Questions
You asked us to provide a legal opinion regarding whether the evidence submitted rebuts
the presumption that James a deceased number holder (number holder), is the biological
father of Tyler , previously Tyler, who was born during the valid marriage of the
number holder and Carolyn (Tyler’s mother). If the evidence rebuts the presumption,
you asked us whether the Social Security Administration (the agency) has sufficient
documentation to terminate Tyler’s entitlement to child’s benefits on the number holder’s
account, and whether the fraud or similar fault threshold has been met for the agency
to reopen Tyler’s initial entitlement to child’s benefits on the number holder’s account
under the Social Security Act (Act).
Answer
The evidence submitted rebuts the presumption that the number holder is Tyler’s father
and shows by clear and convincing evidence that Mark is Tyler’s father. However,
because the agency originally determined that Tyler was entitled to child’s insurance
benefits on the number holder’s account more than four years ago, the agency can reopen
the determination only if Tyler’s mother obtained Tyler’s benefits through fraud or
similar fault. The evidence submitted in this case is insufficient to find that Tyler’s
mother made any false statement or misrepresentation of a material fact in Tyler’s
application, or knowingly concealed information that was material to the determination
of entitlement. Consequently, even though the evidence rebuts the presumption that
the number holder is Tyler’s biological father, the agency cannot terminate Tyler’s
entitlement to child’s benefits on the number holder’s account.
Background
The Number Holder’s Relationship with Tyler
As we understand the facts, the number holder and Tyler’s mother were married in 1995. The
number holder filed for disability benefits on February 26, 1997, which the agency
granted effective November 1996. The number holder and Tyler’s mother separated on
December 15, 1997, but Tyler was born on October, while they were still married. Although
the number holder states that he signed divorce papers, the Harris County Court never
finalized their divorce. In fact, the Court dismissed their divorce case on January
11, 1999, because neither party appeared on the established trial date. On April 22,
1999, Tyler’s mother filed an application for child’s benefits on Tyler’s behalf as
the number holder’s natural child. The agency granted the claim since the number holder
and Tyler’s mother were still married. The remarks on the agency’s Modernized Claims
System (MCS) and Development Worksheet (DW01) screens used Tyler’s original birth
certificate (not presently available) to establish his date of birth and his relationship
to the number holder. There is no evidence, however, that the number holder ever
lived with or supported Tyler. The number holder died in May 2004 while living in
Texas.
Mark’s Relationship with Tyler
On November 16, 1999, Mark filed a proceeding to determine Tyler’s parentage in Harris
County Court, which the court later transferred to the Polk County Court. On November
17, 2000, Polk County Court Judge Stephen Phillips directed that Mark, Tyler’s mother,
and Tyler submit to DNA testing. The DNA results revealed a 99.998 percent probability
that Mark and Tyler are related. Judge Phillips admitted the verified written results
of the DNA testing into evidence.
After a hearing on November 14, 2001, Judge Phillips approved an Agreed Order on December
4, 2001, which named Mark and Tyler’s mother joint managing conservators and set forth
various rights and duties involving Tyler, including that Tyler would continue to
live with his mother, but the Order gave Mark visitation rights and ordered that Mark
to pay child support of $400.00 per month, and to maintain health insurance for Tyler. The
Order changed Tyler’s name from Tyler , Mark’s surname. Mark submitted the Agreed
Order to the Texas Bureau of Vital Statistics in Harris County to officially change
Tyler’s birth certificate to reflect his name as Tyler, and his parents as Mark and
Carolyn. A copy of the corrected birth certificate is in the agency’s file. In April
2002, Mark submitted this information to the agency to change Tyler’s name on his
Social Security card to Tyler. The agency used the Agreed Order and corrected birth
certificate to change Tyler’s name on his Social Security card.
In 2006, Mark initiated an action in Polk County Court to modify the December 4, 2001
Agreed Order. After a hearing on November 21, 2006, a judge issued a Modified Agreed
Order on June 27, 2007, removing Tyler’s mother as the managing conservator with the
right to designate Tyler’s primary residence, and giving Mark the exclusive right
to designate the primary residence of Tyler. The judge further ordered Tyler’s mother
to pay child support of $300.00 per month to Mark, beginning January 15, 2007. Tyler’s
mother stated in a June 2008 Affidavit that since December 26, 2006, Tyler was living
with Mark. In a January 12, 2012, statement to the agency, Mark also confirmed that
he was Tyler’s biological father, and that Tyler had lived with him since December
26, 2006.
