Under section 216(h)(3) of the Social Security Act (Act), B~ is deemed to be the NH’s child. The NH acknowledged parentage in writing that he is her biological parent, and he was living with and supporting the Claimant at the time the Claimant’s mother filed the child application. Also, a DNA Paternity Test showed a 99 percent probability that the NH is the Claimant’s biological father. The Claimant is the NH’s child and is entitled to child’s benefits on the NH’s account. Furthermore, it is our opinion that an adjudicator could find good cause to reopen the determinations on Claimant’s previous Title II applications for benefits.

QUESTION PRESENTED

You have asked for an opinion as to whether the claimant, B~, is entitled to child’s benefits on the account of A~ (NH) as the NH’s child. B~’s biological mother, C~, was married to G~ at the time B~ was conceived, but all parties agree that B~ was conceived in an extramarital affair between C~ and the NH.

OPINION

Under section 216(h)(3) of the Social Security Act (Act), B~ is deemed to be the NH’s child because the NH acknowledged B~’s parentage in writing, he is the biological parent, and he was living with and supporting B~ at the time C~ filed B~’s application. Therefore, if found to meet the other requirements, B~ is entitled to child’s benefits on the account of the NH. Additionally, an adjudicator could find good cause to reopen the determinations on B~’s previous Title II applications for auxiliary benefits.

BACKGROUND

The NH has been receiving Social Security Disability benefits since May 1999. C~ and G~ were married in Sullivan County, New York on June 17, 2000. According to a statement by the NH, he and C~ began a relationship in January 2012. According to C~, she lived with G~ until April 2012, when she first moved in with her sister, then later moved in with the NH. The claimant was born on August in Saratoga Springs, New York, while C~ and G~ were still married. B~’s Certificate of Birth did not record a father’s name, but her last name is the NH’s.

On September 19, 2012, C~ filed for child’s benefits on B~’s behalf on the NH’s record. In a signed statement dated November 29, 2012, the NH stated he is B~’s father. The NH stated he is not listed as the father on B~’s birth certificate because the staff at Saratoga Hospital refused to allow him to sign an acknowledgment of paternity statement because C~ was still legally married to G~. On November 29, 2012, C~ also indicated in a signed statement that the NH is B~’s father. B~’s application was denied on April 12, 2013, due to insufficient documentation to prove the relationship between B~ and the NH.

C~ again filed an application for B~ on August 6, 2013, and this application was denied on October 24, 2013, for the same reason.

On November 19, 2013, as part of his and C~’s divorce proceedings, G~ signed an affidavit to the New York State Supreme Court, Ulster County, stating that he is not B~’s biological father. He further stated that he had a vasectomy in 2007 and was not capable of fathering children. On December 11, 2013, also as part of divorce proceedings, C~ and G~ executed a Stipulation and Property Settlement Agreement (Agreement). The Agreement states that G~ is not B~’s father. On December 29, 2013, C~ stated that she, B~, and the NH had been living together since April 2012 and the NH “has been supporting B~ the best he can, which isn’t much due to his disability.”

C~ filed a new application on behalf of B~ on February 11, 2014, and submitted additional evidence with the application.

Results of an undated DNA Paternity Test showed a 99 percent probability of B~’s paternity by the alleged father, “A~.” C~ stated that the DNA test was done at her home. She presented no evidence of the identity of the parties who took the test or of an unbroken chain of custody of the DNA samples.

ANALYSIS

A. Entitlement to Auxiliary Benefits

For purposes of child’s benefits under the Act, a “child” is defined as the child, legally adopted child, stepchild, or, in limited circumstances, grandchild, of an insured individual. 42 U.S.C. §§ 402(d), 416(e). To determine whether an applicant is the child of an insured individual, the Commissioner applies the law governing the devolution of intestate personal property applied by the courts of the State in which the insured individual was domiciled at the time the claimant files an application. 42 U.S.C. § 416(h)(2)(A). If the claimant can inherit as the NH’s child under state intestacy law, she is considered the NH’s “child” under sections 216(e) and 216(h)(2)(A) of the Act. 42 U.S.C. §§ 402(d), 416(e). Because the NH was domiciled in New York when the claimant’s application was filed, we would look to New York’s law of intestate succession in determining B~’s status as the child of the NH for purposes of section 216(h)(2)(A) of the Act. 42 U.S.C. §§ 402(d), 416(e); 20 C.F.R. §§ 404.355(a)(1), 404.355(b).

A child who cannot inherit from the insured under State intestacy law may be eligible for child’s insurance benefits in other ways. First, the applicant will be deemed a “child” under section 216 of the Act if he is the child of the wage earner and his parents went through a marriage ceremony that would have been valid but for a legal impediment. 42 U.S.C. 416(h)(2)B); 20 C.F.R. 404.355(a)(2). This provision is not applicable here. An applicant will also be considered a “child” if he is a child of the wage earner and (1) the wage earner has acknowledged parentage in writing, been decreed a parent by a court, or been ordered to pay child support; or (2) there is satisfactory evidence that the wage earner is the parent of the applicant and the wage earner was, living with or contributing to the support of the applicant at the time the applicant filed an application for benefits. 42 U.S.C. § 416(h)(3)(B); 20 C.F.R. § 404.355(a)(3)-(4); Program Operations Manual System (POMS) GN 00306.100. The child may qualify under this provision of the Act even if she is presumed to be the legitimate child of another person under State law. POMS GN 00306.100.

