TN 39 (12-14)

PR 01005.001 Alabama

A. PR 15-037 Use of Grandparent DNA Testing and Family Statements to Establish Paternity – Alabama Claimant – T~ Number Holder – R~

DATE: December 3, 2014

1. SYLLABUS

Under Alabama intestacy law, a child of an individual who died intestate is entitled to a share of the individual’s personal property. A child born out of wedlock can inherit from his putative father if he establishes paternity by clear and convincing proof. In this case, the DNA test results Claimant’s mother submitted in support of Claimant’s application for CIB do not, standing alone, constitute clear and convincing proof of paternity. Also, the non DNA evidence does not provide clear and convincing evidence to establish the Claimant is the NH’s child for CIB. Therefore, Claimant is not NH’s child under section 216(h)(2)(A) of the Act and the evidence also does not establish Claimant could be deemed NH’s child under section 216(h)(3)(C) of the Act.

However, if Claimant’s mother provides additional credible evidence showing NH’s parents had only one male child together or showing she never had a sexual relationship with any of NH’s brothers, the record would contain sufficient evidence for a SSA adjudicator to conclude Claimant is NH’s child under Alabama intestacy law. Thus, further development of the record is necessary to determine whether NH’s parents had any male children other than NH and if so, whether Claimant’s mother had a sexual relationship with any of NH’s brothers.

2. OPINION

QUESTION

You asked whether DNA test results showing a high probability a claimant is the grandchild of a number holder’s parents, statements from the claimant’s mother and the number holder’s family members, and the program from the number holder’s funeral establish the claimant is the number holder’s child for determining the claimant’s eligibility for child’s insurance benefits (CIB) on the number holder’s earnings record.

OPINION

The evidence presented does not provide clear and convincing proof to establish the claimant is the number holder’s child under Alabama intestacy law. The evidence also does not indicate the claimant could be deemed the number holder’s child. Therefore, under the current record, the claimant is not the number holder’s child for determining the claimant’s eligibility for CIB on the number holder’s earnings record.

However, if the claimant presents additional credible evidence showing the number holder’s parents had only one male child together or showing the claimant’s mother did not have a sexual relationship with any of the number holder’s brothers, a Social Security Administration (SSA) adjudicator could find the claimant is the number holder’s child under Alabama intestacy law. Accordingly, further development of the record is necessary to determine whether the number holder’s parents had any male children other than the number holder and if so, whether the claimant’s mother had a sexual relationship with any of the number holder’s brothers.

BACKGROUND

According to the information provided, S~ (Claimant’s mother) filed an application on behalf of her son, T~ (Claimant), for CIB on the earnings record of R~, the number holder (NH). To support the application, Claimant’s mother submitted the results of DNA testing. The DNA testing report indicates a facility accredited by the American Association of Blood Banks (AABB) analyzed DNA samples from Claimant, Claimant’s mother, O~ (NH’s mother), and R1~. (NH’s father). 1 The DNA testing revealed a 99.99% probability that NH’s mother and NH’s father were Claimant’s grandparents. 2 On a Child Relationship Statement form, Claimant’s mother stated no court decreed Claimant NH’s child or ordered NH to contribute to Claimant’s support. Claimant’s mother also stated NH did not identify Claimant as his child in an application or statement filed with a government agency, a letter, a family tree or other family record, a tax return, an insurance policy, a will, or an employment application. Additionally, Claimant’s mother stated NH did not register Claimant in a school or place of worship or sign a report card as Claimant’s parent. Claimant’s mother also stated NH did not take Claimant to a medical appointment and list himself as Claimant’s parent. Claimant’s mother further stated NH did not pay Claimant’s hospital expenses at birth or provide information for Claimant’s birth certificate. Moreover, Claimant’s mother stated NH did not orally state to anyone that he was Claimant’s father. Claimant’s mother also stated NH was not making regular and substantial contributions to Claimant’s support at the time of his death. Claimant’s mother did state she knew of other written evidence that showed Claimant is NH’s son.

