To be entitled to the LSDP under Title II of the Act, a claimant must establish that he or she meets the requirements for child’s insurance benefits. See 42 U.S.C. § 402(i)(2); 20 C.F.R. § 404.392(a)(2). Under Title II of the Act, a claimant may be entitled to child’s insurance benefits on the record of an insured individual who has died or an individual who is entitled to old-age or disability benefits if, among other things, he or she is the individual’s child. See 42 U.S.C. § 402(d)(1); 20 C.F.R. §§ 404.350(a)(1), 404.354.^[6] The Act and regulations define “child” as an insured individual’s natural child, legally adopted child, stepchild, grandchild, step grandchild, or equitably adopted child. See 42 U.S.C. § 416(e); 20 C.F.R. §§ 404.354 – 404.359. Based on the evidence provided, our inquiry focuses on whether the Claimants are the NH’s natural children as the other terms are inapplicable.^[7] Given the identification of the NH as the Claimants’ father on their Alabama birth certificates and Texas birth registration related EAB Numident record, we focus on whether the agency may deem the Claimants to be the NH’s natural children under section 216(h)(3)(C)(i) of the Act.^[8]

Under section 216(h)(3)(C)(i) of the Act, the biological child of a deceased number holder may be deemed to be the number holder’s child if, before the deceased number holder’s death:

(1) the number holder acknowledged in writing that the child was his child;

(2) a court decreed the number holder to be the child’s father; or

(3) a court ordered the number holder to contribute to the child’s support.

See 42 U.S.C. § 416(h)(3)(C)(i); 20 C.F.R. § 404.355(a)(3); POMS GN 00306.100.

1. Biological Relationship for Section 216(h)(3) Child Status: The Alabama birth certificates and the Texas birth registration related EAB Numident record are evidence of the Claimants' biological relationship with the NH for section 216(h)(3) purposes.

To establish status as a child under section 216(h)(3), the child must be the number holder’s biological child. See POMS GN 00306.100A (“Section 216(h)(3) requires that the child must be the NH’s son or daughter. Therefore, even if one of the requirements in GN 00306.100C is met, you must consider evidence showing that the NH is not the child’s biological parent.”). Of relevance here given the birth certificates and EAB Numident record evidence relied upon by the Claimants to support their parent-child relationship with the NH, agency policy instructs that the agency should not raise the issue of the child’s biological relationship with the NH if the child’s full birth certificate shows the NH as the child’s parent (and there is no information casting doubt on the biological relationship), or if the child’s Numident shows that it is an EAB record; the NH’s name is in the mother’s name at birth or father’s name at birth field of the EAB record; someone else is not listed in the same field in iterations following EAB; and the EAB record was established before the NH died. POMS GN 00306.105D, GN 00306.110D; see also POMS GN 00306.105E, GN 00306.110E (reasons to doubt biological relationship), GN 00306.125B.1.a (instructing that the agency may accept the child’s Numident record as evidence of the biological relationship if the child’s Numident shows that it is an EAB record, the NH’s name is in the mother’s name at birth or father’s name at birth field of the EAB record, someone else is not listed in the same field in iterations following EAB, and the EAB record was established before the NH died; or if the child’s full birth certificate shows the NH as the child’s parent (and there is no information casting doubt on the biological relationship)).

Under such policy, Claimant A1~’s Alabama full birth certificate naming the NH as her father is evidence of their biological relationship for section 216(h)(3) purposes. Similarly, Claimant J~’s Alabama full birth certificate naming the NH as her father is evidence of their biological relationship. Further, Claimant M2~’s EAB Numident record established before the NH’s death and listing the NH in the father’s name at birth field (and A2~ as his mother) is evidence of their biological relationship for section 216(h)(3) purposes.

2. Use of Birth Certificate or EAB Numident Record as Evidence of Written Acknowledgment of Paternity or Court Determination of Parentage for Section 216(h)(3) Child Status

For section 216(h)(3) child purposes, agency policy instructs that the agency may use information from a child’s birth certificate or the child’s EAB Numident record as evidence of a number holder’s written acknowledgment of the child or proof of a court determination of parentage. POMS GN 00306.105C2, 3, GN 00306.110C, GN 00306.120.

a. Policy: Birth Certificate

POMS GN 00306.120 sets forth the policy for using information from a child’s birth certificate as a written acknowledgment. POMS GN 00306.105C.2. This provision states that certain State laws or regulations require a father’s written consent or a court determination in order to identify a father as a nonmarital child’s father on the birth certificate.^[9] POMS GN 00306.120B. The agency is instructed to contact the State vital statistics office to determine if a written statement or court determination was filed with the birth certificate for a particular child. POMS GN 00306.120B.1. Alternatively, the agency may presume that there has been written acknowledgment or a court determination of paternity if the birth certificate shows illegitimacy and a precedent legal opinion shows that the applicable State law or regulations require the written acknowledgment or court determination of paternity to be filed in order for the father’s name to appear on the birth certificate or for the child’s last name to be the same as the father’s on the birth certificate. POMS GN 00306.120B.2. There is no current published precedent legal opinion for Alabama in POMS PR 01210.000 (state law requirements for showing information about father on child’s birth certificate). Thus, we will set forth Alabama law in this opinion given that the Alabama birth certificates for Claimants A1~ and J~, nonmarital children, identify the NH as their father.

b. Alabama Law and Birth Certificates: The agency can presume that the NH completed a written acknowledgment of paternity or was determined by a court to be their father given the NH’s name as their father on Claimant A1~’s and Claimant J~’s Alabama birth certificates.

