QUESTION
You asked whether DNA test results showing a 99.999% probability that the deceased
number holder is the claimant’s father and the deceased husband’s incarceration during
the period of probable conception is sufficient evidence to rebut the presumption
of the husband’s paternity under Alabama law and establish the claimant as the child
of the number holder for purposes of child’s insurance benefits.
We also explored the question whether the actions of the claimant’s mother constitute
fraud or similar fault to allow for reopening of the claimant’s award as the legitimate
child of the mother’s husband.
OPINION
For the reasons stated below, a Social Security Administration (SSA) adjudicator could
conclude, based on the facts presented, that the DNA evidence submitted was clear
and convincing evidence to rebut the presumption that the mother’s husband is the
father of the child and establish the claimant is the number holder’s child under
Alabama law. The evidence of the husband’s incarceration during the period of probable
conception was insufficient, alone, to rebut the statutory presumption of the husband’s
paternity. However, the evidence of incarceration adds some support to the conclusion
that the husband is not the claimant’s father. Based on the DNA evidence, we believe
an SSA adjudicator could still conclude the claimant is the number holder’s child
for purposes of child’s insurance benefits.
In regard to the actions of the claimant’s mother, the evidence presented is insufficient
to show fraud or similar fault her part. Therefore, further development is needed
before we can provide an opinion on whether an SSA adjudicator could initiate an action
against the claimant’s mother for fraud or similar fault.
BACKGROUND
Betty T~ (Claimant’s mother) and Matthew M~ (Husband) married on October 28, 1988.
Jessica M~ (Claimant) was born on June 25, 1989. Claimant’s birth certificate lists
Husband as Claimant’s father. On February 15, 2001, Husband died while domiciled in
Alabama. The evidence indicates Husband and Claimant’s mother never divorced.
Husband filed an application for disability insurance benefits in September 1997 and
listed Claimant as his child. After SSA granted Husband’s application, an application
was filed on behalf of Claimant for child’s insurance benefits on Husband’s earnings
record. The application stated Claimant was Husband’s “natural” child. Claimant’s
mother stated that she did not fill out Claimant’s initial application; rather, she
claims her sister filled out the application. (This information has not been verified.)
Claimant received child’s insurance benefits on Husband’s earnings record from December
1997 through her eighteenth birthday, June 25, 2007.
Meanwhile, Fred C~, the number holder (NH), was granted disability insurance benefits
and then retirement insurance benefits. He did not list Claimant as his child on his
disability insurance benefits claim filed in December 1999. However, he did list Claimant
as his child when he filed for retirement insurance benefits in March 2006. Claimant
filed for child’s insurance benefits on NH’s record in July 2006. SSA denied her claim
for failure to furnish evidence of paternity. Meanwhile, NH died in November 2007.
Claimant filed a second application for child’s insurance benefits on NH’s record
in November 2007.
As part of her second application, Claimant provided DNA test results dated July 10,
2007, showing a 99.999% probability that NH was her father. Claimant’s mother also
reported that Husband could not possibly be the biological father of Claimant as he
was incarcerated at the time of Claimant’s conception and birth. She claimed, however,
that Claimant would still have received benefits as Husband’s stepchild rather than
his natural child,1 which was listed on the Claimant’s 1997 application. She also stated that Husband’s
incarceration could be verified by Pamela M~ in the Loxley Alabama Work Release Center.
When the field office contact person spoke to Ms. M~, she stated that Husband was
admitted on December 11, 1986, and remained there continuously until released on July
15, 1991.
DISCUSSION
A. Paternity
The Social Security Act (Act) establishes the criteria for entitlement to child’s
insurance benefits. To qualify for child’s insurance benefits on the record of an
individual who dies a fully or currently insured individual, a claimant must be that
individual’s “child.” See Act § 202(d)(1); 20 C.F.R. § 404.350(a)(1) (2009). For this purpose, a “child” is
an individual who is related to the insured person as a natural child, legally adopted
child, stepchild, grandchild, step grandchild, or equitably adopted child. See Act § 216(e); 20 C.F.R. § 404.354 (2009). When determining entitlement to surviving
child’s benefits, SSA applies the inheritance laws of the state where the insured
had his permanent home when he died. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1) (2009). Because NH was domiciled
in Alabama at the time of his death, we look to Alabama law to determine if Claimant
is NH’s child. If the applicable state inheritance law requires a court determination
of paternity, SSA will not require a court determination, but will decide paternity
by using the standard of proof that the state court would use as a basis for a determination
of paternity. 20 C.F.R. § 404.355(b)(2) (2009).
