TN 41 (04-15)

PR 01005.048 Texas

A. PR 15-103 Texas State Law on the Status of Twin Children Born to Gestational Surrogate (NH: M~; SSN ~) – REPLY

DATE: March 31, 2015

1. SYLLABUS:

To determine whether an applicant is a NH’s natural child, the agency will apply the intestacy laws of the state in which the NH had her permanent home at the time the applicant applied for benefits. Here, we apply Texas law because the NH’s permanent home was in Texas when she applied for benefits for Claimant T~ and Claimant P~. The laws of the state of Texas Family Code for purposes of inheritance, generally refers to biological or adopted children, but the law provides an exception and states that if a child has intended parents, as defined by the Texas Family Code under a validated gestational agreement, the child is the child of the intended mother and not the biological mother or gestational mother unless the biological mother is also the intended mother. The Texas Family Code defines “intended parents” as the individuals who enter into an agreement providing that the individuals will be the parents of a child born to a gestational mother by means of assisted reproduction, regardless of whether either individual has a genetic relationship with the child.  Based on the evidence submitted by the NH, including the gestational agreement, court order, and birth certificates, all supports a finding that Claimant T~ and Claimant P~ could inherit from the NH under Texas intestate succession laws, therefore, we conclude that Claimant T~ and Claimant P~ would be considered the children of the NH under the Act and would be entitled to child’s insurance benefits.

2. OPINION

I. QUESTION PRESENTED

This memorandum is in response to your request for a legal opinion to determine whether evidence establishes that T~ and P~, twin boys born to a surrogate gestational carrier using a donated egg from an anonymous woman, could inherit from the court-decreed mother/number holder, M~ (NH), and thus establish a parent-child relationship under the Social Security Act (Act).

II. ANSWER

Based on the information provided to the Social Security Administration (agency), we find that T~ and P~ could inherit from the NH under Texas intestate succession laws. Therefore, we find that T~ and P~ are the NH’s children under the Act for purposes of determining their entitlement to child’s insurance benefits on her earnings record.

III. BACKGROUND

On July 29, 2004, the NH and her husband T2~, identified as the “intended father” and “intended mother,” entered a gestational services agreement (Surrogacy Agreement) with Southwest Surrogacy Arrangements, LLC, under which Southwest Surrogacy would find a gestational surrogate to carry and bear a child on M~ and T2~’s behalf as a result of an assisted reproduction procedure. On November 16, 2004, M~ and T2~ entered into a gestational agreement (Gestational Agreement) with J~ (Surrogate) and her husband, in which the Surrogate agreed to give birth to a child conceived by means of assisted reproduction and to relinquish all parental rights and duties with respect to the child to M~ and t2~. On January 21, 2005, a S~ County Court, Texas Judge signed an Agreed Order in Suit to Validate Gestational Agreement (Agreed Order), whereby the court validated the November 16, 2004, Gestational Agreement and ordered that M~ and T2~, as the intended parents, would be the parents of any child or children born under the Gestational Agreement. On May 12, 2005, the NH and T2~ entered into an “Egg Donor Intent Contract” (Egg Donor Contract), in which a donor agreed to donate her eggs to create embryos for the B~. As part of the agreement, the donor voluntarily relinquished all of her parental rights and duties with respect to any child conceived through an assisted reproduction arrangement with the Surrogate. Subsequently, the Surrogate was implanted with an embryo resulting from a donated egg fertilized in vitro with T2~’s sperm. 1 In March 2006, the Surrogate gave birth to T~ and P~ in Arkansas. Their Arkansas birth certificates list M~ and T2~ as the mother and father. Their birth certificates show M~ and T2~’s state of residence as Texas. The agency’s numident records for T~ and P~ list M~ and T2~ as their mother and father. It is our understanding that T~ and P~, who are now 8 years old, have lived with M~ and T2~ as their children in Texas since their birth.

The NH receives Title II retirement insurance benefits, and in January 2015, she filed an application for children’s insurance benefits for T~ and P~ on her record. In support, the NH provided their Arkansas birth certificates, the Agreed Order, the Egg Donor Contract, and the Surrogacy Agreement.

IV. ANALYSIS

A. Federal Law: Entitlement to Title II Child’s Insurance Benefits Under the Act

Under the Act, a child may be eligible for Social Security benefits if he is the child of an individual who is entitled to old-age or disability benefits. 42 U.S.C. §§ 402(d)(1), 416(e)(1). To be entitled to child’s insurance benefits on an insured number holder’s account, a child must:

(1) be the number holder’s child;

(2) be dependent upon the number holder;

(3) apply for benefits;

(4) be unmarried; and

(5) be under the age of 18.

See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a)(1)-(5). Under the Act and regulations, the term “child” includes a natural child. 2 3 See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b). Texas law controls because the NH’s permanent home was in Texas when she applied for benefits on T~ and P~’s behalf. Thus, T~ and P~’s eligibility for child’s benefits on the NH’s account depends upon whether they could inherit property under Texas intestacy laws as the NH’s children. See id.

B. State Law Requirements for Maternal Inheritance as a Child under Texas’ Intestate Succession Laws, Section 201.051 of the Texas Estates Code

The Texas Estates Code provides the framework for determining mother-child relationships for inheritance purposes. See Tex. Estates Code Ann. § 201.051. 4 5 by means of assisted reproduction, 6 regardless of whether either individual has a genetic relationship with the child. See Tex. Fam. Code Ann. § 160.102(9).

In the event of a validated gestational agreement, the mother-child relationship exists by an adjudication confirming the woman as the parent, regardless of the fact that the gestational mother gave birth. See Tex. Fam. Code Ann. § 160.753(a); see also In re M.M.M., 428 S.W.3d 389, 395 (Tex. App. – Houston [14th Dist.] 2014, pet. filed) (section 160.201(a) of the Texas Family Code provides that the mother-child relationship is established by the woman giving birth, an adjudication of the woman’s maternity, or adoption of the child by the woman; the statutory provisions concerning a validated gestational agreement demonstrate that when the Legislature chose to override section 160.201(a) and define a situation in which a woman who gives birth to a child is not the mother, it expressly did so). Thus, for T~ and P~ to establish that they had a right to maternal inheritance from the NH, they must establish that the NH is their intended mother under a validated gestational agreement.

Here, the July 2004 Surrogacy Agreement identifies M~ and T2~ as the “intended father” and “intended mother” seeking to find a gestational surrogate to carry and bear a child on their behalf as a result of an assisted reproduction procedure. On November 16, 2004, M~ and T2~ entered into the Gestational Agreement with the Surrogate and the Surrogate’s husband in which the Surrogate agreed to give birth to a child conceived by means of assisted reproduction and to relinquish all parental rights and duties with respect to the child to M~ and T2~.