Legal Analysis
I. Rebutting Presumption of Presumed Father
A child may be eligible for Social Security benefits if he is the child of an individual
who is entitled to old-age or disability benefits, or who has died fully or currently
insured. See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350 (2012). To determine whether an applicant
is a number holder’s child for purposes of the Act, the Commissioner will apply the
intestacy laws of the state in which the number holder had his permanent home. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b). If the child is eligible to inherit
the number holder’s intestate personal property according to such state law, the agency
shall deem him the number holder’s child for purposes of receiving child’s benefits
under the Act. See 42 U.S.C. §416(h)(2)(A); 20 C.F.R. §404.355(b). Thus, Tyler’s eligibility for Social
Security benefits depends on whether he could inherit property through intestate succession
as the number holder’s child.
Here, Texas law controls because the number holder had his permanent home in Texas
at all relevant times. 20 C.F.R. § 404.355(b). The Texas Probate Code specifies five
methods by which a right to paternal inheritance may be established: 1) the child
is born under circumstances described in section 160.201 of the Family Code; 2) the
child is adjudicated to be the child of the father by court decree as provided by
Chapter 160 of the Family Code; 3) the father adopted the child; 4) the father executed
an acknowledgement or like statement of paternity as provided by Subchapter D, Chapter
160 of the Family Code; or 5) the child establishes by clear and convincing evidence
that the purported father was the biological father of the child. See Tex. Prob. Code § 42(b)(1); Tex. Fam. Code §§ 160.201, 160.204. The only methods
relevant to the current issue are the first and fifth methods, whether Tyler was born
under circumstances described in section 160.201 of the Texas Family Code and whether
there is clear and convincing evidence that the number holder was Tyler’s biological
father. See Tex. Fam. Code §§ 160.201, 160.204; Tex. Prob. Code § 42(b) (1), (5).
A. Analysis Under Section 160.201
Under section 160.201, Texas courts presume a man to be a child’s father if the man
is married to the child’s mother and the child is born during the marriage. See Tex. Fam. Code Ann. §160.204(a). Texas law further provides that a presumption of
paternity that arises in marriage, such as in this case, may be rebutted only by the
following: (1) an adjudication under a proceeding to determine the parentage of a
child under Subchapter G of the Texas Family Code, sections 160.601-160.637; or (2)
the filing of a valid denial of paternity by a presumed father as provided by section
160.303, in conjunction with the filing by another person of a valid acknowledgment
of paternity as provided by section 160.305. See Tex. Fam. Code Ann §160.204(b)(1)-(2). Based on the submitted documentation, Texas
courts would presume that the number holder was Tyler’s father because he was born
while the number holder and Tyler’s mother were married. See Tex. Fam. Code Ann. § 160.204(a). We therefore consider whether the evidence submitted
rebuts the presumption that the number holder is Tyler’s father by looking at whether
there was an adjudication of paternity under Subchapter G of the Texas Family Code.
The second method, the filing of a valid denial of paternity by a presumed father,
cannot be met in this case because there is no documentation showing that the number
holder filed a valid denial of paternity in accordance with section 160.303 of the
Texas Family Code. Under this section, a presumed father’s denial of paternity is
not valid unless it is in a record and is signed or otherwise authenticated under
penalty of perjury. See Tex. Fam. Code § 160.303(2).
We find that the evidence submitted shows an adjudication of paternity consistent
with the Texas Family Code to rebut the presumption that Tyler is the number holder’s
biological child. In determining paternity under Chapter 160, a Texas court will
consider the results of genetic testing, provided that the genetic testing and corresponding
DNA report meet specific requirements to establish reliability and authenticity, and
the testing reveals at least a 99 percent probability of paternity. See Tex. Fam. Code §§ 160.504, 160.505(a). A discussion about establishing reliability
and authenticity of DNA reports can be found in the Program Operations Manual System
(POMS) and our prior opinions. See e.g. Memorandum from Regional Chief Counsel, Dallas, to Assistant Regional Commissioner,
Texas Law – Status of Child Relationship (NH Johnny) (October 28, 2011); POMS § GN 00306.640.A.4.c. In this case, the Polk County Court accepted into evidence the results of
DNA testing and issued an adjudication of paternity based on this testing. A verified
written DNA report that is performed pursuant to a court’s order is admissible as
evidence of the truth of the facts asserted in the matters it contains. See Tex. Fam. Code § 160.621. Texas courts deem scientific DNA paternity testing as
a well-established and accepted method to rebut the presumption of paternity in Texas. Tipps v. Metropolitan Life Insurance Co., 768 F. Supp. 577, 579-580 (S.D. Tex. 1991).
