Texas law allows a child to inherit property from her 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, 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 Z~ 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.[6] 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, there is no court order declaring the number holder to be Z~'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 Z~ has a right to paternal inheritance
from the number holder under section 201.052(a)(1), (2), (c), and (d), Z~ must do
so under the standard of proof a Texas court would use to determine paternity.
2. Whether a Texas Court Would Find the Paternal Grandparent DNA Report Rebuttably
Identifies the Number Holder as Z~'s Father Such that He Must be Adjudicated as the
Father
B~has provided a paternal grandparent DNA test to support Z~'s relationship with the
number holder. Thus, we first consider the standard of proof under Texas law as to
genetic tests.
a. 99% Probability of Paternity
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.
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 parents. See Tex. Fam. Code Ann.
§ 160.508(a)(1); Tex. Estates Code Ann. § 204.054; see also Tipps v. Metro. Life Ins.
Co., 768 F.Supp. 577, 579-80 (S.D. Tex. 1991) (after death of purported father, a
Texas court may draw inferences from grandparent DNA testing to determine paternity).
Texas law does not explicitly require that both purported paternal grandparents participate
in DNA testing for the court to determine paternity. See Tex. Fam. Code Ann. § 160.508(a).
Thus, the DNA test of only one purported grandparent may, in certain instances, be
sufficient to establish a parent-child relationship with the deceased. See Tex. Fam.
Code Ann. §§ 160.505(a), 160.508(a)(1); Tex. Estates Code Ann. § 204.054. Research
has also revealed no Texas statutes or case law indicating that the required percentage
of probability of paternity is less for single grandparentage testing. Thus, we will
apply the same 99% probability threshold.
Here, as Texas law allows because the number holder is deceased, the evidence includes
grandparent DNA testing. With regard to the grandparent DNA testing, P2~, the number
holder’s mother, but not his father, underwent grandparent DNA testing. The DNA report
for P2~ and Z~ established a 99.96% probability of relatedness between P2~ (the alleged
paternal grandmother) and Z~. See Tex. Fam. Code § 160.505(a)(1) (requiring paternity
to be established at least at 99% probability). However, even though this satisfies
the probability requirement, the grandparent DNA report does not identify the number
holder specifically as Z~'s father. Rather, it shows only a familial relationship
between P2~ and Z~. B~reported to the agency that the number holder did not have any
brothers. P2~'s report of contact does not reflect any information as to whether the
number holder was her only son. It is possible that a Texas court would find this
99.96% probability of relatedness between the number holder’s mother, P2~, and Z~
supportive of the number holder’s paternity of Z~ in light of B~'s statement alone
that the number holder had no brothers. However, it is also possible that a court
would require at a minimum a statement from P2~ signed under penalty of perjury confirming
that she had no other sons. Although the grandparent DNA test report could satisfy
the probability provisions of the Texas Family Code, the DNA test report and chain
of custody documentation do not satisfy Texas law requirements to establish reliability
and authenticity, as discussed next.
b. Reliability and Authenticity Requirements
In addition to the 99% probability of paternity threshold, 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).
P2~'s grandparent DNA report did not meet all of the Texas Family Code’s reliability
and authenticity requirements. See Tex. Fam. Code Ann. § 160.504(a), (b)(1)-(5).
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). DNA Diagnostics
Center is accredited by the AABB.
Second, the genetic testing results must be in a record and a laboratory designee
must sign the DNA report “under penalty of perjury” in order for the report to be
admissible as self-authenticating. Tex. Fam. Code Ann. § 160.504(a). J~, Laboratory
Director, signed the DNA test report. However, J~ did not declare that she signed
the report “under penalty of perjury.” Because the grandparent DNA test report was
not signed under penalty of perjury as mandated by the statute, it would not be admissible
evidence on its own in a Texas court to establish paternity. See Tex. Fam. Code Ann.
§ 160.504(a) (stating that genetic reports must be signed under penalty of perjury);
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”).
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). Here, the paternal grandparent DNA report
did not establish a reliable chain of custody of genetic testing pursuant to the statute
in order to be admissible without testimony. See Tex. Fam. Code Ann. § 160.504(b)(1)-(5).
With respect to the chain of custody for the DNA specimen from P2~, the chain of custody
includes P2~'s photograph and signature, and this page is signed by A~, who collected
P2~'s DNA specimen. The form also contains the date and place where A~ collected the
specimens; and the name of person who received P2~'s DNA specimen. However, the chain
of custody form for Z~'s DNA specimen does not indicate what happened to the specimen
after S~ collected it. Although a person signed a separate, unnamed form on May 28,
2020, affirming that he or she received a specimen at DNA Diagnostics Center and the
specimen container was received sealed and secure, this form contains a space for
the printed name and signature of the person who received the specimen but there is
no printed name on the form and the signature is illegible.[7] This form also does not contain any identifying information specific to Z~'s DNA
specimen. In addition, the photograph included in the documentation does not identify
who is in the picture. Therefore, the paternal grandparent DNA test report does not
document a reliable chain of custody, as required by law for admissibility. See Tex.
