Effective Dates: 07/26/2022 - Present Previous | Next

TN 65 (07-22)

PR 01105.048 Texas

A. PR 22-041 Texas State Law – Challenge to Acknowledgment of Paternity for Reopening

Date: July 14, 2022

1. Syllabus

Genetic testing alone does not qualify as a proper challenge to an acknowledgment of paternity under Texas law. Texas statutes provide two methods to challenge the father-child relationship created by an acknowledgment of paternity: (1) a recission of the acknowledgment, and (2) a proceeding to challenge the acknowledgment of paternity.

In this case, we believe a Texas court would find that there is no evidence of a proper challenge under Texas law to the acknowledgment of paternity establishing the NH as the Claimant’s acknowledged father.

2. Question Presented

You advised that the agency entitled E~ (Claimant) to child’s insurance benefits on the record of the number holder G~ (NH) as the NH’s child with inheritance rights under Texas law, per section 216(h)(2)(A) of the Social Security Act (Act), based on an acknowledgment of paternity signed by the NH and the Claimant’s mother. You asked whether a subsequent deoxyribonucleic acid (DNA) test report indicating that the NH is not the Claimant’s biological father is sufficient to challenge his status as the Claimant’s acknowledged father under Texas law for purposes of the agency’s reopening the initial determination awarding child’s insurance benefits to the Claimant based on new and material evidence.

3. Answer

We believe a Texas court would find that there is no evidence of a proper challenge under Texas law to the acknowledgment of paternity establishing the NH as the Claimant’s acknowledged father. There is no evidence of a timely rescission of the acknowledgment of paternity or a court proceeding to challenge the acknowledgment of paternity. Thus, under Texas law, the NH is the Claimant’s acknowledged father despite DNA evidence indicating that he is not the Claimant’s biological father. As such, the Claimant can inherit from the NH as his child based on his acknowledgment of paternity. Therefore, there is support for the agency to find that the prior determination awarding child’s insurance benefits to the Claimant as the NH’s child per section 216(h)(2)(A) of the Act as a child with inheritance rights under Texas law was correct and that this DNA evidence alone does not provide good cause as new and material evidence for the agency to reopen and revise the agency’s determination.^[1]

4. Background

Award of Child’s Insurance Benefits on the NH’s Record Based on a Texas Acknowledgment of Paternity:

The NH became entitled to disability insurance benefits effective September 2016. On December XX, 2019, K~ (Claimant’s mother, or mother) applied for child’s insurance benefits on behalf of her child, the Claimant, born October XX, 2019. In support of this application, the mother provided the agency with a Texas Acknowledgement of Paternity signed by the NH and the mother on November XX, 2019, in the hospital at the time of the Claimant’s birth, in which they both declared under penalty of perjury that the NH is the biological father of the Claimant. They indicated that genetic testing had not been performed and that the mother was not married to someone other than the father signing the form. They also signed a Parent Survey on the Acknowledgment of Paternity. This form, signed by the NH, the mother, and someone on staff from the hospital, shows that:

•

the child was born at Providence Health Center;
•

the NH and the mother were given the opportunity to sign an acknowledgment of paternity;
•

they were made aware that they could have a DNA test done before signing the acknowledgment of paternity;
•

they were given information regarding the benefits, rights and responsibilities of an acknowledgment of paternity and information about child support;
•

the biological father who signed the acknowledgment of paternity has all legal rights and duties of a parent;
•

if the father changes his mind, a rescission of acknowledgment of paternity must be filed within the earlier of 60 days from signing the acknowledgment of paternity or the date a proceeding involving the child is initiated in court;
•

after 60 days, the father may challenge the acknowledgment of paternity in court and must prove fraud, duress, or material mistake of fact; and
•

they were given a completed copy of the acknowledgment of paternity with the benefits, rights, and responsibilities on the back.

A form entitled “Verification of Birth Facts that will appear on the Infant’s Birth Certificate” states that the Claimant was born on October XX, 2019, to the Claimant’s mother as the mother and that the Claimant’s father is the NH.

You advised that the agency entitled the Claimant to child’s insurance benefits effective November 2019 as the NH’s child with inheritance rights under Texas law per section 216(h)(2)(A) of the Act based on this Texas Acknowledgment of Paternity signed by both the NH and the mother on November XX, 2019.

Subsequent Evidence Submitted to the Agency Regarding Paternity:

On January XX, 2021, the agency received a signed statement from the NH on the Form SSA-795, signed and dated December XX, 2020, stating: “I now have proof that [the Clamant] is not my biological child. At the time he was born, I believed he was my biological child. I now have DNA evidence that he is not my child.” A document from Alliance DNA Laboratory entitled DNA Analysis Results, Chain of Custody (DNA Test) shows that DNA testing was performed on the NH as the alleged father (with specimen collected November XX, 2020), the Claimant (with specimen collected December XX, 2020), and the Claimant’s mother (with specimen collected December XX, 2020) and that the probability of paternity was 0%. The DNA Test concludes: the alleged father is excluded as the biological father of the tested child. The NH died January XX, 2021, while domiciled in Texas.

You stated that the NH did not rescind his acknowledgment of paternity or commence a proceeding to challenge the acknowledgment of paternity before his death, but that following the NH’s death, the NH’s mother, V~, advised the agency in a conversation on September XX, 2021, that she is pursuing legal action to legally remove the NH as the child’s father. As of this legal opinion, we have no information regarding any court proceeding involving the NH’s status as the Claimant’s acknowledged father. We are unaware of any court adjudication excluding the NH as the Claimant’s father.

5. Analysis

a. Federal Law and Policy: Reopening Final Agency Determinations for Good Cause Based on New and Material Evidence

The agency may reopen and revise a final agency determination under certain conditions. See 20 C.F.R. §§ 404.987, 404.988; see also POMS GN 04001.001D.4 (“NOTE: It is SSA’s policy to revise a determination if reopening applies and the evidence shows the prior determination was incorrect.”). The agency may reopen and revise a determination, which is otherwise final and binding, within 12 months of the date of the notice of the initial determination for any reason; within 4 years of the date of the notice of the initial determination if the agency finds good cause to reopen the case; or at any time if the determination was obtained by fraud or similar fault. 20 C.F.R. §§ 404.987, 404.988. Because it has been longer than 12 months but shorter than 4 years since the agency issued its 2019 determination awarding child’s insurance benefits to the Claimant on the NH’s record as his child, we will examine whether there is good cause for the agency to reopen the determination pursuant to 20 C.F.R. § 404.988(b).^[2]

The regulatory definition of “good cause” includes when new and material evidence is furnished to the agency. 20 C.F.R. § 404.989(a)(1). The POMS further defines “new and material evidence” as any evidence that:

(1) Was not a part of the claims, disability or earnings discrepancy file when the final determination or decision was made; but

(2) Relates back to the date of the original determination or decision; and

(3) Shows facts that would result in a conclusion different from that originally reached had the new evidence been introduced or available at the time of the original determination.

POMS GN 04010.030A. The POMS also instructs that the agency should never reopen a correct determination and explains that a determination that was correct when made is still correct even if there is a subsequent change in the factual situation. POMS GN 04001.070. New and material evidence “can only be used to reopen and revise incorrect determinations, i.e., determinations which were never correct, but appeared to be correct based on the evidence before the adjudicator at the time the determination was made.” Id.

Here, the new evidence – the NH’s statement that he is not the Claimant’s biological father and DNA testing indicating 0% paternity – was not part of the original claims file when the agency made the original determinations and appears to relate back to the date of the original determination. See POMS GN 04010.030A. The primary issue then is whether the new evidence “shows facts that would result in a conclusion different from that originally reached had the new evidence been introduced or available at the time of the original determination.” Id. In other words, does the new evidence show facts that would have resulted in a different determination and that render the original determination, that the Claimant is the NH’s child with inheritance rights under Texas law based on a Texas acknowledgment of paternity, incorrect. As we explain below, we believe that it does not.

b. Federal Law: Entitlement to Child’s Insurance Benefits under the Act as a Natural Child Per Section 216(h)(2)(A)

Under Title II of the Act, a claimant may be entitled to child’s insurance benefits on an insured individual’s account if, among other things, he or she is the insured individual’s child.^[3] 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350. The Act and regulations define “child” as an insured number holder’s natural child, legally adopted child, stepchild, grandchild, step grandchild, or equitably adopted child. 42 U.S.C. § 416(e); 20 C.F.R. §§ 404.354˗404.359. Consistent with the scope of your request, the agency’s 2019 determination that the Claimant was the NH’s child per section 216(h)(2)(A) of the Act, and the evidence provided, our inquiry focuses on whether the Claimant is the NH’s natural child.

To determine a claimant’s status as a natural child, the agency must determine whether the claimant could inherit the insured individual’s personal property as his child under the intestacy laws of the State where the insured individual had his permanent home at the time of his death. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b). Texas law controls because the NH’s permanent home was in Texas when he died. Therefore, we apply Texas intestate succession laws to determine whether the Claimant could inherit from the NH as his child.

c. State Law: Paternal Inheritance under Texas Intestate Succession Laws

Texas law allows a child to inherit property from his or her deceased parent by intestate succession. See Tex. Estates Code Ann. §§ 201.001˗201.003 (if a person who dies intestate does not have a spouse, the person’s estate passes to the person’s children), 201.051 (maternal inheritance), 201.052 (paternal inheritance). Section 201.052 of the Estates Code, provides as follows for paternal inheritance under intestate succession:

(a) For purposes of inheritance, a child is the child of the child’s biological father if:

(1) the child is born under circumstances described by Section 160.201, Family Code;

(2) the child is adjudicated to be the child of the father by court decree under Chapter 160, Family Code;

(3) the child was adopted by the child’s father; or

(4) the father executed an acknowledgment of paternity under Subchapter D, Chapter 160, Family Code, or a similar statement properly executed in another jurisdiction.