Claimant’s mother submitted the program from NH’s funeral identifying Claimant as a surviving child. The funeral program also identifies two surviving sisters and does not identify any surviving brothers. Claimant’s mother also submitted an affidavit NH’s mother signed before a notary public stating she considers Claimant her grandson and NH recognized Claimant as his son. Additionally, Claimant’s mother submitted a notarized statement from two purported descendants of NH indicating they consider Claimant their sibling and an identical statement from another purported descendant of NH that is not notarized.

NH’s amended death certificate indicates he died on December 30, 2002, while domiciled in Alabama. NH’s death certificate and the funeral program also indicate NH was married to L~ (NH’s wife) at the time of his death. The information provided does not indicate NH ever married Claimant’s mother.

The agency denied Claimant’s application for CIB initially and upon reconsideration because there was insufficient information to establish Claimant was NH’s child. Claimant’s mother, on behalf of Claimant, requested a hearing before an administrative law judge (ALJ). Based on Program Operations Manual System (POMS) PR 01005.001 (PR 11-058), the ALJ found the DNA test results indicating a 99.99% probability that NH’s mother and NH’s father are Claimant’s grandparents did not establish Claimant is NH’s child under Alabama intestacy law. The ALJ further found that the statement of purported descendants of NH indicating they consider Claimant their sibling in combination with the DNA test results did not amount to the clear and convincing evidence necessary to establish Claimant as NH’s child under Alabama intestacy law. The ALJ did not discuss the other evidence Claimant’s mother submitted and denied Claimant’s application for failure to establish Claimant was NH’s child.

Claimant’s mother, on behalf of Claimant, requested review of the ALJ’s decision from the Appeals Council. That request is currently pending.

DISCUSSION

A claimant may be eligible for CIB on the earnings record of an individual who dies a fully or currently insured individual if the claimant is the insured individual’s “child.” See Act § 202(d)(1); 20 C.F.R. § 404.350(a)(1) (2014).3 “Child” includes “the child” of an insured individual. Act § 216(e); see 20 C.F.R. § 404.354; Astrue v. Capato, --- U.S. ---, 132 S. Ct. 2021, 2027-28 (2012). A claimant may show he is “the child” of a deceased insured individual, within the meaning of section 216(e)(1), under section 216(h)(2)(A) or 216(h)(3)(C) of the Act. 4 See Capato, 132 S. Ct. at 2028.

Under section 216(h)(2)(A), a claimant is considered “the child” of a deceased insured individual if he could inherit the insured individual’s intestate personal property under the law of the state in which the insured individual was domiciled when he died. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4); Capato, 132 S. Ct. at 2028-34; POMS GN 00306.001(C)(1)(a), (C)(2)(a). NH’s death certificate indicates he was domiciled in Alabama when he died. Therefore, we look to Alabama intestacy law to determine whether Claimant is NH’s child. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4); POMS GN 00306.001(C)(1)(a), (C)(2)(a).

Under Alabama intestacy law, a child of an individual who died intestate is entitled to a share of the individual’s personal property. See Ala. Code §§ 43-8-40, 43-8-42(1) (2014). 5 A child born out of wedlock can inherit from his putative father if he establishes paternity by “clear and convincing proof.” Ala. Code § 43-8-48(2)b. Clear and convincing proof in Alabama intestacy cases is “evidence which convinces the trier of fact that a proposition is highly probable, as distinguished from more probable than not.” Jackson v. Apfel, 105 F. Supp. 2d 1220, 1221 (N.D. Ala. 2000) (quoting D.D.P. v. State, 595 So. 2d 528, 538 (Ala. Crim. App. 1991)) (internal quotation marks omitted). Clear and convincing proof is not synonymous with undisputed proof. See id. Instead, evidence amounts to clear and convincing proof when the court is “[c]learly convinced of the affirmative of the proposition to be proved.” Id. (quoting D.D.P. , 595 So. 2d at 538) (internal quotation marks omitted). Evidence can amount to clear and convincing proof even when contrary evidence exists. See id. at 1221-22.

