To satisfy section 216(h)(3)(C)(ii), the claimant must be the number holder’s (NH) biological child, and the claimant must provide evidence that the NH was either living with the claimant or contributing to the claimant’s support at the time of the NH’s death.

Considering the paternal grandparent DNA report and other evidence, we believe that the agency may reasonably conclude that there is satisfactory evidence of a biological relationship between the NH and the claimant. If the agency determines there is also sufficient evidence that the NH was either living with or contributing to the claimant’s support at the time he died, we believe that the agency may determine that the effective date of the relationship is the date of the statements, which together with the paternal grandparent DNA report, provide satisfactory evidence of the biological relationship.

You requested an opinion on whether the evidence submitted in this case establishes a parent-child relationship between the deceased number holder J~ (the number holder) and the claimant J2~ (J2~) for purposes of J2~’s application for child’s insurance benefits on the number holder’s record under the Social Security Act (Act) as his child. Specifically, applying section 216(h)(2)(A) of the Act, you asked whether, under Louisiana law, a deoxyribonucleic acid (DNA) test report of a paternal grandparent (paternal grandparent DNA report), and the number holder’s informal oral acknowledgment to his mother, are sufficient to establish a parent-child relationship under Louisiana law. In the alternative, you asked whether there was other satisfactory evidence to establish a biological parent-child relationship between the number holder and J2~ under section 216(h)(3) of the Act. Finally, if the evidence establishes a parent-child relationship, you asked what the beginning date of that relationship would be.

For purposes of determining whether the Social Security Administration (agency or SSA) can deem J2~ to be the number holder’s child under section 216(h)(3)(C)(ii) of the Act, we believe that the agency may reasonably conclude that there is satisfactory evidence of a biological relationship between the number holder and J2~.[1]

If the agency determines there is also sufficient evidence that the number holder was either living with or contributing to J2~’s support at the time he died,[2] in accordance with the agency’s Program Operations Manual System (POMS) instructions regarding the effective date of parent-child relationships based on section 216(h)(3), we believe that the agency may determine that the effective date of the relationship is the date of the relatives’ statements of January XX, 2020, which together with the paternal grandparent DNA report from July XX, 2019, provide satisfactory evidence of the biological relationship. See POMS GN 00306.100(E)(2), GN 00306.125(C).

J2~ was born to K~ (K~) on May XX, 2019.[3] It is our understanding that K~ and the number holder were never married, but K~ is alleging that the number holder is J2~’s father. You advised that the number holder died on July XX, 2019, while domiciled in Louisiana, when J2~ was only six weeks old. On October XX, 2019, K~ filed an application for surviving child’s benefits on J2~’s behalf on the number holder’s record.[4] She provided a grandparent DNA report and four statements in support of the application.

Statements

In a Form SSA-783 Statement Regarding Contributions completed on January XX, 2020, K~ reported that the number holder, who died when J2~ was six weeks old, supported and spent time with J2~. K~ stated that the number holder knew J2~ was his son and that after J2~ was born, the number holder contributed an average of $500.00 per week toward J2~’s support (a total of $3,000.00 before he died) and that she was contributing $0.00 to J2~’s support. K~ also indicated on the form that J2~ lived with more than one parent prior to the number holder’s death.

In a Form SSA-795 Statement of Claimant or Other Person dated January XX, 2020, the number holder’s mother, S~, stated that around September XX, 2018, the number holder “told me in person that J2~ was his son” and that K~ was pregnant, and that three months later, he said that he was having a boy. He also told her that he and K~ planned to name their son J2~. S~ also stated that the number holder lived with J2~ before he died.

In a Form SSA-2519 Child Relationship Statement dated October XX, 2019, J3~[5] indicated that the number holder told his (the number holder’s) mother, S~, that the number holder was J2~’s father “on many occasions [sic,” that the number holder was making regular and substantial contributions to J2~’s support at the time the number holder died, that he provided for the child’s needs, and that the number holder was at the hospital with J2~ when J2~ was sick. He also indicated that no court ever decreed the number holder to be J2~’s parent or ordered the number holder to contribute to J2~’s support.