….

(1) claims to be a biological child of the decedent and is not otherwise presumed to be a child of the decedent; or

(2) claims inheritance through a biological child of the decedent who is not otherwise presumed to be a child of the decedent.

(d) If under Subsection (c) the court finds by clear and convincing evidence that the purported father was the biological father of the child:

(1) the child is treated as any other child of the decedent for purposes of inheritance; and

(2) the child and the child’s issue may inherit from the child’s paternal kindred, both descendants, ascendants, and collateral kindred in all degrees, and they may inherit from the child and the child’s issue.

Tex. Estates Code Ann. § 201.052.

Of relevance here, the evidence establishes that the NH executed an acknowledgment of paternity. A child has the right to inherit from a father who has executed an acknowledgment of paternity in accordance with Subchapter D, Chapter 160, of the Texas Family Code. Tex. Estates Code Ann. § 201.052(a)(4). Thus, we further consider the NH’s status as the Claimant’s acknowledged father to determine the Claimant’s right to inherit from the NH.

d. State Law: Challenging an Acknowledgment of Paternity under Texas Law

1. A Father-Child Relationship is Established with a Valid Acknowledgment of Paternity

Subchapter D of Chapter 160 of the Texas Family Code sets forth the law regarding voluntary acknowledgment of paternity under the Texas Uniform Parentage Act. See Tex. Fam. Code Ann. §§ 160.301 – 160.315. A child’s mother and a man claiming to be the child’s biological father may sign an acknowledgment of paternity with the intent to establish the man’s paternity as to the child.^[4] Tex. Fam. Code Ann. § 160.301. Signing an acknowledgment of paternity has significant legal consequences. “[A] valid acknowledgment of paternity filed with the vital statistics unit is the equivalent of an adjudication of the paternity of a child and confers on the acknowledged father all rights and duties of a parent.” Tex. Fam. Code Ann. § 160.305(a); see also Tex. Fam. Code Ann. § 160.201(b)(2) (a father-child relationship is established by an effective acknowledgment of paternity).

The agency was provided with a Texas Acknowledgement of Paternity signed by the NH and the Claimant’s mother on November XX, 2019, in the hospital at the time of the Claimant’s birth, in which they both declared under penalty of perjury that the NH is the biological father of the Claimant.^[5] They also signed a Parent Survey on the Acknowledgment of Paternity. This form, signed by the NH, the Claimant’s mother, and someone on staff from the hospital, shows that the child was born at Providence Health Center; that the NH and the mother were given information regarding the benefits, rights and responsibilities of an acknowledgment of paternity and how to challenge such an acknowledgment after signing. The Texas Acknowledgment of Paternity establishes that the NH is the Claimant’s legal father under Texas law. See e.g., Tex. Fam. Code Ann. §§ 160.201(b)(2), 160.305(a). You advised that the agency entitled the Claimant to child’s insurance benefits effective November 2019 as the NH’s child with inheritance under Texas law based on this Texas Acknowledgment of Paternity signed by both the NH and the Claimant’s mother on November XX, 2019. See Tex. Estates Code Ann. § 201.052(a)(4).

On January XX, 2021, the agency received a signed statement from the NH on the Form SSA-795, signed and dated December XX, 2020, stating that: “I now have proof that [the Clamant] is not my biological child. At the time he was born, I believed he was my biological child. I now have DNA evidence that he is not my child.” A document from Alliance DNA Laboratory entitled DNA Analysis Results, Chain of Custody (DNA Test) shows that DNA testing was performed on the NH as the alleged father (with specimen collected November XX, 2020), the Claimant (with specimen collected December XX, 2020), and the Claimant’s mother (with specimen collected December XX, 2020) and that the probability of paternity was 0%. The DNA Test concludes the alleged father is excluded as the biological father of the tested child. The NH died January XX, 2021, while domiciled in Texas. In light of this DNA evidence, we consider the requirements for challenging an acknowledgment of paternity under Texas law.

2. There Are Two Methods to Challenge a Valid Acknowledgment of Paternity

a. There Is No Evidence of a Timely Rescission of the Acknowledgment of Paternity by the NH or the Claimant’s Mother

Section 160.307 of the Texas Family Code sets forth the procedures for rescission of an acknowledgment of paternity. Tex. Fam. Code Ann. § 160.307. A signatory to an acknowledgment of paternity may rescind the acknowledgment by completing a specific form prescribed under section 160.312 for rescission of an acknowledgment of paternity; filing the completed rescission form with the State vital statistics unit; and sending a completed copy of the rescission to the other signatory of the acknowledgment of paternity. Tex. Fam. Code Ann. § 160.307(b). There is a brief window of time for filing a rescission of an acknowledgment of paternity. The rescission must be filed before the earlier date of: (1) the 60th day after the effective date of the acknowledgment; or (2) the date of the first hearing in a proceeding to which the signatory is a party before a court to adjudicate an issue relating to the child, including child support. Tex. Fam Code Ann. § 160.307(a); see also Tex. Fam. Code Ann. § 160.304(c) (“[A]n acknowledgment of paternity takes effect on the date of the birth of the child or the filing of the document with the vital statistics unit, whichever occurs later.”).

Here, the Claimant was born October XX, 2019, and the NH and the Claimant’s mother signed the Texas Acknowledgment of Paternity on November XX, 2019. There is no information indicating that a timely rescission of the acknowledgment of paternity was filed by the NH or the mother. Thus, they are now barred as a matter of law from challenging the acknowledgment of paternity by way of rescission. See In re J.A., 2010 WL 2967718, at *2 (Tex. App. – Houston [14th Dist.] July 29, 2010, no pet.) (if a signatory to an acknowledgment of paternity fails to timely file a rescission, he is barred as a matter of law from bringing a rescission proceeding to attack the acknowledgment of paternity).

b. There Is No Evidence of a Court Proceeding to Challenge the Acknowledgment of Paternity Resulting in an Adjudication of Parentage Excluding the NH as the Child’s Father

After the time for rescission has expired for the November 2019 acknowledgment of paternity, the only remaining method available is to commence a court proceeding to challenge the acknowledgment of paternity and the only available basis for making such a challenge is fraud, duress, or material mistake of fact. Tex. Fam. Code Ann. § 160.308(a). The proceeding may be commenced by a signatory of the acknowledgment of paternity at any time before the issuance of a court order affecting the child identified in the acknowledgment, including a child support order.^[7] Tex. Fam. Code Ann. §§ 160.308(a), 160.609(a); see also In Interest of C.T.H., 2018 WL 2926737, at *7-8 (Tex. App. – Dallas June 7, 2018, no pet.)(interpreting “order affecting the child identified in the acknowledgment” broadly given the language of the statute).The party challenging an acknowledgment of paternity has the burden of proof to prove the fraud, duress, or material mistake of fact. Tex. Fam. Code Ann. § 160.308(b); see also Tex. Fam. Code Ann. § 160.309 (setting forth the procedure for challenging an acknowledgment of paternity after the rescission period has expired). A proceeding to challenge an acknowledgment of paternity shall be conducted in the same manner as a proceeding to adjudicate parentage. Tex. Fam. Code Ann. § 160.309(d); see also Tex. Fam. Code Ann. § 160.609(a) (if a child has an acknowledged father, a signatory to the acknowledgment of paternity may commence a proceeding under this chapter to challenge the paternity of the child only within the time allowed under section 160.308).

Under Texas statutory law, DNA evidence can be used to challenge an acknowledgment of paternity and to exclude a man as a child’s father. Genetic testing evidence, showing that the man who is the signatory of an acknowledgment of paternity is not rebuttably identified as the child’s father in accordance with section 160.505, constitutes a material mistake of fact as a basis for challenging an adjudication of paternity.^[8] Tex. Fam. Code Ann. § 160.308(d). Further, the paternity of a child having an acknowledged father may be disproved only by admissible results of genetic testing excluding that man as the child’s father or identifying another man as the child’s father. Tex. Fam. Code Ann. § 160.631(b). Unless the genetic testing results are admitted to rebut other genetic testing results, a man excluded as the child’s father by genetic testing shall be adjudicated as not being the child’s father. Tex. Fam. Code Ann. § 160.631(d). If a child has an acknowledged father, genetic testing is inadmissible to adjudicate parentage unless performed with consent of both the mother and the acknowledged father or under a court order. Tex. Fam. Code Ann. § 160.621(c); see also Interest of A.M.S., 2021 WL 2231250, at *5-6 (Tex. App. – Corpus Christi June 3, 2021, no pet.) (because the genetic testing did not meet the consent requirements, it was inadmissible, and thus, even though genetic testing eliminated the acknowledged father as the child’s biological father, he did not prove fraud, duress, or material mistake of fact for purposes of challenging the acknowledgment of paternity).

Here, we have no information indicating that any court order affecting the child has been issued with respect to the NH and the Claimant. There is also no information indicating that the NH or the Claimant’s mother, as signatories to the acknowledgment of paternity, commenced a court proceeding to challenge the acknowledgment of paternity as to the Claimant based on genetic testing as evidence of material mistake of fact. Thus, although DNA testing that meets all of the requirements under Texas law may provide evidence of material mistake of fact and can be used to challenge an acknowledgment of paternity, the NH remains the Claimant’s acknowledged father under Texas law in the absence of a proceeding to challenge the acknowledgment of paternity and a court adjudication excluding him as the child’s father.

