Mississippi law establishes a rebuttable presumption exists that a child born during a marriage is legitimate, i.e., the child is the child of the mother's husband but a party challenging legitimacy may prevail if he proves beyond a reasonable doubt that the legal husband of the mother is not, in fact, the biological father. In this case, the information provides sufficient evidence to rebut the presumption that NH is C2's father. The DNA testing showed a 0.00% probability of relationship between NH and C2 and that NH was not C2's biological father. The DNA test results provide strong evidence rebutting the presumption of legitimacy. Based on the information provided, including the court order, the beneficiary is not the number holder's child under Mississippi law for determining continuing eligibility for CIB on the number holder's earnings record.

QUESTION

You asked whether a beneficiary who is currently receiving child's insurance benefits (CIB) on the number holder's earnings record is the number holder's child for determining her continuing eligibility for CIB on the number holder's earnings record where the beneficiary was born during the number holder's marriage to the beneficiary's mother, but a Mississippi court declared the beneficiary is not the number holder's child.

OPINION

Based on the information provided, including the court order, the beneficiary is not the number holder's child under Mississippi law for determining her continuing eligibility for CIB on the number holder's earnings record.

BACKGROUND

According to the information provided, on March 31, 2012, the Social Security Administration (SSA) found C~, the number holder (NH), entitled to disability insurance benefits beginning November 2009. In May 2012, J~, NH's ex-wife and the mother of NH's son, J2~ (C1), applied on C1's behalf for CIB on NH's earnings record. On June 9, 2012, SSA found C1 entitled to CIB on NH's earnings record beginning November 2009.

V~ (C2) was born on November, to K~ (C2's mother). At the time of C2's birth, C2's mother was married to NH. C2's birth certificate lists NH as her father. C2's Numident ^[1] also lists NH as her father.

In March 2014, C2's mother applied on C2's behalf for CIB on NH's earnings record. C2's mother reported she and NH had separated on February 28, 2013, and they had not lived together since that date. C2's mother also reported C2 was not NH's child and she had a paternity test to prove C2 was not NH's child. Shortly after C2's mother filed C2's application, C1's mother visited an SSA field office and claimed C2 was not NH's biological child. C1's mother stated she did not think C1's CIB payments should be reduced based on CIB payments made to a child, i.e., C2, whom she did not believe was NH's biological child.

On May 7, 2014, SSA found C2 entitled to CIB on NH's earnings record beginning December 2013. SSA determined, pursuant to Program Operations Manual System (POMS) GN 00306.025, that C2 was NH's child and entitled to CIB on NH's earnings record because NH and C2's mother were married when C2 was born and NH acknowledged C2 was his child. Also on May 7, 2014, SSA informed C1's mother that C1 had been paid too much CIB from December 2013 through April 2014 and his monthly CIB payment would be cut in half.

On May 13, 2014, C2's mother filed a complaint for divorce from NH in the Chancery Court of Lauderdale County, Mississippi. In the complaint, C2's mother averred NH had been a resident of Meridian, Mississippi, for more than six months before she filed the complaint. C2's mother averred she and NH were married on June 20, 2011, in Mississippi, separated on or about February 28, 2013, and had not cohabited together as husband and wife since that date. C2's mother also averred C2 had been born "unto the union" of her and NH, but according to NH, he claimed he was not C2's father. C2's mother further averred C2 had lived only with her since C2's birth. C2's mother asked the court for custody of C2, but with visitation rights for NH. C2's mother also asked the court to order DNA testing to prove or disprove NH's paternity pursuant to sections 93-9-21 and 93-9-23 of the Mississippi Rules of Civil Procedure.

In his June 3, 2014 answer to the complaint for divorce, NH admitted he had been a resident of Meridian, Mississippi, for more than six months before C2's mother filed the complaint. NH also admitted his marriage to and separation from C2's mother and agreed they had not cohabited as husband and wife since their separation, but he denied that a child was born "unto" the union. NH averred C2 "was the result of an adulterous relationship and a previous DNA excluded [NH] from paternity," and NH denied the need for a second DNA test. NH admitted C2 had lived with her mother since her birth. NH also counterclaimed for divorce and claimed C2 was the result of C2's mother's "numerous affairs" and a DNA test had already excluded him as C2's biological father. NH asked the court to find C2 was not his child and C2's mother was not entitled to any support from him.

In a motion for temporary relief filed on July 22, 2014, NH averred that C2's mother had misrepresented to SSA that C2 was his biological child, which had affected the monthly benefit amount received by C1. NH asked the court to find he was not C2's biological father and C2's mother was not entitled to any support from him for C2's benefit.

On July 28, 2014, C2's mother filed an answer to NH's counterclaim. C2's mother admitted NH was not C2's biological child. C2's mother also admitted she engaged in a sexual affair with someone other than NH on or about February 2013.

On August 11, 2014, the Chancery Court of Lauderdale County, Mississippi, issued an Agreed Order in which it noted genetic testing obtained in December 2013 excluded NH as C2's biological father. The court also noted C2's mother admitted that although C2 was born during the marriage, NH was not C2's biological father. The court further noted NH was listed as C2's father on her birth certificate in error. Based on this information, the court decreed NH was not C2's biological father and NH had no duty to provide support to C2. The court authorized and directed the Mississippi Bureau of Vital Statistics to remove NH's name as C2's biological father from her birth certificate. The court also ordered C2's mother to provide the Agreed Order to SSA and take all actions required to cease the payment of Social Security benefits to C2 and to return any portion of payments received from SSA as required by SSA.