B. Intestate Succession Under New York Law

New York’s intestacy law provides that the “issue” of a decedent are eligible to inherit the decedent’s property. N.Y. Est. Powers & Trusts Law § 4-1.1 (McKinney 2014). State law defines “issue” as descendants in any degree from a common ancestor, including adopted children. N.Y. Est. Powers & Trusts Law § 1-2.10 (McKinney 2014).

New York law presumes that a child born to a married woman has been fathered by her husband. In re Fay’s Estate, 375 N.E.2d 735, 737 (N.Y. 1978), app. dism’d sub nom. Buck v. Hunter, 439 U.S. 1059 (1979), reh’g den. 440 U.S. 968 (1979). New York courts have described this presumption as “one of the strongest and most persuasive known to the law….” In re Findlay, 170 N.E. 471, 472 (N.Y. 1930) (citations omitted). However, the presumption of legitimacy may be rebutted by clear and convincing evidence to the contrary. Marilene S. v. David H., 882 N.Y.S. 2d 155, 157 (N.Y. App. Div. 2009) (citations omitted). To be “clear and convincing,” evidence must be sufficient to show that the application of the presumption of legitimacy under the particular circumstances of the case would be “entirely incompatible with ‘common sense and reason.’” In re Frazier, 859 N.Y.S. 2d 902, 902 (N.Y. Surr. 2008) (unreported opinion) (citations omitted). In Frazier, the court held that the clear and convincing standard required evidence establishing that it is “highly probable” that a mother’s husband is not the child’s biological father. Id. (citation omitted).

Such evidence may include non-scientific evidence sufficient to overcome the presumption as wholly incompatible with reason and common sense. Id.. Examples of evidence that is acceptable to overcome the presumption of legitimacy include proof that the spouses did not have access to each other at or around the time of conception, genetic testing establishing that the husband is not the biological father, or proof that the husband was physically incapable of fathering a child. Id., n. 1 (citations omitted).

However, New York follows Lord Mansfield’s Rule, which prohibits the use of the testimony of either a husband or wife to non-access to rebut the presumption of legitimacy of a child born within their marriage. Comm’r of Pub. Welfare ex rel. Vincent v. Koehler, 30 N.E.2d 587, 590 (N.Y. 1940); Richard B. v. Sandra B. B., 625 N.Y.S. 2d 127, (N.Y. App. Div. 1995); State ex rel. H. v. P., 457 N.Y.S. 2d 488, 491 (N.Y. App. Div. 1982); see also POMS GN 00306.015 (SSA follows state rules including Lord Mansfield’s Rule); GN 00306.025 (SSA will not accept evidence contrary to Lord Mansfield’s Rule), and GN 00306.026 (New York follows Lord Mansfield’s Rule). New York has created a statutory exception to Lord Mansfield’s rule for paternity proceedings, allowing the mother and her husband to testify to non-access. N.Y. Fam. Ct. Act §§ 522, 531 (West 2015). ^[1] Based on the evidence provided and our review of New York law, we believe that insufficient evidence has been presented to rebut the presumption of legitimacy. Here, the evidence provided indicates that C~ was married to G~ at the time of the claimant’s conception. Therefore, the presumption of legitimacy under New York law applies and must be rebutted by clear and convincing evidence. However, because New York courts apply Lord Mansfield’s Rule, neither C~ nor G~ could testify to non-access to rebut the presumption that B~ was child of the marriage. Comm’r of Pub. Welfare ex rel. Vincent, 30 N.E.2d at 590; Richard B., 625 N.Y.S. 2d 127; State ex rel. H., 457 N.Y.S. 2d at 491; see also POMS GN 00306.015 and GN 00306.026. Excluding their testimony, the evidence that B~ was not the NH’s child consists of (1) the absence of a father’s name on her birth certificate and the fact that B~ has the NH’s last name, (2) the statement by the NH that he is B~’s father, and (3) a DNA test taken at home, with no evidence of the identity of the parties or an unbroken chain of custody by parties other than C~. Essentially, we have only the NH’s statement, which we do not believe is sufficient to meet the “clear and convincing” standard set forth by New York law. See C~ B. v. Alfred W.D., 418 N.Y.S. 2d 271, 273 (Fam. Ct. N.Y. Cty 1979) (In case where father moved to vacate two orders of filiation adjudging him to be the father of children born out of wedlock, court held: “Without additional evidence, an admission of paternity does not meet burden of proving paternity by clear and convincing evidence to the point of entire satisfaction.”). Further, by C~’s own statement, C~ lived with G~ until April 2012, well past the point of B~’s conception.

