QUESTION
You asked whether a parent-child relationship existed between G~, the deceased wage
earner (DWE), and child-claimant N~ (Claimant) for purposes of determining the Claimant’s
entitlement to surviving child benefits and the Lump Sum Death Payment (LSDP).
SHORT ANSWER
The Claimant does not qualify as DWE’s child under section 216(h)(2)(A) of the Act
and is not entitled to surviving child benefits on DWE’s record. Because the Claimant
is not entitled to benefits as the DWE’s child, he may not receive the LSDP.
SUMMARY OF EVIDENCE
A~ (Mother) had a non-marital relationship with the DWE. She gave birth to the Claimant
on February XX, 2015 in F~, California. Claimant’s birth certificate did not identify
a father. The Mother sent DWE messages regarding the Claimant’s birth but DWE never
responded.
In July 2015, the California Department of Child Support Services brought an action
against DWE for child support for the Claimant. The DWE was served with child support
papers at his father’s house, where he was then living. When his father asked about
the child, the DWE denied that he was the Claimant’s father.
On July XX, 2015, the DWE died from a self-inflicted gunshot wound in A~, California.
The Mother was no longer talking to DWE at this time.
In April 2016, the Claimant, Mother, and the Claimant’s paternal grandparents (Grandparents)
submitted samples for genetic testing. LB Genetics issued a test report on May XX,
2016 finding a 99.98% probability that the Grandparents were in fact the Claimant’s
biological grandparents. LB Genetics later tested a sample of DWE’s blood and found
a 99.99% probability that he was the Claimant’s father.
On May XX, 2016, the Mother filed a claim for surviving child’s benefits and the LSDP
on the DWE’s record. In a June 2016 Child Relationship Statement, the Mother indicated
that the DWE admitted orally that he was the Claimant’s parent. She answered “no”
to all other questions on the form, including questions going to whether the DWE held
out the Claimant as his child or contributed to Claimant’s support. The Grandmother
submitted a notarized affidavit attesting to her belief that the Claimant was her
grandson, based on genetic testing and the fact that the Grandparents had no other
sons.
The Mother filed a petition and supporting declaration in Orange County Superior Court
to establish DWE’s parentage. On October XX, 2016, the Court issued a judgment finding
DWE was the Claimant’s father and ordering DWE’s name be added to the Claimant’s birth
certificate. An amended birth certificate was issued on December XX, 2016 naming DWE
as Claimant’s father.
The Anaheim Field Office spoke with the Mother in December 2016 about DWE’s mental
health. The Mother stated DWE had previously admitted that mental illness ran in his
family, and she believed that was his way of telling her that he suffered from mental
illness too. The Mother noted that he seemed in denial about the extent of his illness,
he was impulsive, and he had substance abuse problems. She did not have any medical
information about DWE’s condition but believed his mental illness prevented him from
taking responsibility for a child.
The Anaheim Field Office also spoke with the Claimant’s paternal grandmother, A2~
(Grandmother) in December 2016. She stated that DWE was severely depressed and suffered
from mental illness, which ran in the family. The Grandmother thought DWE was in denial
about his condition and unable to take responsibility for a child. Further, although
DWE was seeing a psychiatrist, the Grandmother believed he might not have been truthful
with the doctor about his mental illness. The Grandmother was unable to obtain more
information from DWE’s psychiatrist about his condition.
LEGAL STANDARDS
A. Federal Law
Under the Social Security Act (Act), every child of an individual who died fully or
currently insured is entitled to child’s insurance benefits, if the child proves that
he:
(1) is the insured individual’s child, as defined in section 216(e) of the Act;
(2) has applied for such benefits;
(3) is unmarried;
(4) is under the age of 18; and
(5) was dependent upon the insured individual at the time of his death.
Social Security Act § 202(d)(1); 20 C.F.R. § 404.350; Program Operations Manual System
(POMS) GN 00306.001(A).
The Act defines “child” as “the child or legally adopted child of an individual.”
Social Security Act § 216(e)(1). A claimant has child status if he has the right to
inherit from the insured individual’s estate under State intestacy laws. Social Security
Act § 216(h)(2)(A). Where the insured individual is deceased, the agency applies the
intestacy laws of the State where he was domiciled at the time of death. Social Security
Act § 216(h)(2)(A); POMS GN 00306.055.
An applicant who satisfies the requirements of section 216(h)(2)(A) of the Act is
also deemed dependent upon the insured individual. 20 C.F.R. ' 404.361(a) (“If you
are the insured’s natural child, as defined in § 404.355, you are considered dependent
upon him or her”); Social Security Ruling (SSR) 77-2c (“where state intestacy law
provides that a child may take personal property from a father’s estate, it may reasonably
be thought that the child will more likely be dependant during the parent’s life...”).
If the applicant does not qualify under section 216(h)(2)(A) of the Act, he may still
be deemed the child of the insured individual under alternative federal standards.