Following the NH’s death, the NH’s mother advised the agency in a conversation on September XX, 2021, that she is pursuing legal action to legally remove the NH as the child’s father. However, as of the date of this legal opinion, we are unaware of any court adjudication of parentage received by the NH’s mother in any court proceeding she may have commenced on behalf of the NH to challenge the NH’s acknowledgment of paternity as to the Claimant.^[9]

3. Summary: The Unchallenged Acknowledgment of Paternity Establishes the NH as the Claimant’s Legal Father

In summary, genetic testing alone does not qualify as a proper challenge to an acknowledgment of paternity under Texas law. While genetic testing – that meets the consent requirements noted above and other requirements for genetic testing set forth in Texas law – can serve as a basis for challenging an acknowledgment of paternity in a court proceeding on the ground of material mistake of fact, we have no information indicating that any such court proceeding was commenced in the present matter. As outlined above, “a valid acknowledgment of paternity filed with the vital statistics unit is the equivalent of an adjudication of the paternity of a child and confers on the acknowledged father all rights and duties of a parent.” Tex. Fam. Code Ann. § 160.305(a); see also Tex. Fam. Code Ann. § 160.201(b)(2) (a father-child relationship is established by an effective acknowledgment of paternity). Here, there has been no valid challenge to the NH’s acknowledgment of paternity through a court proceeding that has resulted in a court adjudication excluding the NH as the Claimant’s father. As such, the NH remains the Claimant’s acknowledged father under Texas law, and the Claimant can inherit from the NH as his child based upon his acknowledgment of paternity underTex. Estates Code Ann. § 201.052(a)(4).

6. Conclusion

We believe a Texas court would find that there is no evidence of a proper challenge under Texas law to the acknowledgment of paternity establishing the NH as the Claimant’s acknowledged father. As such, the Claimant can inherit from the NH as his child, based upon his acknowledgment of paternity. Therefore, there is support for the agency to find that the prior determination awarding child’s insurance benefits to the Claimant as the NH’s child per section 216(h)(2)(A) as a child with inheritance rights under Texas law was correct and that the DNA evidence alone does not provide good cause as new and material evidence for the agency to reopen and revise the agency’s determination.

B. PR 21-075 Texas State Law - Challenge to Acknowledgment of Paternity

Date: December 13, 2021

1. Syllabus

Texas statutes provide two methods to challenge the father-child relationship created by an acknowledgment of paternity: (1) a recission of the acknowledgment, and (2) a proceeding to challenge the acknowledgment of paternity. Genetic testing alone does not qualify as a proper challenge to an acknowledgment of paternity under Texas law.

While genetic testing that meets the requirements for genetic testing set forth in Texas law can serve as a basis for challenging an acknowledgment of paternity in a court proceeding on the ground of material mistake of fact, in this case, there was no evidence of a timely rescission of the acknowledgment of paternity or a court proceeding to challenge the acknowledgment of paternity. As such, there is legal support for the agency to find that the Claimant has not proven a parent-child relationship with the NH for purposes of her application for child’s insurance benefits on the NH’s record

2. Question Presented

You requested an opinion on whether the evidence submitted in this case establishes a parent-child relationship between the deceased number holder J~ (the NH) and the claimant B~ (Claimant) for purposes of the Claimant’s application for child’s insurance benefits on the NH’s record under the Social Security Act (Act) as his child. Specifically, you asked whether, under Texas law, a deoxyribonucleic acid (DNA) test report indicating that the NH is the Claimant’s biological father is sufficient to challenge D~’s (D~) status as the Claimant’s acknowledged father. If so, applying section 216(h)(2)(A) of the Act, you inquired whether the evidence established that the Claimant could inherit from the NH under Texas intestate succession law and the effective date of any parent-child relationship.

3. Answer

We believe a Texas court would find that there was no evidence of a proper challenge under Texas law to the acknowledgment of paternity establishing D~ as the Claimant’s acknowledged father. There was no evidence of a timely rescission of the acknowledgment of paternity or a court proceeding to challenge the acknowledgment of paternity. Thus, under Texas law, a Texas court would find that D~ is the Claimant’s acknowledged father and only legal father. As such, there is legal support for the agency to find that the Claimant has not proven a parent-child relationship with the NH for purposes of her application for child’s insurance benefits on the NH’s record.

4. Background

You advised that the NH died on December XX, 2015, domiciled in Texas. You stated that he died while working in Wyoming. His obituary states that he was a resident of Katy, Texas at the time of his death.^[10]

On March XX, 2021, L~ (Applicant) applied for surviving child’s insurance benefits and the lump sum death payment on behalf of her daughter, the Claimant. The Claimant was born on August XX, 2008, to the Applicant, who was unmarried at the time. Although we do not have a copy of the acknowledgment of paternity or the Claimant’s Texas birth certificate, based on statements from the Applicant and information received from the Texas Electronic Vital Events Registrar (TxEVER), it is our understanding the Claimant’s Numident and Texas birth certificate identify D~ as her father because he signed an acknowledgment of paternity in the Texas hospital at the time of the Claimant’s birth. You advised that the Applicant said that she was in an abusive relationship with D~ at the time the Claimant was born, and he insisted on signing the acknowledgment of paternity in the hospital when the Claimant was born. The TxEVER birth information shows the Applicant as the Claimant’s mother and D~ as the Claimant’s father.

The Applicant completed the Form SSA-2519 Child Relationship Statement on May XX, 2021. She reported that a court had never decreed the Claimant to be the NH’s child or ordered the NH to contribute child support for the Claimant; the NH never acknowledged the Claimant to be his child orally or in writing; and the NH never undertook any actions during his lifetime indicating he was the Claimant’s parent. The Applicant provided a statement on the Form SSA-795 on August XX, 2021. She wrote that at the time of the Claimant’s birth, she was in an abusive relationship with D~. She had planned to leave D~ off the Claimant’s birth certificate, but “unfortunately, he was present when they came in to process all of her legal documents” in the hospital following her birth. She stated that by the time she left D~ in September 2008, she had lost contact with the NH. She stated that in the fall of 2015, a mutual friend reached out to her and that she had planned to tell the NH about his possible paternity of the Claimant, but he died before she could do so. She said that she “left it alone until [the NH’s] sister reached out to [her] via Facebook.” She wrote that they decided to do the DNA testing and learned that the Claimant is the NH’s biological child.

T~ wrote a letter on May XX, 2021, addressed “To Whom this May Concern.” She indicated that the NH was her brother.^[11] She stated that she was made aware that the Claimant might be her niece in December 2020. She stated that “after getting the DNA testing we are more than excited to have her in our family.”

The Applicant provided a DNA Test Report with 9 pages of supportive documentation; however, it appears there is missing chain of custody documentation from DNA Diagnostics Center where the testing of the specimen occurred. The DNA Test Report from DNA Diagnostics Center is dated March XX, 2021 and states that DNA Diagnostics Center is accredited/certified by AABB. The DNA Test Report shows that testing was performed on the Claimant and the NH and reports a probability of paternity of 99.99999%. The DNA Test Report is signed by W~ as the Laboratory Director before a notary public. The Laboratory Director verified that the interpretation of the results was correct as reported on March XX, 2021 (he did not, however, sign the report “under penalty of perjury”). Attached to the DNA Test Report is an Affidavit of DNA Testing Results also signed by W~, the Laboratory Director, in front of a notary public on March XX, 2021, in which he attests to the validity of the DNA testing. He affirmed that the statements in the DNA Test Report were true and correct to the best of his knowledge (he did not, however, sign this affidavit “under penalty of perjury”). A Client Identification Form, Chain of Custody document identifies the Applicant (as the child’s mother), the Claimant (as the child), and the NH (as the alleged father); shows that G~ (who signed the form) collected the specimen from the Applicant and the Claimant on March XX, 2021 at the Any Lab Test Now facility in Houston, Texas. The portion of the Chain of Custody document to be completed by DNA Diagnostics Center Laboratory upon receipt of the DNA specimen was left blank. A form entitled Client Identification and Consent Form, Previously Tested Patient, Chain of Custody Documentation indicates that the NH’s DNA had previously been tested by DNA Diagnostics Center and that T~, on behalf of the NH, signed the consent on March XX, 2021, to have the NH’s specimen be re-tested. As noted above, other evidence reflects that T~ is the NH’s sister.

5. Analysis

a. Federal Law: Entitlement to Child’s Insurance Benefits under the Act as a Natural Child Per Section 216(h)(2)(A)

Under Title II of the Act, a claimant may be entitled to child’s insurance benefits on an insured individual’s account if, among other things, she is the insured number holder’s child.^[12] See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350. The Act and regulations define “child” as an insured number holder’s natural child, legally adopted child, stepchild, grandchild, step grandchild, or equitably adopted child. See 42 U.S.C. § 416(e); 20 C.F.R. §§ 404.354˗.359. Consistent with the scope of your request, our inquiry focuses on whether the Claimant is the NH’s natural child.