In November 2000, the Polk County Court ordered that Tyler, his mother, and Mark undergo
genetic testing to ascertain the possibility of probability of Mark’s parentage. The
test report showed that Mark could not be excluded as Tyler’s biological father, that
at least 99.98 percent of the male population was excluded from the possibility of
being Tyler’s father, and that the probability of Mark’s paternity of Tyler was 99.998
percent to adjudicate the rights and duties of Tyler’s mother and Mark under Subchapter
G of the Texas Family Code. See Tex. Fam. Code §§ 160.621, 160.631. In December 2001, a Polk County Court Judge issued
an Agreed Order that changed Tyler’s surname to that of his biological father, Mark;
made Mark and Tyler’s mother joint managing conservators; gave Mark visitation rights;
and ordered Mark to pay child support of $400.00 per month to Tyler’s mother, and
to maintain health insurance for Tyler. Subsequently, in June 2007, the Court issued
an Order In Suit To Modify the Parent-Child Relationship, removing Tyler’s mother
as managing conservator and ordering, inter alia, both parents to be joint managing
conservators. Such findings are typical of Orders adjudicating parentage under Subchapter
G of the Texas Family Code. See Tex. Fam. Code § 160. Thus, we conclude that the evidence submitted rebuts the presumption
that the number holder is Tyler’s father.
B. Clear and Convincing Evidence Analysis
Tyler can also establish paternal inheritance rights under the clear and convincing
standard of the Texas Probate Code. See Tex. Prob. Code § 42(b)(5). The Texas Family Code defines “clear and convincing evidence”
as “the measure or 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 established.” Tex.
Fam. Code § 101.007. In this case, we believe that the totality of the evidence constitutes
clear and convincing evidence that Mark, not the number holder, is Tyler’s biological
father.
As discussed above, the evidence submitted includes the November 2000 results of genetic
testing, the December 2011 Polk County Court Agreed Order, the June 2007 Modified
Agreed Order, the amended birth certificate that shows Mark is Tyler’s father, and
the agency’s change of Tyler’s surname on his social security card to Mark. On November
16, 1999, Mark filed a proceeding to determine Tyler’s parentage. On November 17,
2000, Polk County Court Judge Stephen Phillips directed that Mark, Tyler’s mother,
and Tyler submit to DNA testing. See Tex. Fam. Code § 160.621 (a verified DNA report is admissible as evidence of the
truth of the facts asserted therein); T, 768 F. Supp. at 579-580 (DNA test results may provide clear and convincing evidence
of paternity). The November 2000 DNA test results revealed that there was a 99.998
percent certainty that Mark was Tyler’s biological father, and it excluded at least
99.98 percent of the male population from the possibility of being Tyler’s biological
father.
In December 2001, the Polk County Court entered an Agreed Order referring to Mark
as Tyler’s parent, changing Tyler’s surname to Tyler, and ordering Mark to comply
with various duties involving Tyler’s care, control, protection, discipline, health,
education, welfare, monetary support, etc. A copy of the corrected birth certificate
is in the agency’s file. In April 2002, Mark submitted this information to the agency
to change Tyler’s name on his Social Security card to Tyler. The agency used the Agreed
Order and corrected birth certificate to change Tyler’s name on his Social Security
card.
In 2006, Mark initiated an action in Polk County Court to modify the December 4, 2001
Agreed Order. After a hearing on November 21, 2006, a judge issued a Modified Agreed
Order on June 27, 2007, removing Tyler’s mother as the managing conservator with the
right to designate Tyler’s primary residence, and giving Mark the exclusive right
to designate the primary residence of Tyler. Judge Phillips further ordered Tyler’s
mother to pay child support of $300.00 per month to Mark, beginning January 15, 2007. Tyler’s
mother stated in a June 2008 Affidavit that since December 26, 2006, Tyler was living
with Mark. In a January 12, 2012, statement to the agency, Mark also confirmed that
he was Tyler’s biological father, and that Tyler had lived with him since December
26, 2006. The totality of the evidence constitutes clear and convincing evidence
that Mark is Tyler’s biological father, and that the number holder is not. Thus,
Tyler has established paternal inheritance rights under two of the five methods provided
under the Texas Probate Code.
