QUESTION PRESENTED
You have asked us to provide a legal opinion on whether N~ is entitled to surviving
child’s benefits on the earning records of D~ number holder). Specifically, you have
asked whether a Texas court order adjudicating the number holder as N~’s father binds
the Social Security Administration (agency) or whether the evidence N~’s mother submitted
otherwise establishes that N~ has inheritance rights as the number holder’s child
under Texas law.
ANSWER
It is our opinion that the Texas court order adjudicating parentage does not bind
the agency and that the documentation in support of N~’s claim for surviving child’s
benefits does not otherwise meet Texas law requirements for establishing inheritance
rights as the number holder’s natural child. Consequently, it is our opinion that
N~ is not currently entitled to surviving child’s benefits on the number holder’s
account.
BACKGROUND
As we understand the facts, the number holder died on September 25, 2010, in an auto
accident. At the time of his death, he was domiciled in Texas and living with M~ at
his mother’s residence, M~ indicated that she and the number holder had discussed
getting married in the future. But there is no indication that M~ and the number holder
had a ceremonial or common law marriage at any point where he and M~ lived since November
2009, along with the number holder’s mother and his two female cousins.
In statements M~ made to the agency, she claims she was pregnant with N~ at the time
of the number holder’s death, that they had known about the pregnancy for only two
weeks, had only told their parents about the pregnancy, and were planning to get married
after the baby was born. She also claims she never split up with the number holder
and did not have sexual relations with anyone else. Agency records show that three
other children are entitled on the number holder’s record: S~; and D~. The three children’s
mothers, C~, D~, and T~, respectively, are their epresentative payees.
In April 2011, M~ gave birth to N~ did not submit a copy of N~’s original birth certificate
in support of her application for benefits. However, at the agency’s request in late
March or early April 2013, M~ provided an uncertified copy of N~’s original birth
certificate that does not name a father.
In May 2012, claiming he was the number holder’s child, she applied for Title II survivor
benefits on N~’s behalf. In support of the application, M~ submitted a Deoxyribonucleic
(DNA) test report dated April 11, 2012, which compared specimens from N~ and the number
holder’s mother. The DNA test assessed an 87.709 percent probability that the number
holder’s mother was N~’s paternal grandmother. M~ has represented to the agency that
the number holder’s mother had only one other child besides the number holder, his
sister who is also deceased.
Since the DNA test report’s parentage probability did not meet Texas law requirements
and M~ did not provide any chain of custody documentation, the agency denied the application.
On September 21, 2012, M~ filed a new application for benefits on N~’s behalf. M~
filed an untimely request for reconsideration of the agency’s initial denial of N~’s
claim and did not establish good cause for the untimely filing. The agency considered
the date of the untimely request for reconsideration as the protective filing date
of the new application.
In support of the application, she provided a Texas court order dated August 9, 2012,
from the Panola County Court adjudicating the number holder to be N~’s father for
all purposes, changing N~’s last name to the number holder’s last name, and ordering
an amendment to his birth certificate reflecting the adjudication and name change.
After the agency inquired, in late March or early April 2013, M~ submitted N~’s October
2012 amended birth certificate, which named the number holder as his father, and asked
the agency to change its systems to reflect N~’s name as D~ rather than S~.
The agency also inquired with the Panola County court clerk about the documents or
exhibits the court used to adjudicate paternity, but the court clerk was unable to
locate any documents or exhibits. However, M~ has indicated that the court received
into evidence the grandparent DNA test report The grandparent DNA test report is in
the file you submitted to us. As well as statements from her parents and the number
holder’s parents. While she does not specify the contents of those statements, M~
claims that the couple had told their parents about the pregnancy before the number
holder’s death.
ANALYSIS
Under the Social Security Act, a child may be eligible for surviving child’s benefits
if he is the child of an individual who has died fully or currently insured. 42 U.S.C.
§ 402(d)(1). To be entitled to such benefits on the insured number holder’s account,
a child must: (1) be the number holder’s child; (2) be dependent upon the number holder;
(3) apply for benefits; (4) be unmarried; and (5) be under the age of 18. 42 U.S.C.
§ 402(d)(1); 20 C.F.R. § 404.350(a)(1)-(5). Here, it is undisputed that N~ is unmarried
and under the age of 18, and that his mother applied for surviving child’s benefits
on his behalf. Further, under pertinent regulations, the agency will consider N~ to
be the number holder’s dependent child if he is the number holder’s natural child.