To determine a claimant’s status as a natural child, SSA must determine whether the claimant could inherit the insured NH’s personal property as his child under the intestacy laws of the State where the insured NH had his permanent home at the time of his death. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b). Texas law controls because the NH’s permanent home was in Texas when he died. Therefore, we apply Texas intestate succession laws to determine whether the Claimant could inherit from the NH as his child.

b. State Law: Paternal Inheritance under Texas Intestate Succession Laws

Texas law allows a child to inherit property from her deceased parent by intestate succession. See Tex. Estates Code Ann. §§ 201.001˗201.003 (if a person who dies intestate does not have a spouse, the person’s estate passes to the person’s children), 201.051 (maternal inheritance), 201.052 (paternal inheritance). In considering the issue of the Claimant’s inheritance from the NH as his child, we must address the fact that the Claimant has a legal father under Texas law – D~, her acknowledged father. Under Texas law, a child can have only one legal father. See In re Deatherage, 2014 WL 2039765, at *2 (Tex. App. – Beaumont May 15, 2014, rehearing on motion for mandamus overruled) (“Because a child can have only one legal father, a person adjudicated to be the biological father becomes the parent of a child to the exclusion of a man previously presumed to be the biological father.”); Marriage of Matter of Morales, 968 S.W.2d 508, 511 (Tex. App. – Corpus Christi 1998, rehearing overruled) (“A child can have only one legal father.”). Thus, we next consider Texas law regarding acknowledgments of paternity and challenges to acknowledgments.

c. State Law: Challenging a Voluntary Acknowledgment of Paternity under Texas Law

A child’s mother and a man claiming to be the child’s biological father may sign an acknowledgment of paternity with the intent to establish the man’s paternity as to the child. Tex. Fam. Code Ann. § 160.301; see also Tex. Fam. Code Ann. § 160.302 (an acknowledgment of paternity must be in a record; signed or otherwise authenticated under penalty of perjury by the mother and man seeking to establish paternity; state that the child whose paternity is being acknowledged does or does not have a presumed father and that the child does not have another acknowledged or adjudicated father; state whether there has been genetic testing; and state that the signatories understand that the acknowledgment is the equivalent of a judicial adjudication of paternity of the child and that a challenge to the acknowledgment is permitted only under limited circumstances), § 160.312(a) (the Texas vital statistics unit prescribes forms for acknowledgment of paternity, denial of paternity, and rescission of an acknowledgment of paternity). Signing an acknowledgment of paternity has significant legal consequences. “[A] valid acknowledgment of paternity filed with the vital statistics unit is the equivalent of an adjudication of the paternity of a child and confers on the acknowledged father all rights and duties of a parent.” Tex. Fam. Code Ann. § 160.305(a); see also Tex. Fam. Code Ann. § 160.201(b)(2) (a father-child relationship is established by an effective acknowledgment of paternity).

As noted, although we do not have a copy of the acknowledgment of paternity, it is our understanding based on the information provided from the Applicant and the TxEVER^[13] birth information that the Applicant and D~ signed an acknowledgment of paternity as to the Claimant in the hospital at the time of the Claimant’s birth^[14] . Further, based on this same information, it is our understanding that the hospital provided this acknowledgment of paternity to the State for registration to legally recognize D~ as the Claimant’s acknowledged and legal father. The acknowledgment of paternity establishes that D~ is the Claimant’s legal father under Texas law. See Tex. Fam. Code Ann. §§ 160.201(b)(2), 160.305(a). Given D~’s undisputed status as the Claimant’s acknowledged father, we consider the evidence provided to the agency seeking to establish another man – the NH – as the Claimant’s father.

Texas statutes provide two methods to challenge the father-child relationship created by an acknowledgment of paternity: (1) a recission of the acknowledgment, and (2) a proceeding to challenge the acknowledgment of paternity. See Tex. Fam. Code Ann. §§ 160.305(a), 160.307-160.309; see also In re S.R.B., 262 S.W.3d 428, 431 (Tex. App. – Houston [14th Dist.] 2008, no pet.) (“The Uniform Parentage Act does not authorize a trial court to invalidate an [acknowledgment of paternity] based solely on testimony questioning the male signatory’s paternity, absent recission of, or successful challenge, to the [acknowledgment of paternity].”). We address each method below along with the information available to the agency regarding D~’s status as the Claimant’s acknowledged father.

1. No Evidence of a Timely Rescission of the Acknowledgment of Paternity by D~ or the Applicant

There is no information indicating that a timely rescission of the acknowledgment of paternity was filed by D~ or the Applicant following the filing of the acknowledgment of paternity after the Claimants birth on August XX, 2008. See Tex. Fam. Code Ann. § 160.304(c) (“[A]n acknowledgment of paternity takes effect on the date of the birth of the child or the filing of the document with the vital statistics unit, whichever occurs later.”). Thus, they are now barred as a matter of law from challenging the acknowledgment of paternity by way of rescission. See In re J.A., 2010 WL 2967718, at *2 (Tex. App. – Houston [14th Dist.] July 29, 2010, no pet.) (if a signatory to an acknowledgment of paternity fails to timely file a rescission, he is barred as a matter of law from bringing a rescission proceeding to attack the acknowledgment of paternity).

2. No Evidence of a Court Proceeding to Challenge the Acknowledgment of Paternity

After the time for rescission has expired, the only available option to challenge an acknowledgment is to commence a court proceeding to challenge the acknowledgment of paternity and the only available basis for making such a challenge is fraud, duress, or material mistake of fact. Tex. Fam. Code Ann. § 160.308(a). The proceeding may be commenced at any time before the issuance of a court order affecting the child identified in the acknowledgment, including a child support order. Id.; see also In Interest of C.T.H., 2018 WL 2926737, at *7-8 (Tex. App. – Dallas June 7, 2018, no pet.) (interpreting “order affecting the child identified in the acknowledgment” broadly given the language of the statute). The party challenging an acknowledgment of paternity has the burden of proof to prove the fraud, duress, or material mistake of fact. Tex. Fam. Code Ann. § 160.308(b); see also Tex. Fam. Code Ann. § 160.309 (setting forth the procedure for challenging an acknowledgment of paternity after the rescission period has expired). A proceeding to challenge an acknowledgment of paternity shall be conducted in the same manner as a proceeding to adjudicate parentage. Tex. Fam. Code Ann. § 160.309(d); see also Tex. Fam. Code Ann. § 160.609(a) (if a child has an acknowledged father, a signatory to the acknowledgment of paternity may commence a proceeding under this chapter to challenge the paternity of the child only within the time allowed under section 160.308). Here, there is no information indicating that D~ or the Applicant commenced a court proceeding to challenge the acknowledgment of paternity as to the Claimant.

We note that the Applicant has provided DNA testing to show that the NH, not D~, is the Claimant’s biological father. Genetic testing evidence showing that the man who is the signatory of an acknowledgment of paternity is not rebuttably identified as the child’s father in accordance with section 160.505 constitutes a material mistake of fact. Tex. Fam. Code Ann. § 160.308(d). If a child has an acknowledged father, however, genetic testing is inadmissible to adjudicate parentage unless performed with consent of both the mother and the acknowledged father or under a court order. Tex. Fam. Code Ann. § 160.621(c). There is no information that the DNA testing provided was performed with D~’s consent as the Claimant’s acknowledged father or that it was performed pursuant to a court order^[15] . See Interest of A.M.S., 2021 WL 2231250, at *5-6 (Tex. App. – Corpus Christi June 3, 2021, no pet.) (because the genetic testing did not meet the consent requirements, it was inadmissible, and thus, even though genetic testing eliminated the acknowledged father as the child’s biological father, he did not prove fraud, duress, or material mistake of fact for purposes of challenging the acknowledgment of paternity).

3. Summary: The Unchallenged Acknowledgment of Paternity Establishes D~ as the Claimant’s Legal Father

In summary, genetic testing alone does not qualify as a proper challenge to an acknowledgment of paternity under Texas law. While genetic testing - that meets the consent requirements noted above and other requirements for genetic testing set forth in Texas law - can serve as a basis for challenging an acknowledgment of paternity in a court proceeding on the ground of material mistake of fact, we have no information indicating that any such court proceeding was commenced in the present matter. As outlined above, “a valid acknowledgment of paternity filed with the vital statistics unit is the equivalent of an adjudication of the paternity of a child and confers on the acknowledged father all rights and duties of a parent.” Tex. Fam. Code Ann. § 160.305(a); see also Tex. Fam. Code Ann. § 160.201(b)(2) (a father-child relationship is established by an effective acknowledgment of paternity). Here, there has been no valid challenge to D~’s acknowledgment of paternity through a court proceeding. As such, D~ remains the Claimant’s acknowledged father and her only legal father under Texas law.

6. Conclusion

C. PR 13-064 Texas State Law – Status of Child Based on Probate Court Order Adjudicating Parentage (NH Damarcus, SSN ~) – REPLY

DATE: April 16, 2013

1. SYLLABUS:

It is our opinion that the Texas court order adjudicating parentage does not bind the agency and that the documentation in support of the child’s claim for surviving child’s benefits does not otherwise meet Texas law requirements for establishing inheritance rights as the number holder’s child. Under the Texas intestacy laws, the child's eligibility for survivor’s benefits on the deceased number holder’s account depends upon whether he could inherit property. In this case, the mother provided DNA test results showing only an 87.709 percent probability that the number holder’s mother was Noah’s paternal grandmother. The probability of the DNA results is below the 99 percent probability threshold under Texas law for creating a rebuttable presumption of paternity and therefore does not establish the number holder’s paternity. The mother also presented that a Texas court order, but the court order is not consistent with the State’s highest court, therefore the Agency does not have to accept the court order. The evidence provided by the mother is insufficient evidence to prove that the child could inherit benefits from the NH. It is our opinion that child is not currently entitled to surviving child’s benefits on the number holder’s account.

2. OPINION

QUESTION PRESENTED

You have asked us to provide a legal opinion on whether Noah is entitled to surviving child’s benefits on the earning records of Damarcus number holder). Specifically, you have asked whether a Texas court order adjudicating the number holder as Noah’s father binds the Social Security Administration (agency) or whether the evidence Noah’s mother submitted otherwise establishes that Noah has inheritance rights as the number holder’s child under Texas law.

ANSWER

It is our opinion that the Texas court order adjudicating parentage does not bind the agency and that the documentation in support of Noah’s claim for surviving child’s benefits does not otherwise meet Texas law requirements for establishing inheritance rights as the number holder’s natural child. Consequently, it is our opinion that Noah is not currently entitled to surviving child’s benefits on the number holder’s account.