Fam. Code Ann. § 160.504(b)(1)-(3), (5). See Tex. Fam. Code Ann. § 160.504(b)(1)-(5)
(providing that documentation from testing laboratory must be sufficient to establish
a reliable chain of custody of genetic testing).
c. The Paternal Grandparent DNA Report Does Not Rebuttably Identify the Number Holder
as Z~'s Father
In summary, the paternal grandparent DNA report establishes a 99.96% probability of
relatedness between P2~ and Z~, but there is no evidence from P2~ as to whether she
has any other sons. The parental grandparent DNA test report was not signed “under
penalty of perjury,” and the DNA test report does not comport with the proper chain
of custody guidelines required for admissibility. Because the testing and report do
not meet all of the Texas statutory requirements for genetic testing, the paternal
grandparent DNA report does not rebuttably identify the number holder as Z~’s father
and would not require a court to adjudicate the number holder as Z~'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. See Tex. Estates Code Ann. § 201.052(c), (d). Thus,
we next consider whether the totality of the evidence, including the paternal grandparent
DNA report, satisfies the clear and convincing standard of proof to establish that
the number holder is Z~'s father and that Z~ 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 Z~ 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.”[8] 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 Z~ is the number holder’s child.
Although a Texas court will consider grandparent DNA test results when deciding whether
the evidence in a particular case is clear and convincing, the test results must demonstrate
by clear and convincing evidence that the number holder was or was not Z~’s biological
father. See Tipps, 768 F.Supp. at 579-80. As discussed above, the grandparent DNA
test report was not signed under penalty of perjury and did not meet all of the Texas
Family Code’s reliability and authenticity requirements. See Tex. Fam. Code Ann. §
160.504(a), (b)(1)-(5). Additionally, the grandparent DNA test report establishes
only relatedness between P2~ and Z~, and there is no evidence from P2~ confirming
the number holder is her only son. Thus, the paternal grandparent DNA test report
cannot alone constitute clear and convincing evidence that the number holder was Z~'s
biological father.
We believe the other evidence submitted also does not meet the clear and convincing
standard. Z~'s Texas birth certificate does not support the paternity claim as B~
did not identify the number holder as Z~'s father on her birth certificate. B~ has
not offered any statements or other types of written evidence from the number holder
indicating he believed himself to be Z~'s father. B~ has offered only her statements
and P2~ has provided statements to the agency over the phone. However, statements
from B~ and P2~ to the agency are conflicting, and P2~ has not confirmed that the
number holder is her only son.
B~ stated that she became pregnant with the number holder’s child before he died on
September XX, 2017. Z~ was born on June XX, 2018, which is 8 months and 20 days after
the number holder’s death. B~ also stated the number holder knew she was pregnant
because they had discussed it. She also stated she was living with the number holder
when he died, and that she never had sexual relations with anyone else other than
the number holder. However, B~ has offered conflicting statements about when she told
the number holder she was pregnant with his child. For example, B~ initially told
a SSA field office employee that she was two months pregnant when she told the number
holder that she was pregnant with his child. When questioned how this could be possible
when Z~ was born nine months after the number holder died, B~ stated that she remembered
telling him that she thought she was pregnant, but she had not taken a pregnancy test
at the time. B~ also initially stated that the number holder did not tell his mother
that she was pregnant, and that the number holder’s mother did not even know B~ or
know that she was pregnant. Yet, this statement is at odds with P2~'s statement that
the number holder told her shortly before he died that B~ was pregnant with his child,
and that she knew B~ was living with the number holder because she saw B~ when she
visited the number holder. As noted, P2~ did not provide any information as to whether
she has other sons. Additionally, there is no other evidence offered on this point,
such as a funeral program or obituary.
In summary, the statements from B~ and P2~ contain conflicting information; the parental
grandparent DNA report was not signed under penalty of perjury and contained chain
of custody deficiencies undermining its reliability; and there is no evidence that
the number holder acknowledged or believed that Z~ was his child, other than what
P2~ claims the number holder orally told her. Further, P2~ did not inform the agency
as to whether the number holder was her only son. Given the inconsistencies in the
witness statements, the lack of other evidence showing that B~and the number holder
were living together before the number holder’s death, and the lack of evidence corroborating
B~'s claim that P2~ did not have other sons, we believe a Texas court would find that
the totality of the evidence did not instill a firm belief or conviction that the
number holder was Z~’s biological father. See Tipps, 768 F. Supp. at 579 (noting that
the clear and convincing evidence standard requires greater proof than the “preponderance”
standard, but less proof than the “beyond a reasonable doubt” standard used in criminal
proceedings). For these reasons, we believe a Texas court would find that Z~ has not
proven by clear and convincing evidence that the number holder is her father.[9]
Therefore, we believe a Texas court would find that Z~would not 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 Z~ is not
the number holder’s natural child under section 216(h)(2)(A) of the Act for purposes
of her application for child’s insurance benefits on the number holder’s record.