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, he is the insured number
holder’s child.[6] 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
K~ is the number holder’s natural child. To determine a claimant’s status as a natural
child, SSA must determine whether the claimant could inherit the insured number holder’s
personal property as his child under the intestacy laws of the state where the insured
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(a)(1), (b). Texas law controls because the number holder’s permanent
home was in Texas when he died. Therefore, we apply Texas intestate succession laws
to determine whether K~ could inherit from the number holder as his child.
B. State Law: Paternal Inheritance under Texas Intestate
Succession Laws
Texas law allows a child to inherit property from his deceased parent by intestate
succession. See Tex. Estates Code Ann. §§ 201.001-.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,1 or a similar statement properly executed in another jurisdiction.
….
(c) A person may petition the probate court for a determination of right of inheritance
from a decedent if the person:
(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. As explained next, a court adjudication of paternity
is most relevant to the present situation and can establish the right to inherit under
section 201.052(a)(1), (2), (c), and (d) of the Texas Estates Code.
1. Texas Court Adjudication of Paternity and the Right to Paternal
Inheritance under Section 201.052(a)(1), (2), (c), and (d)
Section 201.052(a)(3) and (4) of the Texas Estates Code do not apply here because
the number holder did not adopt K~ or execute an acknowledgment of paternity.
Section 201.052(a)(1) of the Texas Estates Code refers us to section 160.201 of the
Uniform Parentage Act (UPA), which is in the Texas Family Code. The only relevant
method for establishing paternity under section 160.201(b) of the Texas Family Code
that might apply in the present situation is a court adjudication.[7] See Tex. Fam. Code Ann. § 160.201(b)(3). Section 201.052(a)(2) of the Texas Estates
Code also provides for paternal inheritance on the basis of a court adjudication under
the provisions of Chapter 160 of the UPA in the Texas Family Code.
Additionally, section 201.052(c) and (d) of the Texas Estates Code provides that for
purposes of determining the right to inherit, a probate court can make a paternity
determination based on clear and convincing evidence. Thus, all three of these methods
under section 201.052(a)(1), (2), (c), and (d) provide for inheritance based on a
court determination establishing paternity.
Here, B~ has advised SSA that there is no court order declaring the number holder
to be K~’s parent. However, SSA regulations do not require an applicant to obtain
a state court adjudication. See 20 C.F.R. § 404.355(b)(2). Instead, SSA “decide[s
a child’s] paternity by using the standard of proof that the State court would use
as the basis for a determination of paternity.” Id. Thus, to establish that K~ has
a right to paternal inheritance from the number holder under section 201.052(a)(1),
(2), (c), and (d), K~ must do so under the standard of proof a Texas state court would
use to determine paternity.
2. Whether a Texas Court Would Find the Paternal Uncle DNA Report Rebuttably
Identifies the Number Holder as
K~’s
Father Such that He Must be Adjudicated as the Father
B~ has provided a paternal uncle DNA test to support K~’s relationship with the number
holder. Thus, we first consider the standard of proof under Texas law as to genetic
tests.
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); see also Tex.
Estates Code Ann. § 204.102 (the presumption under section 160.505 of the Family Code
applies to the results of genetic testing ordered under the Estates Code in proceedings
to declare heirship), § 204.152 (same). “[T]he man identified as the father of a child
under Section 160.505 shall be adjudicated as being the father of the child.” Tex.
Fam. Code Ann. § 160.631(b). The results of genetic testing can only be rebutted by
other genetic tests. See Tex. Fam. Code Ann. §§ 160.505(b), 160.631; Tex. Estates
Code Ann. §§ 204.102, 204.152. Thus, Texas law sets a threshold of 99% probability
of paternity that must be met to require a court to adjudicate paternity.
In addition, Texas law requires the genetic testing and reports must meet specific
statutory requirements showing reliability and authenticity. See Tex. Fam. Code Ann.
