TN 42 (02-16)

PR 01005.027 Mississippi

A. PR 16-047 Determining Child Status under Mississippi Law Based on DNA Test Results and Order of Filiation

Date: December 18, 2015

1. Syllabus

NH’s Certificate of Death indicates he was domiciled in Mississippi when he died, therefore, we look to Mississippi intestacy law to determine whether the Claimant is NH’s child for purposes of section 216(h)(2)(A) of the Act. DNA test results showed a 99.99% probability that the NH’s father is related to Claimant as a second-degree relative. A Mississippi Court issued an Order of Filiation and adjudged that the Claimant is NH’s biological, legitimate and legal child. Based on the information provided, the claimant is the child of the number holder for determining the claimant’s eligibility for CIB on the number holder’s earnings record, and the effective month of the relationship is August 2015, the month of the court order indicating that the claimant is related to the number holder.

2. Opinion

QUESTION

You asked whether the claimant is the child of the number holder for determining the claimant’s eligibility for child’s insurance benefits (CIB) on the number holder’s earnings record based on an Order of Filiation from the Chancery Court of Harrison County, Mississippi, ordering and adjudging that the claimant is the legitimate and legal child of the number holder. If so, you also asked whether the first month of entitlement to benefits would be August 2015, the month the court issued the Order of Filiation.

OPINION

Based on the information provided, the claimant is the child of the number holder for determining the claimant’s eligibility for CIB on the number holder’s earnings record, and the effective month of the relationship is August 2015, the month of the court order indicating that the claimant is related to the number holder.

BACKGROUND

B~ (Claimant) applied for child’s survivor’s benefits on the earnings record of J~, the number holder (NH). According to the information provided, Claimant’s mother and NH were never married. Rather, an Alabama Certificate of Marriage dated July XX, 2010, shows Claimant’s mother married J2~. A Certificate of Death shows NH died on January XX, 2014, and lists H~ County, Mississippi, as NH’s county of residence. NH’s death certificate lists G~ as NH’s father. A Certificate of Live Birth shows Claimant was born on September XX, 2014, and lists Claimant’s mother and J2~ as the parents. At the time of NH’s death, Claimant’s mother stated she was separated from J2~ and lived with NH. Claimant’s mother provided no independent evidence that she lived with NH. DNA samples were collected on September XX, 2014, from Claimant, Claimant’s mother, and NH’s father. DNA test results showed a 99.99% probability that NH’s father is related to Claimant as a second-degree relative.

On August XX, 2015, the Chancery Court of H~ County, Mississippi, issued an Order of Filiation based on a joint petition filed by Claimant’s mother, NH’s father, NH’s mother, and NH’s brother. The court ordered and adjudged that Claimant is NH’s legitimate and legal child, and ordered that Claimant’s name be changed to B~ to reflect Claimant’s legitimacy. The court also ordered and adjudged that Claimant’s mother and NH are Claimant’s biological parents. The court noted that Claimant’s mother and NH’s survivors all acknowledged Claimant as NH’s biological child. The court found the DNA test results provided scientific evidence of a familial link between Claimant and NH’s father. The court also ordered and adjudged that Claimant shall receive Social Security benefits as NH’s legitimate, biological child, and shall inherit from NH under Mississippi statutes of descent and distribution.

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 Social Security Act (Act) § 202(d)(1); 20 C.F.R. § 404.350(a)(1) (2015).1 “Child” includes “the child” of an insured individual. See Act § 216(e); 20 C.F.R. § 404.354; Astrue v. Capato, 132 S. Ct. 2021, 2027-28 (2012). A claimant may show she 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. See Capato, 132 S. Ct. at 2028. Under section 216(h)(2)(A) of the Act, a claimant is considered “the child” of the insured individual if the claimant could inherit the insured individual’s intestate personal property under the law of the State in which the insured individual was domiciled at the time of his death. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4).2

NH’s Certificate of Death indicates he was domiciled in Mississippi when he died. Therefore, we look to Mississippi intestacy law to determine whether Claimant is NH’s child for purposes of section 216(h)(2)(A) of the Act. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4). Under Mississippi law, the intestate personal property of a deceased person descends to his or her heirs. See Miss. Code Ann. § 91-1-11 (West 2015). Heirs include a decedent’s children. See Clark Sand Co., Inc. v. Kelly, 60 So. 3d 149, 159 (Miss. 2011) (citing Miss. Code Ann. §§ 91-1-1 to 91-1-11).

Mississippi law establishes a rebuttable presumption that a child born during a marriage is legitimate, i.e., the child is the child of the mother’s husband. See Rafferty v. Perkins, 757 So. 2d 992, 995 (Miss. 2000); Perkins v. Thompson (In re Estate of Taylor), 609 So. 2d 390, 394 (Miss. 1992). The presumption of legitimacy is one of the strongest known to Mississippi law. See Perkins, 609 So. 2d at 394. “A party challenging legitimacy may prevail if he proves beyond a reasonable doubt that the legal husband of the mother is not, in fact, the biological father.” Id. “The burden notwithstanding, (dis)proving paternity is a matter of fact, and courts proceed as with other issues of fact. Any evidence tending to support or deny the fact may be considered.” Id.

The question in the end is whether the court can say beyond a reasonable doubt, given the totality of the circumstances as shown by all of the evidence before it, that the husband is not the father. Necessarily, this standard requires a sensitive assessment of the evidence of each individual case.

Id. “At common law, [the presumption of legitimacy] was rebutted by showing either that the husband was incapable of procreating or that the mother and husband were physically separated at the time of conception.” M.A. v. M.D. (In re B.N.N.), 928 So. 2d 197, 200 (Miss. Ct. App. 2006); see Perkins, 609 So. 2d at 394. However, “the presumption has bowed to realism.” Perkins, 609 So. 2d at 394.

In particular, “[s]cientific and technological advancements have resulted in other means of rebutting this presumption, such as paternity testing.” M.A., 928 So. 2d at 200 (citing Miss. Code Ann. §§ 93-9-21, 93-9-27);3 Perkins, 609 So. 2d at 394 (noting that Mississippi courts “accept that blood tests can produce a high level of discrimination either excluding or including a given male as the father of a particular child”) (internal quotation marks omitted). While “[g]enetic test results are admissible as evidence of paternity, but are not necessarily conclusive,” In re Estate of Grubbs, 753 So. 2d 1043, 1052 (Miss. 2000), genetic testing “may rebut the presumption of legitimacy.” Rafferty, 757 So. 2d at 995.

Here, the information provided offers strong evidence to rebut the presumption that Claimant is the legitimate child of J2~, who is identified as the husband of Claimant’s mother on the Certificate of Marriage, and is identified as Claimant’s father on the Certificate of Live Birth. The DNA testing showed a 99.99% probability Claimant is related to NH’s father as a second-degree relative. The DNA testing does not specifically disprove that J2~ is Claimant’s child, but given the highly unlikely possibility that B~ is related to NH’s father, the DNA testing strongly indicates that J2~ is not Claimant’s father.

The court’s Order of Filiation also provides evidence that Claimant is not J2~’s child. However, the agency is not bound by a state trial court’s determination to which it was not a party. See Social Security Ruling (SSR) 83-37c. Nevertheless, the agency 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) this 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. See SSR 83-37c (adopting Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973), as national policy).

Here, the court’s Order of Filiation does not meet all the prerequisites in SSR 83-37c. The court had jurisdiction to decide the issue of Claimant’s legitimacy, which fell within the general category of domestic relations law. See Miss. Code Ann. § 93-17-1(1) (stating that the chancery court shall have jurisdiction upon petition to make legitimate any offspring of petitioner not born in wedlock). Also, the court’s determination appears to be consistent with Mississippi law. However, nothing in the Order of Filiation suggests parties with opposing interests genuinely contested the issue of whether NH is Claimant’s father. No guardian ad litem was appointed to represent Claimant’s interests. See, e.g., Baker by Williams v. Williams, 503 So. 2d 249, 252-53 (Miss. 1987) (acknowledging that the interests of mother may not be the same as the interests of child in paternity matter, and lower court needed to consider appointing guardian ad litem for child). Also, there is no indication that J2~ was a party, despite being identified on the Certificate of Marriage as the husband of Claimant’s mother and on the Certificate of Live Birth as Claimant’s father. Further, although the court ordered and adjudged that Claimant shall receive Social Security benefits as NH’s legitimate biological child. However, the agency was not a party and court did not have jurisdiction to order the agency to take such action. Therefore, the court’s finding that Claimant is NH’s legitimate child is not entitled to any special significance.