BACKGROUND

As we understand the facts, the number holder died on September 25, 2010, in an auto accident. At the time of his death, he was domiciled in Texas and living with Megan at his mother’s residence, Megan indicated that she and the number holder had discussed getting married in the future. But there is no indication that Megan and the number holder had a ceremonial or common law marriage at any point where he and Megan lived since November 2009, along with the number holder’s mother and his two female cousins.

In statements Megan made to the agency, she claims she was pregnant with Noah at the time of the number holder’s death, that they had known about the pregnancy for only two weeks, had only told their parents about the pregnancy, and were planning to get married after the baby was born. She also claims she never split up with the number holder and did not have sexual relations with anyone else. Agency records show that three other children are entitled on the number holder’s record: Shasmin; Damarcus; and Demariany. The three children’s mothers, Catina, Denecia, and Toni, respectively, are their representative payees.

In April 2011, Megan gave birth to Noah. Megan did not submit a copy of Noah’s original birth certificate in support of her application for benefits. However, at the agency’s request in late March or early April 2013, Megan provided an uncertified copy of Noah’s original birth certificate that does not name a father.

In May 2012, claiming he was the number holder’s child, she applied for Title II survivor benefits on Noah’s behalf. In support of the application, Megan submitted a Deoxyribonucleic (DNA) test report dated April 11, 2012, which compared specimens from Noah and the number holder’s mother. The DNA test assessed an 87.709 percent probability that the number holder’s mother was Noah’s paternal grandmother. Megan has represented to the agency that the number holder’s mother had only one other child besides the number holder, his sister who is also deceased.

Since the DNA test report’s parentage probability did not meet Texas law requirements and Megan did not provide any chain of custody documentation, the agency denied the application.

On September 21, 2012, Megan filed a new application for benefits on Noah’s behalf. Megan filed an untimely request for reconsideration of the agency’s initial denial of Noah’s claim and did not establish good cause for the untimely filing. The agency considered the date of the untimely request for reconsideration as the protective filing date of the new application.

In support of the application, she provided a Texas court order dated August 9, 2012, from the Panola County Court adjudicating the number holder to be Noah’s father for all purposes, changing Noah’s last name to the number holder’s last name, and ordering an amendment to his birth certificate reflecting the adjudication and name change. After the agency inquired, in late March or early April 2013, Megan submitted Noah’s October 2012 amended birth certificate, which named the number holder as his father, and asked the agency to change its systems to reflect Noah’s name as D~ rather than S~.

The agency also inquired with the Panola County court clerk about the documents or exhibits the court used to adjudicate paternity, but the court clerk was unable to locate any documents or exhibits. However, Megan has indicated that the court received into evidence the grandparent DNA test report The grandparent DNA test report is in the file you submitted to us. As well as statements from her parents and the number holder’s parents. While she does not specify the contents of those statements, Megan claims that the couple had told their parents about the pregnancy before the number holder’s death.

ANALYSIS

Under the Social Security Act, a child may be eligible for surviving child’s benefits if he is the child of an individual who has died fully or currently insured. 42 U.S.C. § 402(d)(1). To be entitled to such benefits on the insured number holder’s account, a child must: (1) be the number holder’s child; (2) be dependent upon the number holder; (3) apply for benefits; (4) be unmarried; and (5) be under the age of 18. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a)(1)-(5). Here, it is undisputed that Noah is unmarried and under the age of 18, and that his mother applied for surviving child’s benefits on his behalf. Further, under pertinent regulations, the agency will consider Noah to be the number holder’s dependent child if he is the number holder’s natural child. See 20 C.F.R. § 404.361(a). Thus, the only criterion we need to establish is whether Noah is the number holder’s natural child.

For purposes of surviving child’s benefits, a claimant is a number holder’s natural child if: (1) he could inherit property through intestate succession as the number holder’s natural child; (2) he is the number holder’s natural child, and the number holder and the claimant’s other parent participated in a ceremony that would have resulted in a valid marriage, except for a legal impediment; (3) he is the number holder’s natural child, and before the number holder’s death, the number holder acknowledged him as his child in writing; a court decreed the number holder to be the claimant’s parent; or a court ordered the number holder to contribute to the claimant’s support because the claimant is the number holder’s child; or (4) the number holder is the claimant’s natural parent and was either living with the claimant or contributing to his support at the time the number holder died. See 42 U.S.C. §§ 416(h)(2)(A)-(B), 416(h)(3)(A),(C); 20 C.F.R. § 404.355(a)(1)-(4). Based on the information we received, Megan and the number holder never married or participated in a ceremony that would have resulted in a valid marriage. Also no court decreed the number holder to be Noah’s parent or ordered the number holder to contribute to Noah’s support before the number holder’s death. Further, because Noah was born after the number holder’s death, the number holder never lived with him, contributed to his support, or acknowledged him as his child. Therefore, Noah does not qualify as the number holder’s natural child under tests two, three, or four. To prove that he is eligible for child’s insurance benefits on the number holder’s account, Noah must therefore show under test one that he could inherit property from the number holder through intestate succession.

To determine whether an applicant could inherit a deceased number holder’s property through intestate succession, the agency must apply the intestacy laws of the state in which the deceased number holder had his permanent home at the time of his death. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b). Since the number holder’s permanent home was in Texas when he died, Noah’s eligibility for survivor’s benefits on the deceased number holder’s account depends upon whether he could inherit property under Texas intestacy laws as the number holder’s child. See id.

The Texas intestacy laws are codified in the Texas Probate Code, which provides, in pertinent part, the framework for determining father-child relationships for inheritance purposes. See Tex. Prob. Code § 42(b). The Texas Legislature has repealed the Texas Probate Code and enacted the Texas Estates Code, which will become effective January 1, 2014. See Acts 2009, 81st Leg., ch. 680; Acts 2011, 82nd Leg., ch. 823 (H.B. 2759); and Acts 2011, 82nd Leg., ch. 1338 (S.B. 1198). The new provisions concerning maternal and paternal inheritance found in section 42 of the Texas Probate Code are contained in sections 201.051 and 201.052 of the Texas Estates Code.

For purposes of inheritance, a child is his biological Texas courts have held that proof of a biological link to the father was not required for child to be considered a “child of his biological father” and to inherit from testator under section 42(b) of the Probate Code. See Wilson v. Estate of Williams, 99 S.W.3d 640, 649-50 (Tex. App. – Waco 2003) (noting that a biological father also includes a man who has an adopted a child without a biological link); see also Spiers v. Maples, 970 S.W.2d 166 (Tex. App.—Fort Worth 1998) (non-biological child that testator adopted by estoppel was entitled to inherit from her). Thus, to be a number holder’s natural child pursuant to section 416(h)(2)(A), Texas law does not require the child to be the number holder’s biological child.

father’s child if: (1) he was born under circumstances described in section 160.201 Under section 160.201 of the Texas Family Code, a father-child relationship exists if: (1) an unrebutted presumption of paternity arises in a marriage; (2) the man acknowledges his paternity; (3) a court adjudicates the man’s paternity; (4) the man adopts the child; or (5) the man consents to assisted reproduction and his wife gives birth. See Tex. Fam. Code Ann. § 160.201(b)(1)-(5). Noah does not meet the methods described in (1), (2), (4), or (5) because he was not born under any of those circumstances. See id. of the Texas Family Code; (2) he was adjudicated to be the child of the father by court decree as provided by chapter 160 of the Texas Family Code; (3) the father adopted him; (4) the father executed an acknowledgement or like statement of paternity as provided by subchapter D of chapter 160 of the Texas Family Code; or (5) clear and convincing evidence establishes that the purported father was the biological father of the child. Id. The third and fourth methods set forth in the Texas Probate Code are not applicable in this case, as the number holder neither adopted Noah nor executed an acknowledgment of paternity. Thus, for Noah to establish he had a right to paternal inheritance from the number holder, it must be under the first, second, or fifth methods of section 42(b).

A. First and Second Method under Tex. Prob. Code § 42(b) – Adjudication of Paternity

The first and second methods of section 42(b) for determining father-child relationships under the Texas Probate Code recognize a child as an individual’s biological child if a court adjudicated the child’s paternity. See Tex. Prob. Code §§ 42(b); see also Tex. Fam. Code Ann. § 160.201(b)(3). Here, a Texas court issued an order that purports to adjudicate Noah’s parentage for all purposes. However, the order is not binding on the agency unless certain conditions are met.

Pursuant to Social Security Ruling (SSR) 83-37c, which adopts the Sixth Circuit Court of Appeals decision in Gray v. Richardson, 474 F.2d 1370, 1373 (6th Cir. 1973), the agency is bound by state court decisions if (1) an issue in a claim for Social Security benefits was previously adjudicated by a state court of competent jurisdiction; (2) the issue was genuinely contested before the state court by parties with opposing interests; (3) the issue falls within the general category of domestic relations law; and (4) the resolution by the state trial court is consistent with the law enunciated by the highest court in the state. Here, the Texas order adjudicating parentage does not bind the agency. As detailed below, while the order meets the first and third prongs of SSR 83-37c, we do not have enough information to determine whether it meets the second or fourth prongs.

1. First and Third Prongs of SSR 83-37c

Regarding the first prong of SSR 83-37c, the Texas court that issued the order (the Panola County Court at Law) is a court of competent jurisdiction having concurrent jurisdiction with the district courts on paternity issues. See Tex. Gov’t Code §§ 24.007, 24.008, 25.0003, 25.1851, 25.1852; Tex. Const. Art. 5, § 8. With respect to the third prong of SSR 83-37c, the order adjudicating parentage involves an issue within the general category of domestic relations law because it involves the issue of paternity. See Memorandum from Regional Chief Counsel, San Francisco, to Ass’t Reg. Comm. – MOS, San Francisco, Claim for Child’s Insurance Benefits on Account of Wage Earner Michael (Aug. 22, 2005) (“the issue of paternity falls within the general category of domestic relations law”). Thus, the order meets the first and third prongs of SSR 83-37c.