See 20 C.F.R. § 404.361(a). Thus, the only criterion we need to establish is whether
N~ is the number holder’s natural child.
For purposes of surviving child’s benefits, a claimant is a number holder’s natural
child if: (1) he could inherit property through intestate succession as the number
holder’s natural child; (2) he is the number holder’s natural child, and the number
holder and the claimant’s other parent participated in a ceremony that would have
resulted in a valid marriage, except for a legal impediment; (3) he is the number
holder’s natural child, and before the number holder’s death, the number holder acknowledged
him as his child in writing; a court decreed the number holder to be the claimant’s
parent; or a court ordered the number holder to contribute to the claimant’s support
because the claimant is the number holder’s child; or (4) the number holder is the
claimant’s natural parent and was either living with the claimant or contributing
to his support at the time the number holder died. See 42 U.S.C. §§ 416(h)(2)(A)-(B), 416(h)(3)(A),(C); 20 C.F.R. § 404.355(a)(1)-(4). Based
on the information we received, M~ and the number holder never married or participated
in a ceremony that would have resulted in a valid marriage. Also no court decreed
the number holder to be N~’s parent or ordered the number holder to contribute to
N~’s support before the number holder’s death. Further, because N~ was born after
the number holder’s death, the number holder never lived with him, contributed to
his support, or acknowledged him as his child. Therefore, N~ does not qualify as the
number holder’s natural child under tests two, three, or four. To prove that he is
eligible for child’s insurance benefits on the number holder’s account, N~ must therefore
show under test one that he could inherit property from the number holder through
intestate succession.
To determine whether an applicant could inherit a deceased number holder’s property
through intestate succession, the agency must apply the intestacy laws of the state
in which the deceased number holder had his permanent home at the time of his death.
See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b). Since the number holder’s permanent
home was in Texas when he died, N~’s eligibility for survivor’s benefits on the deceased
number holder’s account depends upon whether he could inherit property under Texas
intestacy laws as the number holder’s child. See id.
The Texas intestacy laws are codified in the Texas Probate Code, which provides, in
pertinent part, the framework for determining father-child relationships for inheritance
purposes. See Tex. Prob. Code § 42(b). The Texas Legislature has repealed the Texas Probate Code
and enacted the Texas Estates Code, which will become effective January 1, 2014. See Acts 2009, 81st Leg., ch. 680; Acts 2011, 82nd Leg., ch. 823 (H.B. 2759); and Acts
2011, 82nd Leg., ch. 1338 (S.B. 1198). The new provisions concerning maternal and
paternal inheritance found in section 42 of the Texas Probate Code are contained in
sections 201.051 and 201.052 of the Texas Estates Code.
For purposes of inheritance, a child is his biological Texas courts have held that
proof of a biological link to the father was not required for child to be considered
a “child of his biological father” and to inherit from testator under section 42(b)
of the Probate Code. See Wilson v. Estate of Williams, 99 S.W.3d 640, 649-50 (Tex. App. – Waco 2003) (noting that a biological father also
includes a man who has an adopted a child without a biological link); see also Spiers v. Maples, 970 S.W.2d 166 (Tex. App.—Fort Worth 1998) (non-biological child that testator adopted
by estoppel was entitled to inherit from her). Thus, to be a number holder’s natural
child pursuant to section 416(h)(2)(A), Texas law does not require the child to be
the number holder’s biological child.
father’s child if: (1) he was born under circumstances described in section 160.201
Under section 160.201 of the Texas Family Code, a father-child relationship exists
if: (1) an unrebutted presumption of paternity arises in a marriage; (2) the man acknowledges
his paternity; (3) a court adjudicates the man’s paternity; (4) the man adopts the
child; or (5) the man consents to assisted reproduction and his wife gives birth.
See Tex. Fam. Code Ann. § 160.201(b)(1)-(5). N~ does not meet the methods described in
(1), (2), (4), or (5) because he was not born under any of those circumstances. See id. of the Texas Family Code; (2) he was adjudicated to be the child of the father by
court decree as provided by chapter 160 of the Texas Family Code; (3) the father adopted
him; (4) the father executed an acknowledgement or like statement of paternity as
provided by subchapter D of chapter 160 of the Texas Family Code; or (5) clear and
convincing evidence establishes that the purported father was the biological father
of the child. Id. The third and fourth methods set forth in the Texas Probate Code are not applicable
in this case, as the number holder neither adopted N~ nor executed an acknowledgment
of paternity. Thus, for N~ to establish he had a right to paternal inheritance from
the number holder, it must be under the first, second, or fifth methods of section
42(b).
