I. Question Presented
The number holder (“NH”), C~, who resided in Connecticut, died on February xx, 2014.
On July XX, 2014, the female child claimant, C2~, was born in Connecticut. The child’s
mother is D~. The birth certificate does not identify the father. D~ has filed for
benefits on behalf of her child as the child of the deceased NH. The question presented
is whether a parent-child relationship exists between the child and the deceased NH
for purposes of surviving child’s benefits.
II. Short Answer
The child claimant’s mother has not established that a parent-child relationship exists
between the child claimant and the deceased NH under Connecticut law.
III. Background
On May XX, 2017, we received your request for an opinion as to whether a parent-child
relationship exists between the child claimant and the deceased NH.
D~ has stated that she and the NH were in a relationship and that the NH is the father
of the female child claimant. There is no indication that they lived together, and
no evidence that the NH acknowledged the child as his own, in writing, before his
death. The NH died in February 2014, and the child was born in July 2014. Although
the birth certificate does not identify the child’s father, D~ named the child after
the NH.[1] D~ also submitted a home paternity test purporting to show that there is a 99.9%
probability that the claimant is the half-sister of another child named E~, whose
father is allegedly C~. No DNA sample from the NH was tested.
IV. Applicable Law
A. Federal Law
The Social Security Act provides for determination of family status for application
purposes. 42 U.S.C. § 416(h). Relevant here, the Act states:
In determining whether an applicant is the child . . . of a fully or currently insured
individual for purposes of this title, the Commissioner of Social Security shall apply
such law as would be applied in determining the devolution of intestate personal property
by the courts of the State in which such insured individual . . . was domiciled at
the time of his death . . . Applicants who according to such law would have the same
status relative to taking intestate personal property as a child . . . shall be deemed
such.
42 U.S.C. § 416(h)(2)(A); see also 20 C.F.R. §§ 404.350, 404.355.
Additionally, An applicant who is the son or daughter of a fully or currently insured
individual, but who is not (and is not deemed to be) the child of such insured individual
under paragraph (2), shall nevertheless be deemed to be the child of such insured
individual if:
. . .
(C) in the case of a deceased individual
(i) such insured individual
(I) had acknowledged in writing that the applicant is his or her son or daughter,
(II) had been decreed by a court to be the mother or father of the applicant, or
(III) had been ordered by a court to contribute to the support of the applicant because
the applicant was his or her son or daughter,
and such acknowledgment, court decree, or court order was made before the death of
such insured individual, or
(ii) 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.
42 U.S.C. § 416(h)(3)(C); see also 20 C.F.R. §§ 404.350, 404.355.
Since the NH was domiciled in Connecticut at the time of his death, the agency must
determine whether the Connecticut State courts would consider the child claimant to
be the child of the NH for purposes of intestacy.
Section GN 00306.440 of the Program Operations Manual System (“POMS”) discusses Connecticut intestacy
laws. Specifically, the POMS provides:
SSA will . . . find a parent-child relationship to exist after the father’s death
where there is unrebutted genetic testing with the statistical probability of paternity
of 99.0 percent or greater provided that the petitioner has presented evidence that
sexual intercourse occur[r]ed between the mother and this individual during the period
of time that the child was conceived. Where the above evidence is not present, or
where evidence is presented to rebut the genetic testing evidence, SSA will determine
if a parent-child relationship exists based on a preponderance of the evidence, which
may include any of the evidence presented in GN 00306.440.D.
POMS GN 00306.440.B.3. Section D further provides:
Evidence considered in paternity adjudications includes genetic testing as well as
testimony from the mother and alleged father. Genetic testing with a statistical probability
of 99.0 percent or greater creates a rebuttable presumption of paternity provided
that the petitioner has presented evidence that sexual intercourse occurred between
the mother and this individual during the period of time that the ch[i]ld was conceived.
POMS GN 00306.440.D.
B. Connecticut Law
Section 46b-168 of the Connecticut General Statutes provides:
In any proceeding in which the question of paternity is at issue, the court or a family
support magistrate, on motion of any party, may order genetic tests which shall mean
deoxyribonucleic acid tests, to be performed by a hospital, accredited laboratory,
qualified physician or other qualified person designated by the court, to determine
whether or not the putative father or husband is the father of the child. The results
of such tests, whether ordered under this section or required by the IV-D agency under
section 46b-168a, shall be admissible in evidence to either establish definite exclusion
of the putative father or husband or as evidence that he is the father of the child
without the need for foundation testimony or other proof of authenticity or accuracy,
unless objection is made in writing not later than twenty days prior to the hearing
at which such results may be introduced in evidence.
In any proceeding in which the question of paternity is at issue, the results of such
genetic tests . . . shall constitute a rebuttable presumption that the putative father
is the father of the child if the results of such tests indicate a ninety-nine per
cent or greater probability that he is the father of the child, provided the petitioner
has presented evidence that sexual intercourse occurred between the mother and the
putative father during the period of time in which the child was conceived.