In previous precedent opinions we have indicated the presumptions of paternity stated in the Alabama Uniform Parentage Act (AUPA) would apply in determining paternity under Alabama intestacy law. See POMS PR 01005.001 (PR 11-058); POMS PR 01105.001 (PR 12-090); POMS PR 01115.001 (PR 12-090, PR 09-151, PR 07-079, PR 06-034, PR 05-246, PR 00-214); POMS PR 01120.001 (PR 06-034, PR 05-246). However, the Alabama Court of Civil Appeals recently held such presumptions do not apply when establishing paternity in an intestacy case. See Clemons v. Howard, 124 So. 3d 738, 746 (Ala. Civ. App. 2013). Pursuant to the Clemons decision, Alabama courts evaluating whether a decedent is the father of a child born out of wedlock for the purposes of intestate succession when the decedent’s paternity was not established through an adjudication prior to the decedent’s death should consider only whether the evidence presented amounts to clear and convincing proof of paternity. See id.; see also Ala. Code § 43-8-48(2)b. Thus, the aforementioned opinions should no longer be relied upon to the extent they indicate the paternity presumptions within the AUPA apply to evaluating whether an individual is a decedent’s child under Alabama intestacy law. 6

The DNA test results Claimant’s mother submitted in support of Claimant’s application for CIB do not, standing alone, constitute clear and convincing proof of paternity. In previous precedent opinions, we have stated DNA test results showing a high probability that a deceased number holder’s parents are the grandparents of the claimant do not, standing alone, amount to the clear and convincing proof necessary to establish paternity under Alabama intestacy law. See POMS PR 01005.001 (PR 11-058); POMS PR 01115.001 (PR 05-246); POMS PR 01120.001 (PR 05-246). A high probability of grandparentage does not equate to a high probability of paternity without additional information regarding the number of male children the number holder’s parents had together or the relationship between the claimant’s mother and the deceased number holder’s brothers. See POMS PR 01115.001 (PR 05-246); POMS PR 01120.001 (PR 05-246).

Claimant’s mother did not provide any evidence affirmatively stating the number of male children NH’s parents had together or her relationship with any of NH’s brothers. 7 Thus, the DNA test results indicating a 99.99% probability that NH’s parents are Claimant’s grandparents 8 do not amount to clear and convincing proof that NH is Claimant’s father. Indeed, if NH’s parents had another male child together and Claimant’s mother engaged in sexual relations with him around the time of Claimant’s conception, the DNA test results fall far short of the standard for clear and convincing proof of NH’s paternity. Accordingly, additional credible evidence regarding the number of male children NH’s parents had together or the relationship between Claimant’s mother and NH’s brothers is necessary for the DNA test results to establish Claimant could inherit from NH under Alabama intestacy law.

Courts have found clear and convincing proof of paternity in Alabama intestacy matters without DNA evidence. In Cotton v. Terry, 495 So. 2d 1077, 1079-80 (Ala. 1986), the Alabama Supreme Court found there was clear and convincing proof of paternity when the putative child had the decedent’s last name before she married and all witnesses who testified, including the party challenging the paternity determination, agreed the decedent referred to the putative child as his daughter and held himself out as the putative child’s father while he was living. In Jackson, 105 F. Supp. 2d at 1222-23, an Alabama federal district court found there was clear and convincing proof of paternity when the decedent’s family acknowledged the putative child as the decedent’s son, the decedent’s obituary and funeral program listed the putative child as a surviving son, the putative child visited with the decedent and his relatives, the decedent’s mother stated the putative child looked just like the decedent, and the decedent gave the putative child’s mother money for the putative child’s support.

