Under section 216(h)(3)(C)(i) of the Act, the biological child of a deceased number
holder may be deemed to be the number holder’s child if, before the deceased number
holder’s death:
(1) the number holder acknowledged in writing that the child was his child;
(2) a court decreed the number holder to be the child’s father; or
(3) a court ordered the number holder to contribute to the child’s support.
See 42 U.S.C. § 416(h)(3)(C)(i); 20 C.F.R. § 404.355(a)(3); POMS GN 00306.100.
1. Biological Relationship for Section 216(h)(3) Child Status: The Alabama birth
certificates and the Texas birth registration related EAB Numident record are evidence
of the
Claimants' biological relationship with the NH for section 216(h)(3) purposes.
To establish status as a child under section 216(h)(3), the child must be the number
holder’s biological child. See POMS GN 00306.100A (“Section 216(h)(3) requires that the child must be the NH’s son or daughter. Therefore,
even if one of the requirements in GN 00306.100C is met, you must consider evidence showing that the NH is not the child’s biological
parent.”). Of relevance here given the birth certificates and EAB Numident record
evidence relied upon by the Claimants to support their parent-child relationship with
the NH, agency policy instructs that the agency should not raise the issue of the
child’s biological relationship with the NH if the child’s full birth certificate
shows the NH as the child’s parent (and there is no information casting doubt on the
biological relationship), or if the child’s Numident shows that it is an EAB record;
the NH’s name is in the mother’s name at birth or father’s name at birth field of
the EAB record; someone else is not listed in the same field in iterations following
EAB; and the EAB record was established before the NH died. POMS GN 00306.105D, GN 00306.110D; see also POMS GN 00306.105E, GN 00306.110E (reasons to doubt biological relationship), GN 00306.125B.1.a (instructing that the agency may accept the child’s Numident record as evidence of
the biological relationship if the child’s Numident shows that it is an EAB record,
the NH’s name is in the mother’s name at birth or father’s name at birth field of
the EAB record, someone else is not listed in the same field in iterations following
EAB, and the EAB record was established before the NH died; or if the child’s full
birth certificate shows the NH as the child’s parent (and there is no information
casting doubt on the biological relationship)).
Under such policy, Claimant A1~’s Alabama full birth certificate naming the NH as
her father is evidence of their biological relationship for section 216(h)(3) purposes.
Similarly, Claimant J~’s Alabama full birth certificate naming the NH as her father
is evidence of their biological relationship. Further, Claimant M1~’s EAB Numident
record established before the NH’s death and listing the NH in the father’s name at
birth field (and A2~ as his mother) is evidence of their biological relationship for
section 216(h)(3) purposes.
2. Use of Birth Certificate or EAB Numident Record as Evidence of Written Acknowledgment
of Paternity or Court Determination of Parentage for Section 216(h)(3) Child Status
For section 216(h)(3) child purposes, agency policy instructs that the agency may
use information from a child’s birth certificate or the child’s EAB Numident record
as evidence of a number holder’s written acknowledgment of the child or proof of a
court determination of parentage. POMS GN 00306.105C2, 3, GN 00306.110C, GN 00306.120.
a. Policy: Birth Certificate
POMS GN 00306.120 sets forth the policy for using information from a child’s birth certificate as a
written acknowledgment. POMS GN 00306.105C.2. This provision states that certain State laws or regulations require a father’s written
consent or a court determination in order to identify a father as a nonmarital child’s
father on the birth certificate.[13] POMS GN 00306.120B. The agency is instructed to contact the State vital statistics office to determine
if a written statement or court determination was filed with the birth certificate
for a particular child. POMS GN 00306.120B.1. Alternatively, the agency may presume that there has been written acknowledgment
or a court determination of paternity if the birth certificate shows illegitimacy
and a precedent legal opinion shows that the applicable State law or regulations require
the written acknowledgment or court determination of paternity to be filed in order
for the father’s name to appear on the birth certificate or for the child’s last name
to be the same as the father’s on the birth certificate. POMS GN 00306.120B.2. There is no current published precedent legal opinion for Alabama in POMS PR 01210.000 (state law requirements for showing information about father on child’s birth certificate).
