QUESTIONS PRESENTED
Whether Julia (the claimant) is entitled to survivor’s benefits as the child of deceased
number holder, Jeffrey (the NH).
OPINION
An existing Acknowledgment of Paternity lists an individual other than the NH as the
claimant’s father. Under Virgin Islands law, the other individual is presently considered
to be the legal father of the claimant. There are currently no grounds on which this
Acknowledgement could successfully be challenged. Additionally, even if the Acknowledgment
could be challenged, a preponderance of the evidence, the standard used by Virgin
Island courts in paternity determinations, would not establish that the NH is legally
the claimant’s father. Accordingly, the claimant is not entitled to survivor’s benefits
on the NH’s account because the claimant cannot inherit personal property from the
NH under Virgin Islands law.
BACKGROUND
On June 6, 2012, Denise filed an application for surviving child’s benefits on behalf
of the claimant on the record of the deceased NH. The NH had been receiving Social
Security disability benefits and had died on June 24, 2003. The application for survivor’s
benefits was originally denied. Denise filed a request for reconsideration and submitted
a report of DNA test results showing that the claimant and another known child of
the NH had a 99.7% probability of being half-siblings.
The claimant was born to Denise, then known as Denise, on November in Charlotte Amalie,
St. Thomas, Virgin Islands. On November 25, 1998, the Registrar of the Virgin Islands
Department of Health filed a Certificate of Live Birth, listing Denise as the claimant’s
mother and Thomas as her father. Denise signed the Certificate of Live Birth, and
she certified that the personal information provided on the certificate was correct
to the best of her knowledge and belief. On December 10, 1998, Thomas signed an Acknowledgment
of Paternity, affirming that, to be best of his knowledge, he was the father of the
female child born to Denise on November. [1]
Denise and Thomas married in August of 2001.
Denise now contends that the NH is the biological father of the claimant, despite
Denise’s having identified Thomas as the father on the birth certificate and despite
Thomas’s having signed the Acknowledgment of Paternity.
According to a written statement Denise submitted to the Agency, she was in a brief
relationship with the NH before the claimant was born.[2] Denise states that by the time of claimant’s birth, her relationship with the NH
had ended and Denise had resumed her relationship with Thomas. According to Denise’s
statement, Thomas was willing to acknowledge the claimant as his child even though
he knew that he was not the biological father.
During the course of his lifetime, the NH appears to have been completely absent from
the life of the claimant. No court ever adjudged the NH to be her parent, nor ordered
him to contribute to her support. See Form SSA-2519 (the Child Relationship Statement). Denise stated that she had no contact
with the NH after she left the Virgin Islands in 2000.
The NH died on June 24, 2003 in Charlotte Amalie, St. Thomas, Virgin Islands.
In April 2012, Denise and the claimant returned to the Virgin Islands to look for
the NH, prompted by the claimant’s questions about her true biological father. Denise
then found the NH’s mother and sister, who told her that the NH had died several years
before.
In her own statement, the NH’s sister, Janice, stated that the NH had never mentioned
that the claimant was his child, but did admit, more generally, that he had “other
children.” Janice stated that she did not know of the claimant’s existence until April
2012.
Denise and Janice then arranged for a genetic test comparing claimant and Aaliyah
, who is known to be a biological child of the NH.[3] DNA Diagnostics Center (DDC) performed the test on May 10, 2012. [4] The results show that the probability of half-siblingship is 99.7%.
The evidence presented includes:
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•
Certificate of Live Birth for the claimant, filed November , showing that claimant
was born on November in Charlotte Amalie, St. Thomas, V.I., listing Thomas as her
father and Denise as her mother, and signed by Denise;
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•
Acknowledgment of Paternity signed by Thomas, dated December 10, 1998, affirming that
he is the father of the female child born to Denise on November in St. Thomas, U.S.