Under Alabama law, intestate devolution of the estate of a decedent is controlled
by Ala. Code §§ 43-8-41 through 43-8-58 (2009). The part of the intestate estate not
passing to a surviving spouse passes to the issue of the decedent. See Ala. Code § 43-8-42 (2009). A decedent’s issue includes his lineal descendants, with
the parent-child relationship determined by the definitions of child and parent contained
in the Alabama probate code. See Ala. Code § 43-8-1 (2009). In cases not involving adoption, if a relationship of a
parent and child must be established to determine succession by, through, or from
a person:
[A] person born out of wedlock is a child of the mother. That person is also a child
of the father, if: (a) The natural parents participated in a marriage ceremony before
or after the birth of the child, even though the attempted marriage is void; or (b)
The paternity is established by an adjudication before the death of the father or
is established thereafter by clear and convincing proof. . . . Ala. Code § 43-8-48(2)
(2009).
In this case, Husband was married to Claimant’s mother at the time of Claimant’s birth.
As, a man is presumed to be the father of a child if he and the mother of the child
are married and the child is born during the marriage, Ala. Code § 26-17-204(a)(1)(2009),
Husband is presumed to be Claimant’s father. As Claimant was born in wedlock, the
parent-child relationship between Husband and Claimant was established and would not
need to be established for purposes of intestate succession See Ala. Code § 43-8-48 (2009).
However, Claimant is now claiming NH is her biological father. Before establishing
the parent-child relationship between NH and herself for purposes of intestate succession,
Claimant needs to rebut the presumption of Husband’s paternity.
Here, Claimant presented DNA test results from NH showing a 99.999% probability that
NH is her biological father. One way the presumption of paternity can be rebutted
is by a court decree establishing paternity of the child by another man. See Ala. Code § 26-17-204(b) (2009). Therefore, the DNA test results from NH would be
sufficient evidence to rebut Husband’s paternity. This statute also notes: “If two
or more presumptions arise which conflict with each other, the presumption which on
the facts is founded on the weightier considerations of policy and logic controls.”
Id. However, the Uniform Comment discussing this section notes, “Nowadays the existence
of modern genetic testing obviates this old approach to the problem of conflicting
presumptions when a court is to determine paternity. Nowadays, genetic testing makes
it possible in most cases to resolve competing claims to paternity.” A man is rebuttably
identified as the father of a child if genetic testing results disclose that the man
has at least a 99 percent probability of paternity. See Ala. Code § 26-17-505(a)(1) (2009). The presumption may be overcome only by other
genetic testing that excludes the man as the genetic father of the child or identifies
another man as the possible father of the child. See Ala. Code § 26-17-505(b) (2009). Here, no genetic testing was done on Husband prior
to his death or any other man. As previously noted, Claimant must establish NH as
her parent for purposes of intestate succession. As NH is deceased, Claimant must
present clear and convincing proof that NH is her biological father. See Ala. Code § 43-8-48(2)(b) (2009); Reid v.
Flournoy, 600 So. 2d 1024, 1026 (Ala. Civ. App. 1992) (“Paternity proven after the death of
father is required to be established by clear and convincing proof.”). Proof by clear
and convincing evidence, requires a level of proof greater than a preponderance of
evidence or the substantial weight of the evidence, but less than beyond a reasonable
doubt. See Ex parte C.V., 810 So.2d 700, 721 (Ala. 2001). As previously noted, Claimant presented DNA test
results from NH showing a 99.999% probability that NH is her biological father.