SSA records indicate C2's mother visited an SSA office and requested SSA cease paying benefits to C2. In a letter dated December 4, 2014, an attorney representing NH contacted Senator T~(Mississippi), with a copy of the letter sent to the SSA field office in Meridian, Mississippi, regarding C2's receipt of CIB on NH's earnings record. NH's attorney stated C2's mother had applied on C2's behalf for CIB on NH's record knowing C2 was not NH's child. NH's attorney noted SSA had received a copy of the Agreed Order in August 2014 and asked Senator T~'s office "to speed up the resolution of this matter." NH's attorney stated NH and C2's mother were going through a divorce, and during the marriage C2's mother had become pregnant with C2 by another man. NH's attorney provided a screenshot of a Facebook post by C2's mother in which she indicated another man was C2's father. NH's attorney stated "over the counter" DNA testing in December 2013 had eliminated NH as Beneficiary's father. NH's attorney stated his intent was to help restore the amount of CIB payable to C1 because C1 was NH's sole dependent. NH's attorney also provided a letter from C1's mother in which she outlined her attempts to have her C1's CIB payments restored.

SSA subsequently obtained a copy of a DNA test report dated December 11, 2013. The report indicates genetic samples were obtained from C2 and NH. The report states the testing showed a 0.00% probability of relationship between NH and C2 and that NH was not C2's biological father.

On December 22, 2014, the Chancery Court of Lauderdale County, Mississippi, issued a judgment of divorce. In the property settlement agreement incorporated in the divorce judgment, NH and C2's mother agreed C2 was born during the marriage, but NH was not C2's biological father and had no duty to provide support for C2.

DISCUSSION

A claimant may be eligible for CIB on the earnings record of an individual entitled to DIB if the claimant is the insured individual's "child." See Social Security Act (Act) § 202(d)(1); 20 C.F.R. § 404.350(a)(1) (2014). ^[2] "Child" includes "the child" of an insured individual. See Act § 216(e)(1); 20 C.F.R. § 404.354; Astrue v. Capato, 132 S. Ct. 2021, 2027-28 (2012). A claimant may show she is "the child" of an individual entitled to DIB, within the meaning of section 216(e)(1), under section 216(h)(2)(A) or 216(h)(3)(B) of the Act. See Capato, 132 S. Ct. at 2028. Under section 216(h)(2)(A), a claimant is considered "the child" of the insured individual if the claimant could inherit the insured individual's intestate personal property under the law of the State in which the insured individual was domiciled when the claimant applied for CIB. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(3); Program Operations Manual System (POMS) GN 00306.055.A.1.

The pleadings filed in the Chancery Court of Lauderdale County, Mississippi, indicate NH was domiciled in Mississippi when C2's mother applied on C2's behalf for CIB on NH's earnings record. Therefore, we look to Mississippi intestacy law to determine whether C2 is NH's child for the purposes of section 216(h)(2)(A) of the Act. Under Mississippi law, the intestate personal property of a deceased person descends to his or her heirs. See Miss. Code Ann. § 91-1-11 (West 2014). Heirs include a decedent's children. See Clark Sand Co., Inc. v. Kelly, 60 So. 3d 149, 159 (Miss. 2011) (citing Miss. Code Ann. §§ 91-1-1 to 91-1-11).

Mississippi law establishes a rebuttable presumption exists that a child born during a marriage is legitimate, i.e., the child is the child of the mother's husband. See Rafferty v. Perkins, 757 So. 2d 992, 995 (Miss. 2000); Perkins v. Thompson (In re Estate of Taylor), 609 So. 2d 390, 394 (Miss. 1992). The presumption of legitimacy is one of the strongest known to Mississippi law. Perkins, 609 So. 2d at 394. "A party challenging legitimacy may prevail if he proves beyond a reasonable doubt that the legal husband of the mother is not, in fact, the biological father." Id. "The burden notwithstanding, (dis)proving paternity is a matter of fact, and courts proceed as with other issues of fact. Any evidence tending to support or deny the fact may be considered." Id. "The question in the end is whether the court can say beyond a reasonable doubt, given the totality of the circumstances as shown by all of the evidence before it, that the husband is not the father. Necessarily, this standard requires a sensitive assessment of the evidence of each individual case." Id. "At common law, [the presumption of legitimacy] was rebutted by showing either that the husband was incapable of procreating or that the mother and husband were physically separated at the time of conception." M.A. v. M.D. (In re B.N.N.), 928 So. 2d 197, 200 (Miss. Ct. App. 2006); see Perkins, 609 So. 2d at 394. However, "the presumption has bowed to realism." Perkins, 609 So. 2d at 394.

In particular, "[s]cientific and technological advancements have resulted in other means of rebutting this presumption, such as paternity testing." M.A., 928 So. 2d at 200 (citing Miss. Code Ann. §§ 93-9-21, 93-9-27); ^[3] Perkins , 609 So. 2d at 394 (noting Mississippi courts "accept that blood tests can produce a high level of discrimination either excluding or including a given male as the father of a particular child") (internal quotation marks omitted). As a general matter, "[g]enetic test results are admissible as evidence of paternity, but are not necessarily conclusive." In re Estate of Grubbs, 753 So. 2d 1043, 1052 (Miss. 2000). Specifically, however, genetic testing "may rebut the presumption of legitimacy." Rafferty, 757 So. 2d at 995. In Rafferty, the court held DNA test results eliminating the possibility that the mother's former husband was the child's father rebutted the presumption of legitimacy where no credible rebuttal evidence was presented. See Rafferty, 757 So. 2d at 994, 995; see also Williams v. Williams, 843 So. 2d 720, 721-22 (Miss. 2003) (holding husband of child's mother, who had sworn in divorce decree the child was his son, effectively rebutted presumption of paternity through DNA testing showing he was not child's father); M.A.S. v. Miss. Dep't of Human Servs., 842 So. 2d 527, 528, 531 (Miss. 2003) (granting appellant relief from child support order where unrefuted proof—DNA test results showing probability of paternity of 0.00%—showed appellant was not child's father).