Virgin Islands;
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Certificate of Birth for the claimant, issued April , showing that claimant was born
on November in Charlotte Amalie, St. Thomas, V.I., listing Thomas as her father and
Denise as her mother;
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Death certificate for the NH, filed with the local registrar on July 2, 2003, showing
that he died on June 24, 2003 in Charlotte Amalie, St. Thomas;
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Motion to Establish Support submitted by the Government of the Virgin Islands with
respect to Aaliyah, filed July 29, 2003, stating that paternity genetic test results
show that the NH is Aaliyah’s father;
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Form SSA-5002, dated September 26, 2003, requesting the Agency to consider the above
Motion to Establish Support for purposes of awarding § 216(h)(3) child’s benefits
to Aaliyah on the NH’s record;
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•
DNA Test Report by the DDC, dated May 10, 2012, comparing claimant and Aaliyah and
concluding that the probability of half-siblingship is 99.7%;
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Form SSA-2519 Child Relationship Statement, completed November 20, 2012;
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Form SSA-795 Statement from Denise in support of the allegation of paternity, dated
November 20, 2012;
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Form SSA-795 Statement from Janice in support of the allegation of paternity, dated
November 20, 2012; and
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Special Determination from the Claims Representative summarizing the case.
ANALYSIS
A. Federal Law
The Social Security Act (the Act) requires that a person be the dependent “child”
(as defined in Section 416(e) of the Act) of an insured individual to qualify for
benefits as a surviving child of such individual. Act § 202(d)(1); 42 U.S.C. § 402(d)(1).
For purposes of such 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. Act § 216(e); 42 U.S.C. § 416(e).
The Act and the implementing regulations provide that in determining whether a claimant
will be deemed the surviving “child” of an insured individual for purposes of child’s
benefits, the Commissioner shall apply such law as would be applied in determining
the devolution of intestate personal property by the courts 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. [5] Thus, because the NH was domiciled in the Virgin Islands when he died, Virgin Islands
law regarding the devolution of intestate personal property applies.
B. State Law
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1.
Virgin Islands Intestacy Law
Virgin Islands intestacy law provides that the “children” of a deceased person are
eligible to inherit the decedent’s property. V.I. Code Ann. tit. 15, § 84 (2013).
The statute goes on to provide that an “illegitimate” child may have the same status
as a child born in lawful wedlock; provided that the father had acknowledged paternity
in writing during his lifetime, or was adjudged the father of such child by a court
of competent jurisdiction. V.I. Code Ann. tit. 15, § 84(13) (2013) (emphasis added).
This law has been construed as not permitting posthumous adjudications of paternity
for the purpose of inheritance. In re Baby Girl Lake, Nos. FM1/1995, FM5/1995, 1995 WL 789028 at *4-5, 33 V.I. 66, 74-75 (Terr. Ct. St.
T. and St. J. 1995) (citing In re: M~, 24 V.I. 234, 240 (Terr. Ct. V.I. 1989)).
Nonetheless, that holding does not apply to this analysis because the Commissioner’s
regulations provide that the agency will not apply any State inheritance law requirement
that an action to establish paternity must have been started or completed before the
worker’s death. 20 C.F.R. § 404.355(b)(2). Thus, in cases where relevant State inheritance
laws require a prior court determination of paternity, the agency does not require
such prior determination, but instead makes its own determination of paternity, using
the standard of proof that the State court would use for such purpose. Id.
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2.
Virgin Islands Paternity Law
Virgin Islands Law regarding the establishment of paternity is set forth at V.I. Code
Ann. tit. 16, §§ 291-298 (2013). In pertinent part, section 292 provides that paternity
may be established voluntarily, through the execution of an Acknowledgment of Paternity,
which has the same binding legal effect as a court adjudication of paternity. Section
293 provides for the establishment of paternity through a court proceeding, and discusses
the use of a court-ordered genetic test on the mother, the putative father, and the
child. Section 295 provides means by which paternity may be proved after the father
is deceased.
Virgin Islands law directing the Office of Vital Statistics regarding birth records
is set forth at V.I. Code Ann. tit. 19 §§ 831-837 (2013). The pertinent provisions
of this statute tie directly to V.I. Code Ann. tit. 16 § 291 et seq. (2013). Section
832 provides that in the case of a child born out-of-wedlock, the name of the father
or reputed father shall be placed on the birth certificate only if paternity has been
established pursuant to V.I. Code Ann. tit. 16, §§ 292 or 293. Additionally, V.I.