Under Alabama law relevant to the birth certificates for Claimants J~ and A1~ and current law, if the mother was not married at the time of either conception or birth of a child or between conception and birth, the name of the father shall not be entered on the child’s birth certificate unless paternity has been determined by a court of competent jurisdiction or unless the legitimation process specified in sections 26-11-1 through 26-11-3 of the Alabama Code (which includes a procedure for legitimation by written declaration of the father as provided in section 26-11-2), or otherwise provided by law (which includes an acknowledgment of paternity as provided in section 26-17-22) has been completed. Ala. Code § 22-9A-7(f)(2); Ala. Admin. Code r. 420-7-1-.03(3)(a)(1); Ala. Admin. Code r. 420-7-1-.05(2)(b); see also POMS GN ATL00306.120B (the chart for Region IV States for using information from a birth certificate as written acknowledgment or proof of court order reflects that since 1992, Alabama has required written consent or a court order for a father to be named on the birth certificate of a nonmarital child). Thus, Alabama law instructs that if the parents are not married, the father is only named on the child’s birth certificate if there is a court order of paternity, a written declaration of legitimation by the father, or an acknowledgment of paternity by the father.See J.M.V. v. J.K.H., 149 So.3d 1100, 1103 (Ala. Civ. App. 2014) (noting that if the mother was not married to the father at or before the time she gave birth to the child, “the Alabama Office of Vital Statistics would not have been permitted to set forth any information about the father on the child’s birth certificate based merely on his attendance at the child’s birth”).

Consequently, because the NH is named as the father on Claimant J~’s Alabama birth certificate and on Claimant A1~’s birth certificate, for purposes of section 216(h)(3), the agency may presume that the NH completed a written acknowledgment of paternity or there was a court determination of paternity. Therefore, we believe there is legal support for the agency to deem Claimant J~ and Claimant A1~ to be the NH’s children pursuant to section 216(h)(3)(C)(i). See POMS GN 00306.105C2, GN 00306.110C, GN 00306.120.

c. Policy: EAB Numident Record

POMS GN 00306.105C.3 states that the child’s EAB Numident record can be proof of written acknowledgment of paternity. The EAB process is a program that allows parents to complete applications for SSNs for their newborns as part of the hospital birth registration process. 20 C.F.R. § 422.103(b)(2); POMS RM 10205.001B, RM 10205.005B, RM 10205.505. “When the hospital representative asks for information to complete the birth certificate, he or she also asks the parents if they would like the State’s vital statistics office to forward information to SSA to assign an SSN. If the parent agrees, the hospital representative checks a block on the form indicating that the parent wants an SSN assigned to his or her child. The hospital forwards this information to the State’s vital statistics office along with birth certificate information. The State vital statistics office then provides SSA with an electronic record used to assign an SSN and issue a card.” RM 10205.005B. Thus, the same information collected by the State’s vital statistics office for the State-issued birth certificate is also transmitted to SSA as part of the EAB process. See POMS RM 10205.505B (“EAB allows parents to complete applications for SSNs for their newborns as part of the hospital birth registration process.”). Given this understanding of the EAB process as it relates to the State’s birth registration and birth certificate process, we turn back to the policy on use of the EAB Numident as evidence of a written acknowledgment for section 216(h)(3) child purposes.

POMS GN 00306.105C.3 instructs that the child’s Numident constitutes evidence of written acknowledgment if the record: includes the form code showing it is an EAB record; shows the NH’s name in the mother’s name at birth or father’s name at birth field of the EAB Numident; does not show a name other than the NH’s name in the same field in iterations following the EAB; and the NH’s written consent was required by the State during the EAB process. As to this consent requirement, the POMS instruct the agency to contact the State vital statistics office or use a relevant precedent opinion to determine if written consent was required and refers the agency to POMS GN 00306.120, which sets forth agency policy on use of a birth certificate as proof of written acknowledgment or a court order (discussed above). There is no current published precedent legal opinion for Texas in POMS PR 01210.000 (state law requirements for showing information about father on child’s birth certificate). Thus, we will set forth Texas law in this opinion on the requirements for identifying a father of a nonmarital child on the birth record given that Claimant M2~ has an EAB Numident record that identifies the NH as his father.

d. Texas Law and Birth Registration: The agency can presume that the NH completed a written acknowledgment of paternity or was determined by a court to be his father as part of the birth registration process in Texas given the NH’s name as his father on Claimant M2~’s EAB Numident record.