Nevertheless, the court’s determination provides further evidence to rebut the presumption that J2~ is Claimant’s father. The court ordered and adjudged that Claimant is NH’s biological, legitimate, and legal child. The court noted that Claimant’s mother and all of NH’s survivors acknowledged Claimant as NH’s biological child. The court order, together with the DNA test results and the statements mentioned in the court order, provides evidence beyond a reasonable doubt to rebut the presumption that Claimant is the legitimate child of J2~. See Rafferty, 757 So. 2d at 995; Perkins, 609 So. 2d at 394.

Although the court legitimized Claimant in the same order, for purposes of the following legal analysis we assume Claimant is illegitimate because the evidence presented actually rebutted the presumption of legitimacy. Mississippi intestacy law provides that an illegitimate child shall inherit from her father if:

(a) The natural parents participated in a marriage ceremony before the birth of the child, even though the marriage was subsequently declared null and void or dissolved by a court; or

(b) There has been an adjudication of paternity or legitimacy before the death of the intestate; or

(c) There has been an adjudication of paternity after the death of the intestate, based upon clear and convincing evidence, in an heirship proceeding . . . .

Miss. Code Ann. § 91-1-15(3) (West 2015).4 In the Order of Filiation, the court found that NH and Claimant’s mother were not married when Claimant was born and there is no other evidence showing that NH and Claimant’s mother participated in a marriage ceremony. Further, there is no information that a court adjudicated NH’s paternity or Claimant’s legitimacy before NH’s death. Therefore, Claimant could establish a right to inherit from NH only through an adjudication of paternity after NH’s death based on clear and convincing evidence. See Miss. Code Ann. § 91-1-15(3)(c).

An individual born out-of-wedlock seeking to establish inheritance rights from a deceased putative father “must offer clear and convincing proof of paternity.” Grubbs, 753 So. 2d at 1048 (citing Miss. Code Ann. § 91-1-15(3)(c)). “The requisite standard of clear and convincing evidence reflects the high degree of confidence society demands in adjudications of paternity. The standard serves the interests of legitimate heirs, and of society as a whole, in averting fraudulent claims.” Id. (internal citation, quotation marks, and brackets omitted). The evidence presented must be of sufficient quantity and quality and provide a substantial basis for the trier of fact to conclude that clear and convincing evidence establishes paternity. See Estate of Kendrick v. Gorden, 46 So. 3d 386, 390 (Miss. Ct. App. 2010) (citing Estate of Robinson v. Gusta, 540 So. 2d 30, 33 (Miss. 1989)).

Proving or disproving paternity “is a matter of fact, and . . . [a]ny evidence tending to support or deny the fact may be considered.” Perkins, 609 So. 2d at 394. Mississippi courts “accept that blood tests can produce a high level of discrimination either excluding or including a given male as the father of a particular child.” Id. “Genetic test results are admissible as evidence of paternity, but are not necessarily conclusive.” Grubbs, 753 So. 2d at 1052 (citing Chisolm v. Eakes, 573 So. 2d 764, 767 (Miss. 1990)). The fact finder “may consider the expert testimony [regarding the results of genetic testing] for what it feels the testimony is worth, and may even discard it entirely. Where non-genetic evidence is conflicting, the fact finder must engage in a determination of credibility.” Grubbs, 753 So. 2d at 1052 (citing Chisolm, at 767, 768). “[A]bsent some statutory pronouncement, paternity test results, even those showing a high probability of paternity, cannot be conclusive as a matter of law.” Chisolm, 573 So. 2d at 769. Because “the courts do not recognize blood tests as infallible nor do they accept blood tests as conclusive proof of paternity,” an individual claiming paternity must “produce other evidence to establish his claim of paternity.” Groves v. Slaton, 733 So. 2d 349, 352 (Miss. Ct. App. 1999) (citing Chisolm, 573 So. 2d at 767).

Here, the evidence indicated that the DNA testing showed a 99.99% probability that Claimant is related to NH’s father as a second-degree relative. However, NH had a brother, G2~. The DNA evidence did not rule out G2~ as Claimant’s father. Moreover, Claimant’s mother did not provide a statement indicating that NH’s brother, G2~, was not Claimant’s father. Other evidence provided revealed Claimant’s mother reported she no longer lived with J2~ at the time of NH’s death. She stated she was separated from J2~ and lived with NH prior to NH’s death. However, Claimant’s mother did not provide any other evidence to support her claim. Although Claimant’s mother did not provide additional evidence, the state court noted the testimony of Claimant’s mother and NH’s family members, including G2~, stating Claimant was the child of NH. The court ordered and adjudged that that Claimant is NH’s legitimate and legal child and shall inherit from NH under the statutes of descent and distribution of the State of Mississippi. The order did not contain a detailed legal analysis of how Claimant, as an illegitimate child, could inherit from NH based upon clear and convincing evidence. Nevertheless, the court reached that conclusion and legitimized Claimant as the child of NH. Based on the evidence provided, an adjudicator could conclude Claimant is NH’s child under section 216(h)(2)(A) of the Act.

You also asked whether the first month of entitlement to benefits would be August 2015, the month the court issued the Order of Filiation. “An act/event conferring inheritance rights generally has effect only from the date of such act/event.” Program Operations Manual System (POMS) GN 00306.055.A.3. If one piece of evidence satisfies the applicable standard of proof, the effective date is the date of that piece of evidence. See id. If an adjudicator needs more than one piece of evidence to satisfy the applicable standard of proof, the effective date is the date of the latest necessary piece of evidence. See id.

Here, establishing NH’s paternity under Mississippi Code Annotated § 91-1-15(3)(c) would confer inheritance rights on Claimant by finding that Claimant is NH’s legitimate child. The court’s order indicates it relied on more than one piece of evidence in reaching its decision, namely the DNA tests and the acknowledgement of Claimant’s mother and all of NH’s survivors that Claimant is NH’s biological child. The DNA tests were reviewed and sworn in September 2014, whereas the other evidence is not dated. In the absence of any other dates, the court Order of Filiation conferring inheritance rights represents the effective date. Thus, Claimant’s status as NH’s child could not be effective before August 2015. See POMS GN 00306.055.A.3.

CONCLUSION

Based on the evidence provided, we believe a Mississippi court would conclude the presumption of paternity is rebutted. We also believe that an adjudicator could determine that there is clear and convincing evidence establishes that Claimant is NH’s child for purposes of Mississippi intestacy law. Therefore, an adjudicator could find that Claimant is NH’s child for the purposes of determining Claimant’s eligibility for CIB on NH’s earnings record. The effective month of the relationship between Claimant and NH is August 2015, the date of the court order.

Mary Ann Sloan

Regional Chief Counsel

By: Jennifer L. Patel

Assistant Regional Counsel

B. PR 15-082 Eligibility for Child's Insurance Benefits of Individual Born During Number Holder's Marriage to Individual's Mother after State Court Declared Individual is not Number Holder's Child – Mississippi

DATE: February 10, 2015

1. SYLLABUS

Mississippi law establishes a rebuttable presumption exists that a child born during a marriage is legitimate, i.e., the child is the child of the mother's husband but a party challenging legitimacy may prevail if he proves beyond a reasonable doubt that the legal husband of the mother is not, in fact, the biological father. In this case, the information provides sufficient evidence to rebut the presumption that NH is C2's father. The DNA testing showed a 0.00% probability of relationship between NH and C2 and that NH was not C2's biological father. The DNA test results provide strong evidence rebutting the presumption of legitimacy. Based on the information provided, including the court order, the beneficiary is not the number holder's child under Mississippi law for determining continuing eligibility for CIB on the number holder's earnings record.

2. OPINION

QUESTION

You asked whether a beneficiary who is currently receiving child's insurance benefits (CIB) on the number holder's earnings record is the number holder's child for determining her continuing eligibility for CIB on the number holder's earnings record where the beneficiary was born during the number holder's marriage to the beneficiary's mother, but a Mississippi court declared the beneficiary is not the number holder's child.