2. Second Prong of SSR 83-37c

We next look at whether the Texas court order adjudicating parentage meets the second prong of SSR 83-37c — that parties with opposing interests genuinely contested the issue before the state court. Under the Texas Family Code, the child’s mother and the man Texas courts considering the question of whether an alleged father’s paternity may be contested after his death have arrived at different conclusions. Compare In the Interest of A.S.L., 923 S.W. 2d 814 (Tex. App. – Amarillo 1996), Tipps v. Metropolitan Life Ins. Co. 768 F. Supp 577, 579 (S.D. Tex. 1991); Leal v. Moreno, 723 SW. 2d 322 (Tex. App. – Corpus Christi 1987), Manuel v. Spector, 712 S.W.2d 219, 220 (Tex. App. – San Antonio 1986) (parentage proceedings may be brought after an alleged father’s death) with In the Interest of G~, 794 S.W. 2d 875, 877, 879 (Tex. App. – Tyler 1990) (court held that a suit to determine paternity does not survive putative father’s death, noting that the notice provisions of the Family Code do not provide adequate notice to those persons most affected by the designation of the decedent as the child’s father).

whose paternity is to be adjudicated are necessary parties to a proceeding to adjudicate parentage. See Tex. Fam. Code Ann. §§ 160.602, 160.603; Frazier v. Hall, 2012 WL 2159271 at *2 (Tex. App. – Hous. 2012).

While it is unclear who Megan or the court noticed, the court referred to the number holder as “respondent.” The Texas Family Code states that the following are entitled to service of citation in an original paternity suit: managing and possessory conservators, a person having possession of or access to the child, a person required by law or order to provide for the child’s support, a guardian of the child or the child’s estate, each parent as to whom the parent-child relationship has not been terminated or process waived, an alleged father, a man who has filed a notice of intent to claim paternity, certain governmental agencies, and a prospective adoptive parent. Tex. Fam. Code section 102.009(a). The party seeking the paternity action or the court has the discretion to serve “any other person who has or who may assert an interest in the child.” Tex. Fam. Code section 102.009(b).

Tex. Fam. Code § 102.009(b) (party seeking the paternity action or the court has the discretion to serve “any other person who has or who may assert an interest in the child”). The court order indicated “[A]ll parties entitled to citation were properly cited” and that “no administration of the Estate of D~’has been filed, no personal representative of the estate has been appointed, and neither is necessary.” Agency records indicate that the court considered the number holder’s and Noah’s parents’ statements before issuing the Order Adjudicating Paternity. Megan did not submit these statements in support of her application for child’s benefits on Noah’s behalf on the number holder’s account. The Court’s finding that it did not need to appoint a representative for the deceased has support in Texas law. See Manuel v. Spector, 712 S.W.2d 219 (Tex. App. – San Antonio 1986) (court indicated that illegitimate child’s mother was real party in interest, but joined child’s deceased putative father’s mother as a party inasmuch as the court ordered her to undergo genetic testing); In the Interest of A.S.L., 923 S.W. 2d 814 (Tex. App. – Amarillo 1996) (indicating illegitimate child’s mother may bring action to establish paternity by alleged deceased father without naming or noticing additional parties); cf Tex. Fam. Code § 160.604 (an individual may not be adjudicated a parent unless the court has personal jurisdiction over the individual, but lack of jurisdiction over one individual does not preclude the court from making an adjudication of parentage binding on another). Therefore, we believe that the court order satisfied the second prong of SSR 87-37c.

3. Fourth Prong of SSR 83-37c

We do not have enough information to determine whether the Texas court order adjudicating parentage meets the fourth prong of SSR 83-37c — that the order is consistent with the law that the highest court in the state enunciated. A court order meets the fourth prong of SSR 83-37c if it is consistent with “the law of the state as declared by the supreme court of the state, or as it would have been decided by that court had the point been considered.” See Garcia v. Sullivan, 883 F.2d 18, 20 (5th Cir. 1989); Warren v. Secretary of Health & Human Servs., 868 F.2d 1444, 1447 (5th Cir. 1989). In analyzing the fourth prong of SSR 83-27c, we look to relevant portions of Texas law relating to genetic testing.

Texas Family Code Section 160.631(c)

Section 160.631(c) of the Texas Family Code states that a court may adjudicate a man as the child’s father where unrebutted genetic testing complying with section 160.505 Section 160.505 provides, in pertinent part: (a) a man is rebuttably identified as the father of a child under this chapter if the genetic testing complies with this subchapter and the results disclose: (1) that the man has at least a 99 percent probability of paternity, using a prior probability of 0.5, as calculated by using the combined paternity index obtained in the testing; and (2) a combined paternity index of at least 100 to 1. See Tex. Fam. Code Ann. § 160.505.

shows the man to be the child’s father. See Tex. Fam. Code Ann. § 160.631(c). Under Texas law, if the DNA testing and DNA test report satisfy the reliability and authenticity requirements, and the testing reveals at least a 99 percent probability of paternity with a combined paternity index of at least 100 to 1, a man is rebuttably identified as the child’s father. See Tex. Fam. Code § 160.505(a).

When the man has died and cannot provide a specimen for genetic testing, the court may consider the results of genetic testing of the man’s parents. See Tex. Fam. Code § 160.508(a)(1); see also Tipps v. Metropolitan Life Ins. Co., 768 F.Supp. 577, 579-80 (S.D. Tex. 1991) (after death of purported father, Texas court may draw inferences from grandparentage DNA testing to determine paternity). In the past, our office has opined that DNA tests of only one purported grandparent may be sufficient to establish a parent-child relationship with a deceased. See Memorandum from Regional Chief Counsel, Dallas, to Ass’t Reg. Comm., Dallas, Texas State Law Status of Child Based on Grandparent DNA Test, at 4 (July 28, 2009). However, grandparentage DNA testing and results must comply with Texas law requirements for genetic testing. Research revealed no Texas jurisprudence indicating that the required percentage of probability of paternity is less for single grandparentage testing. See Tex. Fam. Code § 160.505(a); accord Memorandum from Regional Chief Counsel, Dallas, to Ass’t Reg. Comm., Dallas - Texas State Law Status of Child Based on Grandparent DNA Test (July 28, 2009) (grandparentage DNA testing did not comply with Texas law where required certification was absent, report did not include relevant photographs, report did not identify each individual who collected the specimens, the places and dates the specimens were collected, the names of individuals who received the specimens in the testing laboratory, or the dates the laboratory received the specimens, and report showed a 97.67 percent probability that one of grandmother’s sons was child’s biological father, which is below the statutory probability threshold). In this case, the DNA test report assessing an 87.709 percent probability that the number holder’s mother was Noah’s paternal grandmother neither satisfied the reliability and authenticity requirements nor the probability provisions of the Texas Family Code.

In order to be reliable and authentic: (1) the genetic testing must take place in a laboratory accredited by the American Association of Blood Banks, the American Society for Histocompatibility and Immunogenetics, or another accrediting body the Secretary of the United States Department of Health and Human Services designates. See Tex. Fam. Code Ann. § 160.503(a); (2) a laboratory designee must sign the DNA report under penalty of perjury. See Tex. Fam. Code Ann. § 160.504(a); (3) testimony or documentation must establish a reliable chain of custody by: (a) the names and photographs of the persons whose specimens have been taken; (b) the names of the persons who collected the specimens; (c) the places and dates the specimens were collected; (d) the names of the persons who received the specimens in the testing laboratory; and (e) the dates the specimens were received. See Tex. Fam. Code Ann.§ 160.504(b). For the following reasons, the DNA report that Noah presented fails to meet Texas law requirements for establishing reliability and authenticity.

While the genetic testing took place at an accredited facility and the Assistant Paternity Laboratory Director certified the DNA analysis report, there is no evidence showing that the report complies with the chain of custody requirements. See Tex. Fam. Code Ann. §§ 160.503, 160.504. Specifically, there are no photographs of the individuals who supplied specimens for testing. See Tex. Fam. Code Ann. § 160.504(b)(1). Moreover, while the report provides the date the specimens were collected, it does not identify the date the laboratory received the specimens, the person(s) who collected or received the specimens, or the place(s) where the specimens were collected. See Tex. Fam. Code Ann. § 160.504(b)(2)-(5). Therefore, the testing does not satisfy Texas law requirements for establishing reliability and authenticity.

In addition, the probability of the DNA test results in this case is insufficient to establish paternity under Texas law. As noted, DNA test results establish paternity if they show at least a 99 percent of probability of paternity with a combined paternity index of at least 100 to 1. See Tex. Fam. Code Ann. §§ 160.503(a); 160.504; 160.505(a). Here, the DNA test results show only an 87.709 percent probability that the number holder’s mother was Noah’s paternal grandmother. Such probability is below the 99 percent probability threshold under Texas law for creating a rebuttable presumption of paternity and thus does not establish the number holder’s paternity. See Tex. Fam. Code Ann. § 160.505(a); accord Memorandum from Regional Chief Counsel, Dallas, to Ass’t Reg. Comm., Dallas - Texas Law – Status of Child Relationship Based on Deoxyribonucleic Acid Y Chromosome Test (March 8, 2011) (85.29 percent probability that one of grandmother’s sons was child’s biological father below the probability threshold that Texas requires to create rebuttable presumption of paternity); See Memorandum from Regional Chief Counsel, Dallas, to Ass’t Reg. Comm., Dallas - Texas Law – Status of Child Relationship (October 26, 2010) (96.88 percent probability that one of grandfather’s sons was child’s biological father below the probability threshold that Texas requires in order to create a rebuttable presumption of paternity); Memorandum from Regional Chief Counsel, Dallas, to Ass’t Reg. Comm., Dallas - Texas State Law Status of Child Based on Grandparent DNA Test (July 28, 2009) (grandparentage DNA testing did not comply with Texas law where report showed a 97.67 percent probability that one of grandmother’s sons was child’s biological father below the statutory probability threshold).