Although New York has created a statutory exception to Lord Mansfield’s rule for paternity proceedings, we do not believe that exception applies here. See NY Fam. Ct Act § 531. Significantly, there is no action to establish paternity or to compel support. See Fam. Ct Act, § 522 (permitting proceedings for two purposes: to establish the paternity of a child and to compel support). Therefore, the record does not contain clear and convincing evidence to rebut the presumption of legitimacy under New York law and B~ is not entitled to inherit as the NH’s child under New York’s intestacy law.

C. Eligibility under section 216(h)(3) of the Act

Our analysis does not end with a finding that B~ is not entitled to inherit as the NH’s child under New York intestacy law. As noted above, an applicant will also be considered a “child” if he is a child of the wage earner and (1) the wage earner acknowledged parentage in writing, had been decreed a parent by a court, or been ordered to pay child support; or (2) there is satisfactory evidence that the wage earner is the parent of the applicant and the wage earner was, living with or contributing to the support of the applicant at the time the applicant filed an application for benefits. 42 U.S.C. § 416(h)(3)(B); 20 C.F.R. § 404.355(a)(3)-(4); POMS GN 00306.100.

Here, B~ meets both subsections of section 216(h)(3)(B) of the Act. 42 U.S.C. § 416(h)(3)(B). First, on November 29, 2012, the NH acknowledged parentage in writing. Second, the evidence in the record shows that the NH is B~’s biological father. On November 19, 2013, as part of his and C~’s divorce proceedings, G~ signed an affidavit to the New York State Supreme Court, Ulster County, stating that he is not B~’s biological father. He further stated that he had a vasectomy in 2007 and was not capable of fathering children. On December 11, 2013, also as part of divorce proceedings, C~ and G~ executed the Agreement, which also states that G~ is not B~’s father. Although the probative value is low, results of an undated DNA Paternity Test showed a 99 percent probability of B~’s paternity by the alleged father, A~. Third, the NH was living with or contributing to the support of B~ at the time B~ filed her application for benefits. Specifically, on December 29, 2013, C~ stated that she and the NH had been living together since April 2012 and the NH “has been supporting B~ the best he can, which isn’t much due to his disability.”

In sum, the NH acknowledged parentage in writing, there is satisfactory evidence that the NH is B~’s father and the NH was living with and contributing to B~’s support at the time B~ filed an application for benefits. Finally, B~ may qualify under this provision of the Act even though she is presumed to be the legitimate child of G~ under State law. POMS GN 00306.100.

D. Reopening the prior applications

The Commissioner’s regulations allow for the reopening of a prior Title II determination within 12 months of the date of the notice of the initial determination, for any reason. 20 C.F.R. § 404.988(a); POMS GN 04001.010. The Commissioner’s regulations also allow for the reopening of a prior Title II determination within 4 years of the date of the initial determination if there is “good cause.” 20 C.F.R. § 404.988(b). “Good cause” exists when, inter alia, “new and material evidence” is furnished. 20 C.F.R. § 404.989(a); POMS GN 04010.001. POMS further defines new and material evidence as evidence that was not part of the claim, disability, or earning discrepancy file when the final determination or decision was made but relates back to the oriG~l determination or decision and shows facts that would result in a conclusion different from that oriG~lly reached had the new evidence been introduced or available at the time of the oriG~l determination. POMS GN 04010.030A.

The time for reopening an initial determination is counted from the date of the notice of the initial determination. POMS GN 04001.040B. The date of the initial determination of B~’s first application is April 12, 2013. The applicable period of reopening ends on the first or the fourth anniversary of April 12. 2013. The date of the initial determination of B~’s second claim is October 24, 2013, so the applicable period of reopening for that determination ends on the first or fourth anniversary of October 24, 2013. In order for the agency to reopen a determination or decision, the party to the determination or decision must file an affirmative action in writing within the applicable time limit. POMS GN 04001.050A.Alternatively, the agency may take some affirmative action in writing within the applicable time limit questioning the correctness of the determination. POMS GN 04001.050A. An affirmative action in writing is a written statement made either by the claimant or the agency which indicates that there is a basis for disagreement with the correctness of a determination or decision. POMS GN 04001.050. ^[2] One component with the authority to reopen is the regional office. POMS GN 04001.020A.

Here, the evidence provided with the most recent application is new and material, and therefore the prior Title II determinations could be reopened within 4 years of the date of the initial determinations. That evidence includes the following:

• •

  G~’s November 19, 2013 affidavit, stating that he is not B~’s biological father and that he had a vasectomy in 2007 and was not capable of fathering children.

• •

  The December 11, 2013 Agreement, which states that G~ is not B~’s father.

• •

  C~’s December 29, 2013 statement that she, B~, and the NH had been living together since April 2012 and the NH “has been supporting B~ the best he can, which isn’t much due to his disability.”

• •

  Results of an undated DNA Paternity Test showing a 99 percent probability of B~’s paternity by the alleged father, “A~.”