Code Ann. tit. 19 § 833(b), which works in conjunction with V.I. Code Ann. tit. 16,
§§ 292 and 296, provides that in the case where the natural parents of a child marry
subsequent to the birth of the child, such a child is considered “legitimate.” The
statute goes on to direct the Registrar of Vital Statistics to correct the birth records
only when presented with both a certified copy of the marriage license and an Acknowledgment
of Paternity.
In paternity cases, such as proceedings under section 293, Virgin Islands courts generally
apply a preponderance of the evidence standard. See, e.g., Hyman v. Prince, 9 V.I. 47, 50 (Terr. Ct. St. T. and St. J. 1971); Gov’t of the V. I. ex rel: C.C. v. A.P., 1995 WL 914523, at *3 (Terr. V.I. 1995) (“all that is required to establish paternity
is sufficient evidence to convince the fact finder that the person accused is indeed
the father”) (rev’d on other grounds by A.P. v. Gov’t of the V. I. ex rel. C.C., 961 F.Supp. 122 (D.V.I. 1997). Accord POMS GN 00306.655(4). Preponderance of the evidence is defined as evidence which is of greater weight
or which is more convincing than the opposing evidence; that is, evidence which as
a whole shows that the fact sought to be proved is more probable than not. See, e.g., Gov’t of the V.I. v. A.V., 2001 WL 880771 (Terr. V.I. 2001); POMS GN 00306.655(4).
C. Denise’s claim
Under Virgin Islands Law, Thomas is presently considered the legal father of the claimant.
As noted above, Thomas executed an Acknowledgment of Paternity, affirming that he
is the father of the female child born to Denise on November. This signed, notarized
document is considered a conclusive legal finding of paternity, with the same force
and effect as a court adjudication of paternity. See V.I. Code Ann. tit. 16, § 292(a)(6) (2013). [6] Based on this Acknowledgment of Paternity, pursuant to V.I. Code Ann. tit. 19 § 832,
the Virgin Islands Department of Health, Office of Vital Statistics, issued a retroactive
Certificate of Live Birth in 2008, recording Thomas as the claimant’s legal father.
By now claiming that the NH, rather than Thomas, is in fact the father of the claimant,
it appears that Denise is effectively seeking to: (i) challenge the existing Acknowledgment
of Paternity pursuant to V.I. Code Ann., tit. 16, § 292(a)(6) (2013), and (ii) establish
that the NH is the claimant’s father, pursuant to V.I. Code Ann., tit. 16, § 293 (2013).[7]
a. Challenging the Acknowledgment of Paternity
Under V.I. Code Ann. tit. 16, § 292(a)(6) (2013), after an allowable 60-day rescission
period, any challenge to an Acknowledgment of Paternity must be filed in the court,
and must be based on fraud, duress, or material mistake of fact, with the burden of
proof upon the challenger. Id. Here, however, there is no indication of duress, neither Denise nor Thomas appear
to have been defrauded, and neither appear to have been operating under any material
mistake of fact. Thus, it is unlikely that Denise could successfully challenge the
existing Acknowledgment of Paternity. As a result, she most likely could not establish
that anyone other than Thomas is the claimant’s legal father. This, in and of itself,
would preclude a finding that the claimant is the NH’s child under Virgin Islands
law.
b. Application of the Preponderance of the Evidence Standard to the Facts Provided
Further, even if Denise were able to successfully challenge the Acknowledgment of
Paternity, thereby removing Thomas from the record as the claimant’s legal father,
Denise most likely would not be able to affirmatively establish that the NH is the
claimant’s father under V.I. Code Ann., tit. 16, § 293 (2013), applying the “preponderance
of the evidence standard.”[8]
(i) The Genetic Test
Where paternity is contested, it may be established by a court-ordered blood, genetic,
or DNA test on the mother, putative father, and child or children. V.I. Code Ann.,
tit.16, § 293(f) (2013).[9] Here, however, the test results provided by Denise do not comport with the requirements
of section 293(f). The test was not court-ordered, nor was it one to which the mother
or the putative father submitted. See id. Thus, although a test performed within the requirements of section 293(f), showing
a statistical probability of paternity of 99% or higher, constitutes a conclusive
presumption of paternity, and such outcome shall have the same result as a court or
hearing officer’s judgment establishing paternity, see § 293(g), that conclusive presumption would not apply to the test submitted here.
