Effective Dates: 12/13/2018 - Present Previous | Next

TN 36 (12-18)

PR 01010.007 Colorado

A. PR 19-013 Potential Termination of Child's Benefits in Colorado

Date: October 19, 2018

SYLLABUS

Under Colorado’s law of intestate succession, the number holder (NH) is presumed to be the child’s father because (a) she was born during the NH’s marriage to her mother; (b) her birth certificate states that the NH was her father; and (c) the evidence establishes that the NH received her into his home for a period of time and held her out as his daughter. These presumptions can be rebutted only by clear and convincing evidence, and the DNA test results and other evidence presented fail to rebut these presumptions.

QUESTION PRESENTED

You have asked whether H~ is properly entitled to surviving child benefits on the record of her purported father, the deceased NH T~, in light of an appeal by the NH’s mother. She contests the NH’s paternity of H~primarily based on DNA test results showing that there was a 0% probability that the NH’s parents are H~’s biological grandparents.

SHORT ANSWER

Under Colorado’s law of intestate succession, the NH is presumed to be H~’s father because (a) H~ was born during the NH’s marriage to H~’s mother; (b) H~’s birth certificate states that the NH was her father; and (c) the evidence establishes that the NH received H~ into his home for a period of time and held her out as his daughter. These presumptions can be rebutted only by clear and convincing evidence, and the DNA test results and other evidence presented by the NH’s mother fail to rebut these presumptions. The DNA test results are not compliant with the Colorado laws governing genetic tests, and the NH’s mother has failed to present any other clear and convincing evidence that the NH was not H~’s father. The tests also do not establish a competing presumption that another man, S~, is H~’s father.

BACKGROUND

The NH was domiciled in Colorado when he died in May 2015. He married H~'s mother, B~, approximately 18 months before H~’s October 2013 birth in Colorado, and H~’s birth certificate lists the NH as her father. According to H~’s mother, the NH believed that H~ was the NH’s daughter, and H~ was the sole offspring of their relationship.

The NH’s mother, M~, is the representative payee for the NH’s son by another mother, D~. After the agency awarded D~ a monthly child’s benefit, the NH’s mother filed a request for reconsideration of the award of benefits to H~ based on the DNA test results. H~ and the NH’s mother and father submitted to testing. The results showed a 0% probability that the NH’s parents were H~’s biological grandparents.

The NH’s mother has alleged that another man, S~, is H~’s biological father. S~ is the father of M2~, a child that H~’s mother had approximately three years prior to marrying the NH. The NH’s mother said that a court ordered that the genetic tests be conducted because she and S~ wanted to know if H~ was the grandchild of the NH’s mother. The NH’s mother has not provided a copy of the court order. The NH’s mother also claimed that the NH was unsure if H~ was his daughter.

DISCUSSION

1. The Facts Establish Three Separate Circumstances Where the NH Is Presumed to Have Been H~’s Father.

In determining the father-child relationship status for purposes of survivor’s benefits and a lump sum death payment, the agency looks to the intestate succession laws of the state where the NH was domiciled when he died. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b); POMS GN 00306.001(C)(1)(a). The NH was domiciled in Colorado when he died.

The Colorado Probate Code sets forth a number of circumstances in which a father-child relationship is established for the purpose of intestate succession, and the circumstances in this matter invoke the Probate Code’s definition of a “genetic father.” C.R.S. § 15-11-115(5); see also C.R.S. § 15-11-116 (providing the statutory mechanism for establishing the parent-child relationship). This term is defined as the man whose sperm fertilized the egg of the child’s mother, or if the father-child relationship is established under the Colorado’s presumption of paternity statute, C.R.S. section 19-4-105, “only the man for whom that relationship is established.” C.R.S. § 15-11-115(5).