On January 21, 2005, the S~ County Court at Law entered the Agreed Order, whereby the court validated the Gestational Agreement and ordered that M~ and T2~, as the intended parents, would be the parents of any child or children born under the Gestational Agreement. Subsequently, the Surrogate was implanted with an embryo resulting from a donated egg fertilized in vitro with T2~’s sperm. 7 Thus, the Agreed Order shows a validated gestational agreement establishing the NH as the intended mother, as section 201.051 of the Texas Estates Code requires. However, the agency need not always accept a state court order in a proceeding in which the agency was not a party. See Social Security Ruling (SSR) 83-37c. We address below whether the Agreed Order declaring the NH to be the mother binds the agency.

1. SSR 83-37c Applies to Determine Whether the Agreed Order Binds the Agency

Pursuant to SSR 83-37c, which adopts the Sixth Circuit Court of Appeals decision in Gray v. Richardson, 474 F.2d 1370, 1373 (6th Cir. 1973), state court decisions bind the agency where (1) a state court of competent jurisdiction has previously adjudicated an issue in a claim for Social Security benefits; (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. Therefore, we must determine whether the Agreed Order binds the agency in determining the NH’s relationship to T~ and P~. Here, the Agreed Order meets SSR 83-37c’s first, third, and fourth prongs. However, it does not appear that the Agreed Order meets the second prong criteria of being genuinely contested. Therefore, the Agreed Order does not bind the agency.

a. First and Third Prongs of SSR 83-37c

We find that the Agreed Order meets the first and third prongs, which relate to jurisdiction and finality of judgment. With respect to the first prong, the S~ County, Texas County Court at Law is a court of competent jurisdiction because the court is a statutory county court at law with jurisdiction to hear domestic cases. See Tex. Gov’t Code Ann. §§ 25.0003 (jurisdiction of statutory county courts), 25.2141 (establishing S~ County courts), 25.2142 (establishing the jurisdiction for S~ County courts at law). With respect to the third prong of SSR 83-37c, the Agreed Order involves an issue within the general category of domestic relations law because it involves the issue of the establishment of a parent-child relationship and parental rights and responsibilities. Therefore, the Agreed Order meets the first and third prongs.

b. Fourth Prong of SSR 83-37c

We find that the Order meets the fourth prong of SSR 83-37c, which requires that the resolution by the state trial court is consistent with the law enunciated by the state’s highest court. We were unable to find any Texas Supreme Court cases addressing validated gestational agreements and the establishment of parent-child relationships under such agreements. However, we believe the order is consistent with Texas law. See Garcia v. Sullivan, 883 F.2d 18, 20 (5th Cir. 1989) (“the law of the state as declared by the supreme court of the state, or as it would have been decided by that court had the point been considered”). Texas law contains specific provisions to establish and protect the rights of intended parents (including specifically an intended mother who is not the biological mother and who did not give birth to the child) under gestational agreements and recognizes such intended parents to be parents under the Texas Uniform Parentage Act and the Texas Estates Code. See Tex. Fam. Code Ann. §§ 160.102(9) (defining intended parents), 160.751 – 160.763 (provisions concerning gestational agreements).

Specifically, it appears that Texas law authorizes the Gestational Agreement’s terms. The Texas Family Code sets out the terms authorized for a gestational agreement and provides that a prospective gestational mother, her husband if she is married, each donor, and each intended parent may enter into a written agreement providing that:

  1. the prospective gestational mother agrees to pregnancy by means of assisted reproduction;

  2. the prospective gestational mother, her husband if she is married, and each donor other than the intended parents, if applicable, relinquish all parental rights and duties with respect to a child conceived through assisted reproduction;

  3. the intended parents will be the parents of the child; and

  4. the gestational mother and each intended parent agree to exchange throughout the period covered by the agreement all relevant information regarding the health of the gestational mother and each intended parent.

Tex. Fam. Code Ann. § 160.754(a). The Gestational Agreement’s terms comply with these criteria.

In addition, the intended parents must be married to each other and each intended parent must be a party to the gestational agreement. Id. at § 160.754(b). The gestational agreement must require that the eggs used in the assisted reproduction procedure be retrieved from an intended parent or a donor. Id. at § 160.754(c). The gestational mother’s eggs may not be used in the assisted reproduction procedure. Id. The gestational agreement must state that the physician who will perform the assisted reproduction procedure as provided by the agreement has informed the parties to the agreement of the success rates, potential risks and potential of multiple births, nature and expenses of the procedure, health risks, and reasonably foreseeable psychological effects. Id. at § 160.754(d). Finally, the parties to a gestational agreement must enter into the agreement before the 14th day preceding the date the transfer of eggs, sperm, or embryos to the gestational mother occurs for the purpose of conception or implantation. Id. at § 160.754(e). The Gestational Agreement’s terms, described in the Agreed Order, meet these requirements as well.

Next, it appears that the parties followed the proper court procedure to validate the Gestational Agreement. The Texas Family Code provides that the intended parents and prospective gestational mother under a gestational agreement may file a petition in court to validate the agreement only if: the prospective gestational mother or the intended parents have resided in Texas for 90 days preceding the date the proceeding is commenced; the prospective gestational mother’s husband, if she is married, is joined as a party to the proceeding; and a copy of the gestational agreement is attached to the petition. Id. at § 160.755. A hearing must be held. Id. at § 160.756. Texas courts may validate a gestational agreement when the court finds the following:

  1. the parties have submitted to the jurisdiction of the court under the jurisdictional standards of this chapter;

  2. the medical evidence provided shows that the intended mother is unable to carry a pregnancy to term and give birth to the child or is unable to carry the pregnancy to term and give birth to the child without unreasonable risk to her physical or mental health or to the health of the unborn child;

  3. unless waived by the court, an agency or other person has conducted a home study of the intended parents and has determined that the intended parents meet the standards of fitness applicable to adoptive parents;

  4. each party to the agreement has voluntarily entered into and understands the terms of the agreement;

  5. the prospective gestational mother has had at least one previous pregnancy and delivery and carrying another pregnancy to term and giving birth to another child would not pose an unreasonable risk to the child's health or the physical or mental health of the prospective gestational mother; and

  6. the parties have adequately provided for which party is responsible for all reasonable health care expenses associated with the pregnancy, including providing for who is responsible for those expenses if the agreement is terminated.