Here, the information provides sufficient evidence to rebut the presumption that NH is C2's father. The DNA testing showed a 0.00% probability of relationship between NH and C2 and that NH was not C2's biological father. The DNA test results provide strong evidence rebutting the presumption of legitimacy. The DNA testing here, showing a 0.00% probability that NH is C2's father, leaves no reasonable doubt that NH is not C2's father. Moreover, C2's mother admitted in court documents that C2 was not NH's child, and C2's mother admitted to having an affair in February 2013, approximately nine months before C2's birth. NH also stated in court documents that he was not C2's father. According to documents provided by the attorney for C1's mother, C2's mother also posted on her Facebook page that another man was C2's father.

The Chancery Court of Lauderdale County, Mississippi, also determined NH was not C2's father in its divorce judgment. SSA is not free to ignore an adjudication of a State court where the following prerequisites exist: (1) an issue in a claim for Social Security benefits previously has been determined by a State court of competent jurisdiction; (2) this 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. See Social Security Ruling (SSR) 83-37c (adopting Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973), as national policy).

In this case, the court's divorce judgment does not meet all the prerequisites in SSR 83-37c. The court had jurisdiction to decide the issue of NH's paternity and the issue of NH's paternity fell within the general category of domestic relations law. The court's determination also appears to be consistent with Mississippi law because, as discussed above, the DNA evidence and the statements provided by NH and C2's mother indicate beyond a reasonable doubt that NH was not C2's father. However, nothing in the divorce judgment suggests parties with opposing interests genuinely contested the issue of whether NH was C2's father. No guardian ad litem was appointed to represent C2's interests, and both NH and C2's mother, the parties to the divorce proceedings, agreed NH was not C2's father. See, e.g., Baker, 503 So. 2d at 252-53 (noting interests of mother may not same as interests of child in paternity matter, and lower court needed to consider appointing guardian ad litem for child). Therefore, the court's determination that NH was not C2's father is not entitled to any special significance.

Nevertheless, the court's determination provides further evidence to rebut the presumption that NH was C2's father. The court's determination, taken together with the DNA evidence and the statements of NH and C2's mother, shows that NH is not C2's father. In addition, the court concluded the inclusion of NH's name on C2's birth certificate was error and ordered the relevant State agency to amend C2's birth certificate. Although we do not have a copy of an amended birth certificate, the court's order undermines the birth certificate as evidence that NH was C2's father. Given the totality the evidence provided, we believe a Mississippi court would conclude the presumption that NH is C2's father has been rebutted beyond a reasonable doubt.

Because C2 is not NH's child, SSA may decide to reopen its May 7, 2014 initial determination granting C2 CIB on NH's earnings record. SSA may reopen a determination for any reason if it does so within twelve months of the date of the notice of the initial determination. See 20 C.F.R. § 404.988(a). If SSA is unable to reopen C2's initial award determination within twelve months, the additional evidence submitted after the determination should provide good cause for SSA to reopen the determination with four years of the date of the notice of the initial determination. See 20 C.F.R. §§ 404.988(b), 404.989(a)(1).

CONCLUSION

Based on the information provided, C2 is not NH's child for determining C2's continuing eligibility for CIB on NH's earnings record.

Sincerely,

Mary Ann Sloan

Regional Chief Counsel

By: _____________

Brian C. Huberty

Assistant Regional Counsel

Under Mississippi law, DNA testing showing a 99.99 percent probability that another individual is the claimants' father combined with statements from both the number holder and the claimants' mother that this is the case is still not sufficient beyond a reasonable doubt to overcome that State's strong presumption of legitimacy.

QUESTION

You have asked whether evidence of DNA testing, in conjunction with written statements of paternity, is sufficient to rebut the presumption of legitimacy under Mississippi law.

ANSWER

In accordance with POMS PR 010010.27A, DNA testing showing a 99.99% probability of paternity, coupled with written statements of paternity, would not rebut the presumption of legitimacy.

BACKGROUND

Number holder L~ (NH) is domiciled in Mississippi. NH married E~ (NH's wife) on December 1, 1986, and they continue to be married. J1~ (C1) and J2~ (C2) were born to NH's wife on November. The file contains DNA test results, dated July 9, 1998, showing a 99.99% probability of paternity that W~ is the father of C1 and C2. C1 and C2 have been receiving child's benefits on the record of W~ since July 1998.

On February 9, 2007, NH's wife filed an application on behalf of C1, C2, and B~ (C3) for child's benefits on NH's earnings record. (Your request does not indicate that paternity is an issue regarding C3.) NH's wife submitted the July 1998 DNA testing and signed a statement (Form SSA-795) that W~ was the father of C1 and C2. NH also signed a statement (Form SSA-795) that W~, rather than he, was the father of C1 or C2. The record also includes copies of the children's birth certificates. These birth certificates list NH as the father.

DISCUSSION

The issues in this case are specifically covered by POMS PR 01010.027A. In accordance with PR 01010.027A, the evidence in this case does not show beyond a reasonable doubt that NH is not the father of C1 and C2. As noted in PR 01010.27A2, DNA testing alone is insufficient to rebut the presumption that NH is the father of C1 and C2. There is also no evidence that W~ pursued any legal avenues to establish paternity or that W~ held himself out as C1 and C2's father. While NH and NH's wife both provided signed statements indicating that C1 and C2 were not NH's children, there is no evidence that NH did not hold himself out as the father of the child, other than his signed statement. In addition, C1 and C2's birth certificates list NH as the father, and C1 and C2 share the same last name as NH. Further, NH's statement does not constitute a disclaimer or waiver of his legal rights to C1 and C2. Given such evidence, a Mississippi court could reasonably conclude that such evidence does not rebut the presumption of legitimacy, because it does not establish that W~ is the father of C1 and C2 to the level of "complete satisfaction." See POMS PR 01010.27A. As such, this evidence falls short of demonstrating beyond a reasonable doubt that NH is not the father of C1 or C2.