The evidence was not part of B~’s prior applications for benefits, and it relates back to the period adjudicated. The evidence shows that NH is a biological parent to B~ and that he had lived with and supported first C~, when she was pregnant with B~, then C~ and B~ after B~ was born. This evidence would satisfy the requirements of section 216(h)(3)(B) of the Act, and therefore shows facts that would have resulted in a different conclusion had the evidence been introduced at the time of the prior determinations. Accordingly, the evidence is new and material and would constitute good cause for reopening the prior applications under 20 C.F.R. § 404.988(b); POMS GN 04010.001.

CONCLUSION

Under section 216(h)(3) of the Act, B~ is deemed to be the NH’s child because the NH acknowledged B~’s parentage in writing, he is her biological parent, and he was living with and supporting B~ at the time C~ filed B~’s application. Therefore, if she meets all of the other requirements, B~ is entitled to child’s benefits on the NH’s account. Furthermore, it is our opinion that an adjudicator could find good cause to reopen the determinations on B~’s previous Title II applications for benefits.

We believe that the evidence meets the statutory and regulatory requirements to show that C~ is the child of the NH under sections 216(h)(3)(C)(i)(I)-(III) of the Act, and therefore entitled to survivor’s benefits. As for G~, she may be entitled to survivor’s benefits on the record of NH under section 216(h)(3)(C)(i)(I)-(III) of the Act because she meets the statutory and regulatory requirements. But consistent with POMS GN 00306.125B.1.c, the agency must make a factual finding as to G~’s biological parentage because her birth certificate lists M~ as her father.

QUESTION PRESENTED

Whether C~ and G~, who were born while their mother J~ was married to M~, are entitled to survivor’s benefits on the record of their alleged biological father, E~ (the Number Holder or NH). 

OPINION

C~ is entitled to survivor’s benefits on the record of the NH because he is deemed to be the child of the NH under section 216(h)(3)(C)(i)(I)-(III) of the Social Security Act (the Act). G~ may be entitled to survivor’s benefits on the record of NH under section 216(h)(3)(C)(i)(I)-(III) of the Act because she meets the statutory and regulatory requirements of the Act, but the agency must make a factual finding as to her biological parentage because G~’s birth certificate lists M~ as her father. 

BACKGROUND

J~ and M~ were married on June 10, 2000 and they remain married.  J~ states that they were separated for five and a half years, during which time, the two children were born.  During their separation, J~ lived with E~ in M~, New York and M~ lived in Port Jervis, New York. 

In November, C~ was born in Suffern, NY to J~.  No father was listed on the birth certificate.  In January 2004, J~ initiated paternity proceedings against the NH in the Orange County Family Court (Family Court) concerning the paternity of C~.  M~ was notified of the hearings and appeared at the proceedings, but he did not testify.  J~ and the NH appeared and testified.  The NH admitted that C~ was his child.  On February 4, 2004, the Family Court ordered the NH to pay $50.00 per week in support for C~ after the NH failed to contest the support proceeding.  On March 8, 2004, the Family Court issued an Order of Filiation finding that the NH was the father of C~ on the basis of NH’s admission of paternity. 

In September, G~ was born in Middletown, NY to J~.  M~ was listed on the birth certificate as the father.  In May 2009, J~ initiated paternity proceedings against the NH in Orange County Family Court concerning the paternity of G~.  M~ was notified of the proceedings, but did not appear at the proceedings.  J~ and the NH appeared and testified.  The NH admitted that G~ was his child.  On the basis of that testimony, the Family Court issued an Order of Filiation on May 5, 2009 finding that the NH was the father of G~.  On May 12, 2009, the Family Court modified its original G~’s Order of Support to add G~ as a child for whom the NH was responsible for supporting.  The Family Court modified the NH’s child support obligation to $0.00 per week because he was unemployed.

J~ states that the children know that the NH is their biological father, but that M~ has always acted as a father toward them. 

On March 15, 2011, the NH filed for Social Security Disability benefits.  He listed C~ and G~ as his children on the application.  The NH’s application was taken as a telephone claim and was an attested application. The NH was approved for Social Security Disability benefits on April 22, 2011.  The NH died on September 18, 2011, while domiciled in New York.  On October 12, 2011, J~ filed for survivor’s benefits on behalf of C~ and G~ on the record of the NH. 

ANALYSIS

A. Federal Law

To qualify for child’s benefits on the earnings record of an insured individual, an applicant must be the “child” of the insured individual. The child must also (1) apply for child’s insurance benefits; (2) at the time such application is filed be unmarried and either be under age 18 or be under age 19 and a full-time elementary or secondary school student, or over 18 and under a disability which began before he attained the age of 22; and (3) be dependent on the NH.  Act § 202(d)(1); 20 C.F.R. § 404.350. See Act §  202(d)(1); 20 C.F.R. § 404.350(a) (2011). “Child” includes the natural child of an insured individual.  See Act § 216(e); 20 C.F.R. § 404.355 (2011).  First, the Act provides that in determining whether a claimant will be deemed the surviving child of an insured individual, the Commissioner shall apply such law as would be applied in determining the devolution of intestate personal property under the laws of the state in which the insured wage earner was domiciled at the time of his death.  Act § 216(h)(2)(A); 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. §§ 404.355(a)(1), (b)(1) (2011).  Because NH was domiciled in New York at the time of his death, New York law regarding the devolution of intestate personal property applies. 