Id. at § 160.756 (a) – (b). If the court finds that these requirements are satisfied, the court may render an order validating the gestational agreement and declaring that the intended parents will be the parents of a child born under the agreement. Id. at § 160.756(c). Here, the Agreed Order validating the Gestational Agreement, the Surrogacy Agreement, and the Egg Donor Contract confirm that all these prerequisites of Texas law, detailed above, were met. Thus, the Agreed Order is consistent with Texas law and meets the fourth prong of SSR 83-37c.

c. Second Prong of SSR 83-37c

It appears, however, that the Agreed Order does not meet SSR 83-37c’s second prong - that parties with opposing interests genuinely contested the issue before the state court. Although the Fifth Circuit has not articulated what constitutes a “genuinely contested” issue, we know that an ex parte judgment does not generally satisfy the “genuinely contested” criteria. See Warren v. Sec'y of Health & Human Servs., 868 F.2d 1444, 1446-47 (5th Cir. 1989) (noting the ex parte nature of the judgment); Dennis v. R.R. Ret. Bd., 585 F.2d 151, 155 n.2 (6th Cir. 1978) (noting that ex parte proceedings do not bind the federal government). However, this is not an ex parte judgment as the NH, T2~, and the Surrogate (and her husband) participated in the court proceeding resulting in the Agreed Judgment. When a judgment results from a suit, that judgment appears to satisfy the “genuinely contested” criteria, even when the opposing party consents to judgment. See Garcia, 883 F.2d at 20 (disagreeing with the agency’s genuinely contested finding because of the “adversarial nature” of a paternity suit); Dennis, 585 F.2d at 154 (finding that a suit filed in the Ohio Probate Court was a contested matter); In re J.M., IV., 373 S.W.3d 725, 729 (Tex. App. – San Antonio 2012, no pet.) (the order establishing the parent-child relationship was not based on a fully contested trial on the merits, but it was an agreed order and such orders are final with the same binding force of a final judgment rendered at the conclusion of an adversary proceeding), citing In re Office of Attorney General of Texas, 193 S.W.3d 690, 692 (Tex. App. – Beaumont 2006, no pet.) (although the order of paternity is an agreed order, not based on a fully contested trial on the merits, agreed orders are accorded the same degree of finality and binding force as a final judgment rendered at the conclusion of an adversary proceeding); but see George v. Sullivan, 909 F.2d 857, 861 (6th Cir. 1990) (holding that a nunc pro tunc divorce decree was not “genuinely contested” because, in part, there was no indication that any material controversy was resolved). This matter did not involve a suit of adversarial nature culminating in an agreed order. Rather, in this case, it appears that the Agreed Order falls between an ex parte proceeding and a suit with an “adversarial nature.” All parties had an opportunity to be heard at the hearing in this matter, but there is no indication that either party contested any of the terms of the agreement. Given the nature of the order and that it was based on a voluntary gestational agreement, it does not appear to be fully adversarial in nature. Therefore, the Agreed Order does not satisfy the second prong of SSR 83-37c, and consequently, is not binding on the agency.

2. There is Sufficient Evidence to Establish the Parent-Child Relationship under Section 201.051 for Maternal Inheritance

While the Agreed Order does not bind the agency under the Gray analysis of SSR 83-37c, there will never be a validated gestational agreement/court order under Texas law that does meet the second Gray criteria, as such an agreement by its very nature must be voluntary and will never be genuinely contested. See Tex. Fam. Code Ann. § 160.756(b)(4) (the court may validate a gestational agreement only if the court finds that each party to the agreement has voluntarily entered into and understands the terms of the agreement). Thus, under these specific circumstances, the agency can accept a validated gestational agreement as evidence in support of the establishment of a parent-child relationship. In that regard, we look to whether the totality of the information provided, including the Agreed Order, establishes that the mother-child relationship exists between the NH and T~ and P~ under the Texas Estates Code 201.051 for maternal inheritance. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1) (the agency will apply the intestacy laws of the state in which the number holder had her permanent home at time the applicant applied for benefits to determine whether an applicant is a number holder’s natural child), (2) (if applicable state inheritance law requires a court determination of paternity, we will not require that you obtain such a determination but will decide your paternity by using the standard of proof that the state court would use as the basis for a determination of paternity); see also POMS GN 00306.001(D) (the agency “must explore all possibilities of entitlement before disallowing a child’s claim because the relationship requirements are not met”).

Section 201.051 of the Texas Estates Code was amended, effective January 2014, to include a provision stating that an “intended mother” under a validated gestational agreement is a mother for inheritance purposes. As detailed above, even though uncontested, the court’s Agreed Order validating the Gestational Agreement complied with the requirements of Texas law and appears reliable. See Tex. Fam. Code Ann. § 160.756(d) (the court may validate the gestational agreement at the court’s discretion, and the court’s determination of whether to validate the agreement is subject to review only for abuse of discretion). The Texas Family Code provides that a mother-child relationship exists between a woman and a child by an adjudication confirming the woman as a parent of the child born to a gestational mother under a gestational agreement if that agreement is validated by court in accordance with the law. See id. at § 160.753(a). We find that the Agreed Order validating the Gestational Agreement, the Surrogacy Agreement, and the Egg Donor contract provide sufficient evidence to establish the NH as the intended parent under a validated gestational agreement such that T~ and P~ would be entitled to inherit from the NH under section 201.051 of the Texas Estates Code.

Furthermore, in addition to these documents, the NH provided the certified copies of Arkansas birth certificates for T~ and P~, which show their date of birth in March 2006, in Little Rock, Arkansas. The birth certificates, issued by the Arkansas Department of Health, name the NH as the mother and T2~ as the father.8 Under Arkansas law, a certified copy of a vital record, such as a birth certificate, is “prima facie evidence of the facts stated therein.” See Ark. Code Ann. § 20-18-305(5). Generally, the Full Faith and Credit Clause requires each state to give full faith and credit to every other state’s public acts, records, and judicial proceedings. U.S. Const. Art. IV, § 1; 28 U.S.C. §§ 1738, 1739. Regarding another state’s final judgment, the full faith and credit obligation is exacting and requires recognition throughout the nation. Baker by Thomas v. General Motors Corp., 522 U.S. 222, 231-33 (1998). However, the Full Faith and Credit Clause does not require a state to accept another state’s public record or laws if doing so would violate the state’s own legitimate public policy. See Nevada v. Hall, 440 U.S. 410, 421-422 (1979).

Like Arkansas, Texas law provides that a certified copy of a birth certificate is prima facie evidence of the facts stated in the record. See Tex. Health & Safety Code Ann. § 191.052; De Le Cruz v. Clinton, 2012 WL 1941373, at *4 (W.D. Tex. 2012) (under Texas law, a certified copy of a birth certificate is prima facie evidence of the facts stated in the record, but it is not conclusive proof and may be rebutted by other evidence); see also Northern v. State, 216 S.W.2d 192, 195 (Tex. Crim. App. 1949) (a duly certified copy of a birth certificate issued by another state was held admissible in Texas under the full faith and credit clause of the U.S. Constitution and under federal law relating to the admission of public records in state courts). Thus, we believe that a Texas court would accept T~ and P~’s birth certificates as prima facie evidence that the NH is their mother. There is no evidence offered to rebut the NH’s status as the mother as listed in the birth certificates. To the contrary, the evidence provided, including the Agreed Order, supports the NH as their mother.

V. CONCLUSION

 We find that the evidence, including the gestational agreement, court order, and birth certificates, supports a finding that T~ and P~ could inherit from the NH under Texas intestate succession laws, specifically section 201.051 of the Texas Estates Code. Therefore, we conclude that T~ and P~ would be considered the children of the NH under the Act and would be entitled to child’s insurance benefits.