§§ 160.503, 160.504, 160.631; see also Tex. Estates Code Ann. §§ 204.001-.201 (genetic
testing in proceedings to declare heirship; the genetic testing report must comply
with section 160.504 of the Texas Family Code). First, the DNA testing must be in
a laboratory accredited by the AABB or another accrediting body designated in the
Texas statute. Tex. Fam. Code Ann. § 160.503(a). Second, the genetic testing results
must be in a record and a laboratory designee must sign the DNA report under penalty
of perjury. Tex. Fam. Code Ann. § 160.504(a). Third, testimony or documentation must
establish a reliable, five-part chain of custody meeting these requirements: (1) the
names and photographs of the persons whose specimens have been taken; (2) the names
of the persons who collected the specimens; (3) the places and dates the specimens
were collected; (4) the names of the persons who received the specimens in the testing
laboratory; and (5) the dates the specimens were received. Tex. Fam. Code Ann. § 160.504(b)(1)-(5).
When a man has died and cannot provide a specimen for genetic testing, the court may
consider the results of genetic testing of the man’s brothers or sisters. See Tex.
Fam. Code Ann. § 160.508(a)(2); Tex. Estates Code Ann. § 204.054. If the genetic testing
identifies more than one man as the possible father of the child, a Texas court may
order each of those men to undergo further genetic testing to identify the genetic
father. Tex. Fam. Code Ann. §§ 160.505(c), 160.508; Tex. Estates Code Ann. § 204.054.
Here, as Texas law allows because the number holder is deceased, the evidence includes
a paternal uncle DNA report. The paternal uncle DNA report shows a combined avuncular
index of 547 to 1 and a relationship probability of 99.82% that a brother of A~ is
K~’s father. See Tex. Fam. Code Ann. § 160.505(a)(1) (requiring paternity to be established
at least at 99% probability). However, in addition to A~, the number holder’s funeral
program identified four other men as the number holder’s—and presumably, A~’s—potential
brothers.[8] Thus, even though the DNA testing satisfies the 99% statutory probability requirement,
it does not identify specifically which of A~’s brothers is K~’s father. Rather, it
shows only a familial relationship between A~ and K~; therefore, it does not rule
out the possibility of one of the four other potential B3~ brothers being K~’s biological
father.[9]
In summary, the paternal uncle DNA report does not rebuttably identify the number
holder as K~’s father given the existence of the number holder’s other brothers. Because
the testing and report do not meet all of the Texas statutory requirements for genetic
testing, the paternal uncle DNA report would not require a court to adjudicate the
number holder as K~’s father. See Tex. Fam. Code Ann. § 160.631(c) (“the man identified
as the father of a child under Section 160.505 shall be adjudicated as being the father
of the child.”). Our analysis does not end here, however. If a court finds that genetic
testing does not identify (or exclude) a man as the child’s father, the test results
along with other evidence are still admissible to adjudicate the issue of paternity.
Tex. Fam. Code Ann. § 160.631(e); Tex. Estates Code Ann. § 204.153. While Section
160.631(e) of the Texas Family Code does not speak to the standard of proof, Texas
courts have determined that under Texas law, a child’s paternity after the death of
the father is established under the clear and convincing evidence standard of proof.
See In re Interest of A.S.L., 923 S.W.2d 814, 818 (Tex. App. – Amarillo 1996, no writ)
(applying the clear and convincing evidence standard of proof to determine paternity
under the Texas Family Code after the father’s death). Additionally, as noted above,
section 201.052(c) of the Texas Estates Code expressly provides that for determining
the right to inherit, a probate court may make a paternity determination based on
clear and convincing evidence of paternity. Thus, we next consider whether the totality
of the evidence, including the paternal uncle DNA report, satisfies the clear and
convincing standard of proof to establish that the number holder is K~’s father and
that K~ has the right to inherit from the number holder as his child.
3. Whether a Texas Court Would Find Clear and Convincing Evidence that the
Number Holder is
K~’s
Father
Clear and convincing evidence is “the measure or degree of proof that will produce
in the mind of the trier of fact a firm belief or conviction as to the truth of the
allegations sought to be established.”[10] Villery v. Solomon, 16 S.W.3d 106, 107 (Tex. App. – Houston [1st Dist.] 2000, no
pet.); see Tex. Fam. Code Ann. § 101.007. In cases involving proof of paternity, the
fact finder must decide in each case whether the evidence presented is clear and convincing.
