The evidence currently before the agency is insufficient to establish a father-child relationship between DWE and C1 or C2 under Arizona law or under the alternative federal standard. Neither C1 nor C2 has satisfied any of the criteria set forth in section 216(h)(3)(C). Jessica has not submitted any written acknowledgements of paternity, nor has she provided any evidence that a court decreed DWE to be C1 or C2’s father or ordered him to contribute to their support. Jessica also has not provided any evidence that the DWE was living with the children or contributing to their support at the time of his death. In determining whether a claimant qualifies as the child of the insured individual under section 216(h)(2)(A) of the Act, the Agency applies the law governing “the devolution of intestate personal property by the courts of the State in which such insured individual is domiciled” at the time of his death. Under the Arizona intestacy laws, the children of a deceased individual inherit all or a portion of the deceased individual’s intestate estate depending on whether the deceased was married at the time of his or her death. For purposes of intestate succession in Arizona, a person is the child of that person’s natural parents, regardless of their marital status. Arizona law provides that a man is presumed to be the father of a child if: (1) He and the mother of the child were married at any time in the ten months immediately preceding the birth or the child is born within ten months after the marriage is terminated by death, annulment, declaration of invalidity or dissolution of marriage or after the court enters a decree of legal separation. (2) Genetic testing affirms at least a ninety-five per cent probability of paternity. (3) A birth certificate is signed by the mother and father of a child born out of wedlock. (4) A notarized or witnessed statement is signed by both parents acknowledging paternity or separate substantially similar notarized or witnessed statements are signed by both parents acknowledging paternity.

Under Arizona law, a man is presumed to be the father of a child if genetic testing affirms at least a ninety-five percent probability of paternity, but it may be rebutted by clear and convincing evidence. In this case, Jessica submitted an avuncular DNA test which is used to establish whether a child is biologically associated to a sibling of the alleged father. The test revealed that the DWE’s sister had a 92.9% probability of relatedness to C1 and a 95% probability of relatedness to C2. C2’s 95% probability of relatedness to DWE’s sister based on the DNA C2 received from her father indicates that C2’s father was the brother of the DWE’s sister, however, the DWE was one of three brothers and the test results do not specify which brother was the father; only that C1 and C2 had a 92% and 95% probability of relatedness to DWE’s sister based on the father’s DNA. The evidence in this case is still not sufficient for us to conclude that an Arizona court would find paternity established by a preponderance of the evidence such that C1 and C2 could inherit intestate from DWE as his children under Arizona law. The genetic evidence based on DNA testing of DWE’s sister, is insufficient to establish paternity, and thus intestate inheritance rights, under Arizona law. The evidence also fails to establish paternity under the alternate federal standard. The children are therefore not entitled to survivor’s benefits on DWE’s account.

QUESTION

You asked whether Zachary (C1) and Terri (C2) are entitled to child survivor’s benefits as the children of the deceased wage earner (DWE), Terry, based on DNA evidence from DWE’s sister, where the claimants’ mother claims that DWE was also her biological father.

SHORT ANSWER

The evidence currently before the agency is insufficient to establish a father-child relationship between DWE and C1 or C2 under Arizona law or under the alternative federal standard. The children are therefore not entitled to survivor’s benefits on DWE’s account.

SUMMARY OF EVIDENCE

DWE was born on November. He died on February 13, 2004, in Mesa, Arizona. The information we received with the opinion request indicated that t DWE had a 2003 disability benefit application on file but he was not the applicant. This application listed Nichole his child but did not list C1 or C2 as his children.

Jessica is DWE’s biological daughter, born on July. C1, Zachary, was born on November, in Phoenix, Arizona, and currently lives in Kansas City, Kansas. His birth certificate lists Jessica as his mother. The space for the father’s name on his birth certificate is blank.

C2, Terri, was born on February, in Mesa, Arizona, and currently lives in Kansas City, Kansas. Her birth certificate lists Jessica as her mother. The space for the father’s name on her birth certificate is also blank.

Jessica protectively filed for surviving child benefits for her children, C1 and C2, on May 8, 2013. She claims that DWE is also her children’s biological father (and grandfather). Jessica told the agency that she filed a police report and obtained a restraining order against DWE with the Mesa, Arizona, Police Department in June 2001 to report incest and DWE stalking her; however, she no longer has copies of these documents. She said that the Mesa authorities did not file criminal charges against DWE because she made the report after she turned 18 years old. She did not provide any further personal statement or details. Jessica did not present evidence indicating that a court ordered DWE to pay child support or decreed him to be the father of either C1 or C2. She did not submit any written acknowledgements of paternity, and DWE was not living with the children or contributing to their support at the time of his death.