Thus, we will set forth Alabama law in this opinion given that the Alabama birth certificates
for Claimants A1~ and J~, nonmarital children, identify the NH as their father.
b. Alabama Law and Birth Certificates: The agency can presume that the NH completed
a
written acknowledgment of paternity or was determined by a court to be their father
given the NH’s
name as their father on Claimant A1~’s and Claimant J~’s Alabama birth certificates.
Under Alabama law relevant to the birth certificates for Claimants J~ and A1~ and
current law, if the mother was not married at the time of either conception or birth
of a child or between conception and birth, the name of the father shall not be entered
on the child’s birth certificate unless paternity has been determined by a court of
competent jurisdiction or unless the legitimation process specified in sections 26-11-1
through 26-11-3 of the Alabama Code (which includes a procedure for legitimation by
written declaration of the father as provided in section 26-11-2), or otherwise provided
by law (which includes an acknowledgment of paternity as provided in section 26-17-22)
has been completed. Ala. Code § 22-9A-7(f)(2); Ala. Admin. Code r. 420-7-1-.03(3)(a)(1);
Ala. Admin. Code r. 420-7-1-.05(2)(b); see also POMS GN ATL00306.120B (the chart for Region IV States for using information from a birth certificate as
written acknowledgment or proof of court order reflects that since 1992, Alabama has
required written consent or a court order for a father to be named on the birth certificate
of a nonmarital child). Thus, Alabama law instructs that if the parents are not married,
the father is only named on the child’s birth certificate if there is a court order
of paternity, a written declaration of legitimation by the father, or an acknowledgment
of paternity by the father.See J.M.V. v. J.K.H., 149 So.3d 1100, 1103 (Ala. Civ. App. 2014) (noting that if the mother was not married
to the father at or before the time she gave birth to the child, “the Alabama Office
of Vital Statistics would not have been permitted to set forth any information about
the father on the child’s birth certificate based merely on his attendance at the
child’s birth”).
Consequently, because the NH is named as the father on Claimant J~’s Alabama birth
certificate and on Claimant A1~’s birth certificate, for purposes of section 216(h)(3),
the agency may presume that the NH completed a written acknowledgment of paternity
or there was a court determination of paternity. Therefore, we believe there is legal
support for the agency to deem Claimant J~ and Claimant A1~ to be the NH’s children
pursuant to section 216(h)(3)(C)(i). See POMS GN 00306.105C2, GN 00306.110C, GN 00306.120.
c. Policy: EAB Numident Record
POMS GN 00306.105C.3 states that the child’s EAB Numident record can be proof of written acknowledgment
of paternity. The EAB process is a program that allows parents to complete applications
for SSNs for their newborns as part of the hospital birth registration process. 20
C.F.R. § 422.103(b)(2); POMS RM 10205.001B, RM 10205.005B, RM 10205.505. “When the hospital representative asks for information to complete the birth certificate,
he or she also asks the parents if they would like the State’s vital statistics office
to forward information to SSA to assign an SSN. If the parent agrees, the hospital
representative checks a block on the form indicating that the parent wants an SSN
assigned to his or her child. The hospital forwards this information to the State’s
vital statistics office along with birth certificate information. The State vital
statistics office then provides SSA with an electronic record used to assign an SSN
and issue a card.” RM 10205.005B. Thus, the same information collected by the State’s vital statistics office for the
State-issued birth certificate is also transmitted to SSA as part of the EAB process.
See POMS RM 10205.505B (“EAB allows parents to complete applications for SSNs for their newborns as part
of the hospital birth registration process.”). Given this understanding of the EAB
process as it relates to the State’s birth registration and birth certificate process,
we turn back to the policy on use of the EAB Numident as evidence of a written acknowledgment
for section 216(h)(3) child purposes.
POMS GN 00306.105C.3 instructs that the child’s Numident constitutes evidence of written acknowledgment
if the record: includes the form code showing it is an EAB record; shows the NH’s
name in the mother’s name at birth or father’s name at birth field of the EAB Numident;
does not show a name other than the NH’s name in the same field in iterations following
the EAB; and the NH’s written consent was required by the State during the EAB process.
As to this consent requirement, the POMS instruct the agency to contact the State
vital statistics office or use a relevant precedent opinion to determine if written
consent was required and refers the agency to POMS GN 00306.120, which sets forth agency policy on use of a birth certificate as proof of written
acknowledgment or a court order (discussed above). There is no current published precedent
legal opinion for Texas in POMS PR 01210.000 (state law requirements for showing information about father on child’s birth certificate).