Second, the Act permits a claimant to be deemed the child of an insured person if the insured person and the mother or father of the child, as the case may be, participated in a marriage ceremony resulting in a purported marriage which, but for a legal impediment, would have been a valid marriage.  There is no dispute here that J~ and the NH never married. Act § 216(h)(2)(B); 42 U.S.C. § 416(h)(2)(B); 20 C.F.R. § 404.355(a)(2) (2001). 

Lastly, the Act provides that a claimant will be deemed the child of a fully insured individual, if, in the case of a deceased individual, such insured individual had: (I) acknowledged in writing that the applicant is his son or daughter; (II) been decreed by a court to be the father of the applicant; or (III) been ordered by a court to contribute to support of the applicant because the applicant was his son.  Act § 216(h)(3)(C)(i); 42 U.S.C. § 416(h)(3)(C)(i); 20 C.F.R. § 404.355(a)(3)(2011); see also, POMS GN 00306.100B.1.  This section further states that the acknowledgment, court decree, or court order must have been made before the death of the wage earner.  Id. Under subsection (3)(C), the claimant may also be deemed the child of an insured person if “such insured individual is shown by evidence satisfactory to the Commissioner of Social Security to have been the mother or father of the applicant, and such insured individual was living with or contributing to the support of the applicant at the time such insured individual died.”  Act § 216(h)(3)(C)(ii); 42 U.S.C. § 416(h)(3)(C)(ii).  When considering the status of an illegitimate child under section 216(h)(3) of the Act, the child’s status under state law is irrelevant.  POMS GN 00306.100A.1.  Thus, a child may be eligible on an individual’s record even if he or she is presumed to be the legitimate child of another person under state law.  Id. 

B. State Law

Effective April 28, 2010, New York State law of intestate succession, found in section 4-1.2(a)(2) of the N.Y. Estates, Powers & Trust Law (EPTL), was amended.  The amended section applies to estates of decedents dying on or after April 28, 2010. See 2010 Sess. Law News of N.Y. Ch. 64 (A7899-A), § 2 (Mckinney).  That section holds that a nonmarital child may inherit from his father if any of the following requirements are met:

A.  a court of competent jurisdiction has, during the lifetime of the father, made an order of filiation declaring paternity or the mother and father of the child have executed an acknowledgment of paternity pursuant to section four thousand one hundred thirty-five-b of the public health law, which has been filed with the registrar of the district in which the birth certificate has been filed or;

B.  the father of the child has signed an instrument acknowledging paternity, provided that:

(i) such instrument is acknowledged or executed or proved in the form required to entitle a deed to be recorded in the presence of one or more witnesses and acknowledged by such witness or witnesses, in either case, before a notary public or other officer authorized to take proof of deeds and

(ii) such instrument is filed within sixty days from the making thereof with the putative father registry established by the state department of social services pursuant to section three hundred seventy-two-c of the social services law, as added by chapter six hundred sixty-five of the laws of nineteen hundred seventy-six and

(iii)  the department of social services shall, within seven days of the filing of the instrument, send written notice by registered mail to the mother and other legal guardian of such child, notifying them that an acknowledgment of paternity instrument acknowledged or executed by such father has been duly filed or;  

C.  paternity has been established by clear and convincing evidence, which may include, but is not limited to: (i) evidence derived from a genetic marker test, or (ii) evidence that the father openly and notoriously acknowledged the child as his own, however nothing in this section regarding genetic marker tests shall be construed to expand or limit the current application of subdivision four of section forty-two hundred ten of the public health law.  

Under EPTL § 4-1.2(a)(2)(C), clear and convincing evidence is “evidence which is ‘entirely satisfactory’ and creates a genuine belief that respondent is the father of the child.”  Matter of Commissioner of Social Servs. v. Philip De G., 463 N.Y.S.2d 761, 763 (N.Y. 1983).  Open and notorious acknowledgment is established when the putative father openly acknowledges the child in his community. The open and notorious prong of the intestacy statute is a factual one. See In Re Poldrugovaz, 851 N.Y.S.2d 254, 264 (App. Div. 2d Dept. 2008); see also Tumminia v. Savattere, 654 N.Y.S.2d 676, 677 (App. Div. 2d Dept. 1997) (disclosure to friends and relatives); Matter of Anne v. Estate of Francis ,651 N.Y.S.2d 539, 540 (App. Div. 2d Dept. 1996) (acknowledgment of paternity in the community in which the child lives); Matter of W~, 691 N.Y.S.2d 878, 879-80 (Sur. Ct., N.Y. County 1999) (disclosure to family, and documentary references of paternity).