The evidence also includes a screen shot of the agency’s application “Remarks Screen,” which states that the number holder is J2~’s biological father. It also states, “He and I were both free to marry at the time J2~ was born. He told his mother S~ that J2~ was his son. I reviewed [the number holder’s] earnings record and agree with it as posted.” The screen shot does not indicate who made these remarks,but we understand the statements to be given by K~ when she filed the application on J2~’s behalf.

Paternal Grandparent DNA Report

In addition to the documents above, K~ provided a DNA Test Report from DNA Diagnostics Center, a facility “accredited/certified by AABB, CAP, ISO/IEC 17025 by ANAB, CLIA & NYSDOH.” The report reflects DNA testing of K~ (as the mother), J2~ (as the child), and S~ (as the paternal grandparent) as well as chain of custody documentation. This paternal grandparent DNA report indicates a combined relatedness index of 193 to 1, and a probability of relatedness between J2~ and S~ of 99%. The paternal grandparent DNA report is signed and notarized on July XX, 2019, by Laboratory Director Y~, Ph.D., who verified in a sworn statement that the interpretation of the results was correct as reported.

A Chain of Custody document associated with the paternal grandparent DNA report includes K~’s and S~’s signatures and indicates that K~, J2~, S~ were identified only by “picture.” S2~ signed this chain of custody document on July XX, 2019, indicating that he collected the specimens and put them in a sealed container. The “collection facility information” section of the form was left blank. The document does not indicate what happened to the specimens after S2~ collected them, nor is there any other documentation regarding their subsequent chain of custody.

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

A claimant may be eligible for child’s insurance benefits if, among other things, the claimant is the “child” of the insured individual, as defined in section 216(e) of the Act. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350.[6] Section 216(e)(1) of the Act and the regulations define “child” as an insured individual’s natural child, legally adopted child, stepchild, grandchild, step grandchild, or equitably adopted child. See 42 U.S.C. § 416(e); 20 C.F.R. §§ 404.354˗.359. Consistent with the scope of this legal opinion request and the facts available, our inquiry focuses on whether J2~ is the number holder’s natural child.

A claimant may show he is an insured individual’s natural child by meeting the requirements of section 216(h)(2)(A) of the Act. To determine whether a child is the natural child of the insured individual under section 216(h)(2)(A) of the Act, the agency applies “such law as would be applied in determining the devolution of intestate personal property . . . by the courts of the State in which [the insured] was domiciled at the time of his death.” 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1). The number holder was domiciled in Louisiana at the time of his death. As addressed in footnote one, we believe a Louisiana court would find that J2~ has not proven a right to inherit from the number holder under Louisiana intestate succession law. Therefore, we believe the agency may conclude that J2~ cannot establish he is the number holder’s child under section 216(h)(2)(A) of the Act.

If, upon application of section 216(h)(2)(A) of the Act, a child cannot inherit from the insured individual under the applicable state intestate succession laws, such child may be eligible for child insurance benefits as the insured individual’s natural child in other circumstances set forth in section 216(h)(3).[7]Under section 216(h)(3)(C)(i) of the Act, the agency will deem a claimant to be a child if the claimant is the insured individual’s biological child, and the insured individual had, before his death, acknowledged parentage in writing, been decreed a parent by a court, or been ordered to pay child support. See 42 U.S.C. § 416(h)(3)(C)(i); 20 C.F.R. § 404.355(a)(3). As there is no written acknowledgment or court order of parentage or support prior to the number holder’s death, this provision does not apply.

Further, under section 216(h)(3)(C)(ii) of the Act, the agency will deem a claimant to be a child if there is satisfactory evidence that the claimant is the deceased insured individual’s biological child and the insured individual was, at the time of his death, either living with the claimant or contributing to the claimant’s support. See 42 U.S.C. § 416(h) (3)(C)(ii); 20 C.F.R. § 404.355(a)(4). Consistent with your legal opinion request and the evidence provided, we consider whether the agency can deem J2~ to be the number holder’s child under this provision.

B. Federal Law: Section 216(h)(3)(C)(ii)’s Requirement for Satisfactory Evidence of a Biological Relationship between J2~ and the Number Holder

To satisfy section 216(h)(3)(C)(ii), the claimant must be the number holder’s biological child.[8] See 42 U.S.C. § 416(h)(3)(C)(ii); 20 C.F.R. § 404.355(a)(4); POMS GN 00306.100(A), (C)(3).