Alabama’s intestacy statute does not address genetic testing, but its paternity statute
does. Under the Alabama’s version of the Uniform Parentage Act (UPA), the paternity
of a child having a presumed, acknowledged, or adjudicated father may be disproved
only by admissible results of genetic testing excluding that man as the father of
the child or identifying another man as the father of the child. Ala. Code § 26-17-631(1)
(2009). Although we found no Alabama statute that expressly states that Alabama courts
will use the UPA paternity presumption in an intestacy proceeding, case law indicates
an Alabama court will apply the same rules of paternity adjudications under the UPA
and the state’s intestacy statute. In Blackmon v. Brazil, 895 So. 2d 900 (Ala. 2004), the Supreme Court addressed whether an adjudication
of paternity under the state’s intestacy statute, Ala. Code § 43-8-48(2)(b), was subject
to the statute of limitations under Ala. Code § 6-2-33(2) (2009). Id. at 908. The Court noted first that the language of Ala. Code § 43-8-48(2)(b) neither
exempted nor subjected a paternity proceeding for intestacy purposes to the statute
of limitations. Id. Next, the court found the state legislature intended to subject a UPA proceeding
for an adjudication of paternity to establish the right of inheritance in a child
born out of wedlock to the statute of limitations. The Court concluded that Ala. Code
§ 43-8-48(2)(b) was subject to the statute of limitations, because an adjudication
of paternity to establish inheritance rights for a child born out of wedlock under
the UPA was subject to the same statute of limitations. Id. Because the Supreme Court of Alabama is willing to apply provisions applicable to
UPA paternity determinations when determining the inheritance rights of children born
out of wedlock under the intestacy statute, we conclude that the courts will look
to the paternity provisions in the UPA to govern the paternity proceedings under the
state’s intestacy statutes, and as such, would apply the UPA provisions on genetic
testing.
Here, the DNA tests results from NH showed a 99.999% probability that NH is Claimant’s
biological father. As previously noted, a man is rebuttably identified as the father
of a child if genetic testing results disclose that the man has at least a 99 percent
probability of paternity. See Ala. Code § 26-17-505(a)(1) (2009). The presumption may be overcome only by other
genetic testing that excludes the man as the genetic father of the child or identifies
another man as the possible father of the child. See Ala. Code § 26-17-505(b) (2009). In this case, no such evidence was submitted. Therefore,
the DNA test results would be sufficient evidence under Alabama law to establish a
presumption that NH is Claimant’s father.
Claimant’s mother also reported that Husband could not possibly be the biological
father of Claimant as he was incarcerated at the time of her conception and, therefore,
there was a lack of access. “[L]ack of access to the wife during the time that pregnancy
would have occurred may overcome the presumption that the husband is the father.”
Hampton v. Hampton, 597 So. 2d 233, 234 (Ala. Civ. App. 1992) (citations omitted). The party attempting
to rebut the presumption of paternity must show that the husband could not have had
sexual relations with the mother at the probable time of conception. See Leonard v. Leonard, 360 So. 2d 710, 713 (Ala. 1978). Also, the clear and convincing evidence test has
been met where both the mother and her husband testified that she became pregnant
before their relationship began. See C.T.J.
v. A.S.J., 816 So. 2d 61, 64 (Ala. Civ. App. 2001). Here, due to Husband’s death, he is unable
to provide a statement regarding the nature of his relationship to Claimant’s mother
at the time of Claimant’s conception.
However, a mother can testify to circumstances from which nonaccess by her husband
and the impossibility of his parenthood may be inferred. Leonard, 360 So. 2d at 713 (citing Franks v. State, 161 So. 2d 549 (1935)).
A lack of conjugal visits coupled with Husband’s continued incarceration could provide
clear and convincing evidence that it was physically impossible for Husband to be
Claimant’s father. See Hampton, 597 So.2d at 234-35 (husband moved out of state and did not see wife is clear and
convincing evidence to rebut the presumption of paternity). Ms. Pamela M~ in the Loxley
Alabama Work Release Center, told a field office contact person that Husband was admitted
on December 11, 1986, and remained there continuously until released on July 15, 1991.
As this was a work release center and not a jail or prison, I contacted Ms. M~ and
asked her if it was possible that Husband left the facility at any time during his
incarceration. She stated that it was possible and the records showed that from June
1988 through December 1988 Husband was on “work release” status, which allowed him
to leave the center for work. Notably, this was during the same period that Claimant’s
conception took place and the same period when Husband and Claimant’s mother were
married. Therefore, there is a possibility that Husband had access to Claimant’s mother.
Whether Husband actually was out on work release would require additional investigation.