Jessica submitted DNA test results from DNA Diagnostics Center (DDC) and seeks to rely on these tests to support the children’s claims. On July 10, 2013, DDC ^[1] (who is also the children’s paternal aunt through Jessica), as well as from Jessica, C1 and C2. On July 22, 2013, Laboratory Director John, Ph.D., verified that the interpretation of the DNA results was correct as reported. The DNA test results showed that a comparison of C1’s DNA to Maria’s DNA revealed a probability of relatedness of 92.9%, with a13 to 1 likelihood that Maria is C1’s biological relative. DNA test results for C2 indicated that the probability of relatedness between C2 and Maria is 95%, with a 19 to 1 likelihood that Maria is C2’s biological relative. The lab calculated the probability of relatedness by using a comparison to untested, unrelated, random individuals of the Caucasian population.

In June 2013, the agency telephoned Maria in an attempt to develop the children’s claims. According to the Report of Contact, Maria stated she was “not sure about her brother being the father of the children.” ^[2]

On November 22, 2013, OGC telephoned the DDC laboratories and spoke with forensics department employee Nick. Nick said that in a hypothetical situation such as the one presented by the current case, DDC would perform an avuncular test (DNA test comparing DNA with an aunt or uncle) using DNA from the paternal aunt, the children, and the mother. Nick confirmed that the mother’s relationship as the paternal aunt’s niece would not interfere with the test results as long as the test included the mother’s DNA, as the lab could separate her contribution to the child leaving only a comparison of the paternal aunt’s DNA to the child’s DNA. However, if the alleged father had any brothers, the DNA test would not specify which brother was the father. Nick also explained that test results showing the percentage of relatedness to a paternal aunt from two children who allegedly had the same father may differ because individuals receive half of their DNA from their mother and half of their DNA from their father. Since the genetic markers are passed on randomly, one child might have more genetic markers matching another relative than does a sibling with the same parents.

Following the call to DDC, we asked whether DWE had any brothers. On December 9, 2013, Jessica told the field office that DWE had two brothers. Jessica said she did not have their contact information but that her aunt, July, might know where they were. The field office contacted July but was not able to confirm her identity, or obtain her assistance and additional information.

ANALYSIS

Under the Social Security Act (Act), every unmarried minor child of an insured individual ^[3] However, to receive child insurance benefits, the applicant must qualify as the insured individual’s “child” and be dependent on the insured individual at the time of his death. See id.; 20 C.F.R. § 404.350. When the insured individual and the claimant’s mother have not married, the claimant may show he or she is the child of the deceased individual under either section 216(h)(2)(A) or section 216(h)(3)(C) of the Act. See Astrue v. Capato, 132 S. Ct. 2021, 2026, 2028-29 (2012).

Child status under section 216(h)(3)(C) of the Social Security Act:

To establish child status under section 216(h)(3)(C) of the Act, the claimant must show he or she is the natural child of the number holder and one of the following: 1) the number holder acknowledged in writing that the claimant is his child; 2) a court decreed the number holder to be the claimant’s father; 3) a court ordered the number holder to contribute to the claimant’s support because the claimant was his child; or 4) the number holder is the claimant’s father and was living with or contributing to claimant’s support when he died. See Act § 216(h)(3)(C), 42 U.S.C. § 416(h)(3)(C); 20 C.F.R. § 404.355(a)(3), (4); Program Operations Manual System (POMS) GN 00306.100. The acknowledgment, court decree, or court order must have been made or issued before the number holder’s death. See Act § 216(h)(3)(C), 42 U.S.C. § 416(h)(3)(C); 20 C.F.R. § 404.355(a)(3).

Neither C1 nor C2 has satisfied any of the criteria set forth in section 216(h)(3)(C). Jessica has not submitted any written acknowledgements of paternity, nor has she provided any evidence that a court decreed DWE to be C1 or C2’s father or ordered him to contribute to their support. Jessica also has not provided any evidence that DWE was living with the children or contributing to their support at the time of his death. Accordingly, there is insufficient evidence to establish C1 and C2 as DWE’s children under section 216(h)(3)(C) of the Act.

Child status under section 216(h)(2)(A) of the Social Security Act:

In determining whether a claimant qualifies as the child of the insured individual under section 216(h)(2)(A) of the Act, the Commissioner applies the law governing “the devolution of intestate personal property by the courts of the State in which such insured individual is domiciled” at the time of his death. See Act § 216(h)(2)(A), 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b). An applicant who satisfies the requirements of section 216(h)(2)(A) of the Act is also deemed dependent upon the insured individual. 20 C.F.R. § 404.361(a) (“If you are the insured’s natural child, as defined in § 404.355, you are considered dependent on him or her”); Social Security Ruling (SSR) 77-2c (“where state intestacy law provides that a child may take personal property from a father’s estate, it may reasonably be thought that the child will more likely be dependent during the parent’s life”). Thus, if a claimant establishes he has inheritance rights under state intestacy laws, he is deemed the insured’s “child” under the Act.