Colorado’s presumption of paternity statute list six circumstances where a man is presumed to be the natural father of a child. See C.R.S. § 19-4-105(1). Two presumptions of paternity readily exist here: (1) the NH was married to H~’s mother when H~ was born, see C.R.S. section 19-4-105(1)(a), and (2) the NH acknowledged paternity by listing himself as H~’s father in her birth certificate, see C.R.S. section 19-4-105(1)(e).

The following facts, although disputed, also tend to establish a third presumption of paternity, which arises when a man receives a child into his home while the child is under the age of majority and openly holds out the child as his natural child. See C.R.S. § 19-4-105(1)(d). H~ was approximately 19 months old when the NH died, and thus under the age of majority. The NH acknowledged paternity in H~’s birth certificate; told his family, friends, and the family of H~’s mother that he was H~’s father; posted on Facebook that H~ was his daughter; and listed her as a dependent on his tax return. H~’s mother stated that the NH lived with her, H~,and M2~ in an apartment for approximately nine months after H~’s birth and then the whole family moved into the home of H~’s maternal grandparents. H~’s mother also said that the NH spent every day with H~ and was involved in her care, including changing diapers, giving H~ baths, playing with her, taking her to the doctor’s office, and contributing to H~’s child support when he was able.

The NH’s mother partly contradicted this evidence, stating that the NH was unsure if H~ was his daughter and reported that he intended to go to rehab but was not in a stable living situation “towards the end,” and “was living wherever he could,” including with her and finally with his father. Assuming that these facts are true, they do not outweigh the other unrebutted facts establishing that the NH held out H~ as his daughter and received her into his home for a period of time before his living situation became unstable.

Thus, the evidence establishes three presumptions of paternity in favor of the NH.

2. The Remaining Record Evidence Neither Sufficiently Rebuts the Three Presumptions of Paternity in Favor of the NH, Nor Creates a Competing Presumption of Paternity in Favor of S~.

The agency does not require a court adjudication of paternity, but will make paternity determinations based on state standards, in this case Colorado’s. See 20 C.F.R. § 404.355(b)(2). Under POMS GN 00360.020(B)(1), the contesting claimant must submit evidence to support the allegations of paternity, and the NH’s mother has primarily submitted the DNA test results. As set forth below, the results do not meet Colorado’s standards, and other evidence does not sufficiently rebut the three presumptions of paternity established in favor of the NH. Nor do the DNA tests results establish a competing presumption of paternity in favor of S~.

a) The presumptions of paternity in favor of the NH are not sufficiently rebutted.

Presumptions of paternity may be rebutted only by clear and convincing evidence. See C.R.S. § 19-4-105(2)(a). In general, clear and convincing evidence is “proof which persuades the trier of fact that the truth of the contention is ‘highly probable.’” People v. Taylor, 618 P.2d 1127, 1136 (Colo. 1980) (citing Page v. Clark, 592 P.2d 792, 800 (Colo. 1979)). It is also free from serious or substantial doubt. See, e.g., M.W. v. D.G., 710 P.2d 1174, 1175 (Colo. App. 1985). Clear and convincing evidence is stronger than a preponderance of the evidence and is intended to minimize the risk of error. See Taylor, 618 P.2d at 1136.

As explained above, the NH’s mother presented genetic tests to support her claim that the NH is not H~’s father. C.R.S. section 13-25-126 describes how genetic tests may be used to determine parentage, and specifies the standards they must satisfy. The presumed parents and child must be tested, and the results can overcome a “presumption of a child born during a marriage [i.e., that the NH is H~’s father] . . . [if] the conclusion of the experts conducting the tests, as disclosed by the evidence based upon the test, shows that one of the spouses is not the parent of the child.” C.R.S. §§ 13-25-126(1)(a)(I), 13-25-126(1)(i). But here, since neither the NH nor H~’s mother submitted to testing, the results cannot overcome the presumption that the NH is H~’s father. In addition, the laboratory report does not include requisite evidence (e.g. photographs of the individuals tested, names of the laboratory technicians) of a reliable chain of custody. See C.R.S. § 13-25-126(1)(c)(I)-(V). Consequently, the results are not admissible evidence—much less clear and convincing evidence—to rebut a presumption that the NH is H~’s father.