Garza v. Maverick Mkt., Inc., 768 S.W.2d 273, 275-76 (Tex. 1989) (holding that in
a wrongful death action an alleged child must have the opportunity to prove by clear
and convincing evidence that he is the deceased’s child). In Garza, the Texas Supreme
Court listed some of the potential evidence an alleged child may use to prove paternity,
including: blood or genetic tests; evidence of physical resemblance of the child to
the alleged father; prior statements by the alleged father that he was the father
of the child, or other admissions by him bearing on his relationship to the child;
and evidence of periods of conception and gestation. Id. at 276; see also In re Interest
of B.M., 570 S.W.2d 493, 501 (Tex. Civ. App.—Texarkana 1978, no writ). However, the
Texas Supreme Court concluded that it could not predict whether some or all of this
evidence would rise to the level of clear and convincing evidence in any particular
case. Id. Therefore, we must determine whether a Texas court would find that the totality
of the evidence provided here satisfies the clear and convincing evidence standard
to establish that K~ is the number holder’s child.
We addressed the paternal uncle DNA report in detail above. The paternal uncle DNA
report establishes a clear familial relationship between the paternal uncle, A~ (the
number holder’s brother), and K~, but it does not identify which of A~’s brothers
is K~’s father. Thus, a Texas court would likely need DNA testing of the number holder’s
four other brothers or other evidence regarding B~’s relationship with the brothers
to rule them out as K~’s father if the court were to decide the issue based upon the
paternal uncle DNA report alone.[11] See Tex. Fam. Code Ann. §§ 160.505(c), 160.508; Tex. Estates Code Ann. § 204.054.
Here, however, B~ has provided other evidence to support the parent-child relationship
as to K~ and the number holder. Importantly, nothing in this other evidence suggests
one of the other brothers is instead K~’s father.
There are documents dated around K~’s birth and from prior to the number holder’s
death that are consistent with B~’s contention that the number holder (and not one
of the brothers) was K~’s father and reflect that she undertook actions consistent
with this contention during the number holder’s lifetime. B~ claims that the number
holder lived with—and supported—her while she was pregnant and shortly after K~’s
birth. She provided an email from a next-door-neighbor, T2~, from July 2011 confirming
that the neighbor witnessed and overheard arguments between B~ and “her partner,”
the number holder, while B~ was pregnant and after K~ was born. An SSA message dated
the week after K~’s birth in April 2011 indicates that B~ initially gave K~ the number
holder’s last name as she requested a social security card for “K~.” Although this
does not rule out one of the other B3~ brothers as K~’s father, it supports B~’s assertion
that the number holder was K~’s father.
B~ did not identify the number holder as K~’s father on his birth certificate,[12] nor did she seek state-sponsored support for K~ from the number holder. However,
B~ alleged that she did not seek such support or put the number holder’s name on official
documents due to a potential for abuse by the number holder, which the Washington
DSHS determined was good cause for a no contact order. Additionally, B~ claims that
the number holder refused to sign K~’s birth certificate because he did not want to
pay support, and not because he denied paternity.
The Washington DSHS documentation from 2011 and 2012 confirms that shortly after K~’s
birth, B~ identified to DSHS that the number holder (and not one of his brothers)
was K~’s father, reported to DSHS that she had to leave the State due to alleged domestic
violence by the number holder, and requested that DSHS find that she had good cause
in not helping the DSHS Division of Child Support try to collect child support from
the number holder due to his threats of violence. A June 2011 police call report reflects
that when B~’s grandmother called the police to report that she was afraid that B~’s
“baby’s father” might have hurt B~, she identified the number holder as the baby’s
father. This police call report shows that B was going to seek child support from
the father—the number holder—and that made him angry.
There are several pieces of evidence indicating the number holder’s recognition that
K~ was his child during this lifetime. A May 2011 greeting card wishes B~ a happy
Mother’s Day and is signed, “Love T~ + K~.” B~ claims the number holder signed and
gave her the greeting card.[13]
In an August or September 2011 Facebook post, the number holder appears to acknowledge
K~’s paternity by “sharing” B~s photo album containing pictures of K~ and signing
a comment to K~, “your dad.” A May 2012 email exchange between Washington DSHS and
B~ reflects that she reported that the number holder left her a voicemail message
on May 28, 2012, in which he stated, in reference to K~, “You can’t keep my son away
from me.”
