The NH was domiciled in California at the time of Claimants’ applications. Accordingly, California intestacy law determines Claimants’ relationship with the NH.

Pursuant to California’s UPA, a person is presumed to be the natural parent of a child if he or she “receives the child into his or her home and openly holds out the child as his or her natural child.” In this case, the NH received Claimants into his home and was their main caretaker since 2010 and the NH openly acknowledged the Claimants as his own. Although the presumption of a parent-child relationship between the NH and Claimants may be rebutted by the adoption orders, a California court would likely recognize the NH as a third parent. Because the NH is Claimants’ presumed parent under the California Family Code, the Claimants could inherit intestate from the NH under the California law. and, a parent-child relationship exists between the Claimants and the NH. The Claimants are entitled to children’s auxiliary benefits on the NH’s account.

QUESTION

You asked whether a parent-child relationship exists between Claimants and the Number Holder (NH) for purposes of determining Claimants’ entitlement to children’s auxiliary benefits on the NH’s account under Title II of the Social Security Act.

SHORT ANSWER

Yes. Under California law, a parent-child relationship exists between Claimants and the NH. Accordingly, Claimants are entitled to children’s auxiliary benefits on the NH’s account.

SUMMARY OF EVIDENCE

The following facts are established through documentary evidence:

The NH and L~ married on February XX, 1977 in California. On May XX, 2006, A~ was born in G~, California. On December XX, 2008, A2~ was born in G~, California. On May XX, 2010, A3~ was born in G~, California.

On February XX, 2013, the Superior Court of California, County of Los Angeles issued adoption orders for A3~ and A2~, naming L2~ and L~ as their parents. Additionally, on May XX, 2013, the Superior Court issued an adoption order for A~, naming L2~ and L~ as his parents. The birth certificates for A3~, A2~, and A~, issued in July and August 2013, list L~ as their mother/parent and L2~ as their father/parent.

On September XX, 2016, the NH filed for Social Security retirement benefits. On September XX, 2016, L2~ filed applications for auxiliary children’s benefits on the NH’s record on Claimants’ behalf. In December 2016, the NH became entitled to Social Security retirement benefits.

In addition to the foregoing documentary evidence, the agency recognizes that L2~ is the biological adult daughter of L~ and the NH. L2~ was born on May XX, 1978.

The following information is based upon written and oral statements made by the NH, L~ and L2~ in support of Claimants’ application for children’s auxiliary benefits.

Beginning in June 2010, L2~, L~, the NH and Claimants began living together in the same household. The NH, L~, and L2~ claimed that they acted as equal parents to Claimants. The NH neither adopted nor attempted to adopt Claimants because only two parents can sign the adoption papers in California. Additionally, because the NH and L~ were both advanced in age at the time of the adoptions, the NH allowed L2~ to adopt Claimants so she could take care of Claimants if the NH or L fell ill or passed away.

The NH was the main caretaker of Claimants and took them to school, prepared their meals, and cared for their needs while both L~ and L2~ worked full time. The NH told his family and other people in the community that Claimants were his children. Claimants called the NH “daddy”, and L~ and L2~ “mommy”. Claimants’ school records only list L2~ as their parent.

The NH and L~ consistently claimed A3~ as their dependent child in their joint tax returns, while L2~ claimed A2~ and A~ as dependents in her tax returns. Claimants are not covered under the medical insurance policies of L~ or L2~ due to the cost. Rather, Claimants are covered by Medi-Cal.

ANALYSIS

Federal Law

Under the Social Security Act (Act), an unmarried minor child of an insured individual is entitled to child’s benefits if the insured is entitled to old-age or disability benefits or has died. Social Security Act § 202(d)(1); 20 C.F.R. § 404.350. To receive child’s benefits the applicant must qualify as the insured individual’s “child,” as defined by section 216(e) of the Act, and be dependent on the insured individual at the time he or she filed his or her application. See id.; 20 C.F.R. § 404.350(a)(1),(2).

Section 216(e)(1) of the Act defines a “child” as “the child or legally adopted child of an individual.” Social Security Act § 216(e)(1). The Act further provides: “[i]n determining whether an applicant is the child...[of an] insured individual...[the agency applies]… such law as would be applied in determining the devolution of intestate personal property by the courts of the State…” in which the insured individual was domiciled at the time of application. Social Security Act § 216(h)(2)(A). Thus, an applicant is eligible for benefits as the insured individual’s “natural child” if he or she could inherit property from the insured under the applicable state intestacy law. 20 C.F.R. § 404.355(a)(1). An applicant who satisfies the requirements of section 216(h)(2)(A) of the Act is 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 upon him or her”); Social Security Ruling 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...”).

The NH was domiciled in California at the time of Claimants’ applications. Accordingly, California intestacy law determines Claimants’ relationship with the NH.

California Law

Pursuant to California Probate Code section 6453, a natural parent and child relationship is established where the relationship is presumed and not rebutted under California’s Uniform Parentage Act (UPA). Cal. Prob. Code § 6453(a); see also Cal. Fam. Code §§ 7600-7730 (UPA). Pursuant to California’s UPA, a person is presumed to be the natural parent of a child if he or she “receives the child into his or her home and openly holds out the child as his or her natural child.” Cal. Fam. Code § 7611(d).

In determining whether an alleged parent has held out a child as his natural child, California courts look at the alleged parent’s conduct to determine his commitment to the child, and may consider factors such as whether the alleged parent received the child into his home, raised the child as his own, gave the child his surname, and claimed the child as his dependent on his tax returns. See Elisa B. v. Superior Court, 37 Cal. 4th 108, 122 (Cal. 2005); see also R.M. v. T.A., 233 Cal.App.4th 760, 777 (Cal. Ct. App. 2015) (finding that 7611(d) presumed parent presumption requires “an assumption of responsibility for the child that rises to the level of receiving the child into the home, and a commitment to the child demonstrated by an open acknowledgment of the child as his or her own.”).

Here, a California court would likely determine that the NH is Claimants’ natural parent under California Family Code section 7611(d). The NH received Claimants into his home and was their main caretaker since 2010. As in Elisa B., the NH held Claimants out as his children by giving them his last name and declaring A3~ as a dependent on his 2013 joint tax return. See Elisa B., 37 Cal. 4th at 122. Additionally, as in R.M., the NH openly acknowledged Claimants as his own by telling his family and other people in the community that Claimants were his children. See R.M., 233 Cal.App.4th at 777. Although Claimants’ school records only list Las their parent, it was the NH who took them to school, prepared their meals, and took care of their needs. Further, Claimants also called the NH “daddy”.

This presumption, however, may be rebutted by a court judgment establishing parentage of the child by another person unless a court orders otherwise. Cal. Fam. Code § 7612(d). Here, the adoption orders from the Los Angeles Superior Court establish L~ and L2~ as Claimants’ parents and not the NH. Thus, the presumption of a parent-child relationship between the NH and Claimants may be rebutted.

Yet, California Family Code section 7612(c) provides that a court may find that more than two persons with a claim to parentage are parents if recognizing only two parents would be detrimental to the child. Cal. Fam. Code § 7612(c). In determining detriment to the child, the court considers all relevant factors such as the harm of removing the child from a stable placement with a parent who has fulfilled the child’s physical needs and the child’s psychological needs for care and affection, and who has assumed that role for a substantial period of time. Id.