The only other evidence submitted by the NH’s mother are her statements that the NH was not sure if H~ was his child, S~ is H~’s real father, the NH did not live with H~ or her mother “towards the end,” and the NH was unable to provide for H~’s support. H~’s mother, however, has disputed this evidence—stating that H~ is the NH’s child, the NH believed that H~ was his biological child, he provided support to H~ to the extent he was able, and he held out H~ as his child.[1] In light of H~’s mother’s contrary statements, the statements from the NH’s mother do not appear to be clear and convincing evidence (i.e. highly probably or without serious or substantial doubt) that the NH is not H~’s father.

b) The DNA test results do not create a competing presumption of paternity in favor of S~.

A presumption of paternity is created in favor of an alleged father if the tests of the alleged father (in this case, S~), mother, and child are conducted in accordance with C.R.S. section 13-25-126, and the results establish that he is not excluded as the probable father and that the probability of his parentage is 97% or higher. See C.R.S. §§ 13-25-126(1)(g), 19-4-105(1)(f). There was, however, no genetic testing of S~ or H~’s mother. Thus, the DNA test results do not create a presumption of paternity in favor of S~.[2]

CONCLUSION

The DNA test results and other evidence submitted by the NH’s mother are not sufficient under Colorado law to rebut the presumptions of paternity in favor of the NH, or to create a competing presumption in favor of S~.

 

B. PR 04-335 Parent/Child Relationship for Deeming Purposes, G~L.S~, ~

DATE: August 10, 2001

1. SYLLABUS

This opinion involves an eligible child whose father now claims that he is not the biological father. He was married to the child's mother when the child was born, but claims he always knew he was not the biological father. The marriage between he and the child's mother was later dissolved and the father was awarded full custody.

State law is controlling here. Under Colorado law, certain presumptions of paternity prevail and can only be rebutted by clear and convincing evidence. In addition, there is a statute of limitations that attaches itself to the presumption of paternity once it is made. Any action to declare the nonexistence of a father-child relationship, following the presumption of paternity, must be brought within 5 years of that presumption. Because the issue was not raised within that period, the father was found to be the child's presumed father and his income is subject to deeming.

2. OPINION

You have requested an opinion as to whether G~ B. S~ (the father) is considered the natural father or the stepfather of G~ L. S~ (the child), an SSI eligible child, for SSI deeming purposes. You have also asked what action, if any, the father could take to be considered a stepparent and have his name removed from the child's birth certificate. For the reasons stated below, we believe the father would be presumed the child's natural father and that he would be time-barred from initiating any legal action to disprove that status or to remove his name from the child's birth certificate.

A. Factual Background

Based on your memorandum and the copies of documents you have provided, we find the relevant facts of this matter to be as follows.

The father and H2~ C~, the child's mother, who was pregnant at the time, were married in June 1986. The child was born August 10, 1986. The father is listed as the child's father on the birth certificate. In November 1994, the marriage between the father and the child's mother was dissolved. Although the final order finds that both parties acknowledged the father was not the biological father of the child, sole custody of the child and three other children born during the marriage was awarded to the father. The child currently lives with the father in Colorado, and SSA deems income to him from the father, who is considered the natural father. The father states that both he and the child's mother knew he was not the child's father, that he did not know his name was listed on the birth certificate until "after the fact," and that he subsequently "chose not to do anything about [] being listed as the father because of the multitude of health problems and medical procedures that [the child] experienced shortly after his birth." The file indicates the father is willing to have DNA testing to prove he is not the child's father.