Consequently, an Agency adjudicator could conclude that C1 and C2 are NH's children for entitlement purposes based on the facts provided to the Agency, even with the DNA testing establishing a 99.99% probability that W~ is the father of the C1 and C2, and the written acknowledgments from NH and NH's wife that W~ is the father.

You indicated in your request that C1 and C2 are currently receiving benefits on W~ earnings record. POMS GN 04030.070C states that when a new claim is filed, "the adjudication of such claim does not affect and is not affected by a determination on a prior claim filed on a different earnings record." As such, the determination of the new claim based on NH's earnings record should be made independent of the determination made on the earlier claim on W~ earnings record. See id. Because C1 and C2 have been receiving benefits since July 1998 on W~ earnings record, the Agency cannot reopen the paternity determination on W~ record under the rules of administrative finality. See 20 C.F.R. §§ 404.987, 404.988, 404.989, 404.990; POMS GN 04010.001-.030, 04020.001-.110, 04030.001-.090. Pursuant to POMS GN 04030.070C, if there is no basis for reopening the determination on W~ record, C1 and C2 would be entitled to child's benefits on both NH and W~ earnings records, but can be paid only on the earnings record that pays them the higher benefits.

CONCLUSION

The evidence of DNA testing, coupled with the written statements from NH and NH's wife, alone cannot rebut the controlling presumption that NH is the father of C1 and C2. Thus, when taking into the account the evidence before the Agency, a Mississippi court likely would find C1 and C2 to be the children of NH, and an Agency adjudicator could conclude that C1 and C2 are NH's children for entitlement purposes. Because C1 and C2 have been receiving benefits since July 1998 on W~ earnings record, and the Agency cannot reopen the paternity determination on W~ record under the rules of administrative finality, C1 and C2 would be entitled to child's benefits on both NH and W~ earnings records, but can only be paid on the record which pays them the highest benefits.

Sincerely,

Mary Ann Sloan

Regional Chief Counsel

By: __________

Brian Seinberg

Assistant Regional Counsel

In a Mississippi case where the child was born in wedlock, the number holder signed the birth certificate, financially supported the child and held the child out as his own; statements of the number holder, the mother, and the claimant that the number holder is not the claimant's father are not proof beyond a reasonable doubt to rebut the presumption of paternity.

QUESTION

You have asked whether the evidence of record is sufficient to rebut the presumption of paternity under Mississippi law that Number Holder (NH) is the father of Claimant. For the reasons stated below, we do not believe the evidence of record is sufficient to overcome the long-standing presumption of paternity based on birth within wedlock per Mississippi law.

FACTS

R~ (Claimant) filed an application for Child's Insurance Benefits on the earnings record of L~ (NH) on April 11, 2005. NH and A~ (Claimant's mother) married on August 16, 1969 in Mississippi. Claimant was born in 1972. NH and Claimant's mother are both alive. NH is domiciled in Mississippi. NH, Claimant's mother, and Claimant now state that NH is not the biological father of Claimant. The evidence of record includes statements from NH, Claimant's mother and Claimant that NH is not Claimant's biological father. Both Claimant and Claimant's mother now state that M~ is Claimant's biological father. Claimant's mother had an affair with M~ during her marriage. M~'s whereabouts are unknown.

Documentary evidence of record shows NH signed his name on Claimant's birth certificate as the father. Claimant's records in the Clarksville-Montgomery (Tennessee) County School System also list NH as his father. NH admits that he financially supported Claimant; and treated and acknowledged Claimant like his natural son. NH contends DNA testing proves that Claimant is not his natural son. However, there is no evidence of DNA testing. Claimant's mother states that DNA testing was never performed. NH states that he and Claimant's mother divorced in 1986 in Tennessee. Claimant's mother states that she divorced NH February 21, 1997. The Complaint for Absolute Divorce filed on February 21, 1997 lists only L~ and E~ as children born of the marriage. A representative of the Tennessee Chancery Court states that the Complaint for Absolute Divorce was actually dismissed on December 10, 2004. NH remarried in 2004. Neither Claimant's mother nor NH has ever taken any legal action to have M~ declared the biological father of Claimant.

STATUTORY AND REGULATORY AUTHORITY

Entitlement to Child's Insurance Benefits - In General

Under the Social Security Act, a claimant under age eighteen may qualify for child's insurance benefits on the earnings record of an insured person who is entitled to old-age or disability benefits if the claimant is the "child" of the insured person. See Social Security Act (Act) 202(d), 42 U.S.C. § 402(d); 20 C.F. R. § 404.350 (2006). "Child" in this context includes a natural child, adopted child, and, under certain circumstances, the grandchild, stepchild, or step-grandchild. See Act § 216(e), 42 U.S.C. § 416(e); 20 C.F.R. § 404.354. Only the provisions relating to a natural child or stepchild could apply to this claim. To determine whether an applicant qualifies as a natural child of a living NH, the Commissioner applies the law of the State where the NH has his permanent home. See Act § 216(h)(2)(A), 20 C.F.R. 404.355(b)(3) (2006). Because NH is domiciled in Mississippi, the question is whether a Mississippi court would consider Claimant to be NH's legitimate child.