In interpreting California Family Code section 7612(c), some courts in California have emphasized that “the critical distinction is not the living situation but whether a parent-child relationship has [already] been established.” Martinez v. Vaziri, 246 Cal.App.4th 373, 384-85 (Cal. Ct. App. 2016). Legislative history also indicates that the statute was meant to “protect existing relationships rather than foster potential relationships.” In re Donovan L., Jr., 244 Cal.App.4th 1075, 1089-90 (Cal. Ct. App. 2016).

Thus, although the presumption of a parent-child relationship between the NH and Claimants may be rebutted by the adoption orders, a California court would likely recognize the NH as a third parent because the NH has established a parent-child relationship with Claimants and had an ongoing role in Claimants’ care since 2010. See Martinez, 426 Cal.App.4th at 385 (“It is this familial relationship with a parent, who has fulfilled the child’s needs for care and affection for a considerable amount of time, that modifies the phrase “stable placement” and that provides the context for the trial court’s evaluation of detriment under section 7612, subdivision (c).”).

Because the NH is Claimants’ presumed parent under California Family Code sections 7611(d) and 7612(c), Claimants could inherit intestate from the NH under California Probate Code section 6453(a).

CONCLUSION

Based on California intestacy law, the NH is Claimants’ natural parent. Claimants therefore qualify as the NH’s children for purposes of entitlement to children’s auxiliary benefits under section 216(h)(2) of the Act.

The DWE (Deceased Wage Earner) died while domiciled in California. Accordingly, we apply California intestacy law to determine whether the Claimant is the NHs child under the Act. Based on the evidence currently available, under California law, the Claimant would not be able to inherit intestate from the DWE because the State court did not enter a paternity judgment during the DWE’s lifetime, the DWE did not openly acknowledge or hold out the Claimant as his own child, and it was not impossible for DWE to do so. Therefore, the child is not eligible for child’s benefits under 216(h)(2)(A) of the Act. Additionally, although the genetic test results provide evidence of DWE’s paternity, the evidence shows DWE was not living with the Claimant or contributing to his support when the DWE died. Also, the Claimant may not be deemed the DWE’s child under section 216(h)(3)(C) of the Act. Because the Claimant is not entitled to benefits as the DWE’s child, he may not receive the LSDP.

QUESTION

You asked whether a parent-child relationship existed between G~, the deceased wage earner (DWE), and child-claimant N~ (Claimant) for purposes of determining the Claimant’s entitlement to surviving child benefits and the Lump Sum Death Payment (LSDP).

SHORT ANSWER

The Claimant does not qualify as DWE’s child under section 216(h)(2)(A) of the Act and is not entitled to surviving child benefits on DWE’s record. Because the Claimant is not entitled to benefits as the DWE’s child, he may not receive the LSDP.

SUMMARY OF EVIDENCE

A~ (Mother) had a non-marital relationship with the DWE. She gave birth to the Claimant on February XX, 2015 in F~, California. Claimant’s birth certificate did not identify a father. The Mother sent DWE messages regarding the Claimant’s birth but DWE never responded.

In July 2015, the California Department of Child Support Services brought an action against DWE for child support for the Claimant. The DWE was served with child support papers at his father’s house, where he was then living. When his father asked about the child, the DWE denied that he was the Claimant’s father.

On July XX, 2015, the DWE died from a self-inflicted gunshot wound in A~, California. The Mother was no longer talking to DWE at this time.

In April 2016, the Claimant, Mother, and the Claimant’s paternal grandparents (Grandparents) submitted samples for genetic testing. LB Genetics issued a test report on May XX, 2016 finding a 99.98% probability that the Grandparents were in fact the Claimant’s biological grandparents. LB Genetics later tested a sample of DWE’s blood and found a 99.99% probability that he was the Claimant’s father.

On May XX, 2016, the Mother filed a claim for surviving child’s benefits and the LSDP on the DWE’s record. In a June 2016 Child Relationship Statement, the Mother indicated that the DWE admitted orally that he was the Claimant’s parent. She answered “no” to all other questions on the form, including questions going to whether the DWE held out the Claimant as his child or contributed to Claimant’s support. The Grandmother submitted a notarized affidavit attesting to her belief that the Claimant was her grandson, based on genetic testing and the fact that the Grandparents had no other sons.

The Mother filed a petition and supporting declaration in Orange County Superior Court to establish DWE’s parentage. On October XX, 2016, the Court issued a judgment finding DWE was the Claimant’s father and ordering DWE’s name be added to the Claimant’s birth certificate. An amended birth certificate was issued on December XX, 2016 naming DWE as Claimant’s father.

The Anaheim Field Office spoke with the Mother in December 2016 about DWE’s mental health. The Mother stated DWE had previously admitted that mental illness ran in his family, and she believed that was his way of telling her that he suffered from mental illness too. The Mother noted that he seemed in denial about the extent of his illness, he was impulsive, and he had substance abuse problems. She did not have any medical information about DWE’s condition but believed his mental illness prevented him from taking responsibility for a child.

The Anaheim Field Office also spoke with the Claimant’s paternal grandmother, A2~ (Grandmother) in December 2016. She stated that DWE was severely depressed and suffered from mental illness, which ran in the family. The Grandmother thought DWE was in denial about his condition and unable to take responsibility for a child. Further, although DWE was seeing a psychiatrist, the Grandmother believed he might not have been truthful with the doctor about his mental illness. The Grandmother was unable to obtain more information from DWE’s psychiatrist about his condition.

LEGAL STANDARDS

A. Federal Law

Under the Social Security Act (Act), every child of an individual who died fully or currently insured is entitled to child’s insurance benefits, if the child proves that he:

(1) is the insured individual’s child, as defined in section 216(e) of the Act;

(2) has applied for such benefits;

(3) is unmarried;

(4) is under the age of 18; and

(5) was dependent upon the insured individual at the time of his death.

Social Security Act § 202(d)(1); 20 C.F.R. § 404.350; Program Operations Manual System (POMS) GN 00306.001(A).

The Act defines “child” as “the child or legally adopted child of an individual.” Social Security Act § 216(e)(1). A claimant has child status if he has the right to inherit from the insured individual’s estate under State intestacy laws. Social Security Act § 216(h)(2)(A). Where the insured individual is deceased, the agency applies the intestacy laws of the State where he was domiciled at the time of death. Social Security Act § 216(h)(2)(A); POMS GN 00306.055.

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 upon 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 dependant during the parent’s life...”).

If the applicant does not qualify under section 216(h)(2)(A) of the Act, he may still be deemed the child of the insured individual under alternative federal standards. See Social Security Act § 216(h)(3). An applicant may qualify as the child of an insured individual if, before the insured’s death:

(1) he acknowledged the applicant as his child in writing;

(2) a court decreed him the child’s father; or

(3) a court ordered that he contribute to the child’s support.

Social Security Act § 216(h)(3)(C)(i). An applicant may also qualify as the child of an insured individual if the agency finds that the insured is the applicant’s father, and he was living with or contributing to the applicant’s support at the time of the insured’s death. Social Security Act § 216(h)(3)(C)(ii).