Such investigation is the responsibility of Claimant as she is the individual attempting
to rebut the presumption of Husband’s paternity. Therefore, we believe an SSA adjudicator
could not find that the evidence of Husband’s incarceration alone was sufficient evidence
to rebut the statutory presumption of his own paternity.
B. Fraud
Social Security Regulations allow reopening of a determination or decision at any
time, if it is obtained by fraud or similar fault. See 20 C.F.R. § 404.988(c)(1) (2009). If an individual “makes or causes to be made any
false statement for representation of a material fact in any application for any payment
or for a disability determination under this subchapter,” that individual is guilty
of a felony. See Section 208(a) of the Act. In regard to reopening, fraud exists where a person “[w]ith
intent to defraud, conceals or fails to disclose a material fact for use in determining
rights to Social Security benefits.” POMS GN 04020.010.A.1.b. Similar fault exists
when a person “[k]nowingly conceals information that is material to the determination.
However, fraudulent intent is not required.” POMS GN 04020.010.A.2.b. Courts have
found that misrepresentations about domestic or financial status constitute “fraud
or similar fault” for purposes of reopening a Social Security claim. See, e.g., Heins v. Shalala, 22 F.3rd 157, 162 (7th Cir. 1994) (holding reopening justified on ground of similar
fault when claimant failed to report remarriage and signed application which stated
none other to question regarding other marriages); Marshall v. Chater, 75 F.3d 1421, 1427 (10th Cir. 1996) (holding reopening justified when claimant fraudulently,
or at least knowingly, made incorrect statements regarding his income and hours and/or
withheld such material information); Fowler v. Bowen,
876 F.2d 1451, 1455 (10th Cir.1989) (holding that substantial evidence supported ALJ’s
finding that claimant’s incorrect statement regarding employment status and failure
to reveal substantial earnings constituted fraud or similar fault).
Here, benefits were filed on behalf of Claimant in 1997 and Claimant was listed as
the natural child of Husband. Claimant’s mother alleges that she was not the individual
who filled out the application for Claimant’s benefits; rather, she claims Husband’s
sister filled out the application. The accuracy of this statement has not been verified
by SSA. A copy of 1997 application would need to be obtained to verify this statement.
Claimant’s mother also alleges Husband could not possibly be the biological father
of Claimant and he was aware of this, as he was incarcerated at the time of Claimant’s
probable conception. However, as previously noted, due to Husband’s death, he is unable
to provide a statement regarding the nature of his relationship to Claimant’s mother
at the time of Claimant’s probable conception. Also, the source that Claimant’s mother
stated could verify Husband’s incarceration provided insufficient evidence to support
or discount the mother’s allegation. Therefore, we believe the evidence presented
is insufficient to show fraud or similar fault on the part of Claimant’s mother. Further
development of the evidence is needed before we can provide an opinion on whether
an SSA adjudicator could initiate an action against Claimant’s mother for fraud or
similar fault.
CONCLUSION
Therefore, we conclude that, under Alabama law, an SSA adjudicator could conclude
that the DNA test results supported by the evidence of Husband’s incarceration during
the period of probable conception provide clear and convincing evidence to rebut the
presumption of Husband’s paternity and establish NH’s paternity. Consequently, Claimant
would be NH’s child under Alabama intestacy law and for the purposes of child’s insurance
benefits on NH’s record.
As the evidence presented is insufficient to show fraud or similar fault on the part
of Claimant’s mother, further development is needed before we can provide an opinion
on whether an SSA adjudicator could initiate an action against Claimant’s mother for
fraud or similar fault.
Very truly yours,
Mary A. S~
Regional Chief Counsel
/s/
Simone D. P~
Assistant Regional Counsel
1 We question whether Claimant can qualify as the stepchild of Husband, given that
the marriage between a claimant’s parent and the stepparent must have occurred after
the claimant’s birth (or at least after her conception). See 20 C.F.R. § 404.357. While an SSA adjudicator might consider the date Claimant’s
mother and Husband were married, October 28, 1988, and the date of Claimant’s birth,
June 25, 1989, and conclude Claimant was conceived before her mother and Husband were
married, such a conclusion is by no means certain. Further development would be needed
to determine Claimant’s status as Husband’s stepchild.