Mississippi Law Applied to this Claim

The presumption that the husband is the father of a child born in wedlock is one of the strongest presumptions recognized in Mississippi. The presumption that a husband is the father of a child born in wedlock continues until the husband is proven beyond a reasonable doubt to be incapable of procreation or that he had no access to the wife at times when the child could have been begotten. See In re Estate of Taylor, 609 So. 2d 390, 394 (Miss. 1992); Karenina v. Presley, 526 So.2d 518, 523 (Miss. 1988); Alexander v. Alexander, 465 So.2d 340, 341 (Miss. 1985); Stone v. Stone, 210 So.2d 672, 674 (Miss. 1968); Boone v. State, 51 So.2d 473, 474-75 (Miss. 1951). The presumption was so strong under the common law that it could not be rebutted unless the husband was incapable of procreation or was beyond the four seas; that is, he was absent from the realm, during the whole period of the wife's pregnancy. See 10 C.J.S. Bastards § 3 at 20.

The paternity and legitimacy of a child born in wedlock may be disputed, but a party challenging legitimacy must prove beyond a reasonable doubt that the legal husband of the mother is not, in fact, the biological father. See Baker By Williams v. Williams, 503 So.2d 249, 253 (Miss. 1987); Deer v. State Department of Public Welfare, 518 So.2d 722, 727 (Miss. 1977).

This burden of proof beyond a reasonable doubt is a function of the level of confidence public policy demands in findings of illegitimacy. See In Re Estate of Taylor, 609 So.2d 390, 394 (Miss. 1992). Any evidence tending to support or deny paternity may be considered. Id. The Supreme Court of Mississippi noted in dicta that to rebut the presumption, the court should be "left with the firm and definite conviction that a mistake had been made" and that the evidence shows that the child was the son or daughter of the putative father and not the son or daughter of the legal husband, despite the strong presumption of legitimacy. See Bell, 876 So.2d at 1091. "The question in the end is whether the court can say beyond a reasonable doubt, given the totality of the circumstances as shown by all of the evidence before it, that the husband is not the father." Taylor, 609 So.2d at 394.

Mississippi's Uniform Law on Paternity indicates that the father of a child which is or may be born out of lawful matrimony is liable to the same extent as the father of a child born of lawful matrimony, whether or not the child is born alive, for the reasonable expense of the mother's pregnancy and confinement, and for the education, necessary support and maintenance, and medical and funeral expenses of the child. A child born out of lawful matrimony also includes a child born to a married woman by a man other than her lawful husband. See Miss. Code Ann. § 93-9-7.

In Mississippi, one way that a party can challenge legitimacy is through presentation of blood test evidence. In Ivy v. Harrington, 644 So.2d 1218 (Miss. 1994), the court held that the results of blood and tissue type tests, such as human leukocyte antigen tests, can rebut a presumption of legitimacy, if available and authenticated (citing Baker by Williams v. Williams, at 253).

Although DNA tests results in general are probative evidence of paternity in Mississippi, they are not conclusive (emphasis added). See Chisolm v. Eakes, 573 So.2d 764, 766 (Miss. 1990)("[t]he general rule appears to be that (genetic) results, properly authenticated and supported by other evidence, are admissible as evidence of paternity, but are not necessarily conclusive"). The Chisolm court quoted with approval the Texas Court of Appeals holding in In re E.G.M., 647 S.W.2d 74, 78 (Tex.Civ.App. 1983):

 

While paternity may be conclusively disproved, conclusive proof of paternity remains an unattainable goal ... Even probabilities that are high do not necessarily compel a particular finding as a matter of law. Nor do we think that the results of high probability standing alone necessarily equate to a preponderance of the evidence. A trial of paternity is essentially a trial of the complaining mother's credibility … blood testing assists in the truth finding process but does not compel a decision in a non-exclusion case.

 

The Chisolm court concluded that "absent some statutory pronouncement, paternity test results, even those showing a high probability of paternity, cannot be conclusive as a matter of law." 573 So.2d at 768; see also Estate of Grubbs, 753 So.3d at 1052 ("Genetic test results are admissible as evidence of paternity, but are not necessarily conclusive.")(citing Chisolm).

ANALYSIS

Here, there is no question that Claimant was conceived and born while NH and Claimant's mother were married. Claimant was born in 1972, three years after NH and Claimant's married in 1969. Significantly, no one has alleged that NH was impotent or did not have access to Claimant's mother around the time that Claimant was conceived.

The question presented here is whether there is proof beyond a reasonable doubt to rebut Mississippi's strong presumption of legitimacy. In the case at hand, we believe that the evidence presented fails to prove beyond a reasonable doubt that NH is not the biological father of Claimant. The statements of Claimant, Claimant's mother and NH that NH is not the biological father of Claimant are simply insufficient to prove beyond a reasonable doubt that NH is not Claimant's biological father. Notably, NH concedes that he signed the birth certificate, financially supported Claimant and raised Claimant as his own child. NH has not testified to non-access and the evidence does not include genetic testing that might rebut the presumption of legitimacy.

There is no question that Claimant was in wedlock and that the law presumes him to be legitimate. The Mississippi Supreme Court has stated "[C]ertainly public policy demands that a child born in wedlock should not be branded as illegitimate except in those cases where the proof is so strong that there is no reasonable doubt that the husband is not the father. Nothing less will suffice." Stone v. Stone, 210 So.2d 672, 674 (1968). For example, in Madden v. Madden, 338 So.2d 1000 (Miss. 1976), the mother's testimony that she was pregnant with the child at the time she first had sexual relations with her husband, prior to their marriage, was insufficient to disprove husband's paternity beyond a reasonable doubt. In Madden, similar to the case at hand, the birth certificate listed the husband as the father and the child was both treated and acknowledged as being the husband's natural and legitimate child. See id. The court stated that "[A]lthough the testimony of the mother in a paternity case may be given great weight, it cannot be conclusive[e]." see id at 1002.