The agency’s policy concerning section 216(h)(3), as set forth in the POMS GN 00306.100(C)(3), instructs that a claimant must provide “satisfactory evidence” that the child is the number holder’s “biological son or daughter.” Similarly, POMS GN 00306.125(A) instructs that “there must be satisfactory evidence that meets the standards set out in this section that clearly identifies the child and shows that the child is the NH’s biological child.” Further, this provision instructs that “[t]he evidence does not have to be in any specific form, but it must establish . . . biological parentage.” POMS GN 00306.125(A).

The POMS sets forth the procedure to establish section 216(h)(3) status based on other satisfactory evidence. See POMS GN 00306.125(B). This provision instructs: “To establish the child’s biological relationship to the NH, obtain the child’s Numident record meeting the criteria in this subsection or the child’s birth certificate (BC), statements from the parent(s), and additional evidence as needed.” POMS GN 00306.125(B)(1)(a). If the child’s Numident record and birth certificate do not provide the necessary information (or other circumstances exist as outlined in this provision), POMS GN 00306.125(B)(1)(b) instructs that the agency is to “[o]btain additional evidence of the child’s biological relationship to the NH.” We assume that neither the J2~’s Numident record nor his birth certificate provided the necessary information to establish the biological relationship in this case and thus, you are asking whether the evidence provided here is sufficient “other satisfactory evidence.”

The POMS provides examples of what might qualify as additional evidence to support the biological relationship, as including, but not limited to:

• •

  hospital, church, or school records;

• •

  a court decree or order;

• •

  a statement from the attending physician, relative, or person who knows the child’s relationship to the NH, e.g. the NH’s spouse, including the basis for that knowledge;

• •

  evidence that the NH and the child’s other parent were living together when the child was conceived; or

• •

  blood or genetic test results.

POMS GN 00306.125(B)(1)(b) (noting that results from mail order or over-the-counter DNA testing kits are not acceptable as evidence of biological maternity or paternity). Thus, of relevance here, the POMS instructs that DNA testing and relatives’ statements about the number holder’s relationship to the child may provide evidence of a biological relationship for purposes of section 216(h)(3).

Here, the paternal grandparent DNA report performed in a laboratory shows a 99% probability of relatedness between J2~ and the number holder’s mother, S~. Specifically, as outlined above, K~ provided a DNA Test Report from DNA Diagnostics Center, a facility “accredited/certified by AABB, CAP, ISO/IEC 17025 by ANAB, CLIA & NYSDOH.” The report reflects DNA testing of K~ (as the mother), J2~ (as the child), and S~ (as the paternal grandparent) as well as chain of custody documentation. This paternal grandparent DNA report indicates a combined relatedness index of 193 to 1, and a probability of relatedness between J2~ and S~ of 99%. The paternal grandparent DNA report is signed and notarized on July XX, 2019, by Laboratory Director Y~, Ph.D., who verified in a sworn statement that the interpretation of the results was correct as reported. Although we were not provided any evidence as to whether S~ has any other sons who could be J2~’s father, we have the statements from K~ and S~ that the number holder is J2~’s father, that the number holder orally told S~ he was J2~’s father, that the number holder was the sole financial contributor for J2~’s support after his birth (contributing $500.00 per week) until the number holder died, and that they were living together (though this evidence seems less clear).[9] Considering these combined pieces of evidence, we believe the agency may reasonably conclude that there is satisfactory evidence of a biological relationship between the number holder and J2~ per POMS GN 00306.125(B)(1)(b).[10]

You asked what the beginning date of that relationship would be. As to the effective date of a parent-child relationship based on section 216(h)(3)(C)(ii), the POMS instructs: “The parent-child relationship can begin no earlier than the date of the evidence, unless the evidence points to an earlier date. The living with or contributions requirement must also be met.” POMS GN 00306.100(E)(2). Similarly, GN 00306.125(C) instructs as to the effective date of the parent-child relationship: “When establishing parentage using the other satisfactory provision of section 216(h)(3), the parent-child relationship can begin no earlier than the date of the evidence, unless the evidence points to an earlier date. The living with or contributions requirement must also be met.” In following these instructions, we believe that the agency may determine that the effective date of the relationship is the date of the statements of January XX, 2020, which together with the paternal grandparent DNA report provide satisfactory evidence of the biological relationship.[11]

For purposes of determining whether the agency can deem J2~ to be the number holder’s child under section 216(h)(3)(C)(ii) of the Act, we believe that the agency may reasonably conclude that there is satisfactory evidence of a biological relationship between the number holder and J2~.