OPINION

Based on the information provided, including the court order, the beneficiary is not the number holder's child under Mississippi law for determining her continuing eligibility for CIB on the number holder's earnings record.

BACKGROUND

According to the information provided, on March XX, 2012, the Social Security Administration (SSA) found C~, the number holder (NH), entitled to disability insurance benefits beginning November 2009. In May 2012, J~, NH's ex-wife and the mother of NH's son, J2~ (C1), applied on C1's behalf for CIB on NH's earnings record. On June XX, 2012, SSA found C1 entitled to CIB on NH's earnings record beginning November 2009.

V~ (C2) was born on November, to K~ (C2's mother). At the time of C2's birth, C2's mother was married to NH. C2's birth certificate lists NH as her father. C2's Numident 5 also lists NH as her father.

In March 2014, C2's mother applied on C2's behalf for CIB on NH's earnings record. C2's mother reported she and NH had separated on February 28, 2013, and they had not lived together since that date. C2's mother also reported C2 was not NH's child and she had a paternity test to prove C2 was not NH's child. Shortly after C2's mother filed C2's application, C1's mother visited an SSA field office and claimed C2 was not NH's biological child. C1's mother stated she did not think C1's CIB payments should be reduced based on CIB payments made to a child, i.e., C2, whom she did not believe was NH's biological child.

On May XX, 2014, SSA found C2 entitled to CIB on NH's earnings record beginning December 2013. SSA determined, pursuant to Program Operations Manual System (POMS) GN 00306.025, that C2 was NH's child and entitled to CIB on NH's earnings record because NH and C2's mother were married when C2 was born and NH acknowledged C2 was his child. Also on May XX, 2014, SSA informed C1's mother that C1 had been paid too much CIB from December 2013 through April 2014 and his monthly CIB payment would be cut in half.

On May XX, 2014, C2's mother filed a complaint for divorce from NH in the Chancery Court of Lauderdale County, Mississippi. In the complaint, C2's mother averred NH had been a resident of Meridian, Mississippi, for more than six months before she filed the complaint. C2's mother averred she and NH were married on June XX, 2011, in Mississippi, separated on or about February 28, 2013, and had not cohabited together as husband and wife since that date. C2's mother also averred C2 had been born "unto the union" of her and NH, but according to NH, he claimed he was not C2's father. C2's mother further averred C2 had lived only with her since C2's birth. C2's mother asked the court for custody of C2, but with visitation rights for NH. C2's mother also asked the court to order DNA testing to prove or disprove NH's paternity pursuant to sections 93-9-21 and 93-9-23 of the Mississippi Rules of Civil Procedure.

In his June XX, 2014 answer to the complaint for divorce, NH admitted he had been a resident of Meridian, Mississippi, for more than six months before C2's mother filed the complaint. NH also admitted his marriage to and separation from C2's mother and agreed they had not cohabited as husband and wife since their separation, but he denied that a child was born "unto" the union. NH averred C2 "was the result of an adulterous relationship and a previous DNA excluded [NH] from paternity," and NH denied the need for a second DNA test. NH admitted C2 had lived with her mother since her birth. NH also counterclaimed for divorce and claimed C2 was the result of C2's mother's "numerous affairs" and a DNA test had already excluded him as C2's biological father. NH asked the court to find C2 was not his child and C2's mother was not entitled to any support from him.

In a motion for temporary relief filed on July XX, 2014, NH averred that C2's mother had misrepresented to SSA that C2 was his biological child, which had affected the monthly benefit amount received by C1. NH asked the court to find he was not C2's biological father and C2's mother was not entitled to any support from him for C2's benefit.

On July XX, 2014, C2's mother filed an answer to NH's counterclaim. C2's mother admitted NH was not C2's biological child. C2's mother also admitted she engaged in a sexual affair with someone other than NH on or about February 2013.

On August XX, 2014, the Chancery Court of Lauderdale County, Mississippi, issued an Agreed Order in which it noted genetic testing obtained in December 2013 excluded NH as C2's biological father. The court also noted C2's mother admitted that although C2 was born during the marriage, NH was not C2's biological father. The court further noted NH was listed as C2's father on her birth certificate in error. Based on this information, the court decreed NH was not C2's biological father and NH had no duty to provide support to C2. The court authorized and directed the Mississippi Bureau of Vital Statistics to remove NH's name as C2's biological father from her birth certificate. The court also ordered C2's mother to provide the Agreed Order to SSA and take all actions required to cease the payment of Social Security benefits to C2 and to return any portion of payments received from SSA as required by SSA.

SSA records indicate C2's mother visited an SSA office and requested SSA cease paying benefits to C2. In a letter dated December 4, 2014, an attorney representing NH contacted Senator T~(Mississippi), with a copy of the letter sent to the SSA field office in Meridian, Mississippi, regarding C2's receipt of CIB on NH's earnings record. NH's attorney stated C2's mother had applied on C2's behalf for CIB on NH's record knowing C2 was not NH's child. NH's attorney noted SSA had received a copy of the Agreed Order in August 2014 and asked Senator T~'s office "to speed up the resolution of this matter." NH's attorney stated NH and C2's mother were going through a divorce, and during the marriage C2's mother had become pregnant with C2 by another man. NH's attorney provided a screenshot of a Facebook post by C2's mother in which she indicated another man was C2's father. NH's attorney stated "over the counter" DNA testing in December 2013 had eliminated NH as Beneficiary's father. NH's attorney stated his intent was to help restore the amount of CIB payable to C1 because C1 was NH's sole dependent. NH's attorney also provided a letter from C1's mother in which she outlined her attempts to have her C1's CIB payments restored.

SSA subsequently obtained a copy of a DNA test report dated December 11, 2013. The report indicates genetic samples were obtained from C2 and NH. The report states the testing showed a 0.00% probability of relationship between NH and C2 and that NH was not C2's biological father.

On December XX, 2014, the Chancery Court of Lauderdale County, Mississippi, issued a judgment of divorce. In the property settlement agreement incorporated in the divorce judgment, NH and C2's mother agreed C2 was born during the marriage, but NH was not C2's biological father and had no duty to provide support for C2.

DISCUSSION

A claimant may be eligible for CIB on the earnings record of an individual entitled to DIB if the claimant is the insured individual's "child." See Social Security Act (Act) § 202(d)(1); 20 C.F.R. § 404.350(a)(1) (2014). 6 "Child" includes "the child" of an insured individual. See Act § 216(e)(1); 20 C.F.R. § 404.354; Astrue v. Capato, 132 S. Ct. 2021, 2027-28 (2012). A claimant may show she is "the child" of an individual entitled to DIB, within the meaning of section 216(e)(1), under section 216(h)(2)(A) or 216(h)(3)(B) of the Act. See Capato, 132 S. Ct. at 2028. Under section 216(h)(2)(A), a claimant is considered "the child" of the insured individual if the claimant could inherit the insured individual's intestate personal property under the law of the State in which the insured individual was domiciled when the claimant applied for CIB. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(3); Program Operations Manual System (POMS) GN 00306.055.A.1.

The pleadings filed in the Chancery Court of Lauderdale County, Mississippi, indicate NH was domiciled in Mississippi when C2's mother applied on C2's behalf for CIB on NH's earnings record. Therefore, we look to Mississippi intestacy law to determine whether C2 is NH's child for the purposes of section 216(h)(2)(A) of the Act. Under Mississippi law, the intestate personal property of a deceased person descends to his or her heirs. See Miss. Code Ann. § 91-1-11 (West 2014). Heirs include a decedent's children. See Clark Sand Co., Inc. v. Kelly, 60 So. 3d 149, 159 (Miss. 2011) (citing Miss. Code Ann. §§ 91-1-1 to 91-1-11).