Michael McGaughran

Regional Chief Counsel

By: ____________

Lisa K. Paquette

Assistant Regional Counsel

B. PR 13-122 Texas Law – Status of Child Based on Probate Court Order Adjudicating Parentage (NH R~, SSN ~) (Resubmission) - REPLY

DATE: September 30, 2013

1. SYLLABUS:

The May 25, 2012, Order Adjudicating Parentage from the Probate Court of Galveston County, Texas, does not bind the Social Security Administration; however, the totality of the evidence submitted, which includes new documentation, constitutes clear and convincing evidence under the Texas Probate Code that the NH is H~'s biological father. H~ is entitled to benefits on the NH's record. The opinion does not establish a retroactive date for the parent-child relationship.

2. OPINION

QUESTION PRESENTED

This memorandum is in response to your request for an updated legal opinion on whether, under Texas law, a May 25, 2012 Order Adjudicating Parentage from the Probate Court of Galveston County, Texas, along with additional documents you later provided, including deoxyribonucleic acid (DNA or genetic) testing, entitles H~ to benefits on R~ ’s (NH) account. You also ask the date of H~’s entitlement to benefits.  Our office is in the process of proposing changes to Program Operations Manual System (POMS) General (GN) 00306.640 related to the issue of retroactivity under the Texas Intestacy Laws; however, under present POMS provisions, we are unable to issue an opinion establishing a retroactive effective date of a parent-child relationship.  Therefore, for purposes of this specific legal opinion request, we only address the issue of whether the evidence provided with this resubmission is sufficient to establish the parent-child relationship between H~ and the NH.

ANSWER

Based on the additional evidence you submitted, The new evidence includes the following: (1) two “Citation / Personal Service” documents dated May 16, 2012, regarding the Application to Determine Heirship in the Estate of R~, Deceased; (2) a letter from attorney Jeremy dated March 12, 2009, providing an attached Publisher’s Affidavit to the Galveston County Sheriff’s Department regarding the NH’s estate; (3) a copy of M~’s Application for Letters of Administration regarding the NH’s estate filed January 22, 2008; (4) a “Citation / Application for Administration” dated January 23, 2008, regarding the NH’s estate; (5) a “Citation by Publication” dated February 5, 2009, regarding an Application to Determine Heirship filed by “M~ ”; (6) a “Citation/To Declare Heirship” dated February 5, 2009, regarding an Application to Determine Heirship filed by M~; (7) a letter from Jeremy to T~ dated February 6, 2008, and received by T~ on the same day, notifying T~ of a February 8, 2008, hearing regarding an Application for Letters of Administration related to the NH’s estate; and (8) two copies of a photograph of an individual bearing the name of “H~ ” from the Chromosomal Laboratories, Inc.  None of these documents show that the Order was the product of a genuine contest before the state court by parties with opposing interests. the Order does not bind the Social Security Administration (agency).  However, the totality of the evidence constitutes clear and convincing evidence under the Texas Probate Code that the NH is H~’s biological father. Consequently, as the NH’s child, H~ is entitled to benefits on the NH’s account.

FACTS

As we understand the facts, the NH died on February 8, 2007, while domiciled in Texas. At the time of his death, the NH was married to T~, with whom he had two children.  The agency allowed Title II survivor benefits for the two children who were born during their marriage and to whom a presumption of paternity applies. 

On March, H~ was born to M~. There is no evidence that the NH was married to M~ at any point, and there is no evidence that the NH lived with, supported, or acknowledged H~ during the NH’s lifetime.

In May 2012, H~ filed a claim for survivor benefits based on the NH’s record. In support of his claim, he provided a March 15, 2012 DNA report, comparing blood samples from H~ and the NH.  The DNA report indicates that a 99.996% probability of biological paternity exists between H~ and the NH.

H~ also provided a May 25, 2012 Order Adjudicating Parentage from the Probate Court of Galveston County, Texas, which purports to adjudicate parentage per T~’s Motion to Adjudicate Parentage.  The certified Order notes that genetic testing shows that H~ is the NH’s child, that there have been no prior findings of parentage with regard to H~, and orders that the NH is H~’s biological father.  The Order further notes that H~ is eligible for any and all benefits he is entitled to as the NH’s biological child, and that H~ is the NH’s heir.

Based on the Order and the DNA report, the agency adjudicated H~’s claim with a March 2012 entitlement date, the date of the DNA report. After the adjudication of entitlement, on June 27, 2012, you requested a legal opinion from our office as to whether H~ was the NH’s legitimate child.  On January 4, 2013, we issued a legal opinion finding that the Order did not bind the agency and that the DNA and other evidence provided was insufficient to make a determination as to the parent-child relationship between the NH and H~.  On June 10, 2013, you resubmitted a request for a legal opinion on H~’s child status with additional court and DNA documentation. See footnote 1 (description of new evidence provided).  

DISCUSSION

A.     The Agency Applies State Intestacy Laws to Determine Status as a Child

Under the Social Security Act, a child may be eligible for surviving child’s benefits if he is the child of an individual who has died fully or currently insured. 42 U.S.C. § 402(d)(1). To be entitled to survivor’s benefits on an insured number holder’s account, a child must: (1) be the number holder’s child; (2) be dependent upon the number holder; (3) apply for benefits; (4) be unmarried; and (5) be under the age of 18. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a)(1)-(5). Here, during the period at issue, i.e., six months prior to the child’s application until the date the agency determined child’s entitlement (November 2011 to March 2012), H~ was under the age of 18, and based on the agency’s entitlement determination, was unmarried.  The agency will consider a child dependent upon a number holder if the child is the number holder’s natural child. See 20 C.F.R. § 404.361(a). Thus, the only remaining criterion H~ must establish is that he is the NH’s natural child.

To determine whether an applicant is a deceased number holder’s natural child, the agency will apply the intestacy laws of the state in which the number holder had his permanent home at the time of death. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b). Texas law controls because the NH’s permanent home was in Texas when he died. Thus, H~’s eligibility for survivor’s benefits on the deceased NH’s account depends upon whether he could inherit property under Texas intestacy laws as the NH’s child. See id. 

B.     Analysis under Section 42(b) of the Texas Probate Code

The Texas Probate Code provides the framework for determining father-child relationships for inheritance purposes. See Tex. Prob. Code § 42(b). The Texas Legislature repealed the Texas Probate Code and enacted the Texas Estates Code, which will become effective January 1, 2014. See Acts 2009, 81st Leg., ch. 680; Acts 2011, 82nd Leg., ch. 823 (H.B. 2759); and Acts 2011, 82nd Leg., ch. 1338 (S.B. 1198).  The new provisions concerning maternal and paternal inheritance found in section 42 of the Texas Probate Code are contained in sections 201.051 and 201.052 of the Texas Estates Code, but made no substantive changes to the law.