B. California Law

Pursuant to the Probate Code, a child may inherit through his or her natural parents regardless of the parents’ marital status. Cal. Prob. Code § 6450(a). A parent-child relationship is established where the relationship is presumed and not rebutted under the Uniform Parentage Act (UPA). Cal. Prob. Code § 6453(a); see generally Cal. Fam. Code §§ 7600-7730 (California’s UPA). Under the UPA, several presumptions of parentage arise when a child is born before, during, or after a marriage, or attempted marriage, of the presumed parent and the child’s natural mother. Cal. Fam. Code § 7611(a)-(c). A presumption also arises, even absent a marriage, where the presumed parent “receives the child into his or her home and openly holds out the child as his or her natural child.” Cal. Fam. Code § 7611(d); see also POMS GN 00306.430.A.1.b.6.

Where no presumption of parentage applies under the UPA, a parent-child relationship may be established through an action brought under Family Code section 7630(c) to determine the existence of a father and child relationship, so long as one of the following conditions exist:

(1) A court order was entered during the father’s lifetime declaring paternity;

(2) Paternity is established by clear and convincing evidence that the father has openly held out the child as his own; or

(3) It was impossible for the father to hold out the child as his own and paternity is established by clear and convincing evidence.

Cal. Prob. Code § 6453(b); see also Cal. Fam. Code § 7630(c) (actions to establish a father-child relationship not based upon a presumption arising under Cal. Fam. Code § 7611). Genetic testing that indicates a likelihood of paternity of 100 times or greater creates a rebuttable presumption of paternity. Cal. Fam. Code § 7555(a); see also POMS GN 00306.430.A.1.c (recognizing that submission of genetic test results is one method for establishing clear and convincing evidence of paternity).

ANALYSIS

A. Whether the Claimant Satisfies Section 216(h)(2)(A) of the Act

Here, DWE died while domiciled in California. Accordingly, we apply California intestacy law to determine whether the Claimant is DWE’s “child” under section 216(h)(2)(A) of the Act.

First, under the Probate Code, a parent-child relationship may be established if the relationship is presumed and not rebutted under the UPA, as set forth in Family Code section 7600 et seq. See Cal. Prob. Code § 6453(a). Here, the UPA’s parentage presumptions are inapplicable because the DWE never married or attempted to marry the Mother, and he never received the Claimant into his home. See Cal. Family Code § 7611(a)-(d).

Second, a parent-child relationship may be established through an action brought under Family Code section 7630(c) if one of the conditions listed in Probate Code section 6453(b) exists. As discussed below, none of the conditions in section 6453(b) are satisfied here.

1. No Court Issued an Order of Paternity During DWE’s Lifetime

First, a parent-child relationship may be established under Probate Code section 6453(b)(1) if a court entered an order during the father’s lifetime declaring paternity. See Cal. Prob. Code § 6453(b)(1); POMS GN 00306.430.A.1.b.7.A. Here, Orange County Superior Court issued a judgment establishing DWE’s paternity on October XX, 2016, over a year after the DWE’s death on July XX, 2015. Accordingly, this judgment does not satisfy Probate Code section 6453(b)(1).

2. DWE Did Not Openly Hold Out the Claimant as His Own Child

Second, a parent-child relationship may be established under Probate Code section 6453(b)(2) if there is clear and convincing evidence that the father openly held out the child as his own. See Cal. Prob. Code § 6453(b)(2). According to the Mother, DWE’s father and stepmother “were aware of [Claimant’s] existence.” However, DWE’s father said that DWE denied the Claimant was his child. Although the Mother’s Child Relationship Statement indicates that DWE admitted he was the Claimant’s parent, there is no evidence that anyone besides DWE’s father and stepmother were aware of the Claimant, and DWE told them the child was not his. The Mother responded “no” to all other questions in the Child Relationship Statement going to whether the DWE held out the Claimant as his own child or contributed to his support. The evidence therefore does not satisfy the “holding out” requirement of Probate Code section 6453(b)(2). See POMS GN 00306.430.A.1.b.7.B (“[T]o establish holding out, the putative father must have incurred some … cost, in proclaiming the child as his own ….”).

3. It Was Not Impossible for DWE to Hold Out the Claimant as His Own Child

Third, a parent-child relationship may be established under Probate Code section 6453(b)(3) if (i) it was impossible for the father to hold out the child as his own, and (ii) paternity is established by clear and convincing evidence See Cal. Prob. Code § 6453(b)(3); POMS GN 00306.430.A.1.b.7.C. Here, genetic testing showed a 99.99% probability that the DWE was the Claimant’s father. However, evidence of biological paternity alone is insufficient to satisfy section 6453(b)(3). Instead, there must also be evidence that it was impossible for the DWE to hold out the Claimant as his own child. See Cal. Prob. Code § 6453(b)(3); POMS GN 00306.430.A.1.b.7.C. That does not appear to be the case here. The DWE lived for five months after Claimant’s birth. As such, he had the opportunity to openly acknowledge the Claimant was his own child and contribute to his support and care, but did not do so. See Cheyanna M. v. A.C. Nielsen Co., 66 Cal.App.4th 855, 877 (Cal. 1998) (“legislative history indicates that the ‘impossibility’ provision was enacted to cover the situation . . . where the father dies before the child is born”); POMS PR 01005.006 California, (C) PR 12-064 Establishing Parent-Child Relationship under California Law; Deceased Wage Earner – G~; SSN ~, Claimant – A~; SSN ~ (where father lived for a year after child’s birth, it was not impossible for him to hold out the child as his own, and genetic testing alone was insufficient to satisfy Probate Code section 6453(b)(3)).

The Mother and Grandmother submitted statements indicating that they believe that DWE denied the extent of his mental illness, and that condition prevented him from taking responsibility for a child. The Grandmother thought DWE might not have been truthful with his psychiatrist about his condition. The Mother thought that, in addition to his mental illness, DWE was impulsive and had substance abuse issues. However, these statements are ambiguous and speculative. The agency has not received any medical evidence or medical opinion indicating that DWE had a diagnosed mental illness or other condition that prevented him from holding out a child as his own. In addition, we have found no California law indicating that mental illness, standing alone, is sufficient to meet the “impossibility” provision of California Probate Code section 6453(b)(3). Although DWE took his own life and may well have had a mental illness, in the absence of more specific supporting evidence, these facts alone are insufficient to show it was impossible for DWE to acknowledge parentage and hold out the Claimant as his own child. See Estate of Burden 53 Cal. Rptr. 3d 390, 393, 396 (Cal. Ct. App. 2007) (holding that father’s email acknowledging he was “a party to conception” of the child and his admissions of parentage to family and the child’s mother satisfied the “holding out” provision of California law).

Accordingly, the Claimant does not qualify as DWE’s child under section 216(h)(2)(A) of the Act.

B. Whether the Claimant Satisfies Section 216(h)(3)(C) of the Act

Under section 216(h)(3)(C)(i) of the Act, the Claimant may be deemed DWE’s child if, before DWE’s death:

(1) DWE acknowledged in writing that the Claimant was his child;

(2) a court decreed DWE to be the Claimant’s father; or

(3) a court ordered that DWE contribute to the Claimant’s support.

Social Security Act § 216(h)(3)(C)(i). None of these circumstances are present here. Although the State court issued a paternity judgment and ordered DWE’s name be added to the Claimant’s birth certificate, this did not occur before the DWE’s death as required under section 216(h)(3)(C)(i).

Under section 216(h)(3)(C)(ii) of the Act, the Claimant may qualify as DWE’s child if the agency finds that DWE was the Claimant’s father, and that DWE was living with or contributing to the Claimant’s support at the time of DWE’s death. Social Security Act § 216(h)(3)(C)(ii). Although the genetic test results provide evidence of DWE’s paternity, the evidence shows DWE was not living with the Claimant or contributing to his support when the DWE died.