However, the non-DNA evidence Claimant’s mother submitted is not as substantial as the evidence that established clear and convincing proof of paternity in Cotton and Jackson. The notarized affidavit from NH’s mother indicating she considers Claimant her grandson and NH recognized Claimant as his son, the statements from purported descendants of NH indicating they consider Claimant their sibling, and the program from NH’s funeral listing Claimant as a survivor must be weighed against the statements from Claimant’s mother that NH did not acknowledge himself as Claimant’s father on any available documents, did not orally state to anyone he was Claimant’s father, and was not making regular and substantial contributions to Claimant’s support at the time of his death. Moreover, there is no evidence Claimant visited NH during NH’s lifetime. We believe an Alabama court viewing the above-referenced evidence would conclude the evidence does not show that NH’s paternity of Claimant is highly probable and does not amount to the clear and convincing proof necessary for Claimant to inherit from NH under Alabama intestacy law. See Jackson, 105 F. Supp. 2d at 1221-22 (stating the clear and convincing proof standard requires a court to weigh the evidence supporting the decedent’s paternity versus the evidence against the decedent’s paternity and conclude the decedent’s paternity is highly probable). Accordingly, Claimant’s mother has not provided sufficient evidence to establish Claimant is NH’s child for purposes of CIB under section 216(h)(2)(A) of the Act.

The evidence Claimant’s mother submitted does not amount to the clear and convincing proof of paternity necessary for Claimant to inherit from NH under Alabama intestacy law. However, the DNA test results Claimant’s mother submitted would be much more persuasive if coupled with credible evidence showing NH’s parents had only one male child together or showing Claimant’s mother never had a sexual relationship with any of NH’s brothers. Thus, if Claimant’s mother provides the foregoing evidence, an SSA adjudicator could find such evidence combined with the DNA test results constitute the clear and convincing proof of paternity necessary for Claimant to inherit from NH under Alabama intestacy law. As such a finding would establish Claimant is NH’s child for purposes of CIB under section 216(h)(2)(A) of the Act, further development of the record is necessary to determine whether NH’s parents had any male children other than NH together and if so, whether Claimant’s mother had a sexual relationship with any of them.

The evidence does not establish Claimant is NH’s child under section 216(h)(3)(C) of the Act. To qualify as “the child” of a deceased insured individual under section 216(h)(3)(C), a claimant must be the son or daughter of the insured individual and show one of the following: (1) the insured individual acknowledged in writing that he was his child, (2) a court decreed the insured individual to be his father prior to the insured individual’s death, (3) a court ordered the insured individual to contribute to his support prior to the insured individual’s death, or (4) the insured individual is his natural father and was living with him or contributing to his support at the time the insured individual died. See Act § 216(h)(3)(C); 20 C.F.R. § 404.355(a)(3), (4). Claimant’s mother did not submit evidence that would satisfy any of the four foregoing requirements. Therefore, Claimant does not qualify as NH’s child under any provision of section 216(h)(3)(C) of the Act.

CONCLUSION

The evidence Claimant’s mother submitted is not sufficient to establish Claimant could inherit from NH under Alabama intestacy law and, therefore, Claimant is not NH’s child under section 216(h)(2)(A) of the Act. The evidence also does not establish Claimant could be deemed NH’s child under section 216(h)(3)(C) of the Act. However, if Claimant’s mother provides additional credible evidence showing NH’s parents had only one male child together or showing she never had a sexual relationship with any of NH’s brothers, the record would contain sufficient evidence for a SSA adjudicator to conclude Claimant is NH’s child under Alabama intestacy law. Thus, further development of the record is necessary to determine whether NH’s parents had any male children other than NH and if so, whether Claimant’s mother had a sexual relationship with any of NH’s brothers.

Mary A. Sloan
Regional Chief Counsel
By:________________

Peter S. Massaro, III
Assistant Regional Counsel

B. PR 11-058 Effect of Grandparent DNA Test Results and Court Order Purporting to Establish Paternity on Child Claimant's Eligibility for Child's Insurance Benefits on Number Holder's Earnings Record – Alabama

DATE: February 7, 2011

1. SYLLABUS

This case involves determining eligibility for Child’s Insurance Benefits. A claimant can qualify as the insured individual’s natural child if the claimant could inherit from the insured as his or her child. To determine if a claimant could inherit from the insured individual, the Social Security Administration applies the intestacy laws of the State where the insured had his permanent home when he died. Under Alabama law a child of the deceased individual may be entitled to some or all of the deceased’s intestate estate however, Alabama’s intestacy statute does not address genetic testing.

