QUESTION PRESENTED
You asked whether the evidence of oral acknowledgement can rebut the presumption of
legitimacy for a child born in wedlock and establish clear and convincing evidence
sufficient to establish the claimant as the child of the number holder for the purposes
of child’s insurance benefits.
OPINION
For the reasons stated below, we believe that the evidence submitted in this case
is not sufficient under Tennessee law to rebut the presumption of legitimacy and,
therefore, a Social Security Administration (SSA) adjudicator could not find the child
claimant is entitled to child’s insurance benefits on the account of the deceased
number holder.
BACKGROUND
According to the materials provided, Torrey C~, the number holder (NH), resided in
Tennessee when he died on January XX, 2009. On March XX, 2009, Marilyn C~ (Claimant’s
mother) applied for child’s insurance benefits on behalf of Calvin A. P~ (Claimant)
on the earnings record of NH. NH and Claimant’s mother were never married. At the
time of Claimant’s birth on May XX, 2007, Claimant’s mother was married to Terrance
P~ (Husband). Claimant’s mother reported she married Husband on April XX, 2006, but
a marriage certificate indicates that marriage occurred on April 26, 2007. Claimant’s
birth certificate lists Husband as his father. The file includes a signed statement
from NH’s mother, Annie C~, indicating NH orally acknowledged that Claimant was his
son. Also in the file is a copy of the program from NH’s funeral listing Claimant
as his son. Claimant’s mother also stated, “If I needed something for (Claimant) I
could tell [NH] and he would get it,” but she admitted NH did not make any regular
support payments.
DISCUSSION
To qualify for child’s insurance benefits on the record of an insured individual who
has died, a claimant must be that individual’s “child.” See Social Security Act (Act) § 202(d); 20 C.F.R. § 404.350(a)(1) (2009). “Child” includes
the natural child of an insured individual. See Act § 216(e); 20 C.F.R. § 404.354 (2009). If the putative father never married the
child’s mother, the claimant’s status as the surviving child of the putative father
is governed by either section 216(h)(3)(C) or the Act or section 216(h)(2)(A) of the
Act,. To establish child status under section 216(h)(3)(C) of the Act, Claimant must
show one of the following: (1) NH acknowledged in writing Claimant was his son, (2)
a court decreed NH to be Claimant’s father, (3) NH was ordered to contribute to Claimant’s
support, or (4) NH was the father and living with or contributing to Claimant’s support
at the time NH died. See Act § 216(h)(3)(C); 20 C.F.R. § 404.355(a)(3), (4) (2009). We are aware of no evidence
satisfying any of the required conditions in section 216(h)(3)(C) of the Act.
To establish his status as the surviving child of NH under section 216(h)(2)(A) of
the Act, Claimant must show he could inherit NH’s personal property as his child under
the intestacy laws of the state where NH had his permanent home when he died. See Act § 216(h)(2(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (4) (2009). Because NH was
domiciled in Tennessee when he died, the question is whether Claimant would be considered
NH’s child for purposes of intestate succession under Tennessee law.
Under Tennessee intestacy law, an unmarried individual’s intestate estate would pass
to his linear descendants, beginning with his surviving children. See Tenn. Code Ann. §§ 31-1-101, 31-2-104 (2009). A child may inherit from a deceased
individual through intestate succession only if paternity is established by an adjudication
before the father’s death or, thereafter, by clear and convincing evidence. See Tenn. Code Ann. § 31-2-105(a)(2)(B) (2009). In Tennessee, clear and convincing evidence
must produce a firm belief as to the truth of the allegations sought to be established
and no serious or substantial doubt about the conclusions drawn from the evidence.
See Fruge v. Doe, 952 S.W.2d 408, 412 n.2 (Tenn. 1997); Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992).
However, a man is presumed to be the father of a child who is born either during the
course of the marriage between the man and the child’s mother or within 300 days after
the marriage. See Tenn. Code Ann. § 36-2-304(a)(1) (2009). In this case, Claimant was born during the
course of marriage between Claimant’s mother and Husband. See State ex rel. Clark v.
Wilson, 2002 WL 31863296, at *5 (Tenn. Ct. App. Dec. 23, 2002) (Although the child was born
slightly over one month into the marriage, the mother’s husband was presumed to be
the child’s father, because the child was born during the marriage). Therefore, Claimant
is presumed to be the natural child of Husband, not NH.
For a person born in wedlock, Tennessee has applied the common law presumption that
a child born to a married couple is the child of the husband, no matter how soon the
birth follows the marriage. See Jackson v. Thornton, 179 S.W. 384 (Tenn. 1915). In the past, this presumption could be rebutted only
by clear, strong, convincing evidence that the husband was impotent or absent so as
to have no access to the mother. Id.
However, this traditional presumption was eroded in a decision that held that this
presumption could be rebutted by clear and convincing evidence other than non-access.
See Shell v.