Accordingly, the Claimant may not be deemed the DWE’s child under section 216(h)(3)(C) of the Act.

C. Whether the Claimant Is Entitled to Receive the LSDP

Upon the death of an insured individual who does not have a surviving spouse, a LSDP may be paid to each person entitled to child’s benefits on the insured’s record. Social Security Act § 202(i)(2); 20 C.F.R. § 404.392. Because the Claimant is not entitled to child’s benefits under section 216(h)(2)(A) of the Act, as discussed above, he may not receive the LSDP.

CONCLUSION

Based on the evidence currently available, under California law, the Claimant would not be able to inherit intestate from the DWE because the State court did not enter a paternity judgment during DWE’s lifetime, DWE did not openly acknowledge or hold out the Claimant as his own child, and it was not impossible for DWE to do so. The Claimant may not be deemed the DWE’s child under alternative federal standards either. Accordingly, the Claimant does not qualify as DWE’s child under section 216(h)(2)(A) of the Act and is not entitled to benefits on DWE’s record. Because the Claimant is not entitled to benefits as the DWE’s child, he may not receive the LSDP.

The NH died while domiciled in California. Therefore, the agency looks to California intestacy law to determine whether the Claimants are the children of the NH for purposes of entitlement. The evidence shows that the NH was committed to the Claimants and their well-being since their birth. A California court would likely find that the NH was the natural mother of the Claimants because she voluntarily accepted the rights and obligations of parenthood and demonstrated a commitment to the Claimants and their welfare. The NH is the Claimants’ presumptive and natural parent under California Law and they could inherit intestate from her, therefore, the Claimants are entitled to child’s insurance benefits on the NH’s record.

QUESTION

You asked whether a parent-child relationship existed between M~(NH) and A~ and K~ (Claimants) for purposes of determining A~ and K~’s entitlement to child’s insurance benefits.^[1]

SHORT ANSWER

Yes. The Claimants are entitled to benefits as the NH’s children because a parent-child relationship is established under California law. NH received the Claimants into her home and openly held them out as her children.

SUMMARY OF EVIDENCE

NH and C~ were in a relationship that began before 1999. C~ gave birth to the Claimants in October, 1999, and the Claimants’ birth certificates list her as the mother. The Claimants’ birth certificates do not list a father or a second parent. On August XX, 2001, NH executed a will and living trust naming C~ as her life partner and identifying the Claimants as her children.

On August XX, 2008, NH and C~ were married in California. At the time NH and C married, same-sex marriage was legal in California.^[2] NH died from cancer on October XX, 2011 in Cathedral City, California.

In a March 2014 child relationship statement (SSA-2519), NH’s mother reported that NH and C~ lived with her from December 1997 to July 2003 in Corona, California. When the Claimants were born in 1999, the children also lived with NH’s mother until NH, C~, and the Claimants moved to their own home in Cathedral City, California in July 2003. NH signed the Claimant’s school forms and report cards as their parent. NH’s mother also stated that NH lived with the Claimants from their birth until the NH’s death.^[3] She stated that the Claimants referred to NH as “Mommy” and that NH fed them, played with them, took care of them at home, took them to school, picked them up from school, took them to play gym, Tae Kwan Do, soccer, school events, play practices, assemblies, play-dates, swim lessons, family get-togethers and trips, and birthday parties. NH’s mother also stated that NH went to parent-teacher conferences, participated in the PTA as a treasurer and room mother, and assisted the soccer team. NH’s mother stated that she considered the Claimants to be her grandchildren and that her other grandchildren considered the Claimants to be their cousins.

C~’s sister confirmed that NH, C~, and the Claimants lived together. NH’s nephew also confirmed that NH was present during C~’s pregnancy and throughout the Claimants’ lives and that NH took care of the Claimants while C~ worked. A2~, MD, a parent at Rio Vista Elementary School, which the Claimants attended, stated that while C~ worked at an accounting job, NH was the main parent in charge of the Claimants’ needs, rearing, and education. L~, LMFT, reported that NH, C~, the Claimants attended Gilda’s Club support groups for cancer patients and their families together. Since NH passed away, the Claimants continue to attend club functions and weekly support groups for bereavement counseling.

ANALYSIS

Federal Law

Under the Social Security Act (Act), every unmarried minor child of an individual that dies fully or currently insured shall be entitled to child insurance benefits. Social Security Act § 202(d)(1), 42 U.S.C. § 402(d)(1). However, to receive child insurance benefits, the applicant must qualify as the insured individual’s “natural child” and be dependent on the insured individual at the time he filed his application for child insurance benefits.^[4] See id.; 20 C.F.R. §§ 404.350, 404.3.55. In determining whether a claimant qualifies as the child of the insured individual, the Commissioner applies the law governing the devolution of intestate personal property by the courts of the State in which such insured individual was domiciled at the time of his or her death. Social Security Act § 216(h)(2)(A), 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1). 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 upon him or her”); Social Security Ruling 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 dependant during the parent’s life...”).

Here, the NH died while domiciled in California. Therefore, the agency looks to California intestacy law to determine whether the Claimants are the children of the NH for purposes of entitlement.

California Law

Under California intestacy law, a natural parent and child relationship “is established where the relationship is presumed and not rebutted pursuant to the Uniform Parentage Act.”^[5] Cal. Prob. Code § 6453(a); see also Cal. Fam. Code §§ 7600-7730 (Uniform Parentage Act (UPA)). Pursuant to California’s UPA, a person is presumed to be the natural parent of a child if he or she “receives the child into his or her home and openly holds out the child as his or her natural child.” Cal. Fam. Code § 7611(d);^[6] see also Program Operations Manual System (POMS) GN 00306.430(A)(1)(b)(6).

The presumption of natural parentage applies even in the absence of a biological relationship. See Elisa B. v. Superior Court, 37 Cal. 4th 108, 120-21 (Cal. 2005). Paternity presumptions are not driven by biological paternity, but rather by “the state’s interest in the welfare of the child and the integrity of the family.” Id. at 121-22 (citing In re Salvador M., 111 Cal. App. 4th 1353, 1357-58 (Cal. Ct. App. 2003)). California recognizes the value of having two parents as a source of emotional and financial support for a child, and an alleged parent’s commitment to the child and the child’s well-being are considerations in determining presumed parenthood status. Id. at 123; In re D.M., 210 Cal. App. 4th 541, 553 (Cal. Ct. App. 2012) (citing E.C. v. J.V., 202 Cal. App. 4th 1076, 1085 (Cal. Ct. App. 2012)). In determining whether an alleged parent has held out a child as her natural child, California courts look at the alleged parent’s conduct to determine her commitment to the child, and may consider factors such as whether the alleged parent helped with prenatal care; paid pregnancy and birth expenses commensurate with the ability to do so; whether and how long the parent cared for the child; and acknowledged the child to others. See E.C., 202 Cal. App. 4th at 1087.

In Elisa B., the California Supreme Court discussed several factors that supported a finding of presumed maternity, including the fact that the petitioner was in a committed relationship with her partner when they decided to have children together and that the petitioner raised the children as her own. See Elisa B., 37 Cal. 4th at 122. Importantly, the Court held the petitioner, who participated in causing the children to be conceived, voluntarily accepted the rights and obligations of parenthood after the children were born, and there were no competing claims to her being the children’s parent, was a presumed parent under the UPA. Id. at 124-25.