Since the DNA test report that the Panola County Court reportedly relied on meets neither Texas’ requirements for reliability and authenticity nor the threshold probability for creating a presumption of paternity, the court’s order does not satisfy section 160.301(c). Consequently, the order is not consistent with the law enunciated by the highest court in the state and the agency does not have to accept it under G~. In this case, the agency initially denied Megan’s application for child’s benefits on Noah’s behalf because the DNA report did not comply with Texas law. Megan then obtained a court order based, according to the evidence submitted, primarily on the DNA report that does not comply with Texas law. If the agency accepts a state court order determining a number holder’s paternity that is based on a deficient DNA report, individual’s seeking child’s benefits can circumvent agency policy and state requirements. See SSR 83-37c.

Texas Family Code Section 160.631(e)

The court’s order could still comply with SSR 83-37c’s fourth prong if the genetic testing report and other evidence submitted were consistent with section 160.631(e) of the Texas Family Code. Under section 160.631(e) of the Texas Family Code, if a Texas court finds that genetic testing does not identify or exclude the man as a child’s father, the results of the genetic testing along with other evidence are nonetheless admissible to adjudicate the issue of paternity. See Tex. Fam. Code Ann. § 160.631(e). While the statute does not speak to the standard of proof, our research reveals that it is clear and convincing evidence. See In Interest of A.S.L. 923 S.W.2d 814, 818 (Tex.App.–Amarillo,1996) (quantum of evidence by which a minor must prove paternity of a deceased individual is clear and convincing) citing Garza v. Maverick Market, Inc., 768 S.W.2d 273, 276 (Tex.1989) (actions brought under the Texas Wrongful Death Act, an illegitimate child must establish his paternity by the clear and convincing evidence standard) and Tex.Prob.Code Ann. § 42(b) (section 42 of the Probate Code also accords a child claiming to be the biological child of a decedent, who is not otherwise presumed to be a child of the decedent, the opportunity to establish paternity by the clear and convincing evidence standard). “The clear and convincing standard is the 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 proved.” Villery v. Solomon, 16 S.W.3d 106, 107 (Tex.App.–Houston, 2000), quoting In the Interest of G.M., 596 S.W.2d 846, 847 (Tex.1980); In the Interest of J.N.R., 982 S.W.2d 137, 141 (Tex.App.—Houston, 1998).

In this case, other than the DNA report and the Panola County Court Order Adjudicating Parentage, the evidence Megan submitted to the agency include her remarks that she lived with the number holder, his mother, and his two adult cousins from November 2009 until his death in September 2010; that she did not have sexual relations with anyone else during that time; that she was pregnant with Noah at the time of the number holder’s death; that she and the number holder had known about the pregnancy for two weeks prior to his death; that they had only told their parents about the pregnancy; and that they were planning to get married after the baby was born. Agency records also show that Megan stated that she had requested that the number holder’s mother and the two cousins give a statement, but that they had not committed to giving a statement and we note that Megan did not submit any statements in support of her application on Noah’s behalf. In addition, an uncertified copy of Noah’s original birth certificate shows that no father is named.

In a case where an individual brought suit under the Texas Probate Code to establish that she was a deceased’s heir, a Texas court found that although a DNA report did not establish paternity, the court considered the following evidence and found that clear and convincing evidence showed that individual was deceased’s biological child: adult child’s testimony that she had known that the deceased was her father from the time she was born and that she knew the deceased’s sisters as her aunts and was introduced as the deceased’s daughter; deceased’s aunt testimony by deposition that deceased told her that individual was his child; deceased’s sisters testimony by deposition that deceased told them that individual was his daughter; witnesses testimony that the deceased had not informed them that the individual was his daughter. (Cite as: 16 S.W.3d 106, *109)

V~, 16 S.W.3d at 108-109. Megan indicated that she requested that family members provide supporting statements, but she did not submit them to the agency. Contrary to the evidence presented in V~, we conclude that Megan has not produced evidence in this case to establish by clear and convincing evidence under section 160.631(e) of the Texas Family Code that Noah is the number holder’s child.

B. Fifth Method under Tex. Prob. Code § 42(b) – Clear and Convincing Evidence

Finally, we look under section 42(b)(5) of the Texas Probate Code to whether the documentation in support of Noah’s claim for surviving child’s benefits establishes by clear and convincing evidence that the number holder was Noah’s biological father. See Tex. Prob. Code § 42(b)(5). As stated above, “[t]he clear and convincing standard is the 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 proved.” V~, 16 S.W.3d at 107; see also Tex. Fam. Code Ann. § 101.007. Here, other than statements she made to the agency, Megan initially submitted only the DNA report and the Panola County Court Order Adjudicating Parentage. After the agency inquired whether Megan had requested that the Bureau of Vital Statistics amend Noah’s amended birth certificate based on the Panola Court Order naming the number holder as Noah’s father, Megan submitted the amended document to support Noah’s application for child benefits.

Agency records show that Megan stated that she had been living with the number holder, his mother, and two adult cousins from November 2009 until his death in September 2010; that she did not have sexual relations with anyone else during that time; that she was pregnant with Noah at the time of the number holder’s death; that she and the number holder had known about the pregnancy for only two weeks prior to his death; that they had only told their parents about the pregnancy; and that they were planning to get married after the baby was born. As discussed above, the DNA report does not comply with Texas law and the agency is not bound by the state court order. Agency records show that three other children are entitled to child’s benefits on the number holder’s record, but that Megan is not listed as the mother or representative payee for any of the other children. Megan submitted Noah’s October 2012 amended birth certificate to the agency and asked the agency to change Noah’s Numident record in late March or early April 2013. However, the amended birth certificate and Numident change were based on the Panola County Court order which, as explained above, does not comply with Texas law. See Tex. Fam. Code Ann. §§ 160.503, 160.504, 160.505. When a court renders an order adjudicating parentage, it may order that a child’s name be changed “[o]n request of a party and for good cause shown” and if the court determines that the name change is “in the child’s best interest.” Tex. Fam. Code section 160.636. Section 160.636 does not define good cause, but courts have referenced Black’s Law Dictionary’s definition that “good cause” is a “legally sufficient reason.” In re A.W.G., 2011 WL 3795237 at *2-3 (Tex. App. – Fort Worth, 2011); In re S.M.V., 287 S.W.3d 435, 448 (Tex. App. – Dallas, 2009). In addition, courts have considered a nonexclusive list of factors to consider whether a name change is in a child’s best interest, including whether: the changed name or the original name would best avoid embarrassment, inconvenience, or confusion for the custodial parent; whether the changed name or original name would best help identify the child with the family unit; the length of time that the child has carried the original name; the degree of community respect associated with the original and changed names; whether the change would positively or adversely affect the bond between the child and either parent or the parents’ families; the preference, maturity, and age of the child; parental misconduct; any delay in requesting the name change, whether the parent seeking the name change is motivated by an attempt to alienate the child from the other parent; and, assurances by the parent whose surname the child will bear that the parent will not change his or her surname at a later time. Id.; In re S.M.V., 287 S.W.3d at 449-50; In re M.C.F., 121 S.W.3d 891, 897-98 (Tex. App. – Fort Worth, 2003). The court relied, in part, on the deficient DNA report to determine that the number holder was Noah’s father and that the Bureau of Vital Statistics could change his birth certificate to reflect the number holder’s name. Because the DNA report did not comply with Texas law, the change in the birth certificate is not determinative. Moreover, an uncertified copy of Noah’s original birth certificate shows that no father is named. As such, we do not believe that the totality of the evidence shows by clear and convincing evidence that the number holder was Noah’s biological father, as section 42(b)(5) requires. See Tex. Prob. Code § 42(b); see e.g., Slaton v. Slaton, 987 S.W.2d 180, 183 (Tex. App.—Houston [14th Dist.] 1980) (finding in the context of Texas property law that a self-serving statement did not amount to clear and convincing evidence).

Conclusion

It is our opinion that the Texas court order adjudicating parentage does not bind the agency and that the documentation in support of Noah’s claim for surviving child’s benefits does not otherwise meet Texas law requirements for establishing inheritance rights as the number holder’s child. Therefore, it is our opinion that Noah is not currently entitled to surviving child’s benefits on the number holder’s account. If Megan provides this additional documentation, we will then determine whether such additional documentation complies with the requirements of relevant law.

Michael McGaughran

Regional Chief Counsel

By: ____________

Fatima Shah

Assistant Regional Counsel

Footnotes:

^[1]

Our legal advice is consistent with a prior legal opinion on a similar issue involving a proper challenge to an acknowledgment of paternity under Texas law. See Program Operations Manual System (POMS) PR 01105.048 Texas, A. PR 21-075 Texas State Law – Challenge to Acknowledgment of Paternity (Dec. 13, 2021) (advising that Texas law provides two methods to challenge an acknowledgment of paternity and there was no evidence of a proper challenge under Texas law to the acknowledgment of paternity establishing an individual as the child’s acknowledged father and legal father).