A. First and Second Method under Tex. Prob. Code § 42(b) – Adjudication of Paternity
The first and second methods of section 42(b) for determining father-child relationships
under the Texas Probate Code recognize a child as an individual’s biological child
if a court adjudicated the child’s paternity. See Tex. Prob. Code §§ 42(b); see also Tex. Fam. Code Ann. § 160.201(b)(3). Here, a Texas court issued an order that purports
to adjudicate N~’s parentage for all purposes. However, the order is not binding on
the agency unless certain conditions are met.
Pursuant to Social Security Ruling (SSR) 83-37c, which adopts the Sixth Circuit Court
of Appeals decision in Gray v. Richardson, 474 F.2d 1370, 1373 (6th Cir. 1973), the agency is bound by state court decisions
if (1) an issue in a claim for Social Security benefits was previously adjudicated
by a state court of competent jurisdiction; (2) the issue was genuinely contested
before the state court by parties with opposing interests; (3) the issue falls within
the general category of domestic relations law; and (4) the resolution by the state
trial court is consistent with the law enunciated by the highest court in the state.
Here, the Texas order adjudicating parentage does not bind the agency. As detailed
below, while the order meets the first and third prongs of SSR 83-37c, we do not have
enough information to determine whether it meets the second or fourth prongs.
1. First and Third Prongs of SSR 83-37c
Regarding the first prong of SSR 83-37c, the Texas court that issued the order (the
Panola County Court at Law) is a court of competent jurisdiction having concurrent
jurisdiction with the district courts on paternity issues. See Tex. Gov’t Code §§ 24.007, 24.008, 25.0003, 25.1851, 25.1852; Tex. Const. Art. 5,
§ 8. With respect to the third prong of SSR 83-37c, the order adjudicating parentage
involves an issue within the general category of domestic relations law because it
involves the issue of paternity. See Memorandum from Regional Chief Counsel, San Francisco, to Ass’t Reg. Comm. – MOS,
San Francisco, Claim for Child’s Insurance Benefits on Account of Wage Earner M~ (Aug.
22, 2005) (“the issue of paternity falls within the general category of domestic relations
law”). Thus, the order meets the first and third prongs of SSR 83-37c.
2. Second Prong of SSR 83-37c
We next look at whether the Texas court order adjudicating parentage meets the second
prong of SSR 83-37c — that parties with opposing interests genuinely contested the
issue before the state court. Under the Texas Family Code, the child’s mother and
the man Texas courts considering the question of whether an alleged father’s paternity
may be contested after his death have arrived at different conclusions. Compare In
the Interest of A.S.L., 923 S.W. 2d 814 (Tex. App. – A~ 1996), Tipps v. Metropolitan Life Ins. Co. 768 F. Supp 577, 579 (S.D. Tex. 1991); Leal v. Moreno, 723 SW. 2d 322 (Tex. App. – Corpus Christi 1987), Manuel v. Spector, 712 S.W.2d 219, 220 (Tex. App. – San Antonio 1986) (parentage proceedings may be
brought after an alleged father’s death) with In the Interest of G~, 794 S.W. 2d 875, 877, 879 (Tex. App. – Tyler 1990) (court held that a suit to determine
paternity does not survive putative father’s death, noting that the notice provisions
of the Family Code do not provide adequate notice to those persons most affected by
the designation of the decedent as the child’s father).
whose paternity is to be adjudicated are necessary parties to a proceeding to adjudicate
parentage. See Tex. Fam. Code Ann. §§ 160.602, 160.603; Frazier v. Hall, 2012 WL 2159271 at *2 (Tex. App. – Hous. 2012).
While it is unclear who M~ or the court noticed, the court referred to the number
holder as “respondent.” The Texas Family Code states that the following are entitled
to service of citation in an original paternity suit: managing and possessory conservators,
a person having possession of or access to the child, a person required by law or
order to provide for the child’s support, a guardian of the child or the child’s estate,
each parent as to whom the parent-child relationship has not been terminated or process
waived, an alleged father, a man who has filed a notice of intent to claim paternity,
certain governmental agencies, and a prospective adoptive parent. Tex. Fam. Code section
102.009(a). The party seeking the paternity action or the court has the discretion
to serve “any other person who has or who may assert an interest in the child.” Tex.
