alayna all the rights as if her parents were married at the time of her birth there is a justification for an award of retroactive benefits under Pennsylvania state law.

We recognize that POMS section GN00306.080, the Digest of State Laws on Legitimation and Inheritance Rights, does not currently reflect the effect of the Pennsylvania state law in the narrow situation where an acknowledgment of paternity that complies with 23 Pa. Cons. Stat. Ann. § 5103(a) is found to be clear and convincing evidence of paternity under the Pennsylvania inheritance statute, 20 Pa. Cons. Stat. Ann. § 2107(c)(3). The POMS currently indicate by designating with an (I) that this provision confers inheritance rights on children born of out wedlock, but that such rights are prospective only. Consequently, we have submitted a request to amend the POMS to indicate that in the occasional situation where the clear and convincing evidence of paternity is an acknowledgment pursuant to 23 Pa. Cons. Stat. Ann. § 5103(a), then a child's inheritance rights may be retroactive to an earlier date.

In your memorandum, you advised us that Alayna was awarded benefits beginning March 1999 under section 216(h)(3) of the Act.

As you are aware, the POMS section relating to a "deemed" child under section 216(h)(3), GN 00306.100D2(a), provides that a parent-child relationship does not begin until the date of the court order or written acknowledgment of paternity in this case, March 1999. However, the Act requires that the child's status be evaluated under section 216(h)(2) first. Therefore, we believe that the analysis and result under section 216(h)(2) is controlling.