Mississippi law establishes a rebuttable presumption exists that a child born during a marriage is legitimate, i.e., the child is the child of the mother's husband. See Rafferty v. Perkins, 757 So. 2d 992, 995 (Miss. 2000); Perkins v. Thompson. (In re Estate of Taylor), 609 So. 2d 390, 394 (Miss. 1992). The presumption of legitimacy is one of the strongest known to Mississippi law. Perkins, 609 So. 2d at 394. "A party challenging legitimacy may prevail if he proves beyond a reasonable doubt that the legal husband of the mother is not, in fact, the biological father." Id. "The burden notwithstanding, (dis)proving paternity is a matter of fact, and courts proceed as with other issues of fact. Any evidence tending to support or deny the fact may be considered." Id. "The question in the end is whether the court can say beyond a reasonable doubt, given the totality of the circumstances as shown by all of the evidence before it, that the husband is not the father. Necessarily, this standard requires a sensitive assessment of the evidence of each individual case." Id. "At common law, [the presumption of legitimacy] was rebutted by showing either that the husband was incapable of procreating or that the mother and husband were physically separated at the time of conception." M.A. v. M.D. (In re B.N.N.), 928 So. 2d 197, 200 (Miss. Ct. App. 2006); see Perkins, 609 So. 2d at 394. However, "the presumption has bowed to realism." Perkins, 609 So. 2d at 394.

In particular, "[s]cientific and technological advancements have resulted in other means of rebutting this presumption, such as paternity testing." M.A., 928 So. 2d at 200 (citing Miss. Code Ann. §§ 93-9-21, 93-9-27); 7 Perkins , 609 So. 2d at 394 (noting Mississippi courts "accept that blood tests can produce a high level of discrimination either excluding or including a given male as the father of a particular child") (internal quotation marks omitted). As a general matter, "[g]enetic test results are admissible as evidence of paternity, but are not necessarily conclusive." In re Estate of Grubbs, 753 So. 2d 1043, 1052 (Miss. 2000). Specifically, however, genetic testing "may rebut the presumption of legitimacy." Rafferty, 757 So. 2d at 995. In Rafferty, the court held DNA test results eliminating the possibility that the mother's former husband was the child's father rebutted the presumption of legitimacy where no credible rebuttal evidence was presented. See Rafferty, 757 So. 2d at 994, 995; see also Williams v. Williams, 843 So. 2d 720, 721-22 (Miss. 2003) (holding husband of child's mother, who had sworn in divorce decree the child was his son, effectively rebutted presumption of paternity through DNA testing showing he was not child's father); M.A.S. v. Miss. Dep't of Human Servs., 842 So. 2d 527, 528, 531 (Miss. 2003) (granting appellant relief from child support order where unrefuted proof—DNA test results showing probability of paternity of 0.00%—showed appellant was not child's father).

Here, the information provides sufficient evidence to rebut the presumption that NH is C2's father. The DNA testing showed a 0.00% probability of relationship between NH and C2 and that NH was not C2's biological father. The DNA test results provide strong evidence rebutting the presumption of legitimacy. The DNA testing here, showing a 0.00% probability that NH is C2's father, leaves no reasonable doubt that NH is not C2's father. Moreover, C2's mother admitted in court documents that C2 was not NH's child, and C2's mother admitted to having an affair in February 2013, approximately nine months before C2's birth. NH also stated in court documents that he was not C2's father. According to documents provided by the attorney for C1's mother, C2's mother also posted on her Facebook page that another man was C2's father.

The Chancery Court of Lauderdale County, Mississippi, also determined NH was not C2's father in its divorce judgment. 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) this 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. See Social Security Ruling (SSR) 83-37c (adopting Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973), as national policy).

In this case, the court's divorce judgment does not meet all the prerequisites in SSR 83-37c. The court had jurisdiction to decide the issue of NH's paternity and the issue of NH's paternity fell within the general category of domestic relations law. The court's determination also appears to be consistent with Mississippi law because, as discussed above, the DNA evidence and the statements provided by NH and C2's mother indicate beyond a reasonable doubt that NH was not C2's father. However, nothing in the divorce judgment suggests parties with opposing interests genuinely contested the issue of whether NH was C2's father. No guardian ad litem was appointed to represent C2's interests, and both NH and C2's mother, the parties to the divorce proceedings, agreed NH was not C2's father. See, e.g.,Baker, 503 So. 2d at 252-53 (noting interests of mother may not same as interests of child in paternity matter, and lower court needed to consider appointing guardian ad litem for child). Therefore, the court's determination that NH was not C2's father is not entitled to any special significance.

Nevertheless, the court's determination provides further evidence to rebut the presumption that NH was C2's father. The court's determination, taken together with the DNA evidence and the statements of NH and C2's mother, shows that NH is not C2's father. In addition, the court concluded the inclusion of NH's name on C2's birth certificate was error and ordered the relevant State agency to amend C2's birth certificate. Although we do not have a copy of an amended birth certificate, the court's order undermines the birth certificate as evidence that NH was C2's father. Given the totality the evidence provided, we believe a Mississippi court would conclude the presumption that NH is C2's father has been rebutted beyond a reasonable doubt.

Because C2 is not NH's child, SSA may decide to reopen its May XX, 2014 initial determination granting C2 CIB on NH's earnings record. SSA may reopen a determination for any reason if it does so within twelve months of the date of the notice of the initial determination. See 20 C.F.R. § 404.988(a). If SSA is unable to reopen C2's initial award determination within twelve months, the additional evidence submitted after the determination should provide good cause for SSA to reopen the determination with four years of the date of the notice of the initial determination. See 20 C.F.R. §§ 404.988(b), 404.989(a)(1).

CONCLUSION

Based on the information provided, C2 is not NH's child for determining C2's continuing eligibility for CIB on NH's earnings record.

Mary Ann Sloan

Regional Chief Counsel

By: _____________

Brian C. Huberty

Assistant Regional Counsel

C. PR 15-011 Determining Child Status under Mississippi Intestacy Law Based on DNA Test Results and Other Evidence Claimant: D~. Number Holder: T~

DATE: October 16, 2014

1. SYLLABUS

The NH’s was domiciled in Mississippi at the time of his death, therefore, we look to Mississippi intestacy law to determine whether Claimant is NH’s child for purposes of section 216(h)(2)(A) of the Act. The Mississippi intestacy law provides that an illegitimate child shall inherit from his father if: (a) The natural parents participated in a marriage ceremony before the birth of the child, even though the marriage was subsequently declared null and void or dissolved by a court; or (b) There has been an adjudication of paternity or legitimacy before the death of the intestate; or (c) There has been an adjudication of paternity after the death of the intestate, based upon clear and convincing evidence, in an heirship proceeding . In this case, the NH and claimant’s mother did not participate in a marriage ceremony nor a court adjudicated NH’s paternity or Claimant’s legitimacy before NH’s death. The Claimant can only establish the right to inherit from NH through an adjudication of paternity based on clear and convincing evidence.

The Mississippi’s Uniform Law of Paternity provides that genetic tests establishing a probability of paternity of 98% or greater create a rebuttable presumption of paternity that can be rebutted only by a preponderance of the evidence. The Claimant’s mother provided DNA test results indicating a 99.99% probability that NH is Claimant's father. The testing was based on DNA samples from Claimant and NH. None of the evidence or information provided suggests the DNA test results were not reliable and credible. Therefore, the DNA test results provide substantial evidence that Claimant is NH’s child and arguably create a rebuttable presumption that NH is Claimant’s father. Based on the evidence provided, we believe a Mississippi court would conclude the claimant is the number holder’s child under Mississippi intestacy law. Therefore, the claimant is the number holder’s child for determining the claimant’s eligibility for CIB on the number holder’s earnings record. The effective date of the relationship is the date of the DNA test results.

2. OPINION

QUESTION

You asked whether the claimant is the number holder’s child based on DNA test results, statements from the claimant’s mother, and a court order establishing paternity for determining the claimant’s eligibility for child’s insurance benefits (CIB) on the number holder’s earnings record. You also asked whether the claimant would be entitled to retroactive benefits.

OPINION

We believe a Mississippi court would conclude the claimant is the number holder’s child under Mississippi intestacy law. Therefore, the claimant is the number holder’s child for determining the claimant’s eligibility for CIB on the number holder’s earnings record. The effective date of the relationship is the date of the DNA test results.

BACKGROUND

According to the information provided, on March XX, 2014, L~ (Claimant’s mother) applied for CIB on behalf of D~. (Claimant), on the earnings record of T~, the number holder (NH). NH’s death certificate shows he died on March XX, 2010, while domiciled in Mississippi. Claimant’s mother and NH were never married. Claimant’s birth certificate shows that he was born on December, and lists Claimant’s mother and D~, as his parents. D~ also signed the birth certificate. Claimant’s mother also reports that D~ signed “something at child support” acknowledging Claimant as his child. Claimant’s mother and D~ were never married.