^[2]

We do not have any information indicating that the determination was obtained by fraud or similar fault. See POMS GN 04105.005B.4 (“Fraud exists where a person, with intent to defraud, either: [m]akes or causes to be made, a false statement or misrepresentation of a material fact for use in determining rights under the Social Security Act (Act); or [c]onceals or fails to disclose a material fact for use in determining rights under the Act.”); POMS GN 04105.001B.5 (“Similar fault is involved with respect to a determination if: [a]n incorrect or incomplete statement that is material to the determination is knowingly made; or [i]nformation that is material to the determination is knowingly concealed.”).

^[3]

The Claimant must satisfy other criteria for child’s insurance benefits that are outside the scope of this legal opinion request. See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350. We focus only on the requirement that the Claimant establish he is the NH’s child as required under section 202(d)(1) of the Act and as defined in section 216(e) of the Act.

^[4]

See also Tex. Fam. Code Ann. § 160.302 (an acknowledgment of paternity must be in a record; signed or otherwise authenticated under penalty of perjury by the mother and man seeking to establish paternity; state that the child whose paternity is being acknowledged does or does not have a presumed father and that the child does not have another acknowledged or adjudicated father; state whether there has been genetic testing; and state that the signatories understand that the acknowledgment is the equivalent of a judicial adjudication of paternity of the child and that a challenge to the acknowledgment is permitted only under limited circumstances), § 160.312(a) (the Texas vital statistics unit prescribes forms for acknowledgment of paternity, denial of paternity, and rescission of an acknowledgment of paternity).

^[5]

Federal law requires that States implement hospital-based programs for the voluntary acknowledgment of paternity. In the Omnibus Budget Reconciliation Act of 1993, which amended the Child Support Title IV-D of the Social Security Act, Congress required States to implement hospital-based programs for the voluntary acknowledgment of paternity process for unmarried parents for a legal finding of paternity and to allow for the inclusion of the father’s name on the child’s birth record. Pub. L. No. 103-66, 107 Stat. 312 (1993); 42 U.S.C. § 666(a)(5)(C)(ii), (D)(i); 45 C.F.R. § 303.5(g). Hospitals are required to file signed original voluntary acknowledgments or adjudications of paternity with the State registrar of birth records. 45 C.F.R. § 303.5(g)(2)(iv). The Texas Attorney General’s Office website also explains that “[i]n order to add a father’s name to a birth certificate, he must first be established as the child’s legal father” and identifies an acknowledgment of paternity as one way to establish legal fatherhood. How to Add a Father to a Birth Certificate | Office of the Attorney General (texasattorneygeneral.gov) (last visited Dec. 9, 2021). The Texas Attorney General’s website contains more information on completing and filing an acknowledgment of paternity and the legal significance of doing so. Acknowledgment of Paternity (AOP) | Office of the Attorney General (texasattorneygeneral.gov) (last visited Dec. 9, 2021). The website explains that “[a]n Acknowledgment of Paternity (AOP) is a legal document that allows parents who aren’t married to establish legal paternity.” Id.

^[6]

See also In re S.R.B., 262 S.W.3d 428, 431 (Tex. App. – Houston [14th Dist.] 2008, no pet.) (“The Uniform Parentage Act does not authorize a trial court to invalidate an [acknowledgment of paternity] based solely on testimony questioning the male signatory’s paternity, absent recission of, or successful challenge, to the [acknowledgment of paternity].”); In re Office of Attorney General of Tex., 272 S.W.3d 773, 776 (Tex. App. – Dallas 2008, no pet.) (noting that “[t]he establishment of paternity is a matter of legislative policy” and that “[t]he Texas Legislature, in passing section 160.308, determined that the policy of this State is to generally limit challenges to legally established paternity” and “expressly identified, in plain language, under what circumstances and in what time period, an adult signatory to an acknowledgment of paternity may challenge that acknowledgment”).

^[7]

For acknowledgments of paternity signed before September 1, 2011, the prior version of section 160.308 applies, which stated that suits challenging acknowledgments must be filed within four years of the date the person filed the acknowledgment with the Texas Bureau of Vital Statistics. See Interest of E.H.L.V., 2022 WL 2068860, at *1, 3-4 (Tex. App. – Beaumont June 9, 2022, no pet.). Here, however, the acknowledgment of paternity was signed in 2019 and thus the four-year limitation does not apply. See Interest of K.N.H., 2022 WL 243188, at *4 (Tex. App. – Corpus Christi Jan. 27, 2022, no pet.) (“The current version of [section 160.308] permits a party to challenge an acknowledgment of paternity at any time before an order affecting the child has been entered.”).

^[8]

^[9]

As noted, a proceeding to challenge an acknowledgment of paternity shall be conducted in the same manner as a proceeding to adjudicate parentage. Tex. Fam. Code Ann. § 160.309(d); see Tex. Fam. Code Ann. §§ 160.601 – 160.637 (provisions regarding proceedings to adjudicate parentage). “[T]he Family Code also generally limits the class of persons who may challenge an acknowledgment of paternity.” In re Dallas Group of America, Inc., 434 S.W.3d 647, 652 (Tex. App. – Houston [1st Dist.] 2014, no pet.) (finding that a person seeking to challenge an acknowledgment of paternity in a proceeding to adjudicate parentage must have standing to maintain such a proceeding per section 160.602). Section 160.602 sets forth the persons who have standing to bring a proceeding to adjudicate parentage, which includes a representative authorized by law to act for an individual who would otherwise be entitled to maintain a proceeding but who is deceased. Tex. Fam. Code Ann. § 160.602(a)(6). Further, section 160.609(b) states that an individual who is not a signatory to the acknowledgment must commence a proceeding to adjudicate paternity within four years of the effective date of the acknowledgment. Tex. Fam. Code Ann. § 160.609(b); see also In re J.F.S., 2016 WL 6996642, at *3-4 (Tex. App. – Tyler Nov. 30, 2016, no pet.) (finding that in addition to standing to maintain a proceeding to adjudicate parentage per section 160.602, section 160.609(b) requires that the person be an “individual,” and the Texas Department of Family and Protective Services was not an “individual” and as such, was not statutorily authorized to commence a proceeding to adjudicate parentage when the child’s paternity has been legally established by a valid acknowledgment of paternity). We note that this time limitation has not yet expired as of the date of this legal opinion for an individual with standing to bring a proceeding to challenge the November 2019 acknowledgment of paternity.

^[10]

An agency report of contact reflects that the agency conducted a domicile determination finding that the NH worked in Wyoming only temporarily and that his domicile was in Texas.

^[11]

The TxEVER birth information confirms that the NH and T~ have the same parents.

^[12]

The Claimant must satisfy other criteria for her application for child’s insurance benefits that are outside the scope of this legal opinion request. See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350. We focus only on the requirement of a parent-child relationship between the Claimant and the NH. See 20 C.F.R. § 404.350(a)(1).

^[13]

The Texas Department of State Health Services’ Vital Statistics Section maintains vital records, including birth records, for the State of Texas. Information regarding TxEVER is found at the following link, Vital Statistics Partners | Home (texas.gov) (last visited Dec. 9, 2021). The website explains that “TxEVER supports all vital event operations, including reporting, registration, amendments, and issuance of vital records. It replaced legacy systems, including Texas Electronic Registrar on January 1, 2019.” TxEVER Guides & Videos | VS Partners (texas.gov) (last visited Dec. 9, 2021). The Vital Statistics Section maintains the statewide paternity registry, acknowledgment of paternity records, and reports of court cases affecting the parent-child relationship. Paternity Information (texas.gov) (last visited Dec. 9, 2021). The Texas Attorney General’s Office explains that “[i]n order to add a father’s name to a birth certificate, he must first be established as the child’s legal father” and identifies an acknowledgment of paternity as one way to establish legal fatherhood. How to Add a Father to a Birth Certificate | Office of the Attorney General (texasattorneygeneral.gov) (last visited Dec. 9, 2021). The Texas Attorney General’s website contains more information on completing and filing an acknowledgment of paternity and the legal significance of doing so. Acknowledgment of Paternity (AOP) | Office of the Attorney General (texasattorneygeneral.gov) (last visited Dec. 9, 2021). The website explains that “[a]n Acknowledgment of Paternity (AOP) is a legal document that allows parents who aren’t married to establish legal paternity.” Id.

^[14]

^[15]

In general, under Texas law, if the DNA testing and report satisfy the reliability and authenticity requirements, and the testing reveals at least a 99% probability of paternity with a combined paternity index of at least 100 to 1, a man is rebuttably identified as the child’s father. See Tex. Fam. Code Ann. § 160.505(a). In addition to the 99% probability of paternity threshold, Texas law requires the genetic testing and the testing reports must meet specific statutory requirements showing reliability and authenticity for admissibility in court. See Tex. Fam. Code Ann. §§ 160.503, 160.504, 160.631. We note that although the DNA Test Report reflects a probability of paternity of 99.99999% as between the NH and the Claimant, the genetic testing documents provided do not appear to meet all the requirements for reliability and authenticity, including chain of custody documentation and signatures “under penalty of perjury.” See Tex. Fam. Code Ann. § 160.504(a) (requiring that genetic testing reports must be signed under penalty of perjury), (b) (providing that documentation from a testing laboratory must be sufficient to establish a reliable chain of custody of genetic testing); L.J. v. Texas Dept. of Family and Protective Services, 2012 WL 3155760, at *5 (Tex. App. – Austin 2012, pet. denied) (noting that the phrase “under penalty of perjury” is statutorily mandated to be included in a genetic report and that the phrase “imposes significant legal consequences”). Because it is not determinative of the issue here, we need not further address in detail the deficiencies of the DNA Test Report provided to the agency.

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PR 01105.048 - Texas - 07/26/2022
Batch run: 07/26/2022
Rev:07/26/2022