Here, we apply Arizona intestacy law because DWE was domiciled in Arizona at the time of his death. See 20 C.F.R. §§ 404.355(b)(1), (4). In applying state law, the agency does not require a court determination establishing paternity but instead applies the same law and standards that the state court would use. 20 C.F.R. § 404.355(b)(1)-(2).

Under Arizona intestacy laws, the children of a deceased individual inherit all or a portion of the deceased individual’s intestate estate depending on whether the deceased was married at the time of his or her death. See Ariz. Rev. Stat. §§ 14-2102, 14-2103. A “child” is defined as a “person who is entitled to take as a child under this title [Title 14: Trusts, Estates and Protective Proceedings] by intestate succession from the parent whose relationship is involved” and excludes any person who is “only a stepchild, a foster child, a grandchild or a more remote descendant.” Ariz. Rev. Stat. § 14-1201. For purposes of intestate succession in Arizona, “a person is the child of that person’s natural parents, regardless of their marital status.” Ariz. Rev. Stat. § 14-2114; see also Gillett-Netting v. Barnhart, 371 F.3d 593, 598-99 (9th Cir. 2004) (every child in Arizona is the “legitimate child of her or his natural parents”); POMS GN 00306.420(C) (“a person is the child of that person’s natural parents, regardless of their marital status, as may be established by a preponderance of the evidence”). If the issue of the parent-child relationship is in dispute, the court shall establish the relationship under the statutes on maternity and paternity proceedings. See Ariz. Rev. Stat. § 14-2114; see also Ariz. Rev. Stat. § 25-801, et. seq. ^[4]

See Allen v. Sullivan, 139 Ariz. 142 (1984) (M~, concurring opinion) (Paternity actions are civil proceedings in Arizona, and a complaint must establish parentage by a preponderance of the evidence); Moreno v. Superior Court of Pima County, 3 Ariz. App. 361, 362 (Ariz. Ct. App. 1966) (paternity established by a preponderance of the evidence in civil actions).

Arizona law provides that a man is presumed to be the father of a child if:

1. He and the mother of the child were married at any time in the ten months immediately preceding the birth or the child is born within ten months after the marriage is terminated by death, annulment, declaration of invalidity or dissolution of marriage or after the court enters a decree of legal separation.

2. Genetic testing affirms at least a ninety-five per cent probability of paternity.

3. A birth certificate is signed by the mother and father of a child born out of wedlock.

4. A notarized or witnessed statement is signed by both parents acknowledging paternity or separate substantially similar notarized or witnessed statements are signed by both parents acknowledging paternity.

Ariz. Rev. Stat. § 25-814; see also Ariz. Rev. Stat. § 25-807(D) (genetic tests indicating the likelihood of the alleged father’s paternity is ninety-five percent or greater establishes a presumption of paternity and may be rebutted by clear and convincing evidence); POMS GN 00306.420 (agency guidance on Arizona Intestacy Laws). ^[5]

If two or more presumptions apply, the presumption based on “weightier considerations of policy and logic will control.” Ariz. Rev. Stat. § 25-814; see also POMS GN 00306.420(C). Any paternity presumption under this section may be rebutted by clear and convincing evidence. Ariz. Rev. Stat. § 25-814; see also Aranda v. Cardenas, 215 Ariz. 210, 213 (Ariz. Ct. App. 2007); POMS GN 00306.420(D). A court decree establishing paternity by another man also rebuts the paternity presumption. Ariz. Rev. Stat. § 25-814.

Individuals, including the mother of a child, may initiate proceedings to establish the paternity of the child. Ariz. Rev. Stat. § 25-803(A). The court, on its own motion or on motion of any party to the paternity proceedings, shall order the mother, her child or children, and the alleged father to submit to genetic testing using an accredited laboratory. Ariz. Rev. Stat. § 25-807(C).

