To satisfy section 416(h)(3)(C)(i)(II), a court order “must name the NH and identify
the child,” and it “must find that the NH is the biological parent of the child.”
POMS GN 00306.110(A)(1) (2).
The North Carolina termination order names the NH in the caption and includes K~’s
name throughout. The court also found that K~ was “born to these parties [the NH and
C~],” and it found that the genetic testing results described above showed that the
NH “is the biological father of the minor child herein.” The termination order thus
satisfies the requirements of POMS GN 00306.110.
We note, however, that the agency is not bound by a judicial finding unless it satisfies
the four factors described in Social Security Ruling (SSR) 83-37c, which adopted the
holding of Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973),[2] but can still accept a finding as probative evidence even if all four criteria are
not met. See, e.g., PR 10-010 MOS Illinois – Void or Voidable Marriage, available
at https://secure.ssa.gov/apps10/poms.nsf/lnx/1504805016 (in cases where an issue was not genuinely contested in court, the agency “generally
looks to see whether the order was consistent with state law” and will generally accept
the order if it is). The factors are:
-
•
An issue in a claim for social security benefits previously has been determined by
a state court of competent jurisdiction;
-
•
This issue was genuinely contested before the state court by parties with opposing
interests;
-
•
The issue falls within the general category of domestic relations law; and
-
•
The resolution by the state trial court is consistent with the law enunciated by the
highest court in the state.
We believe the North Carolina court’s finding satisfies these factors because it had
both personal and subject matter jurisdiction; the termination order states that the
NH requested genetic testing, apparently in order to show he was not K~’s biological
father (i.e., the issue was genuinely contested); the finding falls within the general
category of domestic relations law; and it is generally consistent with the law enunciated
by North Carolina’s highest court. See N.C. Gen. Stat. Ann. §§ 7B 101(6), -200(a)(4), (b), -1101 (West 2017). Regarding this last factor, in
North Carolina, genetic testing showing a 97% or higher probability of paternity is
clear, cogent, and convincing evidence of paternity, and here the genetic testing
report showed a 99.98% probability that the NH is K~’s biological father. See N.C.
Gen. Stat. Ann. § 49-14(f) (West 2017).
In sum, we believe the court’s finding that the NH was K~’s biological father satisfies
Gray, and that the agency should be bound by this determination. But even if the finding
does not satisfy Gray, and is not binding on the agency, we believe it is consistent with North Carolina
law and should be viewed as probative evidence that K~ was the NH’s biological child,
and that K~ should be deemed such under section 416(h)(3)(C)(i)(II).