If the agency determines there is also sufficient evidence that the number holder was either living with or contributing to J2~’s support at the time he died, in accordance with the agency’s POMS instructions regarding the effective date of parent-child relationships based on section 216(h)(3), we believe that the agency may determine that the effective date of the relationship is the date of the statements of January XX, 2020, which together with the paternal grandparent DNA report dated July XX, 2019, provide satisfactory evidence of the biological relationship. See POMS GN 00306.100(E)(2), GN 00306.125(C).

[1]We considered your first question regarding J2~’s child status upon application of section 216(h)(2)(A) of the Act and Louisiana intestate succession law. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b); La. Civ. Code Ann. arts. 178, 179, 880, 882, 888, 1096, 3506(8). If a child initiates a court action to establish paternity (filiation) after the alleged father’s death, the child must prove paternity by clear and convincing evidence. La. Civ. Code Ann. art. 197; Sudwischer v. Estate of Hoffpauir, 705 So. 2d 724, 731 (La. 1997). Although alone insufficient to prove paternity, Louisiana case law states that genetic scientific testing provides persuasive and objective evidence that can help establish paternity. See LeBlanc v. LeBlanc, 497 So. 2d 1361, 1364 (La. 1986); State v. Gibson, 768 So.2d 714, 719 (La. Ct. App. 2000). Genetic testing on a deceased father’s relatives may be permissible in determining paternity posthumously. Sudwischer, 705 So. 2d at 731. We believe a Louisiana court would find that the paternal grandparent DNA report showing 99% relatedness between J2~ and the number holder’s mother does not create a rebuttable presumption of paternity because it does not show a 99.9% probability that the number holder is J2~’s father. See La. Rev. Stat. Ann. § 9:397.3(B)(2)(b). We believe that a Louisiana court would also find the paternal grandparent DNA report is inadmissible because it does not include complete chain of custody information, the qualifications and contact information of the expert who supervised the tests, or how and where the samples were obtained. See id. at § 9:397.3(A)(1). We also believe that a Louisiana court would find the remaining evidence (in the form of statements) does not constitute clear and convincing evidence that the number holder is J2~’s father. See Ladmirault v. Succession of Humphrey, 206 So. 3d 987, 989-990 (La. Ct. App. 2016); Hines v. Williams, 567 So. 2d 1139, 1142 (La. Ct. App. 1990). Thus, we believe a Louisiana court would find that J2~ has not proven filiation with the number holder, and consequently, he has not proven a right to inherit from the number holder under Louisiana intestate succession law. As such, we believe the agency may find that J2~ is not the number holder’s child under section 216(h)(2)(A) of the Act.

[2]To satisfy section 216(h)(3)(C)(ii), in addition to proving the biological relationship, the claimant must provide evidence that the insured individual was either living with the claimant or contributing to the claimant’s support at the time of the insured’s death. See 42 U.S.C. § 416(h)(3)(C)(ii); 20 C.F.R. §§ 404.355(b)(4), 404.366; POMS GN 00306.125(A). We note that in the Form SSA-783, K~ reported that J2~ lived with more than one parent prior to the number holder’s death. She also indicated that the number holder was J2~’s sole financial supporter. She reported that the number holder was contributing $500.00 per week toward J2~’s support after he was born and a total of $3,000.00 before the number holder died (and that she was contributing $0.00 to J2~’s support). In the Form SSA-795, S~ also reported that the number holder lived with J2~ before he died. In the Form SSA-2519, J3~ reported that the number holder was making regular and substantial contributions to the child’s support at the time he died, and that he provided for the child’s needs. Consistent with your request, the focus of our legal opinion, however, is only upon whether there is satisfactory evidence of the biological relationship for purposes of section 216(h)(3)(C)(ii) of the Act.

[3]We do not have a copy of J2~’s birth certificate, and K~ did not mention whether it lists the number holder as J2~’s father.

[4] You advised that the protective filing date for this claim was August XX, 2019.