Similarly, in S.Y. v. S.B., 201 Cal. App. 4th 1023 (Cal. Ct. App. 2011), the California Court of Appeal upheld the finding of presumed parentage of S.Y., where S.Y. encouraged S.B. to adopt a child with the understanding they would raise the child together; S.Y. voluntarily accepted the rights and obligations of parenthood after the child was born; and no other person claimed to be the second parent. Id. at 1037. The Court also found that S.Y.’s attending the child’s school events and naming the child as a beneficiary to her assets strengthened her claim to parentage. Id.. at 1035. Finally, the fact that S.Y.’s parents considered and treated the child as their grandchild showed that S.Y. held the child out as her own. Id.

Here, as in Elisa B., the evidence shows that NH and C~ were in a committed relationship before deciding to have children. NH clearly accepted the Claimants into her home as C~, the Claimants, and NH all lived together with NH’s mother for the first few years of the Claimants’ lives. Thereafter, C~, the Claimants, and NH moved into their own home for the remainder of NH’s life. Cf. Charisma R. v. Kristina S., 175 Cal. App. 4th 361 (Cal. Ct. App. 2009) (finding a presumption of parentage even though the petitioner had only lived with and shared in the child’s care for about three months). Moreover, after the Claimants were born, NH accepted her responsibilities as a parent and raised the children. NH signed school documents as the Claimants’ parent and participated in the PTA at their school. NH also named the Claimants as her children and her beneficiaries in her last will and testament and in her living trust.

The evidence shows that NH was committed to the Claimants and their well-being since their birth. She took the Claimants into her home, cared for them, supported them, and openly held them out as her children by declaring that they were her children on formal documents, including her own will and testament. Therefore, a California court would likely find that NH was the natural mother of the Claimants because she voluntarily accepted the rights and obligations of parenthood and demonstrated a commitment to the Claimants and their welfare. Finally, public policy would favor a finding of a parent and child relationship between NH and the Claimants, as there are no competing claims for the role of the Claimants’ second parent. See In re Nicholas H., 28 Cal. 4th at 63-64; E.C., 202 Cal. App. 4th at 1085; accord S.Y. v. S.B., 201 Cal. App. 4th 1023, 1036 (Cal. Ct. App. 2012) (finding the defendant failed to rebut the parentage presumption where the plaintiff voluntarily accepted the rights and obligations of parenthood since the children were born, there were no competing claims to her being the second parent, and public policy favored children having two parents).

Thus, NH is the Claimants’ presumptive parent under California Family Code section 7611(d), as NH received the Claimants into her home and openly held them out as her natural children. See Cal. Fam. Code § 7611(d). As the NH’s children under the UPA, the Claimants are able to inherit intestate from the NH under California Probate Code section 6453(a).

Because we conclude the Claimants are the children of NH under California Family Code section 7611(d), the agency need not reach the issue of whether there is another independent presumption of parentage arising from the 2008 marriage between C~ and the NH.^[7]

CONCLUSION

Under California law, NH is the natural mother of the Claimants, and they could inherit intestate from her. The Claimants are therefore entitled to child’s insurance benefits on the NH’s record.

The DWE died while domiciled in California. Accordingly, California law applies for determining whether Claimants are the DWE’s children under section 216(h)(2)(A) of the Act. Under California law, Claimant Y2~ is able to inherit intestate from the DWE because there is clear and convincing evidence of her paternity through genetic testing. Claimant L~ is not able to inherit intestate from the DWE because there is not clear and convincing evidence of her paternity. Claimant E~, Claimant R~, and Claimant J2~ are not able to inherit intestate from the DWE under California law because there is not clear and convincing evidence that the DWE openly held them out as his children. Furthermore, a California Superior Court order of paternity is insufficient to establish Claimant R~ and Claimant J2~ as the DWE’s children under the alternative federal standards because the Court did not issue the order during the DWE’s lifetime.

QUESTION

You asked whether a parent-child relationship existed between J~, the deceased wage earner (DWE), and each of the five child claimants (Claimants) for purposes of determining their entitlement to survivor’s insurance benefits, where DNA evidence shows a high probability that four of the five Claimants share a biological father with the DWE’s recognized daughter.

SHORT ANSWER

Y2~ is entitled to survivor’s insurance benefits. Under California law, Y2~ is able to inherit intestate from the DWE because it was impossible for the DWE to hold her out as his child, and there is clear and convincing evidence of her paternity through DNA testing.

L~ not entitled to survivor’s insurance benefits. Based on the available information, it was impossible for the DWE to hold L~ out as his child, but the record does not contain clear and convincing evidence of L~’s paternity. She therefore cannot inherit as the DWE’s child under California law.

E~ and J2~ are not entitled to survivor’s insurance benefits. They are not able to inherit intestate from the DWE under California law because the available information in the record does not show clear and convincing evidence that the DWE openly held them out as his children. ^[8] In addition, the California court order requiring the DWE to pay child support for R~ and J2~ was not issued until after the DWE’s death. The evidence does not therefore meet the federal standard for entitlement.

SUMMARY OF EVIDENCE

The DWE died on January XX, 2013 in Long Beach, California.

R~ filed claims for child’s survivor’s insurance benefits on behalf of her two minor daughters, A~ (Date of Birth (DOB): 2010) and L~ (DOB: 2013). R~ provided L~’s birth certificate, which lists R~ as the mother, but does not list the name of L~’s father.

1. Y~ filed claims for child’s survivor’s insurance benefits on behalf of her five children, E~ (DOB: 2006), R~ (DOB: 2011), J2~ (DOB: 2009), C~ (DOB: 2008), and Y2~ (DOB: 2013).

R~ and Y~ claimed that the DWE fathered their respective children. Neither R~ nor Y~ were married to the DWE.

In February 2013, the agency determined that A~ was the DWE’s natural child. From the information you provided, it appears that the agency made this determination because A~’s birth certificate listed the DWE as her father.

Likewise, in April 2013, the agency determined that C~ was the DWE’s natural child. Again, it appears that the agency made this determination because C~’s birth certificate listed the DWE as her father.

On March 6, 2013, a California Superior Court ordered the DWE to pay child support for C~, J2~, and R~. It is unclear whether the Court was aware that the DWE was deceased at the time it issued the child support order. On May XX, 2013, California’s Department of Child Support Services issued a notice of withholding instructing the agency to deduct a portion of the DWE’s Social Security benefits and forward these funds for payment of the DWE’s child support obligation.

Y~ provided a signed statement to the agency dated April XX, 2013. According to this statement, the DWE never lived with Y~ or her children but visited them every other week for several days at a time. Furthermore, the DWE reportedly told his friends that he was the father of Y~’s children. Y~’s mother, I~, and Y~’s aunt, C~, provided signed statements corroborating Y~’s allegations. ^[9]

On February XX, 2014, the DNA Diagnostics Center ^[10] issued DNA Test Reports for E~, R~, J2~, and Y2~, showing the probability that each child shared the same biological father as C~. According to the test results, the likelihood that E~ shared the same biological father as C~ was 302 to 1 (99.6%); the likelihood that R~ shared the same biological father as C~ was 421 to 1 (99.7%); the likelihood that J2~ shared the same biological father as C~ was 8,089 to 1 (99.98%); and the likelihood that Y2~ shared the same biological father as C~ was 73 to 1 (98.6%). Each DNA test report was signed by D~, Ph.D., who attested to the valid interpretation of the test results. Additionally, each DNA test report identified each individual that provided a genetic sample, the date of collection, and the method of testing.