J~ number holder (NH), died on January 24, 2009, while domiciled in Alabama. Jonathan B. B~ (Claimant) was born seven months later. Claimant’s mother applied on Claimant’s behalf for child’s insurance benefits on NH’s earning record. In support of the claim, Claimant’s mother submitted DNA test results. The DNA test results relied on samples taken from the Claimant, Claimant’s mother, and NH’s parents. Claimant also provided a consent order from the Tuscaloosa County Circuit Court, which concluded that the NH was the Claimant’s father.

It is the decision of the regional Chief Counsel Region IV, Atlanta that the court order, combined with the DNA test results establishing a possibility of grand parentage, does not provide clear and convincing evidence that the NH is Claimant’s father for the purposes of Alabama intestacy law.

2. OPINION

QUESTION

You asked whether grandparent DNA test results, combined with an Alabama circuit court order purporting to establish paternity, is sufficient to establish the claimant as the child of the number holder for the purposes of determining the claimant's eligibility for child's insurance benefits on the number holder's earnings record.

OPINION

The grandparent DNA test results, combined with the Alabama circuit court order, does not provide clear and convincing evidence that the number holder is the father of the claimant for the purposes of Alabama intestacy law. Therefore, the claimant is not the number holder's child for the purposes of child's insurance benefits.

BACKGROUND

Based on the information provided, we understand the facts to be as follows. J~, the number holder (NH), died on January 24, 2009, while domiciled in Alabama. J~ (Claimant) was born seven months later. Claimant's birth certificate does not identify a father.

Claimant's mother applied on Claimant's behalf for child's insurance benefits on NH's earnings record. In support of the claim, Claimant's mother submitted DNA test results dated April 1, 2010. The DNA test results relied on samples taken from Claimant, Claimant's mother, and NH's parents (Claimant's purported grandparents). The results showed that NH's parents cannot be excluded as Claimant's biological paternal grandparents and that the probability of grandparentage is 99.99%. 9 Based on this evidence, the Agency denied Claimant's claim, relying on precedent opinion PR 05-246, which states that genetic test results on grandparentage does not establish a presumption of paternity under Alabama law.

On October 18, 2010, NH's parents filed a petition to establish the paternity of NH in the Circuit Court of Tuscaloosa County, Alabama. The petition indicates that Claimant's mother was not married at the time of the birth of Claimant or within 300 days before the birth of the child. NH's parents also submitted a copy of the DNA test results to the circuit court. Claimant's mother filed a response indicating she consented to a judgment on the pleadings to find NH as Claimant's father. On November 9, 2010, the circuit court issued a consent order, which ordered, adjudicated, and decreed that NH was Claimant's father, and that Claimant "shall have all rights of descent or other legal rights associated with such parentage." The consent order merely restates the information identified in the petition, and is devoid of any legal analysis. Claimant's mother filed a new claim on Claimant's behalf for child's insurance benefits on NH's earnings record and submitted the court order in support of the claim.

Claimant's mother also completed a Child Relationship Statement indicating that NH had orally acknowledged to family members and co-workers that he was the father, but did not provide any evidence to support this claim. She further indicated that she was unaware of any written acknowledgments of paternity by NH.

DISCUSSION

To qualify for child's insurance benefits on the earnings 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) (2010). 10 See Act § 216(e); 20 C.F.R. § 404.354. A claimant can qualify as the insured individual's natural child if the claimant could inherit from the insured individual as his or her child. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b). To determine if a claimant could inherit from the insured individual, the Social Security Administration (SSA) applies the intestacy laws of the State where the insured had his permanent home when he died. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1). Because NH was domiciled in Alabama when he died, we look to Alabama intestacy law to determine whether Claimant could inherit from NH as NH's child.