Conn. Gen. Stat. § 46b-168(a) and (b).
V. Analysis
The evidence does not show that the child claimant was the child of the deceased NH
within the meaning of 42 U.S.C. § 416(h)(2)(A). Both the POMS and CT law provide for
a rebuttable presumption of paternity based on genetic testing indicating that there
is a 99.0 percent or greater probability that the putative father is the father of
the child, provided that there is evidence that sexual intercourse occurred between
the mother and the putative father during the period in which the child was conceived.
Here, D~ has presented the results of a home genetic test purporting to show that
there is a 99.9% probability that the claimant is the half-sister of another child
named E~, whose father is allegedly C~.
The test results that D~ has submitted are insufficient to establish a presumption
of paternity, however. Although the test appears to have been done by an accredited
laboratory, it was not done pursuant to a court order under conditions in which a
credible chain of custody of the specimens could be established. Moreover, DNA samples
from the NH and D~ were not tested. In addition, the report states that the two individuals
tested–the claimant and a minor named E~–were “entirely responsible for the information
[and DNA specimens] provided,” and that the “identity and authentication of the DNA
specimens analyzed on this report cannot be verified.” The testing company also specifically
disclaims any liability for misidentification of the persons tested and further explains
that the results of its home DNA test are not legally binding or admissible in court
unlike a “legal DNA test.” For these reasons, it is unlikely that a Connecticut court
would admit the results of this test to establish a presumption that the NH is the
child claimant’s father. [2]
We also conclude that SSA should not find a parent-child relationship based on a preponderance
of the evidence. See POMS GN 00306.440.B.3 (“Where [genetic testing] evidence is not present, . . . SSA will determine if
a parent-child relationship exists based on a preponderance of the evidence . . .”).
The agency “decide[s] . . . paternity by using the standard of proof that the State
court would use as the basis for a determination of paternity.” 20 C.F.R. § 404.355(b)(2).
Prior to DNA testing, the State of Connecticut did not allow paternity suits against
deceased individuals. See Hayes v. Smith, 194 Conn. 52, 63, 480 A.2d 425, 431 (1984). In Hayes, the court explained, “Because
the question of paternity is one of fact and not of law[,] the decedent’s continued
availability would be a substantial factor in contributing to the reliability of the
factfinding process on this question.” Hayes, 194 Conn. at 64, 480 A.2d at 432. More
recently, however, the Connecticut Superior Court allowed a paternity suit against
a deceased individual because “the ‘proof problem’ identified by the court in Hayes
has been ameliorated [by the scientific techniques available to determine paternity].”
Lach v. Welch, No. FA 93-0063955, 1994 WL 271518, at *3, 7 (Conn. Super. Ct. June 13, 1994). In
other words, for Connecticut courts, genetic testing is crucial evidence in paternity
determinations where the alleged father is deceased.
In this case, D~ presented three letters, two signed and one unsigned, from individuals
who stated that the NH had acknowledged that he was the father of the child claimant.
In one letter, a nurse from DK~ Healthcare stated that the NH had accompanied the
mother during an ultrasound appointment. As stated above, D~ also presented the purported
results from a home-administered DNA test. Considered together, we do not believe
these materials rise to the level of a preponderance of the evidence under Connecticut
law. In 2000, the Connecticut Superior Court essentially rejected a defendant’s “unconventional”
DNA test, explaining that “[w]ithout proper foundation and supporting evidence, this
court cannot accord more than minimal weight to the test results [from a DNA test
that was not court-ordered].” White v. Cordier, No. FA 940616380, 2000 WL 773006, at *2-3 (Conn. Super. Ct. June 1, 2000). And in
Brancato v. Moriscato, No. CV 030472496S, 2003 WL 1090596 at *1 (Conn. Super. Feb. 27, 2003), the Connecticut
Superior Court ordered the exhumation of the deceased putative father for paternity
testing purposes. Based on these cases, we believe a Connecticut court would likely
not rely on the letters to establish paternity and would require court-ordered testing
to establish paternity where the putative father is deceased and thus unable to testify
on his own behalf or challenge the evidence presented by the mother.
The evidence also establishes that the child claimant was not the child of the deceased
NH within the meaning of 42 U.S.C. § 416(h)(3)(C). The deceased NH did not acknowledge
the child as his own in writing before his death. The deceased NH had not been decreed
by a court to be the father of the child claimant or been ordered by a court to contribute
to the child’s support before his death. And the NH was not living with or contributing
to the support of the child claimant at the time of his death, as the child had not
yet been born.
VI. Conclusion
Based on the foregoing, we believe that a Connecticut State court would not extend
rights of inheritance to the child claimant based on the evidence submitted to date
in this case, and, thus, that the child claimant’s mother has not established by a
preponderance of the evidence that a parent-child relationship exists between the
child claimant and the deceased NH.
Michael J. Pelgro
Regional Chief Counsel
By: Molly Carter
Assistant Regional Counsel