This Memorandum is in response to your request for an opinion concerning whether Breanna
M. B~ can establish that she is entitled to Child's Insurance Benefits ("CIB") on
the account of Arnoldo . Specifically, you asked whether a DNA test report is sufficient
evidence to establish a parent-child relationship under Connecticut law. Assuming
a relationship is established, you further asked for the effective date of that relationship
for paying benefits. For the reasons stated below, we believe there is sufficient
evidence to establish a parent-child relationship and that the child is entitled to
benefits beginning in the month of her application.
Factual Background
The number holder, Arnoldo , died on February 11, 2007. At the time of his death,
he was domiciled in the state of Connecticut. On January 23, 2007, the child claimant,
Breanna M. B~, was born in Derby, Connecticut. The child's birth certificate does
not identify a father. On February 21, 2007, Stacey B~, the child claimant's mother,
filed an application for CIB on behalf of Breanna as the child of the number holder
Arnoldo .
In a written statement, the child claimant's mother indicated that she met the number
holder in January 2006, and started dating him about two to three weeks later. She
stated that she lived with the number holder between April and July 2006. In a child
relationship statement, the mother acknowledged that the number holder was never decreed
by a court to be the child's parent, was never ordered by a court to contribute to
the child's support, but did admit orally that he was the parent of the child. According
to the file, the number holder was married at all relevant times to another woman,
Sonia C~, and had at least one biological child, Nayomara. However, the number holder
was not living with Sonia and Nayomara at the time of his death.
∖In support of her application, the child claimant's mother submitted a DNA test report
which showed that the probability of the number holder being the child's father was
99.999%. The test was reported on April 5, 2007 by Accurate Exam Services Chromosomal
Laboratories which is a company accredited by the American Association of Blood Banks.
As further support for her application, the mother also submitted two letters from
the number holder's mother. In the first letter, dated February 28, 2007, the number
holder's mother stated that the number holder told her that he was with Stacey B~,
the child's mother, for two months, but that he wanted a DNA test because he had been
told that Stacey was with someone else before him. In the second letter, dated April
16, 2007, the number holder's mother noted the DNA results and welcomed the child
claimant into her family stating that she could see a resemblance between the child
claimant and the number holder.
Analysis
The Social Security Act ("the Act") provides for the payment of insurance benefits
to a child of a number holder who dies when fully or currently insured if the child
has filed an application for CIB, is unmarried, under the age of 18, and was dependent
upon the number holder at the time of death. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350
(2007); Programs Operations Manual System (POMS) RS 00203.001. Where, as here, a claimant's mother and putative father never married, the child
claimant's status as the surviving child of the number holder is governed by either
section 216(h)(3)(C) of the Act, 42 U.S.C. § 416 (h)(3)(C), or section 216(h)(2)(A)
of the Act, 42 U.S.C. § 416(h)(2)(A). Under section 216(h)(3)(C) of the Act, the claimant
can be deemed to be the deceased number holder's child upon proof that, prior to the
number holder's death, one of the following conditions was met: (1) that the number
holder acknowledged in writing that the claimant is his child; (2) that a court decreed
the number holder to be the father of the child; (3) that the court ordered the number
holder to contribute to the support of the child; or (4) that the number holder is
the father and was living with or contributing to the child's support at the time
of his death. In this case, we are aware of no evidence which satisfies any of the
required conditions in section 216(h)(3)(C) of the Act.
To establish her status as the surviving child of the deceased number holder under
section 216(h)(2)(A) of the Act, the child must show that she would be entitled to
a child's share of the number holder's intestate personal property under the law of
the state in which the insured individual was domiciled at the time of his death.
See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(4); POMS GN 00306.001.C. According to the record, the number holder was a resident of Connecticut at the
time of his death, and there is no evidence suggesting that the number holder's domicile
was other than Connecticut. We conclude that the number holder was domiciled in Connecticut
at the time of his death and that Connecticut's law of intestate succession is applicable
in determining the child's status as the descendant of the number holder for purposes
of the Act. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355; POMS GN 00306.001.C.1.a.
For a person born out of wedlock to establish child status, Connecticut law provides
that an individual is the child of her genetic parents regardless of marital status
of such parents and that the father of a child born out of wedlock shall be considered
a parent if: (1) the father and mother married after the child's birth, or (2) the
father has been adjudicated the father of the child by a court of competent jurisdiction,
or (3) the father has acknowledged under oath in writing that he is the father of
the child, or (4) after the death of either the father or the child, paternity has
been established by the Probate Court by clear and convincing evidence that the father
has acknowledged in writing that he is the father of the child and has openly treated
the child as his.
CONN. GEN. STAT. § 45a-438(b). Under Social Security Regulations, however, a claimant
is not required to obtain an adjudication of paternity, but rather, the Agency may
decide paternity using the standard of proof that the state court would use as the
basis for a paternity determination. 20 C.F.R. § 404.355(b)(2); POMS 00306.440.B.3.