Here, we are not convinced that the New York State Court of Appeals would find that C~ and G~ are the legitimate children of the NH for  purposes of EPTL § 4-1.2(a)(2)(A).  The Family Court issued an Order of Filiation in March 2004 declaring that the NH was the father of C~.  In May 2009, the Family Court issued an Order of Filiation declaring that the NH was the father of G~.  Both Orders of Filiation were issued during the NH’s lifetime.  However, New York State law presumes that a child born in wedlock is the natural legitimate child of the mother’s husband.  N.Y. Dom. Rel. Law § 24 (McKinney’s 2011); In re F~, 170 N.E. 471 (N.Y. 1930).  That presumption may be rebutted by clear and convincing evidence of paternity.  Cheryl A. B. v. Michael A. D., 619 N.Y.S.2d 437 (N.Y. App. Div. 1994).  Clear and convincing evidence may consist of genetic testing to exclude the husband or testimony of non-access by one or both of the spouses.  Marilu T. v. Jose C.., 927 N.Y.S.2d 817, *2 (N.Y. Fam. Ct. 2011) (citing Ghanavi v. Gordon, 558 N.Y.S.2d 46 (N.Y. App. Div. 1990); Johnson v. Jones, 669 N.Y.S.2d 364 (N.Y. App. Div. 1998)). 

The evidence before us does not establish that the presumption of legitimacy of C~ and G~ has been rebutted.  First, there was no genetic testing performed.  Additionally, there is no evidence that M~ or J~ testified at the proceedings about non-access.  J~ stated that her husband was notified of the Family Court proceedings, but he did not testify at either of the proceedings.  She stated that she was present at the proceedings, but she did not say whether she testified.  The Orders of Filiation only reference the testimony of the NH, who admitted that the children were his.  Admission of paternity by the putative father, without more, is not sufficient to rebut the presumption of legitimacy.  Erie County Dept. of Social Servs. o.b.o. Holmes v. Abdallah, 591 N.Y.S.2d 653, 653-54 (N.Y. App. Div. 1992).  Accordingly, the Orders of Filiation do not appear consistent with New York State law, and we are not convinced that the highest court would uphold the March 2004 and the May 2009 Orders of Filiation for the purposes of intestate succession pursuant to EPTL § 4-1.2(a)(2)(A).  

Generally, the Commissioner must defer to the findings of a state trial court when matters of domestic relations are involved.  Gray v. Richardson, 474 F.2d 1370, 1373 (6th Cir. 1973).  However, pursuant to Social Security Ruling (SSR) 83-37c, the Commissioner is bound by an adjudication of a state trial court only where the following prerequisites have been found: 1) an issue in a claim for social security benefits previously has been determined by a state court of competent jurisdiction; 2) this 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.  See SSR 83-37c, adopting the holding of Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973).  Here, because the Orders of Filiation do not appear consistent with the law enunciated by the highest court in the state, the Commissioner is not required to defer to those Orders of the Family Court.  Without those Orders, C~ and G~ are not eligible to inherit under EPTL § 4-1.2(a)(2)(A).  

Further, there is no evidence that the NH filed an acknowledgement of paternity with the putative father’s registry.  Accordingly, C~ and G~ are not eligible to inherit under EPTL § 4-1.2(a)(2)(B). 

Similarly, because we do not believe that the presumption of legitimacy has been rebutted by clear and convincing evidence of paternity, C~ and G~ are not eligible to inherit under EPTL § 4-1.2(a)(2)(C). See In re Estate of W~, 691 N.Y.S.2d 878, 880-81 (N.Y. Sur. 1999) (where the child is born during the mother’s marriage to another man, the presumption of legitimacy must be rebutted by clear and convincing evidence of paternity before the child can inherit under EPTL § 4-1.2(a)(2)(C)).

Thus, C~ and G~ do not qualify as the children of the NH under section 216(h)(2)(A) of the Act because they cannot inherit under New York intestacy law. 

Nonetheless, C~ and G~ do qualify as the children of the NH under section 216(h)(3) of the Act.  As noted above, when considering the status of an illegitimate child under section 216(h)(3) of the Act, the child’s status under state law is irrelevant.  POMS GN 00306.100A.1.  Thus, a child may be eligible on an individual’s record even if he or she is presumed to be the legitimate child of another person under state law.  Id.

Here, C~ and G~ meet the requirements of all three prongs of section 216(h)(3)(C)(i) of the Act.  42 U.S.C. § 416(h)(3)(C)(i); 20 C.F.R. § 404.355(a)(3)(2011).

First, C~ and G~ meet the requirements of prong (I) because the NH listed C~ and G~ as his children on his application for Social Security benefits, which qualifies as a written acknowledgement.  POMS GN 00306.105.  The NH’s application qualifies as a written acknowledgement even though it was taken telephonically because it was an attested application.  See POMS GN 00201.015 and POMS GN 00306.105B.3. 

Second, C~ and G~ meet the requirements of prong (II) because the Family Court decreed in the Orders of Filiation that the NH is the father of the children. 