In an August XX, 2014 Report of Contact, the Lakewood, California field office met with the DWE’s mother and sister. The DWE’s mother and sister reported that the DWE was the biological father of E~, R~, J2~, Y2~, and L~. They also reported that the DWE provided care and support for E~, R~, J2~, A~, and C~; and the DWE was aware that Y~ and R~ were pregnant with his children before he died. The DWE’s mother and sister claimed that the DWE, with the support of his parents, financially provided for all of the children and would have custody of the children on weekends. They provided pictures showing the DWE with the children during holidays, birthdays, and special events. The DWE’s mother and sister refused to sign a child relationship statement, explaining they were on poor terms with Y~ and R~, and did not wish for the mothers to receive benefits on their children’s behalf.

In a December XX, 2014 Report of Contact, the Lakewood, California field office spoke with Y~ on the phone. Y~ stated that the DWE purchased items for the children, such as diapers and he would supply cash to assist with Y~’s rent. Y~ also reported that the DWE was listed as C~’s father on her school records, but not the other children because they were too young to attend school prior to the DWE’s death. Y~ did not have any documentary evidence that the DWE financially contributed to the children’s care. In regard to the California Superior Court’s child support order, Y~ was not aware of what evidence the Court relied in concluding that the DWE was the father of C~, R~, and J2~.

ANALYSIS

Federal Law

Under the Social Security Act (Act), every unmarried minor child of an insured individual ^[11] that dies fully or currently insured shall be entitled to child insurance benefits. Social Security Act § 202(d)(1), 42 U.S.C. § 402(d)(1). However, to receive child insurance benefits the applicant must qualify as the insured individual’s “child,” as defined by section 216(e) of the Act, and be dependent on the insured individual at the time of his death. See id.; 20 C.F.R. § 404.350. Section 216(e)(1) of the Act defines a “child” as “the child or legally adopted child of an individual.” Social Security Act § 216(e)(1), 42 U.S.C. § 416(e)(1). Section 216(h) of the Act provides further elaboration on the definition of child: “[i]n determining whether an applicant is the child...[of] the insured individual...apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which [the insured] was domiciled.” Social Security Act § 216(h)(2)(A), 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. ( 404.355(a)(1). In applying state law, we do not require the claimant to obtain a court determination but use the same law and standards that the state court would use. 20 C.F.R. § 404.355(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 upon 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 dependant during the parent’s life...”).

If the applicant does not qualify under section 216(h)(2)(A) of the Act, he or she may still be deemed the child of the insured individual under alternative federal standards. Social Security Act § 216(h)(3), 42 U.S.C. § 416(h)(3). An applicant may qualify as the child of an insured individual under section 216(h)(3) of the act if, before the insured individual’s death: (1) he acknowledged the applicant as his child in writing, (2) a court decreed him the child’s father, or (3) a court ordered that he contribute to the child’s support. ^[12] Social Security Act § 216(h)(3)(C)(i), 42 U.S.C. § 416(h)(3)(C)(i). Alternatively, the applicant will have child status if the agency finds that the insured individual is the applicant’s father, and he was living with or contributing to the support of the applicant at the time of his death. Social Security Act § 216(h)(3)(C)(ii), 42 U.S.C. § 416(h)(3)(C)(ii).

In addition, SSR 06-02p provides that, if another child is determined to be the insured’s natural child under section 216(h)(3) of the Act, the agency may consider the claimant’s biological relationship with that child for purposes of determining whether the claimant is also the natural child of the insured individual under section 216(h)(2)(A). SSR 0602p. The agency will apply the intestacy law of the State where the insured was domiciled at his time of death to determine whether the results of a DNA test between claimant and the other natural child establishes claimant as the insured’s child. Id.

Here, the DWE died while domiciled in California. Accordingly, California law applies for determining whether Claimants are the DWE’s children under section 216(h)(2)(A) of the Act.

California Law

Pursuant to the California Probate Code, a child may inherit through his or her natural parents, regardless of the parents’ marital status. Cal. Prob. Code § 6450(a). A parent-child relationship is established where the relationship is presumed and not rebutted under California’s Uniform Parentage Act (UPA). Cal. Prob. Code § 6453(a); see also Cal. Fam. Code §§ 7600-7730 (UPA). Under the UPA, several presumptions of parentage arise when a child is born before, during, or after a marriage, or attempted marriage, of the presumed parent and the child’s natural mother. See Cal. Fam. Code §§ 7611(a)-(c). A presumption also arises, even absent a marriage, where the presumed parent “receives the child into his or her home and openly holds out the child as his or her natural child.” Cal. Fam. Code § 7611(d); see also POMS GN 00306.430.A.1.b.6. ^[13]

Here, a presumption of parentage does not arise out of the DWE’s relationship with the Claimants’ biological mothers. The DWE did not marry Y~ or R~; thus, sections 7611(a) through (c) are not applicable. Moreover, a presumption does not arise under section 7611(d), as the DWE never received any of the Claimants into his home.

Where no presumption of parentage applies under the UPA, a parent-child relationship may be established through an action brought under California Family Code § 7630(c) to determine the existence of a father and child relationship, so long as one of the following conditions exist:

(1) A court order was entered during the father’s lifetime declaring paternity;

(2) Paternity is established by clear and convincing evidence that the father has openly held out the child as his own; or

(3) It was impossible for the father to hold out the child as his own (e.g., the father died before the child’s birth) and paternity is established by clear and convincing evidence.

Cal. Prob. Code § 6453(b); see also Cal. Fam. Code § 7630(c) (actions to establish a father-child relationship not based upon a presumption arising under Cal. Fam. Code § 7611). Genetic testing that indicates a likelihood of paternity of 100 times or greater creates a rebuttable presumption of paternity. Cal. Fam. Code § 7555(a); see also POMS GN 00306.430.A.1.c (recognizing that submission of genetic test results is one method for establishing clear and convincing evidence of paternity).

1) Y2~ is entitled to child survivor’s insurance benefits.

Having found that C~ is the child of the DWE for purposes of survivor’s insurance benefits, the agency will apply SSR 06-02p to determine whether, under California intestacy law, genetic testing between Y2~ and C~ will also establish Y2~ as the DWE’s child. Under the California Probate Code, Y~ can establish a parent-child relationship through clear and convincing evidence of paternity, such as genetic testing, but she must first show that it was impossible for the DWE to hold her out as his child. Cal. Prob. Code § 6453(b)(3); Cal. Fam. Code § 7630(c); POMS GN 00306.430.A.1.c. As the DWE died prior to Y~’s birth, it was impossible for him to hold Y~ out as his child. Indeed, the impossibility provision was enacted to cover this type of situation, where the father dies before his child is born. See Cheyanna M. v. A.C. Nielsen Co., 78 Cal.Rptr.2d 335, 66 Cal.App.4th 855, 877 (Cal. Ct. App. 1998); POMS GN 00306.430.A.1.b.7.C (noting that, where a putative father died while the child was in utero, and where paternal efforts are insufficient to establish that he held the child out as his own, then “holding out shall be deemed impossible and the child shall be permitted to present other clear and convincing evidence of paternity”).