 For purposes of inheritance, a child is legally his biological father’s child if: (1) he was born under circumstances described in Section 160.201 Under section 160.201 of the Texas Family Code, a father-child relationship exists if: (1) an unrebutted presumption of paternity arises in a marriage; (2) the man acknowledges his paternity; (3) a court adjudicates the man’s paternity; (4) the man adopts the child; or (5) the man consents to assisted reproduction and his wife gives birth. See Tex. Fam. Code § 160.201(b)(1)-(5). H~ does not meet the methods described in (1), (2), (4), or (5) because he was not born under any of those circumstances. See Tex. Fam. Code § 160.201(b)(1)-(5). of the Family Code; (2) he was adjudicated to be the child of the father by court decree as provided by Chapter 160 of the Family Code; (3) the father adopted him; (4) the father executed an acknowledgement or like statement of paternity as provided by Subchapter D of Chapter 160 of the Family Code; or (5) clear and convincing evidence establishes that the purported father was the biological father of the child. Id. The third and fourth methods set forth in the Texas Probate Code are not applicable in this case, as the NH neither adopted H~ nor executed an acknowledgment of paternity.  Thus, for H~ to establish he had a right to paternal inheritance from the NH, it must be under the first, second, or fifth methods of section 42(b).

       1.     Analysis under the First and Second Methods of Section 42(b)(1) and (2) –               

           Adjudication of Paternity

The first and second methods of section 42(b) as relevant herein, recognize a child as an individual’s biological child if a court adjudicated the child’s paternity. H~ provided the Order, which purports to adjudicate parentage and orders that H~ is the NH’s heir. See Tex. Prob. Code §§ 42(b)(1)-(2); Tex. Fam. Code § 160.201(b)(3). However, the agency must only follow a state court decision under limited circumstances. See Social Security Ruling (SSR) 83-37c. 

Analysis Under SSR 83-37c

Pursuant to SSR 83-37c, which adopts the Sixth Circuit Court of Appeals decision in Gray v. Richardson, 474 F.2d 1370, 1373 (6th Cir. 1973), the agency is bound by state court decisions where (1) a state court of competent jurisdiction has previously adjudicated an issue in a claim for Social Security benefits; (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. Here, the Order meets SSR 83-37c’s first, third, and fourth prongs.  However, we do not have enough information to determine whether the Order meets the second prong. Therefore, the Order does not bind the agency. 

  i.     First and Third Prongs of SSR 83-37c

We find that the Order meets the first and third prongs which relate to jurisdiction and finality of judgment.  With respect to the first prong of SSR 83-37c, the Galveston County, Texas Probate Court is a court of competent jurisdiction because probate courts have exclusive jurisdiction over all probate proceedings. See Tex. Prob. Code Ann. § 4F(a). And pursuant to the Texas Family Code, the Order is a final judgment, which may be appealed as any other final judgment. See Tex. Fam. Code Ann. § 160.637(e) (adjudication of paternity may be appealed). With respect to the third prong of SSR 83-37c, the Order involves an issue within the general category of domestic relations law because it involves the issue of paternity. Therefore, the Order meets the first and third prongs.

ii.    Second Prong of SSR 83-37c

We do not, however, have enough information to determine whether the order meets SSR 83-37c’s second prong - that parties with opposing interests genuinely contested the issue before the state court. While the Guardian ad litem and T~’s attorney approved the Order “as to law,” there is no indication that the NH’s two children that he had with T~ had an opportunity to be a part of the proceeding. See Tex. Probate Code § 49 (decedents’ heirs must be parties to proceedings to institute heirship). The additional evidence you provided includes two “Citation / Personal Service” documents (Citations) dated May 16, 2012, which command any Sheriff or Constable to serve the NH’s widow, T~, and one of the NH’s children born during his marriage to (Shelby), with notice of the hearing regarding the Application to Determine Heirship, which the Order was based on. However, the Citations do not contain a completed Sherriff’s Return, and thus we cannot determine if either T~ or Shelby received notice of the hearing . Because it is unclear whether T~ or the NH’s children with T~ were served the Citations and had the opportunity to attend the hearing to contest M~’s assertion that H~ was the NH’s child. Thus, we are unable to determine whether the Order was the product of a genuine contest of the issues in order to meet SSR 87-37c’s second prong. 

               

iii.   Fourth Prong of SSR 83-37c

We find that the Order meets the fourth prong of SSR 83-37c, which requires that the resolution by the state trial court is consistent with the law enunciated by the state’s highest court. See Garcia v. Sullivan, 883 F.2d 18, 20 (5th Cir. 1989) (“the law of the state as declared by the supreme court of the state, or as it would have been decided by that court had the point been considered”).  In analyzing the fourth prong of SSR 83-27c, we look to relevant portions of Texas law relating to genetic testing. 

A Texas court will consider the results of genetic testing provided the DNA report meets specific requirements to establish reliability and authenticity, and that the testing reveals at least a 99 percent probability of paternity and a combined paternity index of at least 100 to 1. See Tex. Fam. Code Ann. §§ 160.503(a); 160.504(a),(b); 160.505(a).  The evidence submitted, including the additional documentation, complies with Texas laws on genetic testing. Id. While the Order does not contain H~’s date of birth and does not technically comply with section 160.636(b) of the Texas Family Code (an order adjudicating parentage must identify the child by name and date of birth), Social Security regulations provide that, if applicable state inheritance law requires a court determination of paternity, “we will not require that you obtain such a determination.” 20 C.F.R. § 404.355(b)(2). In the first opinion, we determined that the evidence supplied at that time was not sufficient.  Instead, the agency “decide[s a child’s] paternity by using the standard of proof that the State court would use as the basis for a determination of paternity.” Id.; see In re Interest of A.S.L., 923 S.W.2d 814, 818 (Tex. App. – A~ 1996, no writ) (applying clear and convincing evidence standard of proof to determine paternity after the father’s death).  Thus, even in the absence of a court order, or in this case, where the Order does not technically comply with all requirements of Texas law, the agency can make a determination based on evidence that a court would consider.  Thus, the Order meets the fourth prong of SSR 83-37c.  

In sum, the Order meets SSR 83-37c’s first, third, and fourth prongs. However, we do not have enough information to determine whether the Order meets the second prong.  Therefore, the Order does not bind the agency and H~ has not established entitlement to benefits under sections 42(b)(1) or (2) of the Texas Probate Code. 

2. Analysis Under the Fifth Method of Section 42(b)(5) – Clear and Convincing Evidence

Finally, we look to whether the supporting information establishes by clear and convincing evidence that the NH was the child’s biological father. See Tex. Prob. Code 42(b)(5) (a child is his biological father’s child if: . . . “clear and convincing evidence establishes that the purported father was the biological father of the child”); Tex. Prob. Code § 101.007 (“clear and convincing evidence means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established”).  H~ submitted genetic testing information In consideration of genetic evidence, Texas law requires a photograph of each individual who supplied specimens for testing. See Tex. Fam. Code Ann. § 160.504(b)(1). The new evidence you provided includes a photograph of a person labeled with H~’s name, H~’s signature, the date corresponding to the date of H~’s blood sample, and the signature of the individual who took H~’s blood sample.  Unlike the earlier copy of this photograph, we can clearly state that this is a photograph of H~ that properly identifies him by name, and it therefore constitutes sufficient verification of the identity of the blood specimen obtained from H~. See Tex. Fam. Code Ann. § 160.504(b)(1).  As we can now conclude that the court reviewed a verifiable photograph of H~ as provided by the genetic testing facility, we determine that the chain of custody was proper.