According to Claimant’s mother, she later learned that NH had sexual relations with her on one occasion while she was sleeping, and she began to suspect NH was Claimant’s father. Claimant’s mother also reported NH planned to sign an acknowledgment that he was Claimant’s father but died before taking action. 8 Claimant’s mother obtained a court order to have NH’s body exhumed, and DNA samples were collected on January XX, 2014. Test results showed a 99.99% probability that NH was Claimant’s father. Claimant’s mother reports that because of these DNA test results, D~ is no longer required to pay child support. On August XX, 2014, the Chancery Court of Coahoma County, Mississippi, issued an Order Establishing Paternity. The court ordered, adjudged, and confirmed Claimant to be NH’s “natural born son” and changed Claimant’s name to E~.

3.

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 Social Security Act (Act) § 202(d)(1); 20 C.F.R. § 404.350(a)(1) (2014). 9 “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), by meeting the requirements listed in either section 216(h)(2)(A) or section 216(h)(3)(C) of the Act. 10 See id. at 2028. Under section 216(h)(2)(A) of the Act, a claimant is considered the child of the insured individual if the claimant could inherit the insured individual’s intestate personal property under the law of the State in which the insured individual was domiciled at the time of his death. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4).

NH’s death certificate shows he was domiciled in Mississippi when he died. Therefore, we look to Mississippi intestacy law to determine whether Claimant is NH’s child for purposes of section 216(h)(2)(A) of the Act. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4); Program Operations Manual System (POMS) PR 01115.027 (PR 13-101). Mississippi intestacy law provides that an illegitimate child shall inherit from his father if:

(a) The natural parents participated in a marriage ceremony before the birth of the child, even though the marriage was subsequently declared null and void or dissolved by a court; or

(b) There has been an adjudication of paternity or legitimacy before the death of the intestate; or

(c) There has been an adjudication of paternity after the death of the intestate, based upon clear and convincing evidence, in an heirship proceeding . . . .

Miss. Code Ann. § 91-1-15(3) (West 2014); see also Miss. Code Ann. § 91-1-15(1)(c) (“‘Illegitimate’ means a person who at the time of his birth was born to natural parents not married to each other and said person was not legitimized by subsequent marriage of said parents or legitimized through a proper judicial proceeding.”); POMS PR 01115.027 (PR 13-101). The information provided does not indicate NH and Claimant’s mother participated in a marriage ceremony or that a court adjudicated NH’s paternity or Claimant’s legitimacy before NH’s death. Therefore, Claimant could establish his right to inherit from NH only through an adjudication of paternity based on clear and convincing evidence. See Miss. Code Ann. § 91-1-15(3)(c). 11 An individual born out-of-wedlock seeking to establish inheritance rights from a deceased putative father “must offer clear and convincing proof of paternity.” In re Estate of G1~, 753 So. 2d 1043, 1048 (Miss. 2000) (citing Miss. Code Ann. § 91-1-15(3)(c)). “The requisite standard of clear and convincing evidence reflects the high degree of confidence society demands in adjudications of paternity. The standard serves the interests of legitimate heirs, and of society as a whole, in averting fraudulent claims.” Id. (internal citation, quotation marks, and brackets omitted). The evidence presented must be of sufficient quantity and quality and provide a substantial basis for the trier of fact to conclude that clear and convincing evidence establishes paternity. See Estate of K~ v. G1~, 46 So. 3d 386, 390 (Miss. Ct. App. 2010) (citing Estate of R~ v. G1~, 540 So. 2d 30, 33 (Miss. 1989)); POMS PR 01115.027 (PR 13-101).

Proving or disproving paternity “is a matter of fact, and . . . [a]ny evidence tending to support or deny the fact may be considered.” In re Estate of T~, 609 So. 2d 390, 394 (Miss. 1992). Mississippi courts “accept that blood tests can produce a high level of discrimination either excluding or including a given male as the father of a particular child.” Id. (internal quotations marks omitted). “Genetic test results are admissible as evidence of paternity, but are not necessarily conclusive.” G1~, 753 So. 2d at 1052 (citing Chisolm v. Eakes, 573 So. 2d 764, 767 (Miss. 1990)). The fact finder “may consider the expert testimony [regarding the results of genetic testing] for what it feels the testimony is worth, and may even discard it entirely. Where non-genetic evidence is conflicting, the fact finder must engage in a determination of credibility.” G1~, 753 So. 2d at 1052 (citing C~, at 767, 768). “[A]bsent some statutory pronouncement, paternity test results, even those showing a high probability of paternity, cannot be conclusive as a matter of law.” C~, 573 So. 2d at 769. Because “the courts do not recognize blood tests as infallible nor do they accept blood tests as conclusive proof of paternity,” an individual claiming paternity must “produce other evidence to establish his claim of paternity.” Groves v. Slaton, 733 So. 2d 349, 352 (Miss. Ct. App. 1999) (citing C~, 573 So. 2d at 767); POMS PR 01115.027 (PR 13-101).

Mississippi’s Uniform Law of Paternity provides that genetic tests establishing a probability of paternity of 98% or greater create a rebuttable presumption of paternity that can be rebutted only by a preponderance of the evidence. See Miss. Code Ann. § 93-9-27(2); Estate of S~ v. S~ ex rel. Rollins, 130 So. 3d 508, 513 (Miss. 2014). We have not found Mississippi case law that has applied the statutory presumption in cases involving the issue of paternity in determining heirs of an intestate’s estate; however, the Mississippi Supreme Court applied the presumption in determining a deceased’s heirs in wrongful death cases cases involving a wrongful death statute. See id.; Brown v. Jackson (In re Estate of C~), 711 So. 2d 878, 882 (Miss. 1998). An illegitimate child has all the benefits, rights, and remedies in a wrongful death action if he or she establishes the right to inherit from the deceased under Mississippi Code Annotated § 91-1-15. See Miss. Code Ann. § 11-7-13; In re Estate of B~, 755 So. 2d 1108, 1112-13 (Miss. Ct. App. 1999). In Estate of S~, the court considered DNA testing showing 0% possibility that the deceased was the child’s father and a 99.997% likelihood that another man was the father. Citing a paternity case, the Smith court held that “‘[w]here scientific evidence points overwhelmingly towards one man as the father of a child, paternity is established.’” Estate of S~, 130 So. 3d at 513 (quoting Griffith v. Pell, 881 So. 2d 227, 230-31 (Miss. Ct. App.2003)). Thus, we believe a Mississippi court presented with genetic testing showing a 98% or greater probability of paternity at least would need to consider the statutory presumption in Mississippi Code Annotated § 93-9-27(2) in determining paternity under Mississippi Code Annotated § 91-1-15(3)(c). See B~, 711 So. 2d at 882; see also Miss. Code Ann. § 91-1-15 (“The remedy created herein is separate, complete and distinct, but cumulative with the remedies afforded illegitimates as provided by the Mississippi Uniform Law on Paternity”).

Claimant’s mother provided DNA test results indicating a 99.99% probability that NH is Claimant's father. The testing was based on DNA samples from Claimant and NH. None of the evidence or information provided suggests the DNA test results were not reliable and credible. Therefore, the DNA test results provide substantial evidence that Claimant is NH’s child and arguably create a rebuttable presumption that NH is Claimant’s father. See Miss. Code Ann. §§ 91-1-15(3)(c), 93-9-27(2); G1~, 753 So. 2d at 1052; B~, 711 So. 2d at 882. As noted above, however, the DNA test results are not conclusive evidence of paternity; and a Mississippi court would require additional evidence to establish NH’s paternity. See G1~, 753 So. 2d at 1052; G1~, 733 So. 2d at 352.

Although Claimant’s mother provided a chancery court order finding NH is Claimant’s natural parent based solely on the DNA test results, 12 Social Security Ruling (SSR) 83-37c provides the agency is not bound by a state trial court’s determination to which it was not a party. However, the agency cannot ignore such a decision that meets all four of the following prerequisites: “(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.” SSR 83-37c. Because the chancery court’s decision was not genuinely contested, the decision does not satisfy the requirements of SSR 83-37c. Therefore, the agency is not bound by the chancery court order of paternity.