Fam. Code section 102.009(b).
Tex. Fam. Code § 102.009(b) (party seeking the paternity action or the court has the
discretion to serve “any other person who has or who may assert an interest in the
child”). The court order indicated “[A]ll parties entitled to citation were properly
cited” and that “no administration of the Estate of D~’has been filed, no personal representative of the estate has been appointed, and neither
is necessary.” Agency records indicate that the court considered the number holder’s
and M~’s parents’ statements before issuing the Order Adjudicating Paternity. M~ did
not submit these statements in support of her application for child’s benefits on
N~’s behalf on the number holder’s account. The Court’s finding that it did not need
to appoint a representative for the deceased has support in Texas law. See Manuel v. Spector, 712 S.W.2d 219 (Tex. App. – San Antonio 1986) (court indicated that illegitimate
child’s mother was real party in interest, but joined child’s deceased putative father’s
mother as a party inasmuch as the court ordered her to undergo genetic testing); In
the Interest of A.S.L., 923 S.W. 2d 814 (Tex. App. – A~ 1996) (indicating illegitimate child’s mother may
bring action to establish paternity by alleged deceased father without naming or noticing
additional parties); cf Tex. Fam. Code § 160.604 (an individual may not be adjudicated
a parent unless the court has personal jurisdiction over the individual, but lack
of jurisdiction over one individual does not preclude the court from making an adjudication
of parentage binding on another). Therefore, we believe that the court order satisfied
the second prong of SSR 87-37c.
3. Fourth Prong of SSR 83-37c
We do not have enough information to determine whether the Texas court order adjudicating
parentage meets the fourth prong of SSR 83-37c — that the order is consistent with
the law that the highest court in the state enunciated. A court order meets the fourth
prong of SSR 83-37c if it is consistent with “the law of the state as declared by
the supreme court of the state, or as it would have been decided by that court had
the point been considered.” See Garcia v. Sullivan, 883 F.2d 18, 20 (5th Cir. 1989); Warren v. Secretary of Health & Human Servs., 868 F.2d 1444, 1447 (5th Cir. 1989). In analyzing the fourth prong of SSR 83-27c,
we look to relevant portions of Texas law relating to genetic testing.
Texas Family Code Section 160.631(c)
Section 160.631(c) of the Texas Family Code states that a court may adjudicate a man
as the child’s father where unrebutted genetic testing complying with section 160.505
Section 160.505 provides, in pertinent part: (a) a man is rebuttably identified as
the father of a child under this chapter if the genetic testing complies with this
subchapter and the results disclose: (1) that the man has at least a 99 percent probability
of paternity, using a prior probability of 0.5, as calculated by using the combined
paternity index obtained in the testing; and (2) a combined paternity index of at
least 100 to 1. See Tex. Fam. Code Ann. § 160.505.
shows the man to be the child’s father. See Tex. Fam. Code Ann. § 160.631(c). Under Texas law, if the DNA testing and DNA test
report satisfy the reliability and authenticity requirements, and the testing reveals
at least a 99 percent probability of paternity with a combined paternity index of
at least 100 to 1, a man is rebuttably identified as the child’s father. See Tex. Fam. Code § 160.505(a).
When the man has died and cannot provide a specimen for genetic testing, the court
may consider the results of genetic testing of the man’s parents. See Tex. Fam. Code § 160.508(a)(1); see also Tipps v. Metropolitan Life Ins. Co., 768 F.Supp. 577, 579-80 (S.D. Tex. 1991) (after death of purported father, Texas
court may draw inferences from grandparentage DNA testing to determine paternity).
In the past, our office has opined that DNA tests of only one purported grandparent
may be sufficient to establish a parent-child relationship with a deceased. See Memorandum from Regional Chief Counsel, Dallas, to Ass’t Reg. Comm., Dallas, Texas
State Law Status of Child Based on Grandparent DNA Test, at 4 (July 28, 2009). However,
grandparentage DNA testing and results must comply with Texas law requirements for
genetic testing. Research revealed no Texas jurisprudence indicating that the required
percentage of probability of paternity is less for single grandparentage testing.