Connecticut courts determine paternity based on a "fair preponderance" of the evidence.
Palomba v. Gray, 543 A.2d 1331, 1334 (Conn. 1988).
With respect to DNA testing, Connecticut law provides:
In any proceeding in which the question of paternity is at issue, the results of such
genetic tests … shall constitute a rebuttable presumption that the putative father
is the father of the child if the results of such tests indicate a ninety-nine per
cent or greater probability that he is the father of the child, provided the petitioner
has presented evidence that sexual intercourse occurred between the mother and the
putative father during the period of time in which the child was conceived.
CONN. GEN. STAT. § 46b-168(b). Connecticut courts appear to have endorsed the use
of genetic testing evidence for purposes of adjudicating paternity where the purported
father is deceased. See, e.g., Brancato v. Moriscato, No. CV 030472496S, 2003 WL 1090596 at *1 (Conn. Super. Feb. 27, 2003); Lach
v. Welch, Civil. No. FA 93-0063955, 1994 WL 271518 at *7 (Conn. Super. June 13, 1994).
Here, claimant submitted a DNA test report dated April 5, 2007, which was based on
DNA samples taken from the child claimant, her mother, and the number holder after
his death. The report states that there is a statistical probability of 99.999% that
the deceased number holder is the claimant's father. Thus, the DNA testing exceeds
the statutory requirement for the presumption of paternity in Connecticut. CONN. GEN.
STAT. § 46b-168(b). Additionally, the mother submitted evidence of sexual intercourse,
namely written statements that she was involved in a dating relationship with the
number holder during the relevant time. See Palumba, 543 A.2d at 1334 (Conn. 1988) (stating that such evidence need only consist of statements
from the mother). While the child claimant's mother did not specifically state that
she had sexual intercourse with the number holder, we presume she could provide a
statement to that effect. Accordingly, we believe that results from the DNA test along
with inferences from other evidence, in the absence of contradictory evidence, constitutes
sufficient evidence to establish a parent-child relationship under Connecticut law.
With respect to the effective date of the parent-child relationship and retroactive
benefits, an applicant for child's benefits can receive benefits for up to six months
immediately before the month in which the application is filed. 20 C.F.R. § 404.621(a)(2).
However, no child is entitled to benefits for any period prior to satisfying all entitlement
factors for child's benefits. See § 202(d)(1) of the Act; 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.352(a). Child status
is one of the entitlement factors. See § 202(d)(1) of the Act; 20 C.F.R. § 404.350(a)(1). If the child is the legitimate
child of the insured individual and entitled to benefits, the period of entitlement
will include the full retroactive period of the application (six months prior to the
application or the child's birth, whichever occurs later). See POMS GN 00306.050 and GN 00306.085. An out-of-wedlock child generally is not entitled to retroactive benefits because
the out-of-wedlock child must prove child status under state law and because benefits
are prospective from the event which conferred the inheritance rights. See POMS GN 00306.055.A.3. The only exception to this is in cases where the state law granting inheritance
rights to an illegitimate child makes those rights retroactive for periods before
the act or event, such as when the child has been legitimated. See POMS GN 00306.050 and GN 00306.085. This exception occurs under Connecticut law.
Connecticut law legitimates the child when paternity is established through adjudication.
See CONN. GEN. STAT. § 45a-438(b); POMS GN 00306.440. In discussing children born out-of-wedlock, Connecticut law states that an "individual
is the child of his genetic parents, regardless of marital status of such parents."
CONN. GEN. STAT. § 45a-438(b). As referenced in the notes of POMS GN 00306.440, a 1995 amendment to the Connecticut statute removed language which limited legitimization
to an out-of-wedlock child whose parents later intermarry. Therefore, we conclude
that under Connecticut law the child claimant would be considered a legitimate child
of the number holder making her eligible for benefits from the date of her birth on
January 23, 2007, even though the actual DNA testing did not occur until April 5,
2007. See POMS 00306.085. The child claimant cannot collect benefits from the day
of her birth, however, because the number holder did not die until the following month.
Thus, even though the child-parent relationship was established at birth, the child
claimant can only receive benefits from the time of the number holder's death which
was on February 11, 2007. See 20 C.F.R. §§ 404.350; 404.352. Since the child claimant's application was filed in
the same month that the number holder died, she is entitled to benefits as of February
2007, and can receive no applicable retroactive benefits.
CONCLUSION
We believe that the Connecticut courts would find that the child claimant could inherit
from the deceased number holder as his child under Connecticut intestacy statute.
Therefore, we believe that the child qualifies as the number holder's child for purposes
of entitlement to CIB. Entitlement would begin from February 2007, the month of the
child claimant's application and the number holder's death, with no applicable retroactive
benefits.