In addition, Y~ can show clear and convincing evidence of paternity. DNA testing revealed that the probability that Y2~ and C~ share a biological father is 73 times more likely than not. ^[14] Although the probability of Y2~ and C~ sharing the same biological father does not exceed the minimum standard necessary to establish a presumption of paternity under California Family Code § 7555(a), i.e., 99% or greater, the test results nevertheless demonstrate “clear and convincing” evidence that the DWE is Y~’s father. See In re Angelia P., 28 Cal. 3d 908, 919 (Cal. 1981) (clear and convincing evidence requires a finding of “high probability,” with evidence “so clear as to leave no substantial doubt”). Additionally, statements submitted by the DWE’s mother and sister support a finding that the DWE knew he fathered a child with Y~’s mother before he died. The genetic test results, in combination with the family’s statements, amounts to clear and convincing evidence that DWE was the father of Claimant.

Accordingly, application of SSR 06-02p and California intestacy law establishes Y~ as the child of the DWE. Genetic test results between Y~ and C~ reveal their common paternal relation. As the agency previously determined that C~ was the natural child of the DWE, it follows that the agency should also find Y~ is his child. Moreover, the DWE’s reported acknowledgement of paternity serves as additional evidence establishing Claimant as the DWE’s child. See SSR 06-02p (“we will apply the law of intestate succession of the appropriate State to determine whether the results of the DNA test between C1 and C2 (and any other evidence of C2’s relationship to the worker) establish C2’s status as the worker’s child”).

2) L~ is not entitled to child survivor’s insurance benefits.

Like Y2~, L~ was born after the DWE’s death; thus, it was impossible for the DWE to hold L~ out as his child. See Cal. Prob. Code § 6453(b)(3); Cheyanna M., 66 Cal. App. at 877. However, the agency has not received evidence of L~’s paternity that a California court would view as “clear and convincing” evidence. In contrast to Y2~, L~ has not submitted genetic evidence to support her claim and thus the analysis under SSR 06-02p does not apply. See SSR 06-02p. Although the DWE’s mother and sister provided unsigned statements claiming that the DWE knew that R~ was pregnant with L~ before he died, these statements standing alone do not constitute clear and convincing evidence that the DWE was L~’s father. Therefore, based on the currently available evidence, L~ would not be able to inherit intestate from the DWE under California intestacy law, and she is not entitled to child survivor’s insurance benefits under either the State or Federal standards.

3) E~, R~ and J2~ are not entitled to child survivor’s insurance benefits.

E~, R~ and J2~ were each born prior to the DWE’s death. As the children were born during the DWE’s lifetime, merely establishing biological parentage is insufficient for them to inherit intestate from the DWE under California law. Rather, E~, R~, and J2~ must show clear and convincing evidence that the DWE openly held them out as his children. See Cal. Prob. Code § 6453(b)(2). ^[15]

The evidence currently before the agency shows minimal evidence of “holding out”. The DWE’s mother and sister reported that the DWE financially supported E~, R~, and J2~, and had custody of them on the weekends. However, the DWE’s mother and sister refused to attest to these facts in a signed statement, diminishing the credibility of their allegations. Y~ reported that the DWE regularly visited the children and told his friends that he was the father of Y~’s children. However, merely visiting with the children and making private claims of paternity to friends and family is insufficient evidence of “holding out” for purposes of section 6453(b)(2) of the Probate Code. POMS GN 00306.430.A.1.b.7.B (“ordinarily, statements to friends and family impose no potential cost and do not constitute holding out”) (emphasis in original); see also In re Estate of Burden, 53 Cal. Rptr. 3d 390, 396 (Cal. Ct. App. 2007) (openly holding out under Cal. Prob. Code § 6453(b)(2) requires more than privately acknowledging paternity); In re Spencer W., 56 Cal. Rptr. 2d 524 (Cal. Ct. App. 1996) (finding no parent-child relationship where the putative father claimed paternity to family and friends, but was unwilling to proclaim paternity when there might have been some cost to him).

Furthermore, there is no documentary evidence supporting Y~’s allegations that the DWE contributed to the care of and held out E~, R~, and J2~ as his children. Although the DWE’s mother and sister provided pictures purportedly showing the DWE spending time with the children, these photos had little probative value in showing the DWE held the children out as his own or that he financially contributed to their support. Moreover, although the California Superior Court found that the DWE was the father of E~ and J2~, it is unclear what evidence the Court relied on in reaching this conclusion. It may be that the Court, believing the DWE was still living at the time of its disposition, based its paternity determination solely on genetic evidence, without considering the holding out requirements raised in section 6453(b)(2) of the Probate Code. ^[16] Accordingly, absent sufficient evidence that the DWE held them out as his children, E~, R~ and J2~ are unable to inherit intestate from the DWE under California law.

Likewise, E~, R~ and J2~ do not qualify as the DWE’s children under any of the alternative federal standards. Specifically, the record does not contain a written acknowledgment or court decree of paternity as required under section 216(h)(3)(C)(i) of the Act. See Social Security Act § 216(h)(3)(C), 42 U.S.C. § 416(h)(3)(C); POMS GN 00306.100.B.1. Although a California Superior Court issued an order on March 6, 2013, finding the DWE to be the father of C~, R~, and J2~, and requiring the DWE to pay child support, the Court issued this order after the DWE’s death. ^[17] See Social Security Act § 216(h)(3)(C), 42 U.S.C. § 416(h)(3)(C) (requiring that the court order of paternity or child support obligation be issued during the number holder’s lifetime).

Furthermore, there is insufficient evidence to find that E~, R~ and J2~ are entitled as the DWE’s children under section 216(h)(3)(C)(ii). Although there is strong evidence that the DWE was the biological father of the three children, he was not living with the children, and there is insufficient evidence that he financially supported them. See POMS RS 01301.005.C.1.c (procedures for documenting contributions in cases where the number holder is deceased; requiring the agency to obtain a completed form SSA-783 from the claimant or another person with personal knowledge of the claimant’s support situation); GN 00306.130 (referencing POMS RS 01301.005 for purposes of defining “contributions” under section 216(h)(3) of the Act). ^[18]

Accordingly, E~, R~ and J2~ cannot be considered the DWE’s children for benefit purposes under either the state or federal standards.

CONCLUSION

Under California law, Y2~ is able to inherit intestate from the DWE because it was impossible for the DWE to hold her out as his child, and there is clear and convincing evidence of her paternity through genetic testing. L~ is not able to inherit intestate from the DWE because there is not clear and convincing evidence of her paternity.

E~, R~ and J2~ are not able to inherit intestate from the DWE under California law because there is not clear and convincing evidence that the DWE openly held them out as his children. Furthermore, a California Superior Court order of paternity is insufficient to establish R~ and J2~ as the DWE’s children under the alternative federal standards because the Court did not issue the order during the DWE’s lifetime.

The wage earner initially consented to have a child conceived through artificial insemination of his wife, but later separated from her. He would be treated as the legal father under California law, since the record does not contain clear and convincing evidence of withdrawn consent.

QUESTION

You requested our opinion as to the status of a child conceived through artificial insemination, under California law, when a wage earner initially consented to have a child conceived through artificial insemination of his wife, but later separated from the child's mother.