Third, C~ and G~ meet the requirements of prong (III) because the NH was ordered by the  Family Court to contribute to the support of the children because they were his children. 

Where a child qualifies under section 216(h)(3) of the Act, POMS GN 00306.100D.1 requires that the agency also consider any evidence showing that the NH is not the biological parent.  POMS GN 00306.100E.1 requires that the agency obtain birth certificates for any illegitimate children.  If the birth certificate shows the NH as the child’s parent or the space for the parent’s name is blank, there is no need to raise the issue of biological parentage unless other information in the file casts some doubt on the issue.  POMS GN 00306.100E.2.  However, where the birth certificate shows someone other than the NH as the child’s parent, the agency must follow the guidelines in POMS GN 00306.125 to develop biological relationship.  POMS GN 00306.125B.1.c. provides that additional evidence showing biological parentage may include: hospital, church, or school records; a court decree or order; a statement from the attending physician, relative, or person who knows the child’s relationship to the NH; evidence that the NH and the child’s other parent were living together when the child was conceived; or blood or genetic test results.  The agency is instructed to use judgment in evaluating the evidence, keeping in mind that it must establish biological parentage. 

In this case, C~’s birth certificate does not list a father.  Pursuant to POMS GN 00306.100E.1, there is no need to raise the issue of biological parentage.  Thus, C~ is deemed to be the child of the NH under section 216(h)(3)(C)(i)(I)-(III) of the Act.   

The birth certificate for G~ lists M~ as the father.  Under POMS GN 00306.100E.2, the agency must develop additional evidence showing biological parentage.  In this case, in addition to the written acknowledgment on the NH’s application for disability benefits, there is an Order of Filiation, and a Child Support Order, which was modified in 2009 to add G~ as one of the NH’s children.  Both of these court orders are additional evidence of paternity under POMS GN 00306.125B.1.c.  Accordingly, the agency may choose to find that there is sufficient additional evidence showing that the NH is the biological parent of G~, but that is a factual finding for the agency. 

CONCLUSION

Based on our review of the law and the facts you provided to us, we believe that the evidence meets the statutory and regulatory requirements to show that C~ is the child of the NH under sections 216(h)(3)(C)(i)(I)-(III) of the Act, and therefore entitled to survivor’s benefits.  As for G~, she may be entitled to survivor’s benefits on the record of NH under section 216(h)(3)(C)(i)(I)-(III) of the Act because she meets the statutory and regulatory requirements.  But, consistent with POMS GN 00306.125B.1.c, the agency must make a factual finding as to G~’s biological parentage because her birth certificate lists M~ as her father. 

Mary Ann Sloan

Acting Regional Chief Counsel

By: ____________

Monika K. Proctor

Assistant Regional Counsel

 

A~, the Number holder, (NH) indicated on his application for Social Security Benefits that K~ (K~) was his son, and later both the NH and K~’s mother stated that K~ was not the NH’s son. The Regional Chief Counsel concluded that because a New York court has issued an order of filiation after paternity proceedings were completed, K~ would be able to inherit as the NH’s child under New York intestacy law. K~ is therefore considered to be the NH’s child under Section 216(h)(2) of the Act.

QUESTION PRESENTED

You have asked for an opinion as to whether K~ (“K~”) is the son of A~, the number holder (NH), under Section 216(h)(3) of the Social Security Act (the “Act”), 42 U.S.C. § 416(h)(3). The NH had indicated on his application for Social Security Retirement benefits that K~ was his son, and later both the NH and K~’s mother stated that K~ was not the NH’s biological son.

OPINION

Our research shows that, under New York law, K~ is A~’s son due to an existing order of filiation issued by a court of competent jurisdiction.

BACKGROUND

The record contains a copy of a birth certificate issued by the New York State Department of Health on February, indicating that K~, a male, was born to D~; no father’s name is given. The record also contains a copy of an amended certificate that was filed on October 5, 2007, to add A~ (the NH) as K~’s father.

On February 2, 2011, the NH filed an application for Social Security Retirement benefits, in which he stated that he had a minor child, K~, and that he was not married to K~’s mother. The NH included a statement with his application:

I, A~, acknowledge that the child, K~ . . . is my child. I have taken care of him since he was born, taken him to d[octo]r’s appointments, and registered him in school as my child. His mother is D~.

On March 16, however, the NH spoke with the Field Office and stated that K~ was “not his child” and that he had intended to have a DNA test performed to determine paternity, but “he never did.” On March 16, K~’s mother, D~, filed a statement that K~ was not the NH’s son, but was the son of Rondee. On March 29, Ms. P. filed another statement, indicating that she did not know that the NH was listed on K~’s amended birth certificate as his father, that she had never had sexual relations with the NH, and that she had never gone to court to have the birth certificate amended to add the NH’s name. She also stated that the NH had “been in [K~’s] life for many years,” that K~ called the NH “Dad,” and that the NH was aware that he was not K~’s father. The next day, the Field Office again contacted the NH, who said that he had “no idea” how his name had been added to K~’s birth certificate and that he had not done anything to have it added.