II. Is the Agency Bound By The Polk County Adjudications
Social Security Ruling (SSR) 83-37c, which cites Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973), holds that the agency is bound by a state court adjudication
if: 1) a state court of competent jurisdiction has previously determined an issue
in a claim for Social Security benefits; 2) the issue was genuinely contested by parties
with opposing interests; 3) the issue falls within domestic relations law; and 4)
the resolution is consistent with the law of the highest court of the state. In this
matter, the Polk County Court adjudications meet all four requirements. SSR 83-37c.
With respect to the first G~ prong, the Polk County court issued an Agreed and a Modified Agreed Order referring
to Mark as Tyler’s parent and ordering Mark to comply with certain duties, including
support and visitation. The Polk County court has proper jurisdiction over domestic
relations cases. See e.g., Tex. Probate Code § 42(b) (person claiming to be a decedent’s biological child may
petition the probate court for a determination of his right to inheritance). Therefore
the Agreed and Modified Agreed Orders meet the first G~ prong.
With regard to the second G~ prong, the Polk County Court issued an Agreed and a Modified Agreed Order, which
were final and which had the same binding force of a final judgment rendered at the
conclusion of adversary proceedings. See In re J.M., IV, 373 S.W.3d 725, 729 (Tex. App.- San Antonio 2012), citing In re the Office of the
Attorney General of Texas, 193 S.W. 3d 690, 692 (Tex. App. – Beaumont 2006) (agreed
orders in suits affecting the parent-child relationship are accorded the same degree
of finality as a final judgment from an adversary proceeding). Thus, the Agreed Orders
meet the second G~ prong.
With regard to the third G~ prong, child custody and related issues fall within general domestic law in Texas. See In re N~, 160 S.W.3d 292, 292 (Tex. App. – Texarkana 2005) (involving child support modification).
The agency generally defers to a state court’s order interpreting state law, especially
in those areas where a domestic relations or similar question arises under state law
and the Social Security Act specifically incorporates State law requirements. See G~, 474 F.2d at 1373 (stating that special deference should be given to the resolution
of domestic relations problems by the state court, as the states have traditionally
been considered the exclusive arbiter of such problems). Thus, the Agreed Orders
in this case, which determined child custody and related issues, meet the third G~ prong.
With regard to the fourth G~ prong, the Polk County Court’s Agreed Orders are consistent with the law the Texas
highest courts’ have enunciated. Texas courts recognize that genetic testing is a
reliable way to determine paternity and customarily establish the rights of duties
of a child’s parents regarding custody, support, and visitation. See In re R~, 248 S.W. 3d 444, 451 (Tex. App. – Dallas 2008). In this case, the Polk County Court
referred to Mark as Tyler’s parent and determined his rights and duties, including
custody, support, and visitation. Thus, the orders are consistent with Texas’ highest
courts and meet the fourth G~ prong. As such, the Polk County Court’s Agreed and Modified Agreed Orders bind the
agency. See SSR 83-37c.
III. Terminating Events for Entitlement to Child’s Benefits
If a claimant has been entitled to benefits as an insured individual’s child, a later
determination that another man is the child’s biological father is not a terminating
event under the Act. See Section 202(d)(1) of the Act, 42 U.S.C. § 402(d)(1)(D)-(H); 20 C.F.R. § 404.352(b). The
Act and Regulations provide that entitlement to child’s benefits ends with the month
preceding the occurrence of certain terminating events, none of which are relevant
to the analysis herein. See 42 U.S.C. § 402(d)(1) The agency can terminate child’s benefits at the first occurrence
of one of these events: 1) the month in which such child dies, or marries; 2) the
month in which such child attains the age of 18, but only if he (i) is not under a
disability ... at the time he attains such age, and (ii) is not a full-time elementary
or secondary school student ...; 3) if such child was not under a disability ... at
the time he attained the age of 18, the earlier of (i) the first month during no part
of which he is a full-time elementary or secondary school student, or (ii) the month
in which he attains the age of 19, but only if he was not under a disability ... in
such earlier month; 4) if such child was under a disability ... at the time he attained
the age of 18 or if he was not under a disability ... at such time but was under a
disability ... at or prior to the time he attained ... the age of 22 ...; and 5) if
the benefits under this subsection are based on the wages and self-employment income
of a stepparent who is subsequently divorced from such child’s natural parent, the
month after the month in which such divorce becomes final.; 20 C.F.R. § 404.352(b);
POMS § RS 00203.035; see also Memorandum from Regional Chief Counsel, Atlanta, to Associate Commissioner – Office
of Central Operations, Effect of Paternity Test Results on a Child’s Benefits Claim
(March 17, 2006).