Under Alabama law, a child of a deceased individual may be entitled to some or all of the deceased's intestate estate. See Ala. Code §§ 43-8-40, 43-8-42(1) (2010). A child born out of wedlock may inherit from his or her purported father through intestate succession if paternity is established, after the father's death, by an adjudication supported by clear and convincing evidence. See Ala. Code § 43-8-48(2)b (2010); Cotton v. Terry, 495 So. 2d 1077, 1079 (Ala. 1986). Clear and convincing evidence in Alabama intestacy cases is "evidence which convinces the trier of fact that a proposition is 'highly probable,' as distinguished from 'more probable than not.'" Jackson v. Apfel, 105 F. Supp. 2d 1220, 1221 (N.D. Ala. 2000) (citing D.D.P. v. State, 595 So. 2d 528, 536 (Ala. Crim. App. 1991)). The Jackson court further noted that clear and convincing proof is not necessarily undisputed proof. See 105 F. Supp. 2d at 1221. Instead, evidence meets that standard when the court is "[c]learly convinced of the affirmative of the proposition to be proved. This does not mean that there may not be contrary evidence." Id. at 1221. According to the Jackson court, "'[c]onvincing' evidence by definition requires a weighing of the evidence." Id. at 1222.

Alabama's intestacy statute does not address genetic testing, but its paternity statute does. Under Alabama's version of the Uniform Parentage Act (UPA), genetic test results may be used to establish paternity. See Ala. Code § 26-17-505(a) (2010). We have found no Alabama statute that expressly states that Alabama courts may or should use Alabama's UPA provisions in an intestacy proceeding. However, we previously addressed this issue in precedent opinions PR 09-151 and PR 06-034, noting that Alabama courts have used Alabama's UPA provisions on genetic testing in paternity proceedings under the state's intestacy statutes.

In this case, Claimant provided genetic test results indicating a 99.99% probability of grandparentage. In precedent opinion PR 05-246, we previously opined that the "probability of the grandpaternity," standing alone, would not create a presumption of paternity. Due to changes in Alabama law since PR 05-246 was issued, the Agency should no longer rely on precedent opinion PR 05-246 to determine whether genetic test results on grandpaternity – either standing alone or in conjunction with other evidence – is sufficient evidence to establish a parent-child relationship under Alabama law. However, we can reach the same conclusions as those stated in PR 05-246 under new Alabama law.

Precedent opinion PR 05-246 was based on Alabama law stating that genetic test results "indicat[ing] a 97 percent or greater probability of paternity" created a presumption of paternity that may only be rebutted by clear and convincing evidence. See PR 05-246 (citing Ala. Code § 26-17-13(a)(3) (2005)). However, in 2009, Alabama amended its statute on genetic test results and revised the statute that created a presumption of paternity based on genetic test results. Under the new law, "a man is rebuttably identified as the father of a child" if the genetic test results disclose that "the man has at least a 99 percent probability" and "a combined paternity index of at least 100 to 1." Ala. Code § 26-17-505(a) (2010). Accordingly, genetic test results identifying only the probability of grandpaternity would not establish paternity for the purposes of intestate succession under current Alabama law. Moreover, Alabama caselaw suggests that these genetic test results would not provide clear and convincing evidence that Claimant is the child of NH. Based on our review of Alabama caselaw, none of the cases involved DNA testing that relied on samples taken from the putative father's relatives. The genetic testing was always done on the father's DNA. In fact, in Swafford v. Norton, 992 So. 2d 20 (Ala. Civ. App. 2008), the circuit court went as far as granting a petition from a putative son to exhume his purported father's body to undergo DNA testing to ascertain whether the putative son had standing to assert a paternity action. See id. at 24. Thus, we believe that DNA test results establishing a probability of grandparentage, with no additional supporting information, would not establish that Claimant is NH's child under Alabama intestacy law or for the purposes of child's insurance benefits on NH's earnings record.

Claimant also provided a consent order from the Tuscaloosa County Circuit Court, which concluded that NH was Claimant's father. However, we do not believe the consent order, alone or when considered with the other evidence, provides clear and concinving proof of NH's paternity. The court's consent order is not due deference in accordance with Social Security Ruling (SSR) 83-37c. Through this SSR, SSA adopted as national policy the rationale from Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973), and states that SSA is not free to ignore an adjudication of a State court where the following prerequisites exist: (1) an issue in a claim for Social Security benefits previously has been determined by a State court of competent jurisdiction; (2) the issue was genuinely contested before the State court by parties with opposing interests; (3) the issue falls within the general category of domestic relations law; and (4) the resolution by the State trial court is consistent with the law enunciated by the highest court in the State.