Texas law relevant to Claimant M2~ and current law provides that the items on a birth certificate relating to a child’s father should only be completed if the child’s mother was married to the father; paternity is established by a court order; or a valid acknowledgment of paternity has been executed by the father and filed with the State’s vital statistics unit. Tex. Health & Safety Code Ann. § 192.005(a); see also Tex. Health & Safety Code Ann. § 192.001 (the birth of each child born in Texas shall be registered), § 192.012(a) (if the child’s mother is not married to the child’s father, a person responsible for filing the birth certificate shall provide an opportunity for the child’s mother and putative father to sign an acknowledgment of paternity); In Interest of F.E.N., 542 S.W.3d 752, 767 n.12 (Tex. App. – Houston [14th Dist.] 2018, pet. denied) (noting that the hospital where the child was born would not have been permitted to list the father on the birth certificate without a valid acknowledgment of paternity form and that the hospital was responsible for filing both documents with the correct authority).^[10]

Here, we do not have Claimant M2~’s Texas birth certificate, but we do have his EAB Numident record, which identifies the NH as his father.^[11] As noted, POMS GN 00306.105C.3 instructs that the child’s Numident constitutes evidence of written acknowledgment if the record: includes the form code showing it is an EAB record; shows the NH’s name in the mother’s name at birth or father’s name at birth field of the EAB Numident; does not show a name other than the NH’s name in the same field in iterations following the EAB; and the NH’s written consent was required by the State during the EAB process. This POMS provision references GN 00306.120, pertaining to when the agency can use a birth certificate as proof of written acknowledgment of paternity or proof of a court order, for more information on determining if consent was required to be identified as a parent. POMS GN 00306.105C.3.

The Texas Department of Health and Human Services website explains that “[t]he purpose of the Texas Birth Registrar Certification is to improve birth registration in Texas by standardizing data collection and entry. Improving birth registration is critical to make sure Texans receive valid birth certificates and that the data represents their health. The state of Texas collaborates with a variety of state and federal partners agencies,” including SSA. Birth Registrars | Texas DSHS (last visited May 24, 2023). The Texas website instructs: “If the mother and father of the child are not married, an [Acknowledgment of Paternity] should be completed. Birth Registrars are required to receive training and certification for this process annually from the Attorney General’s Office.” Id. The Texas Department of Health and Human Services provides the Birth Worksheet for Child’s Birth Certificate (Form VS-109, rev. 07/21). Id. This Texas birth worksheet is used to provide a complete and accurate birth certificate. It is on this Texas birth worksheet where parents can select “yes” or “no” to authorize release of information to SSA to issue an SSN for the child. The Texas birth worksheet requires information about the mother, including her marital status, whether an acknowledgment of paternity was signed, and information about the father. Id. Thus, the same information collected and sent to the Texas Department of Health and Human Services for the Texas birth certificate as part of the hospital birth registration process, which includes identifying the child’s mother and father, is transmitted by the State to SSA as part of the EAB process. See POMS RM 10205.001B, RM 10205.005B, RM 10205.505.

As noted, because the mother and the NH were not married, the NH could only be identified as Claimant M2~’s father on his Texas birth record if the NH’s paternity was established by a court order or a valid acknowledgment of paternity had been executed by the NH and filed with the State’s vital statistics unit. Tex. Health & Safety Code Ann. § 192.005(a). As such, because the NH is named as the child’s father on Claimant M2~’s EAB Numident record established at the time of his birth in accordance with Texas law on birth registration, the agency may presume that the NH completed a written acknowledgment of paternity or there was a court determination of paternity to be identified as the child’s father as required by Texas law. Therefore, we believe there is legal support for the agency to deem Claimant M2~ to be the NH’s child pursuant to section 216(h)(3)(C)(i). See POMS GN 00306.105C.3, GN 00306.120.

Finally, if parent-child relationships were established between the NH and the Claimants, you asked for the effective date of such parent-child relationships. The POMS instruct that the parent-child relationship based on a written acknowledgment begins on the date of the written acknowledgment, unless the evidence points to an earlier date. POMS GN 00306.105F. Similarly, the POMS instruct that the parent-child relationship based on a court order begins on the date of the court order, unless the evidence points to an earlier date. GN 00306.110F.

Here, we do not have the underlying written acknowledgments or any court determinations that allowed the NH to be named as the Claimants’ father on their birth certificates. Given that the NH was named as the father on the Alabama birth certificates for Claimants J~ and A1~ issued at the time of their birth, we believe it would be reasonable for the agency to find that the effective date of their parent-child relationships with the NH is their date of birth – December XX, 2003, for Claimant J~ and March XX, 2005, for Claimant A1~. Similarly, given that the NH was named as the father as part of the Texas birth registration and EAB Numident process for Claimant M2~, we believe it would be reasonable for the agency to find that the effective date of the parent-child relationship is his date of birth, August XX, 2018.