Because no terminating event has occurred under 42 U.S.C. § 402(d)(1), the agency
may only stop Tyler’s benefits based on the number holder’s earnings record if the
agency can reopen the original April 1999 child-status determination. See 20 C.F.R. § 404.988. When more than four years have elapsed from the date of the
initial determination, the agency may reopen a determination only if it was obtained
by fraud or similar fault, or the determination concerned one of several other factors
not applicable here. See 20 C.F.R. § 404.988(c).
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.” See 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.” See 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., Austin v. Shalala, 994 F.2d 1170, 1174 (5th Cir. 1993) (holding claimant responsible for accuracy of
information on forms she signs, and “at fault” if information is incorrect); 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). Thus,
we must determine whether Tyler’s mother’s actions constitute fraud or similar fault
to allow the agency to reopen Tyler’s award as the deceased number holder’s child. See POMS § GN 04020.010.
The facts of this case do not amount to fraud or similar fault to allow the agency
to reopen Tyler’s award. Tyler’s mother filed for benefits on Tyler’s behalf on the
number holder’s earning record in April 1999; however, in December 2009, the agency
destroyed the paper version of that application, and the agency’s MCS and DW01 electronic
screens do not contain any helpful remarks or statements. These screens indicate
that the agency allowed the original claim because the number holder and Tyler’s mother
were still married, and there was an original birth certificate (not presently available)
that established Tyler’s date of birth and his relationship to the number holder. The
agency does not have any other evidence concerning the original entitlement determination. While
a subsequent DNA report dated November 28, 2000, established the probability that
Mark was Tyler’s biological father and the Polk County Court’s Agreed and Modified
Agreed Orders refer to Mark as Tyler’s parent, there is nothing in the file to indicate
that Tyler’s mother was certain the number holder was not Tyler’s biological father
in April 1999, when she filed Tyler’s application for benefits on the number holder’s
earnings record
Therefore, the evidence before the agency is insufficient to establish that Tyler’s
mother knowingly made any false statement or representation of a material fact in
Tyler’s April 1999 application. The evidence is also insufficient for the agency
to find that Tyler’s mother knowingly concealed information that was material to the
agency’s initial determination of Tyler’s entitlement to child’s insurance benefits
on the number holder’s account. Accordingly, the agency cannot show fraud or similar
fault on the part of Tyler’s mother to allow the agency to reopen Tyler’s original
child-status determination. However, if any further investigation establishes that
Tyler’s mother knowingly made false or misleading statements or that she concealed
material information when she filed Tyler’s application in April 1999, we would be
pleased to re-address this issue based on additional evidence the agency may obtain.
IV Conclusion
The evidence submitted rebuts the presumption that the number holder is Tyler’s father
and shows by clear and convincing evidence that Mark is Tyler’s father. However, because
the agency originally determined that Tyler was entitled to child’s insurance benefits
on the number holder’s account more than four years ago, the agency can reopen the
determination only if Tyler’s mother obtained Tyler’s benefits through fraud or similar
fault. The evidence submitted in this case is insufficient to find that Tyler’s mother
knowingly made any false statement or misrepresentation of a material fact in Tyler’s
application, or knowingly concealed information that was material to the determination
of entitlement. Consequently, even though the evidence rebuts the presumption that
the number holder is Tyler’s biological father, the agency cannot terminate Tyler’s
entitlement to child’s benefits on the number holder’s account.
Michael McGaughran
Regional Chief Counsel
By:___________________________
Christopher Carillo
Assistant Regional Counsel