ANSWER

A wage earner who consents to have child conceived through artificial insemination of his wife will be considered the father of the child thus conceived unless clear and convincing evidence shows that the initial consent had been withdrawn prior to conception. Since the current record does not contain clear and convincing evidence of withdrawn consent, the wage earner would be treated as the legal father under California law.

SUMMARY OF EVIDENCE

J~, the deceased wage earner, married K~ ("K~") on September XX, 1985. The wage earner was sterile, having been diagnosed with azoospermia. On September XX, 1987, the wage earner and K~ both signed an agreement for artificial insemination. K~ became pregnant by artificial insemination through an anonymous sperm donor in September 1989. Later that month, she filed a restraining order against the wage earner and began preparing divorce papers in Nevada. Those divorce papers stated that one minor child was "expected to be born on approximately May." The proposed property settlement agreement also included provisions reserving the wage earner reasonable rights of visitation and conferring an obligation for support and maintenance of the expected minor child. On May XX, 1990, the child, K2~ ("K2~") was born.

Even though it is not clear whether a divorce was ever finalized, the wage earner subsequently remarried and divorced. The wage earner was diagnosed with cancer in the Fall of 2000 and committed suicide in December 2002. The wage earner never had any contact with K2~.

In processing K2~'s application for child's insurance benefits, the San Marcos District Office telephoned the wage earner's sister, C1~, and her husband C2~, who stated that the wage earner and K~ had been separated long before K~ became pregnant. They also said that the wage earner had told K~ that if she became pregnant, he would have no involvement. However, they refused to return written statements concerning this case.

In a January XX, 2003 letter, K~ stated that both she and the wage earner had "worked" with doctors in the Infertility Clinic at Kaiser Permanente from 1987 through 1989. In a medical report from August X2, 1989, a physician included a description of the wage earner's physical characteristics and noted that a "consent form [had been] sign[ed] previously."

ANALYSIS

Under the Social Security Act, a claimant is entitled to child's insurance benefits if he or she can show that he or she could inherit the wage earner's personal property as his child under the intestacy laws of the state where the wage earner was domiciled at the time of his death. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1) (2002). Here, the wage earner died while domiciled in California. According to section 6453 of the California Probate Code, for the purpose of intestate succession, a "natural parent and child relationship is established when that relationship is presumed and not rebutted pursuant to the Uniform Parentage Act . . .".

Under California's Uniform Parentage Act, "[i]f, under the supervision of a licensed physician and surgeon and with the consent of her husband, a wife is inseminated artificially with semen donated by a man not her husband, the husband is treated in law as if he were the natural father of a child thereby conceived." Cal. Fam. Code § 7613(a) (West 2003). A California Court of Appeal has held that "the establishment of fatherhood and the consequent duty to support when a husband consents to the artificial insemination of his wife is one of the well-established rules in family law." Buzzanca v. Buzzanca, 61 Cal.App.4th 1410, 1418 (1998). As stated by the California Supreme Court, "[a] reasonable man who actively participates and consents to his wife's artificial insemination in the hope that a child will be produced whom they will treat as their own, knows that such behavior carries with it the legal responsibilities of fatherhood." People v. Sorenson, 68 Cal.2d 280, 285 (1968).

There is no question that the wage earner initially consented to the artificial insemination of his wife, K~. Therefore, the only issue is whether or not his consent was revoked before K2~ was conceived. California law does not specifically address the withdrawal of consent for a spouse's artificial insemination. However, California cases have cited the standard set forth by the New Jersey Superior Court, which held that "a husband is bound by his initial consent unless he offers clear and convincing evidence that he had withdrawn his consent to the artificial insemination procedure". See Dunkin v. Boskey, 82 Cal.App.4th 171, 187 n. 8 (2000); Buzzanca v. Buzzanca, 61 Cal.App.4th at 1419, citing, K.S. v. G.S., 440 A.2d 64, 66 (N.J. Super. 1981). Kansas also has adopted the same standard. R.S. v. R.S., 670 P.2d 923, 928 (Kan. App. 1983). It is likely that California would adopt this high "clear and convincing" standard._^[19] The California Supreme Court, when specifically addressing the issue of artificial insemination, stated that "[t]he public policy of this state favors legitimation." People v. Sorenson, 68 Cal.2d at 288-289; see also K.S. v. G.S., 440 A.2d at 66 (holding that public policy considerations seeking to prevent children born as a result of artificial insemination procedures from becoming public charges or being bastardized require that a presumption of consent exist and that a strong burden be placed on one seeking to rebut the presumption

There is little evidence in the current record to demonstrate any revocation of consent. The only evidence of revocation comes from the district office's telephone conversation with the wage earner's sister and her husband, who reported that the wage earner had told K~ that "if she became pregnant that he would have no involvement." Their statements, even if corroborated, would not demonstrate that the wage earner had revoked his consent to further artificial insemination procedures. A statement by the wage earner that he would have "no involvement" with a child conceived by K~ through artificial insemination is not a revocation of consent to the artificial insemination. In any event, the wage earner never offered any evidence, much less "clear and convincing" evidence, that he had revoked his consent to the artificial insemination. Dunkin v. Boskey, 82 Cal.App.4th at 187 n. 8; Buzzanca v. Buzzanca, 61 Cal.App.4th at 1419. Indeed, the wage earner's sister and her husband both refused to return written statements concerning this case. Furthermore, their oral statements seem to be contradicted by K~'s January XX, 2003 letter, where she stated that, "[f]rom 1987 through 1989 my husband and I worked with the doctors at Kaiser Permanente in the Infertility Clinic." These dates are significant because K~ was probably conceived in August or September 1989, since she was born on May. Arguably, K~'s January 3, 2003 letter is supported by the fact that, as late as August XX, 1989, her doctors still made reference to her husband and his physical characteristics. As of that date, August XX, 1989, K~'s physicians were still referring to the earlier consent form, which indicates that her doctors did not have any knowledge of any formal revocation of the previously signed consent form).

In deciding the issue of withdrawn consent, courts have carefully scrutinized the conduct of the husband throughout the artificial insemination process, such as whether or not the husband accompanied the wife to the doctor's office or acquiesced in the procedure without opposition. See K.S. v. G.S., 440 A.2d at 66 (continuing consent was demonstrated when husband accompanied his wife on at least one occasion to the doctor's office during the month she conceived); Jackson v. Jackson, 739 N.E.2d 1203, 1214 (Ohio App. 2000) (the court found it telling that the husband went with his wife to the doctor's office on the day the pregnancy was confirmed); R.S. v. R.S., 670 P.2d at 925 (the court found continuing consent when the husband was aware of the treatments and did not object, even though the husband had no contact with the treating doctor immediately prior to the successful treatment).

There is little evidence regarding the wage earner's participation or acquiescence after he signed the consent form. However, even if the evidence were equivocal, a California court would find that the initial consent agreement was still binding at the time of conception, since California courts favor legitimation and will likely follow the courts that have held that withdrawal of consent requires clear and convincing evidence. Therefore, absent clear and convincing evidence that consent had been withdrawn, a California court would likely find that the wage earner is the legal father of K2~ for the purposes of intestate succession.

CONCLUSION

Based on the evidence you have submitted, the claimant is entitled to child's insurance benefits as the child of the wage earner.

Janice L. Walli

Acting Chief Counsel, Region VII

By: Dennis J. Mulshine

Assistant Regional Counsel