That a court may accept to establish paternity under Texas genetic testing laws. See Tex. Fam. Code Ann. §§ 160.503, 160.504(a).  Thus, we believe that the totality of the evidence constitutes clear and convincing evidence under section 42(b)(5) of the Texas Probate Code establishing that the NH was H~’s biological father under Texas law.  As such, he is entitled to benefits on the NH’s account. 

Conclusion

 Based on the evidence you submitted, under Texas law, although the Order does not bind the agency, the genetic testing complies with Texas law and establishes by clear and convincing evidence that the NH is H~’s biological father. Therefore, H~ is entitled to benefits on the NH’s account as the NH’s child. Our office is in the process of proposing changes to Program Operations Manual System (POMS) General (GN) 00306.640 related to the issue of retroactivity under the Texas Intestacy Laws; however, under present POMS provisions, we are unable to issue an opinion establishing a retroactive effective date of a parent-child relationship.  

Michael McGaughran

Regional Chief Counsel

By: ____________

Kristine Dittmeier Vitemb

Assistant Regional Counsel

C. PR 13-064 Texas State Law – Status of Child Based on Probate Court Order Adjudicating Parentage (NH D~, SSN ~) – REPLY

DATE: April 16, 2013

1. SYLLABUS:

It is our opinion that the Texas court order adjudicating parentage does not bind the agency and that the documentation in support of the child’s claim for surviving child’s benefits does not otherwise meet Texas law requirements for establishing inheritance rights as the number holder’s child. Under the Texas intestacy laws, the child's eligibility for survivor’s benefits on the deceased number holder’s account depends upon whether he could inherit property. In this case, the mother provided DNA test results showing only an 87.709 percent probability that the number holder’s mother was N~’s paternal grandmother. The probability of the DNA results is below the 99 percent probability threshold under Texas law for creating a rebuttable presumption of paternity and therefore does not establish the number holder’s paternity. The mother also presented that a Texas court order, but the court order is not consistent with the State’s highest court, therefore the Agency does not have to accept the court order. The evidence provided by the mother is insufficient evidence to prove that the child could inherit benefits from the NH. It is our opinion that child is not currently entitled to surviving child’s benefits on the number holder’s account.

2. OPINION

QUESTION PRESENTED

You have asked us to provide a legal opinion on whether N~ is entitled to surviving child’s benefits on the earning records of D~ number holder). Specifically, you have asked whether a Texas court order adjudicating the number holder as N~’s father binds the Social Security Administration (agency) or whether the evidence N~’s mother submitted otherwise establishes that N~ has inheritance rights as the number holder’s child under Texas law.

ANSWER

It is our opinion that the Texas court order adjudicating parentage does not bind the agency and that the documentation in support of N~’s claim for surviving child’s benefits does not otherwise meet Texas law requirements for establishing inheritance rights as the number holder’s natural child. Consequently, it is our opinion that N~ is not currently entitled to surviving child’s benefits on the number holder’s account.

BACKGROUND

As we understand the facts, the number holder died on September 25, 2010, in an auto accident. At the time of his death, he was domiciled in Texas and living with M~ at his mother’s residence, M~ indicated that she and the number holder had discussed getting married in the future. But there is no indication that M~ and the number holder had a ceremonial or common law marriage at any point where he and M~ lived since November 2009, along with the number holder’s mother and his two female cousins.

In statements M~ made to the agency, she claims she was pregnant with N~ at the time of the number holder’s death, that they had known about the pregnancy for only two weeks, had only told their parents about the pregnancy, and were planning to get married after the baby was born. She also claims she never split up with the number holder and did not have sexual relations with anyone else. Agency records show that three other children are entitled on the number holder’s record: S~; and D~. The three children’s mothers, C~, D~, and T~, respectively, are their epresentative payees.

In April 2011, M~ gave birth to N~ did not submit a copy of N~’s original birth certificate in support of her application for benefits. However, at the agency’s request in late March or early April 2013, M~ provided an uncertified copy of N~’s original birth certificate that does not name a father.

In May 2012, claiming he was the number holder’s child, she applied for Title II survivor benefits on N~’s behalf. In support of the application, M~ submitted a Deoxyribonucleic (DNA) test report dated April 11, 2012, which compared specimens from N~ and the number holder’s mother. The DNA test assessed an 87.709 percent probability that the number holder’s mother was N~’s paternal grandmother. M~ has represented to the agency that the number holder’s mother had only one other child besides the number holder, his sister who is also deceased.

Since the DNA test report’s parentage probability did not meet Texas law requirements and M~ did not provide any chain of custody documentation, the agency denied the application.

On September 21, 2012, M~ filed a new application for benefits on N~’s behalf. M~ filed an untimely request for reconsideration of the agency’s initial denial of N~’s claim and did not establish good cause for the untimely filing. The agency considered the date of the untimely request for reconsideration as the protective filing date of the new application.

In support of the application, she provided a Texas court order dated August 9, 2012, from the Panola County Court adjudicating the number holder to be N~’s father for all purposes, changing N~’s last name to the number holder’s last name, and ordering an amendment to his birth certificate reflecting the adjudication and name change. After the agency inquired, in late March or early April 2013, M~ submitted N~’s October 2012 amended birth certificate, which named the number holder as his father, and asked the agency to change its systems to reflect N~’s name as D~ rather than S~.

The agency also inquired with the Panola County court clerk about the documents or exhibits the court used to adjudicate paternity, but the court clerk was unable to locate any documents or exhibits. However, M~ has indicated that the court received into evidence the grandparent DNA test report The grandparent DNA test report is in the file you submitted to us. As well as statements from her parents and the number holder’s parents. While she does not specify the contents of those statements, M~ claims that the couple had told their parents about the pregnancy before the number holder’s death.

ANALYSIS

Under the Social Security Act, a child may be eligible for surviving child’s benefits if he is the child of an individual who has died fully or currently insured. 42 U.S.C. § 402(d)(1). To be entitled to such benefits on the insured number holder’s account, a child must: (1) be the number holder’s child; (2) be dependent upon the number holder; (3) apply for benefits; (4) be unmarried; and (5) be under the age of 18. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a)(1)-(5). Here, it is undisputed that N~ is unmarried and under the age of 18, and that his mother applied for surviving child’s benefits on his behalf. Further, under pertinent regulations, the agency will consider N~ to be the number holder’s dependent child if he is the number holder’s natural child. See 20 C.F.R. § 404.361(a). Thus, the only criterion we need to establish is whether N~ is the number holder’s natural child.