Law, 935 S.W.2d 402, 406 (Tenn. 1996). The clear and convincing evidence standard is
a heightened burden of proof that requires more than the preponderance of the evidence
standard but less than the beyond a reasonable doubt standard. See In re S.L.A., 223 S.W.3d 295, 299 (Tenn. Ct. App. 2006).
The Tennessee Supreme Court has considered the case of a child born in wedlock who
attempted to intervene in intestacy proceedings alleging that she was a child of a
man other than the man married to her mother at the time of her birth. See In re Estate of Walton v.
Young, 950 S.W.2d 956 (Tenn. 1997). In Young, the alleged illegitimate daughter was able to prove conclusively through a blood
test that the man married to her mother at the time of her birth was not her father,
but was unable to show that the decedent was her biological father by clear and convincing
evidence. Id., at 958-960.
Thus, the presumption of paternity established by birth to a married couple can be
rebutted by clear and convincing evidence. See In re Estate of Armstrong v. Manis, 859 S.W.2d 323, 327-328 (Tenn. Ct. App. 1993). In Manis, an individual born in wedlock was able to produce clear and convincing evidence
to rebut the presumption that the man married to her mother at the time of her birth
was her father and successfully pursued a claim on the intestate estate of her putative
half-sister. Id. The burdens on the child to rebut the presumption of legitimacy and prove the paternity
of another man merged into one. Id.
The evidence the court relied on included (1) statements by the mother’s husband denying
paternity; (2) the mother’s failure to deny an allegation that her husband was not
the father; (3) the treatment of the child by the mother’s husband; (4) statements
by the putative father acknowledging paternity; (5) the statements and behavior of
other family members and acquaintances; and (6) evidence of a physical resemblance.
Id., at 324-327.
Here, we do not believe the record contains clear and convincing evidence to rebut
the presumption that Husband is Claimant’s father. The file includes some evidence
suggesting NH, and not Husband, was Claimant’s father. Specifically, NH’s mother,
Annie C~, provided a signed statement indicating NH orally acknowledged that Claimant
was his son. Also the file includes a copy of the program from NH’s funeral listing
Claimant as his son. Claimant’s mother also stated, “If I needed something for (Claimant)
I could tell [NH] and he would get it,” but she admitted NH did not make any regular
support payments.
However, the file does not contain results from a blood test, such as the one the
Young court considered. In addition, Claimant’s birth certificate issued by Tennessee State
Department of Health named Husband as the father of Claimant. Birth certificates are
prima facie evidence of the facts contained therein. See Tenn. Code Ann. § 68-3-202 (2009). Also, the record does not indicate that Husband
denied paternity of Claimant. In fact, Claimant’s mother specifically asked SSA to
not tell Husband about the application she filed on Claimant’s behalf. Additionally,
nothing in the record indicates Husband did not have access to Claimant’s mother or
that Husband was impotent. Thus, we believe based on Tennessee law Claimant has not
presented clear and convincing evidence sufficient to rebut the presumption that Claimant
is Husband’s child.
Moreover, even if Claimant had provided sufficient evidence to overcome the presumption
that Husband is his father, Claimant has not provided clear and convincing evidence
that he was NH’s child. According to Tennessee case law, clear and convincing evidence
of paternity exists if the deceased putative father orally admitted to paternity,
established a close personal relationship with the child, and supported the child
financially. See Majors v. Smith, 776 S.W.2d 538, 539-40 (Tenn. Ct. App. 1989). Similarly, clear and convincing evidence
was established where the deceased putative father lived with the child’s mother as
husband and wife although not legally married, acknowledged paternity to family members,
and supported the children financially. See Robinson v. Tabb, 568 S.W.2d 835, 836 (Tenn. 1978).
In contrast, clear and convincing evidence was not established where the deceased
putative father did not (1) attempt to legitimate the child by adjudication, (2) acknowledge
paternity openly to the public, (3) hold the child out to his family as his daughter,
or (4) provide support to the child’s mother, and (5) there was no evidence of community
acceptance of the child as the putative father’s daughter. See Gentry v. Jordan, 1986 WL 8152, at * 2 (Tenn. Ct. App. July 25, 1986).
In this case, the record does not include clear and convincing evidence of paternity
of the types discussed above. For instance, the record does not show that NH established
a relationship with Claimant, that NH acknowledged paternity openly to the public,
or that there was community acceptance of Claimant as NH’s son. Although NH’s funeral
listing and statements from NH’s mother and Claimant’s mother suggest Claimant may
be NH’s child, we do not believe the record contains clear and convincing evidence
that Claimant was NH’s child.
CONCLUSION
We conclude that an SSA adjudicator could not find that the record provides clear
and convincing evidence that Claimant is NH’s child for the purposes of Tennessee
intestacy law and section 216(h)(2)(A) of the Act.
Mary A. S~
Regional Chief Counsel
By: Jennifer L. P~
Assistant Regional Counsel