See Social Security Act § 216(h)(3). An applicant may qualify as the child of an insured
individual if, before the insured’s death:
(1) he acknowledged the applicant as his child in writing;
(2) a court decreed him the child’s father; or
(3) a court ordered that he contribute to the child’s support.
Social Security Act § 216(h)(3)(C)(i). An applicant may also qualify as the child
of an insured individual if the agency finds that the insured is the applicant’s father,
and he was living with or contributing to the applicant’s support at the time of the
insured’s death. Social Security Act § 216(h)(3)(C)(ii).
B. California Law
Pursuant to the Probate Code, a child may inherit through his or her natural parents
regardless of the parents’ marital status. Cal. Prob. Code § 6450(a). A parent-child
relationship is established where the relationship is presumed and not rebutted under
the Uniform Parentage Act (UPA). Cal. Prob. Code § 6453(a); see generally Cal. Fam. Code §§ 7600-7730 (California’s UPA). Under the UPA, several
presumptions of parentage arise when a child is born before, during, or after a marriage,
or attempted marriage, of the presumed parent and the child’s natural mother. Cal.
Fam. Code § 7611(a)-(c). A presumption also arises, even absent a marriage, where
the presumed parent “receives the child into his or her home and openly holds out
the child as his or her natural child.” Cal. Fam. Code § 7611(d); see also POMS GN 00306.430.A.1.b.6.
Where no presumption of parentage applies under the UPA, a parent-child relationship
may be established through an action brought under Family Code section 7630(c) to
determine the
existence of a father and child relationship, so long as one of the following conditions
exist:
(1) A court order was entered during the father’s lifetime declaring paternity;
(2) Paternity is established by clear and convincing evidence that the father has
openly held out the child as his own; or
(3) It was impossible for the father to hold out the child as his own and paternity
is established by clear and convincing evidence.
Cal. Prob. Code § 6453(b); see also Cal. Fam. Code § 7630(c) (actions to establish a father-child relationship not based
upon a presumption arising under Cal. Fam. Code § 7611). Genetic testing that indicates
a likelihood of paternity of 100 times or greater creates a rebuttable presumption
of paternity. Cal. Fam. Code § 7555(a); see also POMS GN 00306.430.A.1.c (recognizing that submission of genetic test results is one method for establishing
clear and convincing evidence of paternity).
ANALYSIS
A. Whether the Claimant Satisfies Section 216(h)(2)(A) of the Act
Here, DWE died while domiciled in California. Accordingly, we apply California intestacy
law to determine whether the Claimant is DWE’s “child” under section 216(h)(2)(A)
of the Act.
First, under the Probate Code, a parent-child relationship may be established if the
relationship is presumed and not rebutted under the UPA, as set forth in Family Code
section 7600 et seq. See Cal. Prob. Code § 6453(a). Here, the UPA’s parentage presumptions are inapplicable
because the DWE never married or attempted to marry the Mother, and he never received
the Claimant into his home. See Cal. Family Code § 7611(a)-(d).
Second, a parent-child relationship may be established through an action brought under
Family Code section 7630(c) if one of the conditions listed in Probate Code section
6453(b) exists. As discussed below, none of the conditions in section 6453(b) are
satisfied here.
1. No Court Issued an Order of Paternity During DWE’s
Lifetime
First, a parent-child relationship may be established under Probate Code section 6453(b)(1)
if a court entered an order during the father’s lifetime declaring paternity. See Cal. Prob. Code § 6453(b)(1); POMS GN 00306.430.A.1.b.7.A. Here, Orange County Superior Court issued a judgment establishing DWE’s
paternity on October XX, 2016, over a year after the DWE’s death on July XX, 2015.
Accordingly, this judgment does not satisfy Probate Code section 6453(b)(1).
2. DWE Did Not Openly Hold Out the Claimant as His Own
Child
Second, a parent-child relationship may be established under Probate Code section
6453(b)(2) if there is clear and convincing evidence that the father openly held out
the child as his own. See Cal. Prob. Code § 6453(b)(2). According to the Mother, DWE’s father and stepmother
“were aware of [Claimant’s] existence.” However, DWE’s father said that DWE denied
the Claimant was his child. Although the Mother’s Child Relationship Statement indicates
that DWE admitted he was the Claimant’s parent, there is no evidence that anyone besides
DWE’s father and stepmother were aware of the Claimant, and DWE told them the child
was not his. The Mother responded “no” to all other questions in the Child Relationship
Statement going to whether the DWE held out the Claimant as his own child or contributed
to his support. The evidence therefore does not satisfy the “holding out” requirement
of Probate Code section 6453(b)(2). See POMS GN 00306.430.A.1.b.7.B (“[T]o establish holding out, the putative father must have incurred some
… cost, in proclaiming the child as his own ….”).