B. Analysis

Deeming of income is the process of considering another person's income to be that of an SSI claimant. See 20 C.F.R. § 416.1160. If an SSI claimant under age 18 lives with a parent or stepparent who is not eligible for SSI benefits, part of that individual's income and resources may be deemed to the child. See § 416.1851(c). A parent is a natural or adoptive parent. See § 416.1881(a). A stepparent is the present spouse of a natural or adoptive parent. See § 416.1881(b). A person is not a claimant's stepparent if the child's natural or adoptive parent, to whom the stepparent was married, has died, or if the child's parent and stepparent have been divorced or their marriage has been annulled. Id. Thus, in this case deeming of the father's income to the child will cease only if the father is no longer considered the child's natural father.

As relevant here, Colorado's probate code defines "child" and "parent" as individuals, excluding stepchildren and stepparents, who would be entitled to take from one another by intestate succession. Colo. Rev. Stat. § 15-10-201(7), (36) (2000). Colorado's law of intestate succession provides that "an individual is the child of his or her birth parents regardless of their marital status. The father and child relationship may be established under the 'Uniform Parentage Act [UPA],' article 4 of title 19, C.R.S. [Colorado Revised Statutes]." Colo. Rev. Stat. § 15-11-114(1).

Under Colorado's UPA, presumptions of paternity may arise in a number of different circumstances, summarized as follows: (1) when a child is born into an intact marriage; (2) when a man and a child's mother attempted to marry before the child's birth, and certain other conditions are met; (3) when a man and a child's mother attempted to marry or did marry after the child's birth, and certain other conditions are met; (4) when a man receives a child into his home and holds the child out as his natural child; (5) when the man files a written declaration of paternity in a court registry; or (6) when genetic tests show that the probability of a man's parentage is ninety-seven percent or higher. See Colo. Rev. Stat. § 19-4-105(1). Thus, in a single situation, presumptions of paternity may simultaneously arise in favor of different men. See N.A.H. v. S.L.S., 9 P.3d 354, 360 (Colo. 2000).

"If two or more presumptions arise which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls." Colo. Rev. Stat. § 19-4-105(2)(a). Competing presumptions must be resolved, because a child has only one legal father. See Michael H. v. Gerald D., 491 U.S. 110, 130 (1989). In this case, no competing presumptions of legal fatherhood have been raised. However, two presumptions arise that the father is the child's father: the presumption of legitimacy occasioned by his marriage to the child's mother when the child was born, and the presumption occasioned by accepting the child into his home and holding the child out as his own child. A strong public policy supports the presumption of legitimacy. See A.G. v. S.G., 609 P.2d 121, 124 (Colo. 1980) (stating that the presumption of legitimacy is "one of the strongest presumptions known to the law"). The presumption associated with a man "accepting the child as his own is closely related to the presumption of legitimacy." N.A.H. v. S.L.S., 9 P.3d at 360.

Colorado's UPA provides that any of the presumptions of paternity may be rebutted by clear and convincing evidence. See Colo. Rev. Stat. § 19-4- 105(2)(a); see also In re L.J.P., 2 P.3d 140, 142 (Colo. App. 2000) (noting that the statutes "plainly state" that paternity presumptions may be rebutted). A presumption of paternity under the UPA may be rebutted by a court decree establishing paternity of a child by another man. Id.

However, Colorado's UPA limits the circumstances under which presumptions of paternity may be rebutted. See Colo. Rev. Stat. § 19-4-107. A child, natural mother, presumed father, or appropriate state/county agency may bring an action at any time to declare the existence of the father-child relationship presumed by the natural mother's marriage to the presumed father when the child was born; but an action brought to declare the nonexistence of the father-child relationship must be brought no later than five years after the child's birth. See § 19-4-107(1)(b) (emphasis added); People ex rel. S.L.H, 736 P.2d 1226, 1228 (Colo. App.1986). This section of the UPA does not preclude a presumed father from asserting nonpaternity as a defense in a child support proceeding more than five years after the child's birth. See People ex rel. R.T.L., 780 P.2d 508, 515 (Colo. 1989). However, the father cannot now initiate an action to disprove his status as the child's presumed father under the UPA because a presumption of fatherhood arose due to his marriage to the natural mother at the time of the child's birth, and more than five years have passed.