Here, the test would be considered, but its weight would be for the finder of fact.
We have found no law specifically discussing genetic tests supplied by the parties.
Nor have we found law about genetic testing on any other putative related individual.
However, the Territorial Court of the Virgin Islands has found, more generally, that
the results of genetic testing, even when not dispositive, have probative value and
therefore can serve as a part of the fact finder’s analysis. See, e.g., Virgin Islands ex rel. Lloyd v. Malone, 23 V.I. 11, 14 (V.I. Terr. Ct. 1987) (finding that the results of an HLA blood test
were not conclusive evidence of paternity, but were similar to any other evidence
to be utilized by the fact-finder in making its determination); See also, Ex rel: C.C., 1995 WL 914523 at *3 (rev’d on other grounds by A.P., 961 F.Supp. 122).
However, in weighing this evidence, the fact-finder would consider that Denise provided
no information regarding the circumstances under which the claimant and Aaliyah provided
their samples to the laboratory. There is no way to even be certain that the results
are truly those of claimant and Aaliyah. Chain of custody of DNA and other biological
samples is considered “undeniably material” by Virgin Islands courts in determining
the reliability of DNA test results. See e.g., People of the V. I. v. Rodriguez, 2010 V.I. Supreme LEXIS 15, at *11 (V.I. 2010).[10] See also H~, 9 V.I. 47 at 57-62 (the questionable manner in which sperm samples were collected
and analyzed was one factor in assigning the test results little weight); L~, 23 V.I. 11 at 13-14 (the results of an HLA blood test served as persuasive evidence
in a paternity case only when admitted together with the crucial testimony of the
biochemist who personally drew the blood).
(ii) Lack of Action by the NH During his Lifetime
V.I. Code Ann. tit. 16, § 295(a) (2013) of the paternity statute designates certain
means by which paternity may be evidenced once the father is deceased, none of which
have been satisfied here. We note that the NH never publicly acknowledged the claimant
as his child, never received the claimant into his family, and never took any other
action to treat her as a legitimate. In fact, to the contrary, Janice’s statement
provides evidence that the NH never mentioned that the claimant was his child.
(iii) Denise’s Statements
The weight given to Denise’s statements would also be decided by the fact finder.
Virgin Islands law states that “the unsubstantiated testimony of the mother in a paternity
action is sufficient evidence, if believed, to establish the paternity of the putative
father.” See H~, 9 V.I. 47, at 51-52 (emphasis added). Therefore, it would be for the fact-finder
to determine whether Denise’s statements should be believed.
Here, we note that Denise’s statement to the agency that Thomas is not the father
contradicts both Thomas’ sworn Acknowledgment of Paternity and Denise’s own attestation
to the information on the claimant’s birth certificate, including the statement that
Thomas is the father. A fact finder would consider these contradictions in weighing
the credibility of Denise’s present assertions. It appears unlikely that here, Denise’s
unsubstantiated assertions would be persuasive in establishing paternity by the NH.
CONCLUSION
Applying Virgin Islands law and the standard of proof that would be used by a Virgin
Islands Court, we do not believe that paternity would be established under this set
of facts. First, Denise could not succeed in challenging the existing Acknowledgment
of Paternity, which establishes Thomas as claimant’s legal father, because she could
not establish fraud, duress, or mistake of fact. Further, even if Denise could effectively
challenge the existing Acknowledgment of Paternity, we do not believe that she could
establish, by a preponderance of the evidence, that the NH is the claimant’s father.
The DNA test Denise submitted does not meet the requirements of the relevant law and
presents chain of custody concerns. Additionally, the NH did not take any action during
his lifetime to acknowledge claimant as his child. Finally, Denise’s current statements
are contradicted by her prior affirmation on the birth certificate and by Thomas’s
signed Acknowledgement, likely diminishing her credibility.
Accordingly, it is our opinion that the claimant is not entitled to survivor’s benefits
on the NH’s account because the claimant cannot inherit personal property from the
NH under the Virgin Island laws of intestacy.