[5] We are unaware of J3~’s relationship with the number holder or J2~ as he does not identify his relationship with either on this form.

[6] In addition to meeting the definition of “child” under section 216 of the Act, a claimant must show that he or she “was dependent upon” the insured individual “at the time of [the insured individual’s] death” in order to be eligible for benefits. 42 U.S.C. § 402(d)(1)(C)(ii); 20 C.F.R. § 404.360. A child is “deemed” dependent on the insured individual if the child is “legitimate” or was living with or being supported by the insured individual at the time of his death. 42 U.S.C. § 402(d)(3). A claimant can satisfy the legitimacy criterion by meeting the requirements of sections 216(h)(2)(B) or 216(h)(3) of the Act, see id. § 402(d)(3), or by meeting the intestacy requirements of section 216(h)(2)(A) of the Act, see Matthews v. Lucas, 427 U.S. 495, 515 n.17 (1976); 20 C.F.R. § 404.361(a). The claimant must also satisfy other requirements for child’s insurance benefits. See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a). Consistent with the scope of your legal opinion request, however, we analyze only whether J2~ is the number holder’s “child.”

[7]A claimant will also be deemed a child under section 216(h)(2)(B) of the Act if the claimant is the insured individual’s biological child, and the claimant’s parents went through a marriage ceremony that would have been valid but for a legal impediment. See 42 U.S.C. § 416(h)(2)(B); 20 C.F.R. § 404.355(a)(2). As there is no indication that the number holder and K~ ever married or attempted to marry, this provision does not apply.

[8]To satisfy section 216(h)(3)(C)(ii), in addition to proving the biological relationship, the claimant must provide evidence that the insured individual was either living with the claimant or contributing to the claimant’s support at the time of the insured’s death. See 42 U.S.C. § 416(h)(3)(C)(ii); 20 C.F.R. §§ 404.355(b)(4), 404.366; POMS GN 00306.100(C)(3), GN 00306.125(A). As addressed in footnote two, the focus of your legal opinion request is upon whether there is satisfactory evidence of the biological relationship. You have not asked for our advice as to whether there is sufficient evidence that the number holder was living with J2~ or contributing to J2~’s support at the time of the number holder’s death. However, as noted in footnote two, there is evidence that goes to both the living with, and contributing to criteria.

[9]Our online research located an obituary for J~ posted only on Facebook by W~ Funeral Home on July XX, 2019 at XX:XXpm. We believe this to be the number holder based on the information provided in the obituary. The obituary states that J~ was born on December XX, 1993, in O~, Louisiana and died on July XX, 2019 in O~. It states that his father was J4~ and his mother was S~. The obituary lists his survivors as including his mother S~, his father, and a sister, but does not list any brothers. This is important as to our concerns about the paternal grandparent DNA report and the lack of information as to whether S~ had any other sons who could be J2~’s father. Moreover, the obituary states that he is survived by “two sons, R~ and J2~.” Although the name is spelled slightly differently, this recognition in the obituary that J2~ was the number holder’s son is also notable and consistent with the statements made by K~ and S~ to the agency.

[10]See POMS PR 01210.035 New York, A. PR 15-093 B~ - Entitlement to child’s benefits on the record of Number Holder A~ - New York law (March 5, 2015) (advising that a DNA paternity test showing a 99% probability of the alleged father’s paternity of the child was sufficient to establish the biological relationship for purposes of section 216(h)(3)); POMS PR 01210.036 North Carolina, A. PR 13-100 Child Status Based on DNA Testing of Claimant, Claimant’s Mother, and Number Holder’s Sister – North Carolina (July 9, 2013) (advising that DNA testing from the number holder’s sister showing a 99.95% probability of relatedness between the number holder’s sister and the child was sufficient to establish the biological relationship for purposes of section 216(h)(3)).

[11]We believe this is also consistent with the agency’s instructions in POMS GN 00306.055 concerning the effective date of the relationship for an illegitimate child with inheritance rights. This provision instructs that “[a]n act/event conferring inheritance rights generally has effect only from the date of such act/event.” POMS GN 00306.055(A)(3). This provision instructs that the claimant’s status as the number holder’s child is established effective with the following dates: if one piece of evidence satisfies the applicable State law standard of proof (such as blood test results), the date of that piece of evidence; or 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. Id.