Thus, we will set forth Texas law in this opinion on the requirements for identifying
a father of a nonmarital child on the birth record given that Claimant M1~ has an
EAB Numident record that identifies the NH as his father.
d. Texas Law and Birth Registration: The agency can presume that the NH completed
a
written acknowledgment of paternity or was determined by a court to be his father
as part of the
birth registration process in Texas given the NH’s name as his father on Claimant
M1~’s EAB Numident
record.
Texas law relevant to Claimant M1~ and current law provides that the items on a birth
certificate relating to a child’s father should only be completed if the child’s mother
was married to the father; paternity is established by a court order; or a valid acknowledgment
of paternity has been executed by the father and filed with the State’s vital statistics
unit. Tex. Health & Safety Code Ann. § 192.005(a); see also Tex. Health & Safety Code Ann. § 192.001 (the birth of each child born in Texas shall
be registered), § 192.012(a) (if the child’s mother is not married to the child’s
father, a person responsible for filing the birth certificate shall provide an opportunity
for the child’s mother and putative father to sign an acknowledgment of paternity);
In Interest of F.E.N., 542 S.W.3d 752, 767 n.12 (Tex. App. – Houston [14th Dist.] 2018, pet. denied) (noting
that the hospital where the child was born would not have been permitted to list the
father on the birth certificate without a valid acknowledgment of paternity form and
that the hospital was responsible for filing both documents with the correct authority).[14]
Here, we do not have Claimant M1~’s Texas birth certificate, but we do have his EAB
Numident record, which identifies the NH as his father.[15] As noted, POMS GN 00306.105C.3 instructs that the child’s Numident constitutes evidence of written acknowledgment
if the record: includes the form code showing it is an EAB record; shows the NH’s
name in the mother’s name at birth or father’s name at birth field of the EAB Numident;
does not show a name other than the NH’s name in the same field in iterations following
the EAB; and the NH’s written consent was required by the State during the EAB process.
This POMS provision references GN 00306.120, pertaining to when the agency can use a birth certificate as proof of written acknowledgment
of paternity or proof of a court order, for more information on determining if consent
was required to be identified as a parent. POMS GN 00306.105C.3.
The Texas Department of Health and Human Services website explains that “[t]he purpose
of the Texas Birth Registrar Certification is to improve birth registration in Texas
by standardizing data collection and entry. Improving birth registration is critical
to make sure Texans receive valid birth certificates and that the data represents
their health. The state of Texas collaborates with a variety of state and federal
partners agencies,” including SSA. Birth Registrars | Texas DSHS (last visited May 24, 2023). The Texas website instructs: “If the mother and father
of the child are not married, an [Acknowledgment of Paternity] should be completed.
Birth Registrars are required to receive training and certification for this process
annually from the Attorney General’s Office.” Id. The Texas Department of Health and Human Services provides the Birth Worksheet for
Child’s Birth Certificate (Form VS-109, rev. 07/21). Id. This Texas birth worksheet is used to provide a complete and accurate birth certificate.
It is on this Texas birth worksheet where parents can select “yes” or “no” to authorize
release of information to SSA to issue an SSN for the child. The Texas birth worksheet
requires information about the mother, including her marital status, whether an acknowledgment
of paternity was signed, and information about the father. Id. Thus, the same information collected and sent to the Texas Department of Health and
Human Services for the Texas birth certificate as part of the hospital birth registration
process, which includes identifying the child’s mother and father, is transmitted
by the State to SSA as part of the EAB process. See POMS RM 10205.001B, RM 10205.005B, RM 10205.505.
As noted, because the mother and the NH were not married, the NH could only be identified
as Claimant M1~’s father on his Texas birth record if the NH’s paternity was established
by a court order or a valid acknowledgment of paternity had been executed by the NH
and filed with the State’s vital statistics unit. Tex. Health & Safety Code Ann. §
192.005(a). As such, because the NH is named as the child’s father on Claimant M1~’s
EAB Numident record established at the time of his birth in accordance with Texas
law on birth registration, the agency may presume that the NH completed a written
acknowledgment of paternity or there was a court determination of paternity to be
identified as the child’s father as required by Texas law. Therefore, we believe there
is legal support for the agency to deem Claimant M1~ to be the NH’s child pursuant
to section 216(h)(3)(C)(i). See POMS GN 00306.105C.3, GN 00306.120.