See Tex. Fam. Code § 160.505(a); accord Memorandum from Regional Chief Counsel, Dallas,
to Ass’t Reg. Comm., Dallas - Texas State Law Status of Child Based on Grandparent
DNA Test (July 28, 2009) (grandparentage DNA testing did not comply with Texas law
where required certification was absent, report did not include relevant photographs,
report did not identify each individual who collected the specimens, the places and
dates the specimens were collected, the names of individuals who received the specimens
in the testing laboratory, or the dates the laboratory received the specimens, and
report showed a 97.67 percent probability that one of grandmother’s sons was child’s
biological father, which is below the statutory probability threshold). In this case,
the DNA test report assessing an 87.709 percent probability that the number holder’s
mother was N~’s paternal grandmother neither satisfied the reliability and authenticity
requirements nor the probability provisions of the Texas Family Code.
In order to be reliable and authentic: (1) the genetic testing must take place in
a laboratory accredited by the American Association of Blood Banks, the American Society
for Histocompatibility and Immunogenetics, or another accrediting body the Secretary
of the United States Department of Health and Human Services designates. See Tex. Fam. Code Ann. § 160.503(a); (2) a laboratory designee must sign the DNA report
under penalty of perjury. See Tex. Fam. Code Ann. § 160.504(a); (3) testimony or documentation must establish a
reliable chain of custody by: (a) the names and photographs of the persons whose specimens
have been taken; (b) the names of the persons who collected the specimens; (c) the
places and dates the specimens were collected; (d) the names of the persons who received
the specimens in the testing laboratory; and (e) the dates the specimens were received.
See Tex. Fam. Code Ann.§ 160.504(b). For the following reasons, the DNA report that N~
presented fails to meet Texas law requirements for establishing reliability and authenticity.
While the genetic testing took place at an accredited facility and the Assistant Paternity
Laboratory Director certified the DNA analysis report, there is no evidence showing
that the report complies with the chain of custody requirements. See Tex. Fam. Code Ann. §§ 160.503, 160.504. Specifically, there are no photographs of
the individuals who supplied specimens for testing. See Tex. Fam. Code Ann. § 160.504(b)(1). Moreover, while the report provides the date
the specimens were collected, it does not identify the date the laboratory received
the specimens, the person(s) who collected or received the specimens, or the place(s)
where the specimens were collected. See Tex. Fam. Code Ann. § 160.504(b)(2)-(5). Therefore, the testing does not satisfy
Texas law requirements for establishing reliability and authenticity.
In addition, the probability of the DNA test results in this case is insufficient
to establish paternity under Texas law. As noted, DNA test results establish paternity
if they show at least a 99 percent of probability of paternity with a combined paternity
index of at least 100 to 1. See Tex. Fam. Code Ann. §§ 160.503(a); 160.504; 160.505(a). Here, the DNA test results
show only an 87.709 percent probability that the number holder’s mother was N~’s paternal
grandmother. Such probability is below the 99 percent probability threshold under
Texas law for creating a rebuttable presumption of paternity and thus does not establish
the number holder’s paternity. See Tex. Fam. Code Ann. § 160.505(a); accord Memorandum from Regional Chief Counsel,
Dallas, to Ass’t Reg. Comm., Dallas - Texas Law – Status of Child Relationship Based
on Deoxyribonucleic Acid Y Chromosome Test (March 8, 2011) (85.29 percent probability
that one of grandmother’s sons was child’s biological father below the probability
threshold that Texas requires to create rebuttable presumption of paternity); See Memorandum from Regional Chief Counsel, Dallas, to Ass’t Reg. Comm., Dallas - Texas
Law – Status of Child Relationship (October 26, 2010) (96.88 percent probability that
one of grandfather’s sons was child’s biological father below the probability threshold
that Texas requires in order to create a rebuttable presumption of paternity); Memorandum
from Regional Chief Counsel, Dallas, to Ass’t Reg. Comm., Dallas - Texas State Law
Status of Child Based on Grandparent DNA Test (July 28, 2009) (grandparentage DNA
testing did not comply with Texas law where report showed a 97.67 percent probability
that one of grandmother’s sons was child’s biological father below the statutory probability
threshold).