For purposes of surviving child’s benefits, a claimant is a number holder’s natural child if: (1) he could inherit property through intestate succession as the number holder’s natural child; (2) he is the number holder’s natural child, and the number holder and the claimant’s other parent participated in a ceremony that would have resulted in a valid marriage, except for a legal impediment; (3) he is the number holder’s natural child, and before the number holder’s death, the number holder acknowledged him as his child in writing; a court decreed the number holder to be the claimant’s parent; or a court ordered the number holder to contribute to the claimant’s support because the claimant is the number holder’s child; or (4) the number holder is the claimant’s natural parent and was either living with the claimant or contributing to his support at the time the number holder died. See 42 U.S.C. §§ 416(h)(2)(A)-(B), 416(h)(3)(A),(C); 20 C.F.R. § 404.355(a)(1)-(4). Based on the information we received, M~ and the number holder never married or participated in a ceremony that would have resulted in a valid marriage. Also no court decreed the number holder to be N~’s parent or ordered the number holder to contribute to N~’s support before the number holder’s death. Further, because N~ was born after the number holder’s death, the number holder never lived with him, contributed to his support, or acknowledged him as his child. Therefore, N~ does not qualify as the number holder’s natural child under tests two, three, or four. To prove that he is eligible for child’s insurance benefits on the number holder’s account, N~ must therefore show under test one that he could inherit property from the number holder through intestate succession.

To determine whether an applicant could inherit a deceased number holder’s property through intestate succession, the agency must apply the intestacy laws of the state in which the deceased number holder had his permanent home at the time of his death. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b). Since the number holder’s permanent home was in Texas when he died, N~’s eligibility for survivor’s benefits on the deceased number holder’s account depends upon whether he could inherit property under Texas intestacy laws as the number holder’s child. See id.

The Texas intestacy laws are codified in the Texas Probate Code, which provides, in pertinent part, the framework for determining father-child relationships for inheritance purposes. See Tex. Prob. Code § 42(b). The Texas Legislature has repealed the Texas Probate Code and enacted the Texas Estates Code, which will become effective January 1, 2014. See Acts 2009, 81st Leg., ch. 680; Acts 2011, 82nd Leg., ch. 823 (H.B. 2759); and Acts 2011, 82nd Leg., ch. 1338 (S.B. 1198). The new provisions concerning maternal and paternal inheritance found in section 42 of the Texas Probate Code are contained in sections 201.051 and 201.052 of the Texas Estates Code.

For purposes of inheritance, a child is his biological Texas courts have held that proof of a biological link to the father was not required for child to be considered a “child of his biological father” and to inherit from testator under section 42(b) of the Probate Code. See Wilson v. Estate of Williams, 99 S.W.3d 640, 649-50 (Tex. App. – Waco 2003) (noting that a biological father also includes a man who has an adopted a child without a biological link); see also Spiers v. Maples, 970 S.W.2d 166 (Tex. App.—Fort Worth 1998) (non-biological child that testator adopted by estoppel was entitled to inherit from her). Thus, to be a number holder’s natural child pursuant to section 416(h)(2)(A), Texas law does not require the child to be the number holder’s biological child.

father’s child if: (1) he was born under circumstances described in section 160.201 Under section 160.201 of the Texas Family Code, a father-child relationship exists if: (1) an unrebutted presumption of paternity arises in a marriage; (2) the man acknowledges his paternity; (3) a court adjudicates the man’s paternity; (4) the man adopts the child; or (5) the man consents to assisted reproduction and his wife gives birth. See Tex. Fam. Code Ann. § 160.201(b)(1)-(5). N~ does not meet the methods described in (1), (2), (4), or (5) because he was not born under any of those circumstances. See id. of the Texas Family Code; (2) he was adjudicated to be the child of the father by court decree as provided by chapter 160 of the Texas Family Code; (3) the father adopted him; (4) the father executed an acknowledgement or like statement of paternity as provided by subchapter D of chapter 160 of the Texas Family Code; or (5) clear and convincing evidence establishes that the purported father was the biological father of the child. Id. The third and fourth methods set forth in the Texas Probate Code are not applicable in this case, as the number holder neither adopted N~ nor executed an acknowledgment of paternity. Thus, for N~ to establish he had a right to paternal inheritance from the number holder, it must be under the first, second, or fifth methods of section 42(b).

A. First and Second Method under Tex. Prob. Code § 42(b) – Adjudication of Paternity

The first and second methods of section 42(b) for determining father-child relationships under the Texas Probate Code recognize a child as an individual’s biological child if a court adjudicated the child’s paternity. See Tex. Prob. Code §§ 42(b); see also Tex. Fam. Code Ann. § 160.201(b)(3). Here, a Texas court issued an order that purports to adjudicate N~’s parentage for all purposes. However, the order is not binding on the agency unless certain conditions are met.

Pursuant to Social Security Ruling (SSR) 83-37c, which adopts the Sixth Circuit Court of Appeals decision in Gray v. Richardson, 474 F.2d 1370, 1373 (6th Cir. 1973), the agency is bound by state court decisions if (1) an issue in a claim for Social Security benefits was previously adjudicated 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. Here, the Texas order adjudicating parentage does not bind the agency. As detailed below, while the order meets the first and third prongs of SSR 83-37c, we do not have enough information to determine whether it meets the second or fourth prongs.

1. First and Third Prongs of SSR 83-37c

Regarding the first prong of SSR 83-37c, the Texas court that issued the order (the Panola County Court at Law) is a court of competent jurisdiction having concurrent jurisdiction with the district courts on paternity issues. See Tex. Gov’t Code §§ 24.007, 24.008, 25.0003, 25.1851, 25.1852; Tex. Const. Art. 5, § 8. With respect to the third prong of SSR 83-37c, the order adjudicating parentage involves an issue within the general category of domestic relations law because it involves the issue of paternity. See Memorandum from Regional Chief Counsel, San Francisco, to Ass’t Reg. Comm. – MOS, San Francisco, Claim for Child’s Insurance Benefits on Account of Wage Earner M~ (Aug. 22, 2005) (“the issue of paternity falls within the general category of domestic relations law”). Thus, the order meets the first and third prongs of SSR 83-37c.

2. Second Prong of SSR 83-37c

We next look at whether the Texas court order adjudicating parentage meets the second prong of SSR 83-37c — that parties with opposing interests genuinely contested the issue before the state court. Under the Texas Family Code, the child’s mother and the man Texas courts considering the question of whether an alleged father’s paternity may be contested after his death have arrived at different conclusions. Compare In the Interest of A.S.L., 923 S.W. 2d 814 (Tex. App. – A~ 1996), Tipps v. Metropolitan Life Ins. Co. 768 F. Supp 577, 579 (S.D. Tex. 1991); Leal v. Moreno, 723 SW. 2d 322 (Tex. App. – Corpus Christi 1987), Manuel v. Spector, 712 S.W.2d 219, 220 (Tex. App. – San Antonio 1986) (parentage proceedings may be brought after an alleged father’s death) with In the Interest of G~, 794 S.W. 2d 875, 877, 879 (Tex. App. – Tyler 1990) (court held that a suit to determine paternity does not survive putative father’s death, noting that the notice provisions of the Family Code do not provide adequate notice to those persons most affected by the designation of the decedent as the child’s father).

whose paternity is to be adjudicated are necessary parties to a proceeding to adjudicate parentage. See Tex. Fam. Code Ann. §§ 160.602, 160.603; Frazier v. Hall, 2012 WL 2159271 at *2 (Tex. App. – Hous. 2012).