Thus, we believe that the statements from Claimant, Claimant's mother and NH that NH is not the biological father are insufficient to rebut the strong presumption of legitimacy under Mississippi law.

CONCLUSION

For the foregoing reasons, we do not believe that the evidence presented is sufficient to overcome the presumption that Claimant is NH's natural and legitimate child.

Sincerely,

Mary Ann Sloan

Regional Chief Counsel

By: _______________

Sherri G. James

Assistant Regional Counsel

In Mississippi, DNA testing showing a 99.71% probability that the number holder is the father of the claimants is not sufficient to overcome the presumption that the husband of the claimants' mother is father to both children.

If the evidence had been sufficient to rebut the presumption of legitimacy and establish the children as illegitimate children of the number holder, the relationship would have been established as effective with the date of the DNA testing.

QUESTIONS

You asked several questions concerning whether D~ (C1) and B~, (C2) may be entitled to child's insurance benefits on the record of the deceased number holder, B~, (NH), on the basis of DNA testing of NH's father, L~, and NH's sister, M~. Specifically, you asked:

Is DNA evidence submitted from the father and sibling of NH sufficient to rebut the presumption of paternity that D~ is C1 and C2's father and to establish the children's relationship to NH under Mississippi intestacy law?

If the children meet the requirements of an illegitimate child with inheritance rights of NH, can the children be paid retroactively or prospectively from the date of the DNA?

If the children can be paid retroactively, should the previous denials be reopened to allowances?

In April 2006, we spoke with Betty C~ to clarify the questions asked, and agreed that the questions should address both the sufficiency of DNA testing when establishing a probability of paternity under Mississippi law and whether DNA testing is sufficient to rebut the presumption that D~ is the children's legitimate father. We also agreed that the opinion should address the accreditation requirements for genetic testing laboratories under Mississippi law. Thus, the questions to be answered are:

Can C1 and C2 be entitled to child's insurance benefits on NH's record on the basis of DNA testing of NH's father and sister?

Is this DNA testing sufficient to rebut the presumption that D~ is the children's father?

If the children are entitled to benefits on NH's record, can the children be paid retroactively or would their benefits be prospective from the date of the DNA testing?

If the children could be paid retroactively, should the Agency reopen the children's previous denials?

What are the accreditation requirements for genetic testing laboratories under Mississippi law?

ANSWERS

The DNA testing on NH's father and sibling that shows a 99.71% probability that NH is the father of the children in this case may create a presumption of paternity under the Mississippi paternity statute, but such evidence alone would not establish that C1 and C2 are NH's children for entitlement purposes.

The DNA testing in this case alone cannot rebut the presumption that D~ is both children's father. Thus, when taking into account all of the evidence before the Agency, including the DNA testing, a Mississippi court would find C1 and C2 to be the children of D~. Thus, an Agency adjudicator could not conclude that C1 and C2 are NH's children for entitlement purposes.

C1 and C2 are not entitled to benefits on NH's record, and thus, retroactive payment is not at issue.The children's prior applications should not be reopened, because they are not entitled to benefits on NH's record;

however, only C2's prior application could have been reopened pursuant to the regulations, if he could be paid retroactively.

Mississippi does not expressly require an accredited laboratory to conduct genetic testing used to establish inheritance rights. We would expect a court that was concerned about the validity of genetic testing in an inheritance proceeding to consider the accreditation requirements found in the state's paternity provisions. The testing facility here appears to satisfy those paternity provisions; however, the issue of accreditation does not seem to be an issue in this case.

BACKGROUND

On January 27, 2001, NH died while domiciled in Mississippi. C1 was born on June. C2 was born on August. The children's mother, R~, has been married to D~ since December 19, 1988. There is no evidence in the file that they ever divorced. In fact, the children's grandmother, B~, signed an SSA-795 stating that, to her knowledge, R~ and D~ never divorced.

On September 10, 2004, B~ (Applicant), applied for surviving child's benefits on the children's behalf. Applicant submitted the results from a DNA kinship test dated April 12, 2005. The DNA samples were taken from R~, C1, and C2 as well as L~, NH's father, and M~, NH's sister. The results showed that NH was not excluded as the children's biological father and that the probability of paternity was of 99.71%. The conclusion was based upon the assumption that M~ was NH's biological full sibling and L~ was NH's biological father. This DNA test was conducted by Reliagene Technologies, Inc. Reliagene's stationary claims that it is accredited by "the Parentage Testing Committee of the American Association of Blood Banks."

The record also includes copies of the children's birth certificates. C1's birth certificate lists D~ as the father. C2's birth certificate does not list a father. Furthermore, the record includes a form SSA-795 signed by D~ in July 2001 that states he is not the father of C1 or "the unborn child that R~ is carrying." We can infer that the referenced unborn child is C2 (who was born on August).

DISCUSSION

1. Sufficiency of DNA testing of the father and sister of NH to establish paternity under Mississippi law and entitle C1 and C2 to child's insurance benefits on NH's record.

When determining entitlement to surviving child's benefits, the Agency applies the inheritance laws of the state where the insured had his permanent home when he died. See § 216(h)(2)(A) of the Social Security Act (Act), 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1) (2006). Agency regulations further provide that if applicable state inheritance law requires a court determination of paternity, the Agency will not require a court determination, but will decide paternity by using the standard of proof that the state court would use. 20 C.F.R. § 404.355(b)(2). The Agency will also not apply any state inheritance law that an action to establish paternity must be taken within a specified period of time measured from the worker's death or the child's birth. See id. NH was domiciled in Mississippi when he died.

