Effective Dates: 11/19/2018 - Present Previous | Next

TN 9 (11-18)

PR 01215.037 North Dakota

A. PR 18-121 North Dakota Surviving Child Benefits

Date: August 13, 2018

1. Syllabus

In determining the father-child relationship between a number holder (NH) and a claimant for purposes of survivor’s benefits, the agency first looks to the intestate succession laws of the state in which the NH was domiciled when he died. In this case, the NH died in North Dakota. We previously concluded the claimant was ineligible to inherit from the NH under North Dakota’s intestacy law (see PR 01805.037 North Dakota – Would Claimant be considered the child of NH under ND intestacy laws where the NH previously terminated his parental rights).

If a child does not satisfy state intestacy laws, an individual can be deemed the child of a deceased NH under section 416(h)(3) of the Act by showing that, prior to the NH’s death, the NH acknowledged in writing that the child is his or her son or daughter, or was decreed by a court to be the mother or father of the child.

In this case, the claimant can be deemed the NH’s child under two provisions of the Act. The NH’s DIB application naming the claimant as his child is a written acknowledgement under section 416(h)(3)(C)(i)(I). The North Carolina termination order, which decreed that the NH is the claimant’s father, satisfies section 416(h)(3)(C)(i)(II).

2. Questions Presented

You asked whether K~ could be deemed the child of NH R~ under 42 U.S.C. § 416(h)(3)(C) of the Social Security Act (the Act) where a court previously terminated the parent-child relationship between K~ and the NH.

3. Short Answers

A person may be deemed the child of an NH under section 416(h)(3)(C) of the Act, even if he would not be considered the NH’s child for purposes of intestate succession under state law. Here, the NH acknowledged K~ as his son in his application for disability insurance benefits (DIB), which is a written acknowledgement under section 416(h)(3)(C)(i)(I) of the Act. The record also contains a court order finding that the NH is K~’s father and terminating the NH’s parental rights with K~. We believe the agency could accept this finding as a decree of parentage that satisfies section 416(h)(3)(C)(i)(II) of the Act. We thus conclude that K~ can be deemed the child of the NH for purposes of survivor’s benefits.

4. Background

The NH was domiciled in North Dakota when he died in January 2017. The NH was not married to K~’s mother, C~, when K~ was born in January 2002, and someone other than the NH is listed as the father on K~’s birth certificate. Genetic testing, however, showed a 99.98% probability that the NH was K~’s biological father. A North Carolina district court entered a temporary child support order based on the genetic testing results and the NH made some payments, though he did not stay current with his support obligations. In October 2003, the court found that the NH abandoned K~, and it issued an order terminating the NH’s parental rights.

In April 2017, C~ applied for surviving child benefits on K~’s behalf and provided supporting evidence to the field office. This evidence included K~’s birth certificate; C~’s statement that the NH was K~’s biological father but declined to be listed as such on K~’s birth certificate; the North Carolina termination order; and a report of genetic testing.

5. Discussion

In determining the father-child relationship between a NH and a claimant for purposes of survivor’s benefits, the agency first looks to the intestate succession laws of the state in which the NH was domiciled when he died (in this case, North Dakota). 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b); POMS GN 00306.001(C)(1)(a). We previously concluded that K~ was ineligible to inherit from the NH under North Dakota’s intestacy laws.

If a child does not satisfy state intestacy laws, the Act, under section 416(h)(3), describes a second avenue for establishing eligibility for survivor’s benefits. See also POMS GN 00306.100; PR 01215.028 Missouri, PR 06-176 Inheritance Rights of Children Whose Parent's Parental Rights Were Terminated (ineligible children under state intestacy laws nevertheless entitled to survivor’s benefits under section 416(h)(3) of the Act). As relevant here, an individual can be deemed the child of a deceased NH by showing that, prior to the NH’s death, the NH acknowledged in writing that the child is his or her son or daughter, or was decreed by a court to be the mother or father of the child. 42 U.S.C. § 416(h)(3)(C)(i)(I)-(II). As explained below, we believe that K~ can be deemed the child of the NH under either of these criteria).[1]

a. The NH’s DIB Application Naming K~ as His Child is a Written Acknowledgement

We believe that the NH acknowledged in writing that K~ is his child. See 42 U.S.C. § 416(h)(3)(C)(i)(I). A written acknowledgement of parentage “does not have to be in any special form,” and agency policy recognizes an application for benefits as a written acknowledgement. POMS GN 00306.105(A)(1); see also PR 01210.035 New York, PR 12-069 Child Relationships, available at https://secure.ssa.gov/apps10/poms.nsf/lnx/1501210035 (Social Security benefits application naming children qualified as written acknowledgement).

Here, the NH listed “K~” as his child in his October 2016 DIB application. This creates a degree of uncertainty about whether the NH was referring to K~. However, we found no other evidence in the NH’s file to suggest that the NH fathered another child named “K~,” or that “K~” is anyone but K~. See Jones v. Sullivan, 953 F.2d 1291, 1294-95 (11th Cir. 1992) (holding a tax form only listing a child’s first name (Felix) was a written acknowledgement under the Act where there was no evidence suggesting the form referred to anyone but Felix Jones, the child seeking child’s insurance benefits).