Finally, the number holder’s funeral program implies that he was K~’s father: “T~
leaves to cherish his memory, B2~, M2~, M3~, K~ and a Grand Daughter K2~.” Although
there is no indication that the number holder took any part of writing his obituary
and while it does not explicitly list K~ as his child, it implies that K~ is his child
because there is evidence that at least one other child in that list, M2~, is the
number holder’s child. B~ also claims that she included K~ in the obituary because
the number holder admitted paternity orally to his brother, A~, as well as “to friends
and family.” There is no information that any one of the other brothers identified
in the funeral program is claiming that he, instead of the number holder, is K~’s
father.
Thus, the totality of these documents reflects actions B~ and the number holder took
during his lifetime that are consistent with B~’s current claim that the number holder
(and not a brother) is K~’s father. The record reflects multiple instances where the
number holder appears to have admitted paternity (orally to B~ and his family, on
social media, and in a greeting card given to B~). Perhaps more importantly, there
is no evidence that the number holder ever denied paternity and no evidence that one
of his brothers claimed paternity as to K~.[14]
Although B~’s statements are not all supported by documentary evidence, Texas courts
have assigned weight to the mother’s statements and found such corroborating evidence
unnecessary to meet the clear and convincing standard for paternity determinations
under the Estates Code. See, e.g., Villery, 16 S.W.3d at 108 (finding clear and convincing
evidence of paternity despite conflicting evidence because statements supporting paternity
were found credible); McNary v. Khan, 792 S.W.2d 126, 127 (Tex. App.—Dallas 1990,
no writ) (considering mother’s statements of paternity as one of the factors in considering
whether a court could find paternity by clear and convincing evidence). Moreover,
Texas courts have indicated that an inheritance statute such as the one at issue here
should be construed liberally “to effectuate its purpose.” Matherson v. Pope, 852
S.W.2d 285, 290 (Tex. App.—Dallas 1993, writ denied); see also Tipps, 768 F.Supp.
at 580 (“While proof under clear and convincing evidence must weigh heavier than merely
the greater weight of credible evidence, there is no requirement that evidence must
be unequivocal or undisputed.”).
Accordingly, we believe the totality of the evidence—including B~’s statements, the
number holder’s acknowledgements, the paternal uncle DNA report clearly showing a
familial relationship between K~ and the number holder’s brother A~, the multiple
reports in support of the DSHS no contact order referencing the number holder as K~’s
father, and the implication of a parent-child relationship between the number holder
and K~ in the number holder’s funeral program—would instill a firm belief or conviction
in a fact finder that the number holder was K~’s biological father. Therefore, we
believe a Texas court would find that K~ would inherit from the number holder as his
child under Texas intestate succession laws. See Tex. Estates Code Ann. § 201.052(a)(1),
(2), (c), (d). As a result, SSA may reasonably conclude K~ is the number holder’s
natural child under section 216(h)(2)(A) of the Act for purposes of his application
for child’s insurance benefits on the number holder’s record.
C. Effective Date of Parent-Child Relationship
Agency policy distinguishes among legitimate, illegitimate, and legitimated children
and differences with the effective date of the parent-child relationship, but Texas
law does not use the terms legitimate or illegitimate or provide a mechanism for legitimating
a child. See POMS GN 00306.001(H) (defining “illegitimate child”), (M) (defining “legitimate child”), (N) (defining
“legitimizing event”), GN 00306.050(A)(3) (“a child legitimated after birth is considered to be legitimate from birth”),
GN 00306.055(A)(1) (distinguishing between a legitimated child and an illegitimate child with
inheritance rights), (3) (“An act/event conferring inheritance rights generally has
effect only from the date of such act/event. . . . If a provision . . . shows that
a State law confers inheritance rights based on an adjudication of paternity (but
does not legitimate the child), and the provision is effective prospectively only,
the claimant’s status as the NH’s child is established effective with” the dates of
the evidence submitted.). Once the parent-child relationship is established under
Texas law, the effective date of the parent-child relationship is established as of
the child’s birth regardless of the parents’ marital status and regardless of the
method or type of evidence establishing the parent-child relationship. See Tex. Estates
Code Ann. § 201.052; Tex. Fam. Code Ann. § 160.202. Thus, the effective date of the
parent-child relationship between the number holder and K~ is K~’s date of birth,
April xx, 2011.