Under Mississippi law and POMS PR 01115.027A, a child may inherit from the father through intestate succession if paternity is established by an adjudication supported by clear and convincing evidence and if the adjudication is commenced within one year after death of the intestate or within 90 days after the first publication of notice to creditors to present their claims, whichever is less. See Miss. Code § 9-1-15(3)(c). Proof by clear and convincing evidence reflects "the high degree of confidence society demands in adjudications of paternity" and requires a level of proof greater than a preponderance of evidence, but less than beyond a reasonable doubt. See In re Estate of Grubbs, 753 So.2d 1043, 1048 (Miss. 2000); Smith v. Bell, 876 So.2d 1087, 1090-91 (Miss. Ct. App. 2004).

Mississippi's intestacy statute does not address genetic testing, but its paternity statute does. Under the Mississippi version of the Uniform Parentage Act (UPA), there shall be a rebuttable presumption of paternity if the court finds that the probability of paternity (as calculated by the experts qualified as examiners of genetic tests) is 98 percent or greater. See Miss. Code. § 92-9-27(2). This presumption may only be rebutted by a preponderance of the evidence. Id. However, the state of Mississippi does not recognize the use of UPA paternity presumptions in an intestacy proceeding or mandate the necessity of DNA testing "in cases of descent among illegitimates." See Smith v. Bell, 876 So.2d 1087, 1092 (Miss. Ct. App. 2004); see also Grubbs, 753 So.2d at 1052 ("Genetic test results are admissible as evidence of paternity, but are not necessarily conclusive."). Rather, the courts look to both genetic and non-genetic evidence to determine paternity in an intestacy proceeding. See Grubbs, 753 So.2d at 1051-53 (blood tests yielding a 99.59649% probability of paternity is not conclusive, given conflicting non-genetic evidence offered by the parties).

Given this authority, we conclude that the courts will not look to the paternity provisions in the UPA to govern paternity proceedings under the state's intestacy statutes. Thus, it is our opinion that the DNA testing that shows a 99.71% probability that NH is the father of the children in this case may create a presumption of paternity under the Mississippi paternity statute, but such evidence alone would not establish that C1 and C2 are NH's children for entitlement purposes.

2 . Sufficiency of DNA testing to rebut the presumption that D~ is the children's father.

D~ has been married to R~ at all times relevant to this application for benefits, and both C1 and C2 were born while R~ was married to D~. Thus, D~ is presumed to be the children's natural father under Mississippi law. See Bell, 876 So.2d at 1091. Consequently, an Agency adjudicator could not conclude that C1 and C2 are NH's children for entitlement purposes based on the facts provided to the Agency, even with the DNA testing establishing a 99.71% probability that NH is the father of the C1 & C2.

Under Mississippi law, "the presumption of legitimacy is one of the strongest known to our law." Bell, 876 So.2d at 1091 (citing Kareina by Vronsky v. Presley, 526 So.2d 518, 5123 (Miss. 1988). A party challenging legitimacy may prevail if he proves beyond a reasonable doubt that the legal husband of the mother is not, in fact, the biological father. Id. at 1091. The heavy burden is a function of the level of confidence public policy demands in findings of illegitimacy. See In Re Estate of Taylor, 609 So.2d 390, 394 (Miss. 1992). Any evidence tending to support or deny paternity may be considered. Id. The Supreme Court of Mississippi also noted in dicta that to rebut the presumption, the court should be "left with the firm and definite conviction that a mistake had been made" and that the evidence shows that the child was the son or daughter of the putative father and not the son or daughter of the legal husband, despite the strong presumption of legitimacy. See Bell, 876 So.2d at 1091. "The question in the end is whether the court can say beyond a reasonable doubt, given the totality of the circumstances as shown by all of the evidence before it, that the husband is not the father." Taylor, 609 So.2d at 394.

In this case, the evidence does not show beyond a reasonable doubt D~ is not the father of C1 and C2, and that NH is the father. Clearly, the most probative evidence demonstrating that D~ is not the father is the DNA testing on NH's father and sibling that shows a 99.71% probability that NH is the father of the children. However, as noted above, the Supreme Court of Mississippi finds such testing admissible, but not conclusive. In Taylor, the Court noted that "blood tests can 'produce a high level of discrimination either excluding or including a given male as the father of a particular child.'" Id. at 394. As such, the DNA testing alone is insufficient to rebut the presumption that D~ is the father of C1 and C2.

In addition, the non-genetic evidence in the case file is insufficient to rebut the presumption that D~ is the father. In Bell, the court found sufficient evidence to rebut the presumption of legitimacy based on non-genetic evidence. For instance, the court considered the testimony from the child, the child's mother, and the decedent's two sisters, all of whom indicated that the child was the son of the decedent. See id. at 1091. More significantly, the court considered school and military records that listed the decedent as the father and the obituary which listed the child as a survivor. See id. Based on this evidence, the court was "completely satisfied" that the decedent was the biological father. In this case, the evidence falls short of that provided in Bell. First, there are no records of any kind which acknowledges that NH was the father. There are no school records, military records, or any obituary which named C1 or C2 as his children. Likewise, there is no written acknowledgment from NH indicating that he is the father of both children and any evidence that NH pursued any legal avenues to establish paternity of C1. With regard to C2, there is some evidence, albeit not very probative, from C2's kindergarten teacher which suggested NH held himself out as the father; however, there is no evidence that NH acknowledged C2 as his child or made any effort, legal or otherwise, to establish paternity, despite the fact that they share the same name. Given such evidence, a Mississippi court could reasonably conclude that such evidence does not rebut the presumption of legitimacy, because it does not establish that NH is the father to the level of "complete satisfaction."