Nevertheless, since K~’s birth certificate lists L~ as his father, and not the NH, it is also necessary to confirm that the NH is K~’s biological father. See POMS GN 00306.100(E)(2); GN 00306.125. Since the NH is deceased, confirmation should include a statement from K~’s mother, which she provided. POMS GN 00306.125(B)(2)(a). In her statement, C~ explained that although the NH is K~’s “[b]irth father[, he] did not want to be listed on [K~’s] birth certificate, as he explained he wouldn’t have time to take part in [K~’s] life.” C~ further explained that L~ gave her permission to include his name on K~’s birth certificate so K~ would have a listed father.

Other record evidence corroborates C~’s statement: a 2003 report of genetic testing showing a 99.98% probability that the NH is K~’s biological father and a North Carolina court order finding that K~ was born to the NH and C~, and terminating the NH’s parental rights with K~. See PR 01210.035 New York, PR 12 069 Child Relationships (court orders establishing filiation and child support were “additional evidence of paternity” under POMS GN 00306.125(B)). We believe this evidence adequately supports the NH’s written acknowledgement of K~ as his biological child, and thus conclude that K~ can be deemed the NH’s child under section 416(h)(3)(C)(i)(I).

b. A North Carolina Court Decreed that the NH was K~'s Father

To satisfy section 416(h)(3)(C)(i)(II), a court order “must name the NH and identify the child,” and it “must find that the NH is the biological parent of the child.” POMS GN 00306.110(A)(1) (2).

The North Carolina termination order names the NH in the caption and includes K~’s name throughout. The court also found that K~ was “born to these parties [the NH and C~],” and it found that the genetic testing results described above showed that the NH “is the biological father of the minor child herein.” The termination order thus satisfies the requirements of POMS GN 00306.110.

We note, however, that the agency is not bound by a judicial finding unless it satisfies the four factors described in Social Security Ruling (SSR) 83-37c, which adopted the holding of Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973),[2] but can still accept a finding as probative evidence even if all four criteria are not met. See, e.g., PR 10-010 MOS Illinois – Void or Voidable Marriage, available at https://secure.ssa.gov/apps10/poms.nsf/lnx/1504805016 (in cases where an issue was not genuinely contested in court, the agency “generally looks to see whether the order was consistent with state law” and will generally accept the order if it is). The factors are:

  • •

    An issue in a claim for social security benefits previously has been determined by a state court of competent jurisdiction;

  • •

    This issue was genuinely contested before the state court by parties with opposing interests;

  • •

    The issue falls within the general category of domestic relations law; and

  • •

    The resolution by the state trial court is consistent with the law enunciated by the highest court in the state.

We believe the North Carolina court’s finding satisfies these factors because it had both personal and subject matter jurisdiction; the termination order states that the NH requested genetic testing, apparently in order to show he was not K~’s biological father (i.e., the issue was genuinely contested); the finding falls within the general category of domestic relations law; and it is generally consistent with the law enunciated by North Carolina’s highest court. See N.C. Gen. Stat. Ann. §§ 7B 101(6), -200(a)(4), (b), -1101 (West 2017). Regarding this last factor, in North Carolina, genetic testing showing a 97% or higher probability of paternity is clear, cogent, and convincing evidence of paternity, and here the genetic testing report showed a 99.98% probability that the NH is K~’s biological father. See N.C. Gen. Stat. Ann. § 49-14(f) (West 2017).

In sum, we believe the court’s finding that the NH was K~’s biological father satisfies Gray, and that the agency should be bound by this determination. But even if the finding does not satisfy Gray, and is not binding on the agency, we believe it is consistent with North Carolina law and should be viewed as probative evidence that K~ was the NH’s biological child, and that K~ should be deemed such under section 416(h)(3)(C)(i)(II).

6. Conclusion

K~ can be deemed the NH’s child under two provisions of the Act. First, the NH’s DIB application naming K~ as his child is a written acknowledgement under section 416(h)(3)(C)(i)(I). Second, the North Carolina termination order decreed that the NH is K~’s father, which satisfies section 416(h)(3)(C)(i)(II). We thus conclude that K~ can be deemed the child of the NH purposes of survivor’s benefits under section 416(h)(3)(C).

 

Footnotes:

[1]

An individual can also be deemed the child of a deceased NH by showing that prior to the NH’s death he had been ordered by a court to contribute to the support of the applicant because the applicant was his or her son or daughter; or by showing with evidence satisfactory to the Commissioner that the NH was the applicant’s mother or father, and that the NH was living with or contributing to the applicant’s support when the NH died. 42 U.S.C. § 416(h)(3)(C)(i)(III), (ii). We are not addressing these two criteria in any detail, however, because we do not believe that K~ can be deemed the biological child of the NH under them, and because we conclude he can be deemed the NH’s child under other section 416(h)(3)(C) criteria.

[2]

The agency has not always applied Gray when evaluating court orders under § 416(h)(3) of the Act. E.g., compare PR 11-077 Deference to a Georgia Adjudication of Paternity Under Alabama Intestacy Law, available at https://secure.ssa.gov/apps10/poms.nsf/lnx/1501215001 (applying Gray), with PR 06-176 Inheritance Rights of Children Whose Parent’s Parental Rights Were Terminated, available at https://secure.ssa.gov/apps10/poms.nsf/lnx/1501215028 (not applying Gray). As the Gray court explained, § 416(h)(3) of the Act was not in effect at the time the underlying application for benefits was made in that case, and the court did not consider that section of the Act in its decision. 474 F.2d at 1372 n.1. Here, we applied Gray because we believe that the agency is best served by determining whether the finding of parentage in the North Carolina termination order meets the threshold requirements articulated in Gray.

To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1501215037
PR 01215.037 - North Dakota - 11/19/2018
Batch run: 11/19/2018
Rev:11/19/2018