The statute also provides that "an interested party" may bring an action "at any time" to determine "the existence or nonexistence of the father and child relationship" presumed by a man receiving a child into his home and holding the child out as his natural child, by filing a written declaration of paternity in a court registry, or by appropriate genetic testing. See Colo. Rev. Stat. § 19-4-107(2). However, Colorado courts have held that § 19-4-107(2) does not apply in the type of situation presented here. For example, a man presumed to be a child's father because he was married to the natural mother at the time of the child's birth, despite the mother's acknowledgement that he was not the father, could not utilize the provisions of § 19-4-107(2) to avoid the five-year statute of limitations imposed by § 19-4-107(1)(b), even though he had also received the child into his home and openly held the child out as his own. The court found that the presumption of legitimacy controlled because it had "the greater weight of policy and logic behind it." See e.g., People ex rel. S.L.H., 736 P.2d at 1228; see also M.R.D. by P.D. v. F.M., 805 P. 2d 1200, 1201-03 (Colo. App. 1991) (natural mother's husband, who was presumed to be the child's natural father because he was married to the mother at the time of the child's birth, could not utilize the open-ended statute of limitations governing claims by "interested parties" to prove the nonexistence of a father-child relationship more than five years after child's birth, even though blood tests of the putative father, who admitted paternity, raised a conflicting presumption of paternity). Thus, the provisions of § 19-4-107(2), which allow an "interested party" to bring a paternity action at any time, do not apply to the father's right to initiate a paternity action.

CONCLUSION

For the reasons discussed above, it is our opinion that the father is the child's presumed father under Colorado law, and he is time-barred from initiating any action to disprove this status. Please be aware, however, that although we have provided our opinion on the second issue (i.e., "what action the father could take"), we do not believe it is appropriate (and, indeed, would be a conflict of interest) for SSA, based on an opinion from this office, to provide such legal advice to the father. Rather, he should retain legal counsel for that purpose. We therefore suggest you advise him simply that because he is the child's presumed father, not his stepfather, SSA must continue to apply the deeming rules.

Deana R. E~-L~
Regional Chief Counsel

By: ______________
Debra J. M~
Assistant Regional Counsel

Footnotes:

[1]

In conducting this analysis, we also considered a statement by H~’s mother that she knew of evidence that the NH was not H~’s father, which lacked context and could be referring to the genetic test results or other evidence. We also noted that the NH’s mother stated that H~’s mother did not have custody of her children. The agency sought to obtain clarification from B~ on both issues, but she did not respond. Accordingly, the agency suspended H~’s benefits until B~ provides a response. In the event that H~’s mother responds and provides additional information, this opinion may need to be revised.

[2]

Even if the DNA test results established a competing presumption in favor of S~, this would not have ended the analysis because genetic testing does not automatically resolve the question of paternity. See § 19-4-105(2)(a); N.A.H v. S.L.S., 9 P.3d 354, 362 (Colo. 2000). When a paternity determination involves competing presumptions, which presumption controls is based on a number of other factors—including the age of the child and the length of time in which a presumed father has assumed the role of father—and is resolved by a preponderance of the evidence. See § 19-4-105(2)(a)(I)-(VIII); N.A.H, 9 P.3d at 364-65; People ex rel. C.L.S., 313 P.3d 662, 667-70 (Colo. App. 2011). If additional genetic test results are submitted that suggest a presumption in favor of S~ or another man, we will evaluate that evidence to determine compliance with C.R.S. section 13-25-126 and evaluate all the evidence to determine which presumption should control.

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PR 01010.007 - Colorado - 12/13/2018
Batch run: 12/17/2018
Rev:12/13/2018