Since the DNA test report that the Panola County Court reportedly relied on meets
neither Texas’ requirements for reliability and authenticity nor the threshold probability
for creating a presumption of paternity, the court’s order does not satisfy section
160.301(c). Consequently, the order is not consistent with the law enunciated by the
highest court in the state and the agency does not have to accept it under G~. In this case, the agency initially denied M~’s application for child’s benefits
on N~’s behalf because the DNA report did not comply with Texas law. M~ then obtained
a court order based, according to the evidence submitted, primarily on the DNA report
that does not comply with Texas law. If the agency accepts a state court order determining
a number holder’s paternity that is based on a deficient DNA report, individual’s
seeking child’s benefits can circumvent agency policy and state requirements. See SSR 83-37c.
Texas Family Code Section 160.631(e)
The court’s order could still comply with SSR 83-37c’s fourth prong if the genetic
testing report and other evidence submitted were consistent with section 160.631(e)
of the Texas Family Code. Under section 160.631(e) of the Texas Family Code, if a
Texas court finds that genetic testing does not identify or exclude the man as a child’s
father, the results of the genetic testing along with other evidence are nonetheless
admissible to adjudicate the issue of paternity. See Tex. Fam. Code Ann. § 160.631(e). While the statute does not speak to the standard
of proof, our research reveals that it is clear and convincing evidence. See In Interest of A.S.L. 923 S.W.2d 814, 818 (Tex.App.–A~,1996) (quantum of evidence by which a minor must
prove paternity of a deceased individual is clear and convincing) citing Garza v. Maverick Market, Inc., 768 S.W.2d 273, 276 (Tex.1989) (actions brought under the Texas Wrongful Death Act,
an illegitimate child must establish his paternity by the clear and convincing evidence
standard) and Tex.Prob.Code Ann. § 42(b) (section 42 of the Probate Code also accords
a child claiming to be the biological child of a decedent, who is not otherwise presumed
to be a child of the decedent, the opportunity to establish paternity by the clear
and convincing evidence standard). “The clear and convincing standard is the degree
of proof that will produce in the mind of the trier of fact a firm belief or conviction
as to the truth of the allegations sought to be proved.” Villery v. Solomon, 16 S.W.3d 106, 107 (Tex.App.–Houston, 2000), quoting In the Interest of G.M., 596 S.W.2d 846, 847 (Tex.1980); In the Interest of J.N.R., 982 S.W.2d 137, 141 (Tex.App.—Houston, 1998).
In this case, other than the DNA report and the Panola County Court Order Adjudicating
Parentage, the evidence M~ submitted to the agency include her remarks that she lived
with the number holder, his mother, and his two adult cousins from November 2009 until
his death in September 2010; that she did not have sexual relations with anyone else
during that time; that she was pregnant with N~ at the time of the number holder’s
death; that she and the number holder had known about the pregnancy for two weeks
prior to his death; that they had only told their parents about the pregnancy; and
that they were planning to get married after the baby was born. Agency records also
show that M~ stated that she had requested that the number holder’s mother and the
two cousins give a statement, but that they had not committed to giving a statement
and we note that M~ did not submit any statements in support of her application on
N~’s behalf. In addition, an uncertified copy of N~’s original birth certificate shows
that no father is named.
In a case where an individual brought suit under the Texas Probate Code to establish
that she was a deceased’s heir, a Texas court found that although a DNA report did
not establish paternity, the court considered the following evidence and found that
clear and convincing evidence showed that individual was deceased’s biological child:
adult child’s testimony that she had known that the deceased was her father from the
time she was born and that she knew the deceased’s sisters as her aunts and was introduced
as the deceased’s daughter; deceased’s aunt testimony by deposition that deceased
told her that individual was his child; deceased’s sisters testimony by deposition
that deceased told them that individual was his daughter; witnesses testimony that
the deceased had not informed them that the individual was his daughter. (Cite as:
16 S.W.3d 106, *109)
V~, 16 S.W.3d at 108-109. M~ indicated that she requested that family members provide
supporting statements, but she did not submit them to the agency. Contrary to the
evidence presented in V~, we conclude that M~ has not produced evidence in this case to establish by clear and
convincing evidence under section 160.631(e) of the Texas Family Code that N~ is the
number holder’s child.