In addition to the DNA test results, the evidence includes statements of Claimant’s mother regarding the circumstances under which she had sexual relations with NH. Although another man, D~, is listed as the father on Claimant’s birth certificate and had been ordered to pay child support after acknowledging Claimant, D~ and Claimant’s mother were never married and never lived together. Earlier paternity orders “may be vacated once DNA testing establishes someone other than the named individual is the child’s biological father.” Estate of S~, 130 So. 3d at 513 (citations omitted). In this regard, Claimant’s mother reported that the child support order was rescinded after the DNA test results confirmed that D~ was not Claimant’s father. Given the available evidence, we believe a Mississippi court, as the chancery court did here, would find that clear and convincing evidence establishes that NH is Claimant’s father for the purposes of Mississippi intestacy law. Therefore, the agency could conclude Claimant is NH’s child under section 216(h)(2)(A) of the Act.

You also asked whether Claimant would be entitled to retroactive CIB. “An act/event conferring inheritance rights generally has effect only from the date of such act/event.” POMS GN 00306.055.A.3. If State law confers inheritance rights based on an adjudication of paternity but does not legitimate the child, and the State law is prospective only, the effective date of the parent-child relationship depends on the evidence needed to satisfy the applicable standard of proof. See id. If one piece of evidence satisfies the applicable standard of proof, the effective date is the date of that piece of evidence. See id. If an adjudicator needs more than one piece of evidence to satisfy the applicable standard of proof, the effective date is the date of the latest necessary piece of evidence. See id.

In Claimant’s case, although establishing NH’s paternity under Mississippi Code Annotated § 91-1-15(3)(c) would confer inheritance rights on Claimant, the statute does not render Claimant NH’s legitimate child. See Miss. Code Ann. § 91-1-15(1)(c) (indicating a person is “illegitimate” if his parents were not married to each other at the time of his birth and “said person was not legitimized by subsequent marriage of said parents or legitimized through a proper judicial proceeding”); cf. Miss. Code Ann. § 93-17-1(1) (stating chancery court shall have jurisdiction upon petition to make legitimate any offspring of petitioner not born in wedlock); Miss. Code Ann. § 93-17-1(2) (conferring legitimacy when father marries mother and acknowledges child); Miss. Code Ann. § 93-17-13 (indicating final adoption decree confers legitimacy on child). Given the DNA test results are the latest necessary piece of evidence needed to establish clear and convincing proof of NH’s paternity, Claimant’s status as NH’s child could not be effective before January XX, 2014, the date of the DNA testing. See POMS GN 00306.055.A.3.

CONCLUSION

We believe a Mississippi court would conclude NH is Claimant’s father under Mississippi intestacy law, and Claimant would be entitled to inherit NH’s intestate property. Therefore, Claimant is NH’s child for determining Claimant’s eligibility for CIB on NH’s earnings record. The effective date of the relationship between Claimant and NH is January XX, 2014, the date of the DNA testing.

Mary Ann Sloan
Regional Chief Counsel

By:_______________
Joseph P. Palermo, III
Assistant Regional Counsel

D. PR 11-017 Determining Child Status under Mississippi Intestacy Law Based on DNA Test Results and Other Evidence

DATE: November 16, 2010

1. SYLLABUS:

In the State of Mississippi it is reasonable to conclude that a court would declare that the Number Holder (NH) is the biological father of the claimant based on deoxyribonucleic acid (DNA) testing. The DNA test results provided indicated a 99.75 % probability that the NH is the claimant’s father. Therefore, the DNA test results provided substantial evidence that the claimant is the NH’s child and arguably create a rebuttal presumption that the NH is the claimant’s father.

Additionally, in 2010 the NH’s eldest sister acknowledged that NH stated the he was the claimant’s father. We refer to the Mississippi intestacy law because the NH was domiciled in Mississippi at the time of his death.

2. OPINION

QUESTION

You have asked whether a claimant is the child of a number holder for purposes of child's insurance benefits based on DNA test results and statements from the claimant's mother and the number holder's sister. You also have asked, if the claimant is the number holder's child, for the effective date of the relationship and whether the claimant would be entitled to retroactive benefits.

OPINION

We believe a Mississippi court would conclude the claimant is the child of the number holder under Mississippi intestacy law. The effective date of the relationship is the date of the DNA test results.

BACKGROUND

On July XX, 2010, S~ (Claimant's mother) applied on behalf of C~ (Claimant) for child's insurance benefits on the earnings record of A~, the number holder (NH). According to the information provided, NH died on January XX, 1996, while domiciled in Mississippi. The Social Security Administration (SSA) regional office in Dallas (Dallas) reports it has no information indicating Claimant's mother and NH were ever married. Dallas also reports the claims file does not include a written acknowledgement by NH that Claimant is his child or a court order establishing paternity or ordering NH to support Claimant. Dallas further reports NH never supported or lived with Claimant or Claimant's mother and Claimant's birth certificate does not list a father.

In connection with a prior application filed in 1999, Claimant's mother reported to SSA that she and NH never lived together. Claimant's mother claimed NH told his sisters and nieces that he was Claimant's father. She also claimed NH's sisters and nieces could verify that he acknowledged Claimant as his child. In connection with another prior application filed in February 2010, NH's eldest sister provided a notarized statement that NH acknowledged to her that he was Claimant's father.

SSA denied for lack of evidence the applications Claimant's mother filed on Claimant's behalf in May 1999, January 2003, and February 2010. In connection with Claimant's current, July 2010 application, Claimant's mother submitted genetic test results based on DNA samples from Claimant, Claimant's mother, NH's sister, and NH's mother. The testing report states the results supported NH's paternity of Claimant, with a 99.75% probability of paternity.

DISCUSSION

A claimant may be eligible for child's insurance benefits 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 Social Security Act (Act) § 202(d)(1); 20 C.F.R. § 404.350(a)(1) (2010). "Child" includes the natural child of an insured individual. See Act § 216(e); 20 C.F.R. § 404.354 (2010). Under section 216(h)(2)(A) of the Act, a claimant is considered the child of the insured individual if the claimant could inherit the insured individual's intestate personal property under the law of the State in which the insured individual was domiciled at the time of his death. 13 See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4) (2010).

NH was domiciled in Mississippi at the time of his death. Therefore, we look to Mississippi intestacy law to determine whether Claimant is NH's child for the purposes of section 216(h)(2)(A) of the Act. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4). Mississippi intestacy law states that an illegitimate child shall inherit from his father if:

(a) The natural parents participated in a marriage ceremony before the birth of the child, even though the marriage was subsequently declared null and void or dissolved by a court; or

(b) There has been an adjudication of paternity or legitimacy before the death of the intestate; or

(c) There has been an adjudication of paternity after the death of the intestate, based upon clear and convincing evidence, in an heirship proceeding . . . .

Miss. Code Ann. § 91-1-15(3) (West 2010); see also Miss. Code Ann. § 91-1-15(1)(c) ("'Illegitimate' means a person who at the time of his birth was born to natural parents not married to each other and said person was not legitimized by subsequent marriage of said parents or legitimized through a proper judicial proceeding."). None of the information provided indicates NH and Claimant's mother participated in a marriage ceremony or that a court adjudicated NH's paternity or Claimant's legitimacy before NH's death. Therefore, Claimant could establish her right to inherit from NH only through an adjudication of paternity based on clear and convincing evidence. See Miss. Code Ann. § 91-1-15(3)(c). 14

An individual born out-of-wedlock seeking to establish inheritance rights from a deceased putative father "must offer clear and convincing proof of paternity." In re Estate of G1~, 753 So. 2d 1043, 1048 (Miss. 2000) (citing Miss. Code Ann. § 91-1-15(3)(c)), quoted in In re Estate of K~, --- So. 3d ----, 2010 WL 4188266, at *3 (Miss. Ct. App. 2010). "The requisite standard of clear and convincing evidence reflects the high degree of confidence society demands in adjudications of paternity. The standard serves the interests of legitimate heirs, and of society as a whole, in averting fraudulent claims." G1~, 753 So. 2d at 1048 (internal citation, quotation marks, and brackets omitted), cited and quoted in K~, 2010 WL 4188266, at *3. The evidence presented must be of sufficient quantity and quality and provide a substantial basis for the trier of fact to conclude that clear and convincing evidence establishes paternity. See K~, 2010 WL 4188266, at *4; see also In re Estate of J~, 767 So. 2d 181, 185 (Miss. 2000) (holding trial judge correctly applied clear and convincing standard where trial judge stated issue was "whether or not the evidence presented . . . is sufficiently credible, is sufficiently clear, and sufficiently convincing" to determine if appellee was deceased's child). 15

