This is in response to your request for an opinion concerning whether a DNA test report
is sufficient evidence to establish a parent-child relationship for purposes of determining
the child's eligibility for Child's Insurance Benefits (CIB). For the reasons set
forth below, we believe that the DNA evidence is sufficient to establish a parent-child
relationship.
Factual Background
The child claimant, Rita Georgette D~, was born on April 29, 1993. At the time of
her birth, her mother, Diane M~, was married to James R~, and Mr. R~ is stated to
be Rita's father on her birth certificate. However, Ms. M~ states that she and Mr.
R~ were separated from the summer of 1991 to late 1993, during the time Rita was conceived
and born, and states that they did not have a relationship as husband and wife during
that time. Her statements are corroborated by written statements from Mr. R~, who
denies paternity and states that Ms. M~ had a relationship with the number holder,
George P~, and that Rita is Mr. P~'s child. Further, DNA testing evidence completed
in 1995 shows a 99.93 probability that the number holder, George P~, is Rita's father.
Ms. M~ and Mr. R~ were divorced on May 13, 2002. The divorce judgment states that
Rita is a child born after the marriage but that she is not a child of Mr. R~. Mr.
P~ died on June 18, 2006, while domiciled in Connecticut.
Analysis
The Social Security Act ("the Act") provides for the payment of CIB to a child of
a number holder who dies when fully or currently insured if the child has filed an
application for CIB and was unmarried and under age 18 (or age 19 if a full-time student)
at the time the application was filed and was dependent upon the number holder at
the time of death. 42 U.S.C. §402(d)(1); 20 C.F.R. § 404.350 (2006); POMS RS 00203.001.A.1. The Act provides that in determining whether a claimant is the child of an insured
individual, the Commissioner of Social Security ("Commissioner") shall apply such
law as would be applied in determining the devolution of intestate personal property
by the courts of the state where the insured individual is domiciled at the time of
application or death. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(4); POMS GN 00306.001.C.2.a.
According to the record, the number holder was a resident of Connecticut at the time
of his death. Therefore, we apply Connecticut's law of intestate succession in determining
whether the claimant is the number holder's child for purposes of determining CIB
eligibility. See 42 U.S.C. 416(h)(2)(A); 20 C.F.R. § 404.355; POMS GN 00306.001.C.1.a.
Under Connecticut's intestacy statute, after any distribution of a decedent's estate
to a surviving spouse, the residue of the estate is distributed to the decedent's
children. CONN. GEN. STAT. § 45a-438(a). Connecticut law provides that a child born
in wedlock is presumed to be the legitimate child of her mother and her mother's husband.
Weidenbacher v.Dulcos, 661 A.2d 988, 997 (Conn. 1995). However, this presumption may be rebutted by clear,
convincing and satisfying evidence that the mother's husband is not the child's father.
Id. Connecticut law also provides that for purposes of intestate succession an individual
is the child of her genetic parents regardless of the marital status of such parents
CONN. GEN. STAT. § 45a-438(b). Under Agency Regulations a claimant is not required
to obtain an adjudication of paternity, but rather, the Agency may decide paternity
using the standard of proof that the state court would use as the basis for a paternity
determination. 20 C.F.R. § 404.355(b)(2); POMS GN 00306.440.B.3.
Connecticut courts determine paternity based on a preponderance of the evidence. Palomba v. Gray, 543 A.2d 1331, 1334 (Conn. 1988). With respect to DNA test results, Connecticut
law provides as follows:
[T]he results of such genetic tests … shall constitute a rebuttable presumption that
the putative father is the father of the child if the results of such tests indicate
a ninety-nine per cent or greater probability that he is the father of the child,
provided the petitioner has presented evidence that sexual intercourse occurred between
the mother and the putative father during the period of time in which the child was
conceived.
CONN. GEN. STAT. § 46b-168(b). Connecticut courts appear to have endorsed the use
of genetic testing evidence for purposes of adjudicating paternity where the purported
father is deceased. See, e.g., Brancato
v. Moriscato, No. CV 030472496S, 2003 WL 1090596 at *1 (Conn. Super. Feb. 27, 2003); Lach v. Welch, Civil No. FA 93-0063955, 1994 WL 271518 at *7 (Conn. Super. June 13, 1994).
Here, the claimant submitted a DNA test report dated July 27, 1995, which was based
on DNA samples taken from the child claimant, her mother and the number holder prior
to his death. The report states that there is a statistical probability of 99.93 percent
that the deceased number holder is the claimant's father. The claimant has also submitted
evidence of sexual intercourse between the mother and putative father, namely, the
statements of Ms. M~ and Mr. R~. See Palomba, 543 A.2d at 1334 (Conn. 1988) (such evidence need only consist of statements from
the mother). Under Connecticut law, this DNA test report and other evidence appears
to constitute clear and convincing evidence to rebut the presumption that James R~
is the child's father. Guin v. Green, No. 980352681, 1999 WL 259661 at * 1 (Conn. Super. Apr. 13, 1999). Moreover, this
evidence constitutes a rebuttable presumption that the number holder, George P~, is
the child's father. CONN. GEN. STAT. § 46b-168(b); POMS GN 00306.440.D. Accordingly, we believe the DNA test report and other evidence submitted in this
claim is sufficient to establish a parent-child relationship between the child and
the number holder under Connecticut law.
CONCLUSION
We believe that the Connecticut courts would find that Rita could inherit from the
deceased number holder as his child under Connecticut's intestacy statute. Therefore,
we believe that Rita qualifies as the number holder's child for purposes of entitlement
to CIB.