B. Fifth Method under Tex. Prob. Code § 42(b) – Clear and Convincing Evidence
Finally, we look under section 42(b)(5) of the Texas Probate Code to whether the documentation
in support of N~’s claim for surviving child’s benefits establishes by clear and convincing
evidence that the number holder was N~’s biological father. See Tex. Prob. Code § 42(b)(5). As stated above, “[t]he clear and convincing standard
is the degree of proof that will produce in the mind of the trier of fact a firm belief
or conviction as to the truth of the allegations sought to be proved.” V~, 16 S.W.3d at 107; see also Tex. Fam. Code Ann. § 101.007. Here, other than statements she made to the agency,
M~ initially submitted only the DNA report and the Panola County Court Order Adjudicating
Parentage. After the agency inquired whether M~ had requested that the Bureau of Vital
Statistics amend N~’s amended birth certificate based on the Panola Court Order naming
the number holder as N~’s father, M~ submitted the amended document to support N~’s
application for child benefits.
Agency records show that M~ stated that she had been living with the number holder,
his mother, and two adult cousins from November 2009 until his death in September
2010; that she did not have sexual relations with anyone else during that time; that
she was pregnant with N~ at the time of the number holder’s death; that she and the
number holder had known about the pregnancy for only two weeks prior to his death;
that they had only told their parents about the pregnancy; and that they were planning
to get married after the baby was born. As discussed above, the DNA report does not
comply with Texas law and the agency is not bound by the state court order. Agency
records show that three other children are entitled to child’s benefits on the number
holder’s record, but that M~ is not listed as the mother or representative payee for
any of the other children. M~ submitted N~’s October 2012 amended birth certificate
to the agency and asked the agency to change N~’s Numident record in late March or
early April 2013. However, the amended birth certificate and Numident change were
based on the Panola County Court order which, as explained above, does not comply
with Texas law. See Tex. Fam. Code Ann. §§ 160.503, 160.504, 160.505. When a court renders an order adjudicating
parentage, it may order that a child’s name be changed “[o]n request of a party and
for good cause shown” and if the court determines that the name change is “in the
child’s best interest.” Tex. Fam. Code section 160.636. Section 160.636 does not define
good cause, but courts have referenced Black’s Law Dictionary’s definition that “good
cause” is a “legally sufficient reason.” In re A.W.G., 2011 WL 3795237 at *2-3 (Tex. App. – Fort Worth, 2011); In re S.M.V., 287 S.W.3d 435, 448 (Tex. App. – Dallas, 2009). In addition, courts have considered
a nonexclusive list of factors to consider whether a name change is in a child’s best
interest, including whether: the changed name or the original name would best avoid
embarrassment, inconvenience, or confusion for the custodial parent; whether the changed
name or original name would best help identify the child with the family unit; the
length of time that the child has carried the original name; the degree of community
respect associated with the original and changed names; whether the change would positively
or adversely affect the bond between the child and either parent or the parents’ families;
the preference, maturity, and age of the child; parental misconduct; any delay in
requesting the name change, whether the parent seeking the name change is motivated
by an attempt to alienate the child from the other parent; and, assurances by the
parent whose surname the child will bear that the parent will not change his or her
surname at a later time. Id.; In re S.M.V., 287 S.W.3d at 449-50; In re M.C.F., 121 S.W.3d 891, 897-98 (Tex. App. – Fort Worth, 2003). The court relied, in part,
on the deficient DNA report to determine that the number holder was N~’s father and
that the Bureau of Vital Statistics could change his birth certificate to reflect
the number holder’s name. Because the DNA report did not comply with Texas law, the
change in the birth certificate is not determinative. Moreover, an uncertified copy
of N~’s original birth certificate shows that no father is named. As such, we do not
believe that the totality of the evidence shows by clear and convincing evidence that
the number holder was N~’s biological father, as section 42(b)(5) requires. See Tex. Prob. Code § 42(b); see e.g., Slaton v. Slaton, 987 S.W.2d 180, 183 (Tex. App.—Houston [14th Dist.] 1980) (finding in the context
of Texas property law that a self-serving statement did not amount to clear and convincing
evidence).
Conclusion
It is our opinion that the Texas court order adjudicating parentage does not bind
the agency and that the documentation in support of N~’s claim for surviving child’s
benefits does not otherwise meet Texas law requirements for establishing inheritance
rights as the number holder’s child. Therefore, it is our opinion that N~ is not currently
entitled to surviving child’s benefits on the number holder’s account. If M~ provides
this additional documentation, we will then determine whether such additional documentation
complies with the requirements of relevant law.
Michael McGaughran
Regional Chief Counsel
By: ____________
Fatima Shah
Assistant Regional Counsel