Proving or disproving paternity "is a matter of fact, and . . . [a]ny evidence tending to support or deny the fact may be considered." Perkins v. Thompson (In re Estate of T~), 609 So. 2d 390, 394 (Miss. 1992). Mississippi courts "accept that blood tests can produce a high level of discrimination either excluding or including a given male as the father of a particular child." Id. "Genetic test results are admissible as evidence of paternity, but are not necessarily conclusive." G1~, 753 So. 2d at 1052 (citing Chisolm v. Eakes, 573 So. 2d 764, 767 (Miss. 1990)). The fact finder "may consider the expert testimony [regarding the results of genetic testing] for what it feels the testimony is worth, and may even discard it entirely. Where non-genetic evidence is conflicting, the fact finder must engage in a determination of credibility." G1~, 753 So. 2d at 1052 (citing C~, at 767, 768). "[A]bsent some statutory pronouncement, paternity test results, even those showing a high probability of paternity, cannot be conclusive as a matter of law." C~, 573 So. 2d at 769 (paternity case in which "the principal controversy concerns the weight to be given the results of the [human leukocyte antigen] HLA blood tests," at 766). Because "the courts do not recognize blood tests as infallible nor do they accept blood tests as conclusive proof of paternity," an individual claiming paternity must "produce other evidence to establish his claim of paternity." Groves v. Slaton, 733 So. 2d 349, 352 (Miss. Ct. App. 1999) (citing C~, 573 So. 2d at 767).

Mississippi's Uniform Law of Paternity provides that genetic tests establishing a probability of paternity of 98% or greater create a rebuttable presumption of paternity that can be rebutted only by a preponderance of the evidence. See Miss. Code Ann. § 93-9-27(2) (West 2010). We have not found Mississippi case law that has applied the statutory presumption in a case involving the issue of paternity in determining heirs of an intestate's estate. However, the Mississippi Supreme Court has stated that a trial judge must consider the statutory presumption in determining a deceased's heirs in a wrongful death case. See Brown v. J~ (In re Estate of C~), 711 So. 2d 878, 882 (Miss. 1998). An illegitimate child has all the benefits, rights, and remedies in a wrongful death action if he or she establishes the right to inherit from the deceased under Mississippi Code Annotated § 91-1-15. See Miss. Code Ann. § 11-7-13 (West 2010); In re Estate of B~, 755 So. 2d 1108, 1112-13 (Miss. Ct. App. 1999). The court in Brown also noted that the trial court had found the evidence had fallen short of the clear and convincing evidence standard required by Mississippi Code Annotated § 91-1-15(3)(c). See B~, 711 So. 2d at 882. Thus, we believe a Mississippi court presented with genetic testing showing a 98% or greater probability of paternity at least would need to consider the statutory presumption in Mississippi Code Annotated § 93-9-27(2) in determining paternity under Mississippi Code Annotated § 91-1-15(3)(c). See id.; see also Miss. Code Ann. § 91-1-15 ("The remedy created herein is separate, complete and distinct, but cumulative with the remedies afforded illegitimates as provided by the Mississippi Uniform Law on Paternity").

In Claimant's case, Claimant's mother provided DNA test results indicating a 99.75% probability that NH is Claimant's father. The testing was based on DNA samples from Claimant, Claimant's mother, NH's sister, and NH's mother. None of the evidence or information provided suggests that the DNA test results were not reliable and credible. Therefore, the DNA test results provide substantial evidence that Claimant is NH's child and arguably create a rebuttable presumption that NH is Claimant's father. See Miss. Code Ann. §§ 91-1-15(3)(c), 93-9-27(2); G1~, 753 So. 2d at 1052; B~, 711 So. 2d at 882. As noted above, however, the DNA test results are not conclusive evidence of paternity and a Mississippi court would require additional evidence to establish NH's paternity. See G1~, 753 So. 2d at 1052; G1~, 733 So. 2d at 352.

In addition to the DNA test results, the evidence includes a 1999 statement from Claimant's mother and a February 2010 notarized statement from NH's eldest sister. Claimant's mother claimed in 1999 that NH told his sisters and nieces that he was Claimant's father. She claimed at that time NH's sisters and nieces could verify that NH acknowledged Claimant as his child, but she did not provide any statements from NH's sisters and nieces to verify her claim. In 2010, however, NH's eldest sister stated NH acknowledged to her that he was Claimant's father. Although additional evidence may be helpful to establish paternity, none of the evidence or information provided contradicts the DNA test results, the statement of Claimant's mother, or the statement of Claimant's sister. See J~, 767 So. 2d at 185 (noting the trial judge "had to deal with the evidence before him, not such evidence as might be available in a perfect world"). Given the available evidence, we believe a Mississippi court would find that clear and convincing evidence establishes that NH is Claimant's father for the purposes of Mississippi intestacy law. Therefore, SSA could conclude Claimant is NH's child under section 216(h)(2)(A) of the Act.

You also have asked about the effective date of the parent-child relationship between NH and Claimant. "An act/event conferring inheritance rights generally has effect only from the date of such act/event." Program Operations Manual System (POMS) GN 00306.055.A.3. If State law confers inheritance rights based on an adjudication of paternity but does not legitimate the child, and the State law is prospective only, the effective date of the parent-child relationship depends on the evidence needed to satisfy the applicable standard of proof. See id. If one piece of evidence satisfies the applicable standard of proof, the effective date is the date of that piece of evidence. See id. If an adjudicator needs more than one piece of evidence to satisfy the applicable standard of proof, the effective date is the date of the latest necessary piece of evidence. See id.

In Claimant's case, although establishing NH's paternity under Mississippi Code Annotated § 91-1-15(3)(c) would confer inheritance rights on Claimant, the statute does not render Claimant NH's legitimate child. See Miss. Code Ann. § 91-1-15(1)(c) (indicating a person is "illegitimate" if his parents were not married to each other at the time of his birth and "said person was not legitimized by subsequent marriage of said parents or legitimized through a proper judicial proceeding"); cf. Miss. Code Ann. § 93-17-1(1) (West 2010) (stating chancery court shall have jurisdiction upon petition to make legitimate any offspring of petitioner not born in wedlock); Miss. Code Ann. § 93-17-1(2) (conferring legitimacy when father marries mother and acknowledges child); Miss. Code Ann. § 93-17-13 (West 2010) (indicating final adoption decree confers legitimacy on child). Given that the DNA test results are the latest necessary piece of evidence needed to establish clear and convincing proof of NH's paternity, Claimant's status as NH's child could not be effective before July 23, 2010, the date of the DNA testing. See POMS GN 00306.055.A.3.

CONCLUSION

We believe a Mississippi court would conclude NH's is Claimant's father under Mississippi intestacy law and Claimant would be entitled to inherit NH's intestate property. Therefore, we believe SSA could conclude Claimant is NH's child for the purposes of child's insurance benefits. The effective date of the relationship between Claimant and NH is July XX, 2010, the date of the DNA testing.

Mary Ann Sloan

Regional Chief Counsel

By:

Brian C. Huberty

Assistant Regional Counsel


Footnotes:

[1]

. All subsequent references to the Code of Federal Regulations are to the 2015 edition.

[2]

. A claimant may be deemed the “child” of a deceased insured individual under section 216(h)(3)(C) of the Act if the claimant is the son or daughter of the insured individual and shows one of the following: (1) the insured individual acknowledged in writing that the child was his child; (2) a court decreed the insured individual to be the father of the child; (3) a court ordered the insured individual to contribute to the support of the child; or (4) the insured individual is the child's natural father and was living with or contributing to the support of the child when the insured individual died. See Act § 216(h)(3)(C); 20 C.F.R. § 404.355(a)(3), (4). The court decree must have occurred before the insured individual’s death. See Act § 216(h)(3)(C); 20 C.F.R. § 404.355(a)(3). The information provided does not indicate that NH acknowledged in writing that Claimant was his child, that a court ordered NH to contribute to Claimant’s support, or that NH was living with or contributing to Claimant’s support when he died. The Order of Filiation ordered and adjudged that NH is the legitimate, biological father of Claimant, but the court issued its order on August XX, 2015, after NH’s death on January XX, 2014. Accordingly, the information provided does not indicate the Social Security Administration (agency) could deem Claimant to be NH’s child under any provision of section 216(h)(3)(C).