The Field Office then contacted Onondaga County Department of Social Services about the birth certificate. An employee there, G~, stated that Social Services’ records showed that D~ had initiated paternity proceedings to have A~ declared K~’s father. A court hearing was held at which the NH did not appear because he had not been properly served with legal papers. A second court hearing was then held on September 20, 2007, at which both D~ and the NH appeared and signed papers acknowledging the NH’s paternity of K~. D~ additionally signed an affidavit stating that she had had sexual relations with the NH during the period of conception. The court then sent the information to the Department of Health, which issued an amended birth certificate showing the NH as K~’s father.

On April 18, 2011, the NH again contacted the Field Office to say that, on the advice of his attorney, he was going to have a DNA test performed within the next 30 days to show that he is not K~’s biological father.

ANALYSIS

We believe that, based on the evidence we have, K~ is the NH’s child.

A. Federal Law

For purposes of child’s benefits under the Act, a “child” is defined as the child, legally adopted child, stepchild, or, in limited circumstances, grandchild of an insured individual. Sections 202(d), 216(e) of the Act. See 42 U.S.C. §§ 402(d), 416(e). Under one method for determining whether an applicant is the child of an insured individual, the Commissioner applies the law governing the devolution of intestate personal property applied by the courts of the State in which the insured individual was domiciled at the time he files an application. See 42 U.S.C. § 416(h)(2)(A). If the claimant can inherit as the NH’s child under the state intestacy law, he is considered the NH’s “child” under sections 216(e) and 216(h)(2)(A). See id. Because the NH was domiciled in New York when he filed his application, New York’s law of intestate succession applies in determining K~’s status as the child of the NH for purposes of section 216(h)(2)(A) of the Act. 20 C.F.R. §§ 404.355(a)(1), 404.355(b). Therefore, whether K~ can be considered the NH’s child must be determined under New York intestacy law.

B. State Law

1. Intestate Succession Under New York Law

a. The Decedent’s “Issue”

 

New York law provides that, if a person dies intestate, then his property passes to his “issue” by representation. See N.Y. Est. Powers & Trusts Law § 4-1.1(a)(3) (McKinney 2009). “Issue” is defined under the law as “descendants in any degree from a common ancestor,” as well as adopted children. See id. § 1-2.10.

The evidence submitted with this claim does not establish that the NH was K~’s biological father. Therefore, we do not have sufficient evidence that K~ is the NH’s descendant. Nor was K~ adopted by the NH. Accordingly, because the evidence does not show that K~ is the NH’s “issue,” he could not inherit under this provision of the intestate succession laws.

b. Non-Marital Children and “Orders of Filiation”

Another provision of New York’s intestacy laws however, provides a means for children born out of wedlock, or “non-marital children,” to inherit from an intestate decedent. That provision states:

(a) For the purposes of this article:

(1) A non-marital child is the legitimate child of his mother so that he and his issue inherit from his mother and from his maternal kindred.

(2) A non-marital child is the legitimate child of his father so that he and his issue inherit from his father and his paternal kindred if:

(A) a court of competent jurisdiction has, during the lifetime of the father, made an order of filiation declaring paternity . . . .

N.Y. Est. Powers & Trusts Law § 4-1.2 (McKinney 2009).

In this case, it appears that a New York court has issued an order of filiation. D~ initiated paternity proceedings to have the NH declared K~’s father, and the NH himself appeared at these proceedings and admitted that he was the father in a signed instrument. The court then ordered that an amended birth certificate be issued for K~. See N.Y. Pub. Health Law § 4138(b) (amended birth certificate is issued after receipt of an order of filiation from court of competent jurisdiction). Under New York law, therefore, the NH is considered K~’s father.

The NH has stated that he is going to have DNA testing be performed to show whether or not he is K~’s biological father. Even assuming the NH provides the Agency in the future with test results that show that he is not K~’s biological father, he would still be considered the father under New York state intestacy law unless he is able to have the order of filiation vacated by the court. See Matter of Demetrius v. Mikhaila , 35 A.D.3d 1215, 827 N.Y.S.2d 810 (4th Dep’t 2006) (court-ordered DNA testing may be used to vacate order of filiation if father is able to prove prior acknowledgement of paternity was due to fraud, duress, or mistake of fact); but see Matter of G~ v. David , 34 A.D.3d 810, 826 N.Y.S.2d 338 (2d Dep’t 2006) (court may refuse to vacate order of filiation even after private DNA test results showed plaintiff was not biological father; primary concern is best interests of the child).

CONCLUSION

It is our opinion that, because a New York court has issued an order of filiation after paternity proceedings were completed, K~ would be able to inherit as the NH’s child under New York intestacy law. K~ is therefore considered to be the NH’s child under Section 216(h)(2) of the Act. Please do not hesitate to contact the undersigned if you have any questions or wish to discuss this matter further.

Stephen P. Conte

Regional Chief Counsel

By: ____________

Robert R. Schriver

Assistant Regional Counsel