In this case, SSR 83-37c does not require the Agency to defer to the Tuscaloosa County Circuit Court order because it does not meet all of the prerequisites in SSR 83-37c. Specifically, the evidence presented shows the issue was not genuinely contested by parties with opposing interests. NH's parents filed a petition to establish NH as the father, which Claimant's mother did not challenge. In fact, she responded to the petition by consenting to a judgment on the pleadings to find NH as Claimant's father, and the evidence presented does not establish a factual basis in which one could conclude that NH's parents and Claimant's mother had opposing interests with respect to this matter. Moreover, the order also appears inconsistent with Alabama law. The consent order merely restates the information identified in the petition without any basis for its conclusion regarding paternity. The consent order is not only devoid of any legal analysis of paternity under Alabama law, but the only evidence in support of paternity was the DNA test results establishing grandparentage, and as noted above, such evidence standing alone is not clear and convincing evidence. Accordingly, SSA is not bound by the circuit court's consent order.

For the foregoing reasons, we believe this court order, combined with the DNA test results establishing a probability of grandparentage, does not provide clear and convincing evidence that NH is Claimant's father for the purposes of Alabama intestacy law. Accordingly, the evidence presented is insufficient to establish a parent-child relationship under § 216(h)(2)(A) of the Act.11

CONCLUSION

We believe the evidence presented does not provide clear and convincing evidence that NH is Claimant's father under Alabama intestacy law and, therefore, SSA may conclude that Claimant is not NH's child for the purposes of child's insurance benefits under the Act.

Mary A. Sloan
Regional Chief Counsel
By:________________

Brian Seinberg
Assistant Regional Counsel


Footnotes:

[1]

SSA records indicate O~ is NH’s mother and R1~, is NH’s father.

[2]

The laboratory director of the testing facility signed the DNA testing report before a notary public.

[3]

All subsequent references to 20 C.F.R. are to the 2014 edition.

[4]

A claimant could also establish he is “the child” of a deceased insured individual through showing that a flaw in a marriage ceremony between the insured individual and his parent is the only impediment to his eligibility to inherit from the insured individual under the relevant state’s intestacy law. See Act § 216(h)(2)(B). NH’s death certificate and the funeral program indicate NH was married to NH’s wife, and the information provided does not indicate that NH ever participated in a marriage ceremony with Claimant’s mother. Therefore, section 216(h)(2)(B) of the Act does not apply to this matter.

[5]

All subsequent references to the Alabama Code are to the 2014 edition.

[6]

Clemons found that because an intestacy statute articulated a standard for establishing paternity, courts should apply that standard in intestacy matters. See Clemons, 124 So. 3d at 746. Clemons did not indicate that courts deciding intestacy matters cannot do as the Alabama Supreme Court did in Blackmon v. Brazil, 895 So. 2d 900, 908-09 (Ala. 2004), and look outside intestacy law when faced with an issue upon which intestacy law is silent. In Blackmon, the Alabama Supreme Court noted the intestacy statute governing paternity determinations did not indicate whether a statute of limitations applied to such determinations. Blackmon, 895 So. 2d at 908-09. The Blackmon court, therefore, looked to the AUPA in effect at the time, which subjected paternity determinations to a statute of limitations, and concluded this evidenced a legislative intent to subject paternity determinations under intestacy law to a statute of limitations as well. See id. at 909. Thus, reading Blackmon and Clemons together, we conclude that Alabama courts will look outside intestacy law for guidance in intestacy matters when the intestacy statutes are silent on an issue.

[7]

The funeral program Claimant’s mother submitted indicates NH had two sisters, and it does not mention any biological brothers. However, we do not believe the absence of biological brothers in the funeral program amounts to clear and convincing proof that NH was the only male child NH’s parents had together.

[8]

The facility that performed the test confirmed their accreditation with the AABB, which the Department of Health and Human Services recognizes as a reliable accreditation body. See Accreditation of Genetic Testing Labs, U.S. Department of Health and Human Services, http://www.acf.hhs.gov