[3]

. Mississippi paternity law regarding the results of genetic testing states in part: “If an expert concludes that the blood or other tests show the probability of paternity, that evidence shall be admitted.” Miss. Code Ann. § 93-9-27(1) (2015). However, Mississippi courts have held that Mississippi statutes regarding genetic testing in paternity matters are not applicable in heirship proceedings, i.e., proceedings to determine who may inherit a decedent’s intestate property. See Jordan v. Baggett, 791 So. 2d 308, 311 (Miss. Ct. App. 2001).

[4]

. The information provided does not state the date on which the action was filed in the Chancery Court of Harrison County, Mississippi. Miss. Code Ann. § 91-1-15(3)(c) indicates the action seeking an adjudication of paternity generally must be filed within one year after the death of the intestate. However, Miss. Code Ann. § 91-1-15(5) states the one-year limitation does not apply when determining paternity for the purposes of Social Security benefits. Moreover, the agency “will not apply any State inheritance law requirement that an action to establish paternity must be taken within a specified period . . . measured from the worker’s death or the child’s birth, or 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). Furthermore, if the applicable State inheritance law requires a court determination of paternity, the agency will not require the claimant “to obtain such a determination[,] but will decide [the claimant’s] paternity by using the standard of proof that the State court would use as the basis for a determination of paternity.” Id.

[5]

. "A Numident is a query display of the information taken from an individual's application for an original [Social Security Number] card and subsequent applications for replacement [Social Security Number] cards." POMS GN 03325.025(A).

[6]

. All references to the Code of Federal Regulations are to the 2014 edition.

[7]

. Mississippi paternity law regarding the results of genetic testing states in part: "If the court finds that the conclusions of all the experts, as disclosed by the evidence based upon the tests, are that the alleged father is not the father of the child, the question of paternity shall be resolved accordingly." Miss. Code Ann. § 93-9-27 (2014). However, Mississippi courts have held Mississippi statutes regarding genetic testing in paternity matters are not applicable in heirship proceedings, i.e., proceedings to determine who may inherit a decedent's intestate property. See Jordan v. Baggett, 791 So. 2d 308, 311 (Miss. Ct. App. 2001).

[8]

. . Claimant’s mother also completed a Child Relationship Statement in which she indicated that NH had written letters indicating Claimant was his child, listed Claimant as his child on a family tree or other record, and admitted to others that Claimant was his child; however, the alleged witnesses did not want to be contacted regarding this matter.

[9]

. All subsequent references to the Code of Federal Regulations are to the 2014 edition.

[10]

. Under section 216(h)(3)(C) of the Act, a claimant may be deemed the “child” of a deceased insured individual if the claimant is the son or daughter of the insured individual and shows one of the following: (1) the insured individual acknowledged in writing that the child was his child, (2) a court decreed the insured individual to be the father of the child, (3) a court ordered the insured individual to contribute to the support of the child, or (4) the insured individual is the child's natural father and was living with or contributing to the support of the child when the insured individual died. See Act § 216(h)(3)(C); 20 C.F.R. § 404.355(a)(3), (a)(4). The acknowledgment, court decree, or court order must have occurred before the insured individual’s death. See Act § 216(h)(3)(C); 20 C.F.R. § 404.355(a)(3). The information provided does not indicate the Social Security Administration (agency) could deem Claimant to be NH’s child under any provision of section 216(h)(3)(C). A claimant also may be deemed “the child” of a deceased insured individual under section 216(h)(2)(B) of the Act if such insured individual and the claimant’s mother went through a marriage ceremony that but for a legal impediment would have been a valid marriage. See Act § 216(h)(2)(B); 20 C.F.R. § 404.355(a)(2). The information provided does not suggest NH and Claimant’s mother participated in any marriage ceremony. Therefore, section 216(h)(2)(B) also is not applicable in this case.

[11]

. See id. at 2028. Under section 216(h)(2)(A) of the Act, a claimant is considered the child of the insured individual if the claimant could inherit the insured individual’s intestate personal property under the law of the State in which the insured individual was domiciled at the time of his death. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4). NH’s death certificate shows he was domiciled in Mississippi when he died. Therefore, we look to Mississippi intestacy law to determine whether Claimant is NH’s child for purposes of section 216(h)(2)(A) of the Act. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4); Program Operations Manual System (POMS) PR 01115.027 (PR 13-101). Mississippi intestacy law provides that an illegitimate child shall inherit from his father if: (a) The natural parents participated in a marriage ceremony before the birth of the child, even though the marriage was subsequently declared null and void or dissolved by a court; or (b) There has been an adjudication of paternity or legitimacy before the death of the intestate; or (c) There has been an adjudication of paternity after the death of the intestate, based upon clear and convincing evidence, in an heirship proceeding . . . . Miss. Code Ann. § 91-1-15(3) (West 2014); see also Miss. Code Ann. § 91-1-15(1)(c) (“‘Illegitimate’ means a person who at the time of his birth was born to natural parents not married to each other and said person was not legitimized by subsequent marriage of said parents or legitimized through a proper judicial proceeding.”); POMS PR 01115.027 (PR 13-101). The information provided does not indicate NH and Claimant’s mother participated in a marriage ceremony or that a court adjudicated NH’s paternity or Claimant’s legitimacy before NH’s death. Therefore, Claimant could establish his right to inherit from NH only through an adjudication of paternity based on clear and convincing evidence. See Miss. Code Ann. § 91-1-15(3)(c)

[12]

. The Mississippi Supreme Court has held that it would not disturb a chancellor’s opinion when supported by substantial evidence unless the chancellor “abused his discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Holloman v. Holloman, 691 So. 2d 897, 898 (Miss. 1996). Where a chancellor’s opinion is supported by substantial evidence, a reviewing court will not disturb that finding. See T~, 609 So. 2d at 393.

[13]

. A claimant also may be the "child" of a deceased insured individual under section 216(h)(3)(C) of the Act if the claimant is the son or daughter of the insured individual and shows one of the following: (1) the insured individual acknowledged in writing that the child was his child, (2) a court decreed the insured individual to be the father of the child, (3) a court ordered the insured individual to contribute to the support of the child, or (4) the insured individual is the child's natural father and was living with or contributing to the support of the child when the insured individual died. See Act § 216(h)(3)(C); 20 C.F.R. § 404.355(a)(3), (a)(4) (2010). The acknowledgment, court decree, or court order must have occurred before the insured individual's death. See Act § 216(h)(3)(C); 20 C.F.R. § 404.355(a)(3). The information provided does not indicate SSA could deem Claimant to be NH's child under any provision of section 216(h)(3)(C) of the Act.

[14]

. Miss. Code Ann. § 91-1-15(3)(c) indicates the action seeking an adjudication of paternity generally must be filed within one year after the death of the intestate. However, Miss. Code Ann. § 91-1-15(5) states the one-year limitation does not apply when determining paternity for the purposes of Social Security benefits. Moreover, SSA "will not apply any State inheritance law requirement that an action to establish paternity must be taken within a specified period of time measured from the worker's death or the child's birth, or 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). Furthermore, "[i]f applicable State inheritance law requires a court determination of paternity, [SSA] will not require [the claimant to] obtain such a determination but will decide [the claimant's] paternity by using the standard of proof that the State court would use as the basis for a determination of paternity." Id.

[15]

. In other contexts, Mississippi courts have defined "clear and convincing evidence" as: that weight of proof which produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable the fact-finder to come to a clear conviction, without hesitancy, of the truth of the precise facts of the case. Niebanck v. Block, 35 So. 3d 1260, 1264 (Miss. Ct. App. 2010) (quoting Moran v. Fairley, 919 So. 2d 969, 975 (Miss. Ct. App. 2005)) (internal brackets omitted). "Clear and convincing evidence is such a high standard of proof that even the overwhelming weight of the evidence does not rise to the same level." Id. (quoting M~, 919 So. 2d at 975) (internal brackets omitted).


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