In this case, Jessica submitted DNA test results from DDC, a laboratory that is accredited or certified by the American Association of Blood Banks (AABB) and the College of American Pathologists (CAP). ^[6]

See id. Since DDC did not have DNA from DWE to use, the lab performed an avuncular test which is used to establish whether a child is biologically associated to a sibling of the alleged father. See POMS GN 00306.065(C)(1) (contemplating that paternity may be established through DNA testing of relatives); see also DDC, Aunt/Uncle DNA Avuncular Test, available at http://www.ddc-southafrica.com/aunt-uncle-dna-test.php (last visited Nov. 18, 2013). Avuncular tests that include the DNA from the biological mother produce a more exact test result, as the mother’s DNA markers are removed from the child’s profile, thus identifying and separating the father’s genes which are compared to the alleged paternal aunt or uncle. See DDC, Aunt/Uncle DNA Test, available at http://www.ddc-southafrica.com/aunt-uncle-dna-test.php#<http://www.ddc-southafrica.com/aunt-uncle-dna-test.php> (last visited Nov. 18, 2013); Paternity USA, available at https://www.paternityusa.com/Aunt-Uncle-DNA-Testing.htm (last visited Nov. 18, 2013). Significantly, unlike paternity tests, which provide a conclusive 99.99% result, avuncular tests determine an index number that indicates the genetic odds that the individuals being tested are biologically related. See AAA DNA Testing, available at http://aaadnatesting.com/avuncular-dna-test.htm (last visited Nov. 18, 2013); Biogene DNA available at http://dna-paternity-testing.com/avuncular-dna-test/ (last visited Nov. 18, 2013).

Here, the avuncular test revealed that DWE’s sister had a 92.9% probability of relatedness to C1 and a 95% probability of relatedness to C2. The likelihood that Maria was the biological relative of the children was 13 to 1 for C1, and 19 to 1 for C2. Although Jessica shared the same DNA as DWE and his sister, Nick from DDC advised that this would not interfere with the validity of the test results because the lab would separate the mother’s DNA from the children’s DNA, leaving only a comparison of the DNA the children received from their father with his sister’s DNA. See, e.g., Ariz. Rev. Stat. § 25-807(C) (an expert “duly qualified as an examiner of genetic markers” shall be agreed on by the parties or appointed by the court to analyze and interpret the results and report to the court).

Under Arizona law, a man is presumed to be the father of a child if genetic testing affirms at least a ninety-five percent probability of paternity. See Ariz. Rev. Stat. § 25-814; see also Hall v. Lalli, 194 Ariz. 54, 61 (1999) (en banc) (“Blood tests carry great weight in paternity determinations because ‘the results do not depend upon a party’s testimony and because the tests are verifiable.’”) (citing Carl , Independent Evidence: A New Tool for Paternity Cases, 86 ILL.B.JJ. 476, 480 (1998)). This provision of Arizona law appears to be based on testing of the alleged father, not a relative of the father, even though the wording of the statute is not explicit. Thus, it is unclear what weight an Arizona court would put on these DNA tests in the absence of any other evidence except the mother’s statement.^[7]

See A~, 215 Ariz. at 213-15 (declining to apply the requirements of the paternity statutes in a wrongful death proceeding where the “legislature has not explicitly done so” and thus narrowly construing the paternity statutes).

After excluding the mother’s DNA, DDC’s test results revealed that C2 had a 95% probability of relatedness to Maria based on the DNA C2 received from her father, indicating that C2’s father was Maria’s brother. However, DWE was one of three brothers and the test results do not specify which brother was the father; only that C1 and C2 had a 92% and 95% probability of relatedness to DWE’s sister based on the father’s DNA.^[8] Accordingly, using the preponderance of the evidence standard, we cannot conclude that Arizona would find DWE to be the children’s father based on the DNA evidence.

In addition, Jessica has not provided any other evidence to support her claim that DWE was C1 and C2’s father or give context to the DNA test results. For example, she did not provide copies of her 2001 police report or petition for a restraining order; these documents, written closer in time to the events at issue, may provide additional support for the claim.

Finally, we recognize that Arizona’s policy of protecting children’s financial interests is an equitable factor weighing in favor of establishing a parent-child relationship and intestacy rights. Ariz. Rev. Stat. § 25-814; Ariz. Rev. Stat. § 25-501 (every person has a duty to provide “all reasonable support” for that person’s natural and adopted minor, unemanicipated children); H~, 194 Ariz. at 781-83 (discussing familial, legal and equitable interests in determining paternity); A~, 215 Ariz. at 214 (the “purpose of the paternity statutes ‘appear[ed] to be to provide financial support for the child from the natural parent’”) (citing Hurt v. Superior Court, 124 Ariz. 45, 48 (1979)). Nonetheless, the evidence in this case is still not sufficient for us to conclude that an Arizona court would find paternity established by a preponderance of the evidence such that C1 and C2 could inherit intestate from DWE as his children under Arizona law.

CONCLUSION

The genetic evidence based on DNA testing of DWE’s sister, is insufficient to establish paternity, and thus intestate inheritance rights, under Arizona law. The evidence also fails to establish paternity under the alternate federal standard. Accordingly, the children are not entitled to child survivor benefits under the Act. Should the mother submit additional evidence, we will be happy to review and reconsider this conclusion.