3. It Was Not Impossible for DWE to Hold Out the Claimant as His Own Child
Third, a parent-child relationship may be established under Probate Code section 6453(b)(3)
if (i) it was impossible for the father to hold out the child as his own, and (ii)
paternity is established by clear and convincing evidence See Cal. Prob. Code § 6453(b)(3); POMS GN 00306.430.A.1.b.7.C. Here, genetic testing showed a 99.99% probability that the DWE was the
Claimant’s father. However, evidence of biological paternity alone is insufficient
to satisfy section 6453(b)(3). Instead, there must also be evidence that it was impossible
for the DWE to hold out the Claimant as his own child. See Cal. Prob. Code § 6453(b)(3); POMS GN 00306.430.A.1.b.7.C. That does not appear to be the case here. The DWE lived for five months
after Claimant’s birth. As such, he had the opportunity to openly acknowledge the
Claimant was his own child and contribute to his support and care, but did not do
so. See Cheyanna M. v. A.C. Nielsen Co., 66 Cal.App.4th 855, 877 (Cal. 1998) (“legislative history indicates that the ‘impossibility’
provision was enacted to cover the situation . . . where the father dies before the
child is born”); POMS PR 01005.006 California, (C) PR 12-064 Establishing Parent-Child Relationship under California
Law; Deceased Wage Earner – G~; SSN ~, Claimant – A~; SSN ~ (where father lived for
a year after child’s birth, it was not impossible for him to hold out the child as
his own, and genetic testing alone was insufficient to satisfy Probate Code section
6453(b)(3)).
The Mother and Grandmother submitted statements indicating that they believe that
DWE denied the extent of his mental illness, and that condition prevented him from
taking responsibility for a child. The Grandmother thought DWE might not have been
truthful with his psychiatrist about his condition. The Mother thought that, in addition
to his mental illness, DWE was impulsive and had substance abuse issues. However,
these statements are ambiguous and speculative. The agency has not received any medical
evidence or medical opinion indicating that DWE had a diagnosed mental illness or
other condition that prevented him from holding out a child as his own. In addition,
we have found no California law indicating that mental illness, standing alone, is
sufficient to meet the “impossibility” provision of California Probate Code section
6453(b)(3). Although DWE took his own life and may well have had a mental illness,
in the absence of more specific supporting evidence, these facts alone are insufficient
to show it was impossible for DWE to acknowledge parentage and hold out the Claimant
as his own child. See Estate of Burden 53 Cal. Rptr. 3d 390, 393, 396 (Cal. Ct. App. 2007) (holding that father’s email
acknowledging he was “a party to conception” of the child and his admissions of parentage
to family and the child’s mother satisfied the “holding out” provision of California
law).
Accordingly, the Claimant does not qualify as DWE’s child under section 216(h)(2)(A)
of the Act.
B. Whether the Claimant Satisfies Section 216(h)(3)(C) of the Act
Under section 216(h)(3)(C)(i) of the Act, the Claimant may be deemed DWE’s child if,
before DWE’s death:
(1) DWE acknowledged in writing that the Claimant was his child;
(2) a court decreed DWE to be the Claimant’s father; or
(3) a court ordered that DWE contribute to the Claimant’s support.
Social Security Act § 216(h)(3)(C)(i). None of these circumstances are present here.
Although the State court issued a paternity judgment and ordered DWE’s name be added
to the Claimant’s birth certificate, this did not occur before the DWE’s death as
required under section 216(h)(3)(C)(i).
Under section 216(h)(3)(C)(ii) of the Act, the Claimant may qualify as DWE’s child
if the agency finds that DWE was the Claimant’s father, and that DWE was living with
or contributing to the Claimant’s support at the time of DWE’s death. Social Security
Act § 216(h)(3)(C)(ii). Although the genetic test results provide evidence of DWE’s
paternity, the evidence shows DWE was not living with the Claimant or contributing
to his support when the DWE died.
Accordingly, the Claimant may not be deemed the DWE’s child under section 216(h)(3)(C)
of the Act.
C. Whether the Claimant Is Entitled to Receive the LSDP
Upon the death of an insured individual who does not have a surviving spouse, a LSDP
may be paid to each person entitled to child’s benefits on the insured’s record. Social
Security Act § 202(i)(2); 20 C.F.R. § 404.392. Because the Claimant is not entitled
to child’s benefits under section 216(h)(2)(A) of the Act, as discussed above, he
may not receive the LSDP.
CONCLUSION
Based on the evidence currently available, under California law, the Claimant would
not be able to inherit intestate from the DWE because the State court did not enter
a paternity judgment during DWE’s lifetime, DWE did not openly acknowledge or hold
out the Claimant as his own child, and it was not impossible for DWE to do so. The
Claimant may not be deemed the DWE’s child under alternative federal standards either.
Accordingly, the Claimant does not qualify as DWE’s child under section 216(h)(2)(A)
of the Act and is not entitled to benefits on DWE’s record. Because the Claimant is
not entitled to benefits as the DWE’s child, he may not receive the LSDP.