Furthermore, the file contains minimal evidence suggesting that D~ is not the father of either C1 or C2. While D~ signed a statement for the Agency in July 2001 indicating that C1 was not his child, there is no evidence that D~ did not hold himself out as the father of the child, other than his signed statement. Contrarily, C1's birth certificate lists D~ as the father of the child, and they both share the same last name. Further, D~' statement does not constitute a disclaimer or waiver of his legal rights to C1. Likewise, the file is devoid of evidence that D~ disclaimed his legal rights to C2 or that such a legal waiver was made. However, his statement to the Agency makes reference to "the unborn child that R~ is carrying," and it can only be inferred that he is referring to C2 who was born one month after this statement was signed in July 2001. Nevertheless, such evidence falls short of demonstrating beyond a reasonable doubt that D~ is not the father of C1 or C2. As such, an Agency adjudicator could not conclude that C1 and C2 are NH's children for entitlement purposes.

Mississippi law does not treat illegitimate and legitimate children the same, and an established illegitimate relationship would have a prospective effect from the date of DNA testing.

In this case, C1 and C2 are not entitled to benefits on the record of NH, and thus, retroactive payment is not at issue. However, if C1 and C2 met the requirements of an illegitimate child with inheritance rights of NH and were entitled to benefits on the record of NH, they would not have inherited in the same manner as if they were legitimate, and would have been paid prospectively from the date of the DNA testing.

4. The children's prior applications should not be reopened.

In this case, C1 and C2 are not entitled to benefits on the record of NH. Even if they were entitled to benefits, they would be paid prospectively from the date of DNA testing. Thus, whether to reopen C1 and C2's prior applications is not at issue. However, if C1 and C2 could be paid retroactively, you asked whether the children's prior applications should be reopened.

With regard to C1's prior application, there is no regulatory authority to reopen her prior claim even if she were to be paid retroactively. The regulations permit the Agency to reopen the determination within four years of the notice of the initial determination, provided there is good cause. See 20 C.F.R. § 404.988(b). The regulations provide that there is good cause to reopen a determination or decision if "new and material evidence is furnished." 20 C.F.R. § 404.989(a)(1). In this case, however, the initial determination denying C1's prior claim was dated June 30, 2001, more than four years after the initial determination. Although 20 C.F.R. § 404.991a permits the Agency to revise a determination if an investigation into whether to revise the determination began before the applicable time period expired, there is no evidence that such an investigation took place. Furthermore, 20 C.F.R. § 404.988(c) permits the Agency to reopen a determination at any time if one of the conditions in the regulation are met. However, none of these conditions would have been applicable.

With regard to C2's prior application, there would have been authority under 20 C.F.R. § 404.988(b) to reopen this claim if he were to be paid retroactively. The initial determination denying C2's prior claim was dated January 20, 2003, and the receipt of DNA testing establishing that NH is the father of C2 would most certainly qualify as "new and material evidence." Thus, the Agency could have found "good cause" to reopen the January 20, 2003 determination that C2 was not entitled to benefits.

5. Mississippi accreditation for genetic testing.

Under Mississippi law, there are no specific accreditation requirements for genetic testing in connection with establishing inheritance rights. While Mississippi provides for some accreditation requirements for genetic testing in connection with paternity proceedings (§§ 93-9-23 and 93-9-21), we do not find any statutory or case law support for extending these requirements to genetic tests conducted in connection with establishing inheritance rights. In fact, the Supreme Court of Mississippi noted in 2004 that the court was "unable to find any case in which Section 93-9-21(1) has been applied to a case of descent and distribution." Bell, 876 So.2d at 1092. Thus, Mississippi does not require genetic testing to be conducted by an "accredited laboratory" to establish inheritance rights, and sections 93-9-21 and 93-9-23 of the Mississippi Code do not apply to the use of genetic testing for establishing inheritance rights.

We note that the accreditation requirements for genetic testing in connection with paternity proceedings, as stated in Sections 93-9-21 and 93-9-23, may serve as useful guidance to determine the validity of genetic testing in connection with establishing inheritance rights. See POMS PR 01115.027A (discussion of statutory requirements for genetic testing in a paternity proceeding). Specifically, Section 93-9-23 states that genetic testing shall be made by experts qualified as examiners of genetic tests who shall be appointed by the court pursuant to Section 93-9-21(5). Section 93-9-21(5) requires that genetic tests shall be performed by a laboratory selected from the approved list as prepared and maintained by the Department of Human Services. While we could not find the approved list from the Department of Human Services, the U.S. Department of Health and Human Services maintains a directory of approved genetic testing laboratories for each state, and for Mississippi, the website lists only Reliagene as an approved genetic test laboratory for that state. See Department of Health and Human Services, Administration for Children and Families, Office of Child Support Enforcement, http://www.acf.hhs.gov/programs/cse/pubs/directories/genetic-testing/mississippi.html (last visited April 18, 2006).

CONCLUSION

The genetic testing performed in this case may create a rebuttable presumption of paternity that NH is the father in a paternity proceeding, but not in an inheritance proceeding. In addition, this DNA testing cannot rebut the controlling presumption that D~ is the father of either C1 or C2. Thus, when taking into the account the evidence before the Agency, a Mississippi court would find C1 and C2 to be the children of D~, and an Agency adjudicator could not conclude that C1 and C2 are NH's children for entitlement purposes. If C1 and C2 had qualified as NH's children under Mississippi law, they would have been paid prospectively from the date of the DNA testing, and because these children would not have been paid retroactively, the Agency would not need to reopen their prior applications. Furthermore, Mississippi does not require genetic testing in connection with establishing inheritance rights to be conducted by an accredited laboratory; however, we would expect a court that was concerned about the validity of genetic testing in an inheritance proceeding to consider the accreditation requirements found in the state's paternity provisions.

Mary Ann Sloan

Regional Chief Counsel

By: ____________________

Brian Seinberg

Assistant Regional Counsel