While it is unclear who M~ or the court noticed, the court referred to the number holder as “respondent.” The Texas Family Code states that the following are entitled to service of citation in an original paternity suit: managing and possessory conservators, a person having possession of or access to the child, a person required by law or order to provide for the child’s support, a guardian of the child or the child’s estate, each parent as to whom the parent-child relationship has not been terminated or process waived, an alleged father, a man who has filed a notice of intent to claim paternity, certain governmental agencies, and a prospective adoptive parent. Tex. Fam. Code section 102.009(a). The party seeking the paternity action or the court has the discretion to serve “any other person who has or who may assert an interest in the child.” Tex. Fam. Code section 102.009(b).

Tex. Fam. Code § 102.009(b) (party seeking the paternity action or the court has the discretion to serve “any other person who has or who may assert an interest in the child”). The court order indicated “[A]ll parties entitled to citation were properly cited” and that “no administration of the Estate of D~’has been filed, no personal representative of the estate has been appointed, and neither is necessary.” Agency records indicate that the court considered the number holder’s and M~’s parents’ statements before issuing the Order Adjudicating Paternity. M~ did not submit these statements in support of her application for child’s benefits on N~’s behalf on the number holder’s account. The Court’s finding that it did not need to appoint a representative for the deceased has support in Texas law. See Manuel v. Spector, 712 S.W.2d 219 (Tex. App. – San Antonio 1986) (court indicated that illegitimate child’s mother was real party in interest, but joined child’s deceased putative father’s mother as a party inasmuch as the court ordered her to undergo genetic testing); In the Interest of A.S.L., 923 S.W. 2d 814 (Tex. App. – A~ 1996) (indicating illegitimate child’s mother may bring action to establish paternity by alleged deceased father without naming or noticing additional parties); cf Tex. Fam. Code § 160.604 (an individual may not be adjudicated a parent unless the court has personal jurisdiction over the individual, but lack of jurisdiction over one individual does not preclude the court from making an adjudication of parentage binding on another). Therefore, we believe that the court order satisfied the second prong of SSR 87-37c.

3. Fourth Prong of SSR 83-37c

We do not have enough information to determine whether the Texas court order adjudicating parentage meets the fourth prong of SSR 83-37c — that the order is consistent with the law that the highest court in the state enunciated. A court order meets the fourth prong of SSR 83-37c if it is consistent with “the law of the state as declared by the supreme court of the state, or as it would have been decided by that court had the point been considered.” See Garcia v. Sullivan, 883 F.2d 18, 20 (5th Cir. 1989); Warren v. Secretary of Health & Human Servs., 868 F.2d 1444, 1447 (5th Cir. 1989). In analyzing the fourth prong of SSR 83-27c, we look to relevant portions of Texas law relating to genetic testing.

Texas Family Code Section 160.631(c)

Section 160.631(c) of the Texas Family Code states that a court may adjudicate a man as the child’s father where unrebutted genetic testing complying with section 160.505 Section 160.505 provides, in pertinent part: (a) a man is rebuttably identified as the father of a child under this chapter if the genetic testing complies with this subchapter and the results disclose: (1) that the man has at least a 99 percent probability of paternity, using a prior probability of 0.5, as calculated by using the combined paternity index obtained in the testing; and (2) a combined paternity index of at least 100 to 1. See Tex. Fam. Code Ann. § 160.505.

shows the man to be the child’s father. See Tex. Fam. Code Ann. § 160.631(c). Under Texas law, if the DNA testing and DNA test report satisfy the reliability and authenticity requirements, and the testing reveals at least a 99 percent probability of paternity with a combined paternity index of at least 100 to 1, a man is rebuttably identified as the child’s father. See Tex. Fam. Code § 160.505(a).

When the man has died and cannot provide a specimen for genetic testing, the court may consider the results of genetic testing of the man’s parents. See Tex. Fam. Code § 160.508(a)(1); see also Tipps v. Metropolitan Life Ins. Co., 768 F.Supp. 577, 579-80 (S.D. Tex. 1991) (after death of purported father, Texas court may draw inferences from grandparentage DNA testing to determine paternity). In the past, our office has opined that DNA tests of only one purported grandparent may be sufficient to establish a parent-child relationship with a deceased. See Memorandum from Regional Chief Counsel, Dallas, to Ass’t Reg. Comm., Dallas, Texas State Law Status of Child Based on Grandparent DNA Test, at 4 (July 28, 2009). However, grandparentage DNA testing and results must comply with Texas law requirements for genetic testing. Research revealed no Texas jurisprudence indicating that the required percentage of probability of paternity is less for single grandparentage testing. See Tex. Fam. Code § 160.505(a); accord Memorandum from Regional Chief Counsel, Dallas, to Ass’t Reg. Comm., Dallas - Texas State Law Status of Child Based on Grandparent DNA Test (July 28, 2009) (grandparentage DNA testing did not comply with Texas law where required certification was absent, report did not include relevant photographs, report did not identify each individual who collected the specimens, the places and dates the specimens were collected, the names of individuals who received the specimens in the testing laboratory, or the dates the laboratory received the specimens, and report showed a 97.67 percent probability that one of grandmother’s sons was child’s biological father, which is below the statutory probability threshold). In this case, the DNA test report assessing an 87.709 percent probability that the number holder’s mother was N~’s paternal grandmother neither satisfied the reliability and authenticity requirements nor the probability provisions of the Texas Family Code.

In order to be reliable and authentic: (1) the genetic testing must take place in a laboratory accredited by the American Association of Blood Banks, the American Society for Histocompatibility and Immunogenetics, or another accrediting body the Secretary of the United States Department of Health and Human Services designates. See Tex. Fam. Code Ann. § 160.503(a); (2) a laboratory designee must sign the DNA report under penalty of perjury. See Tex. Fam. Code Ann. § 160.504(a); (3) testimony or documentation must establish a reliable chain of custody by: (a) the names and photographs of the persons whose specimens have been taken; (b) the names of the persons who collected the specimens; (c) the places and dates the specimens were collected; (d) the names of the persons who received the specimens in the testing laboratory; and (e) the dates the specimens were received. See Tex. Fam. Code Ann.§ 160.504(b). For the following reasons, the DNA report that N~ presented fails to meet Texas law requirements for establishing reliability and authenticity.

While the genetic testing took place at an accredited facility and the Assistant Paternity Laboratory Director certified the DNA analysis report, there is no evidence showing that the report complies with the chain of custody requirements. See Tex. Fam. Code Ann. §§ 160.503, 160.504. Specifically, there are no photographs of the individuals who supplied specimens for testing. See Tex. Fam. Code Ann. § 160.504(b)(1). Moreover, while the report provides the date the specimens were collected, it does not identify the date the laboratory received the specimens, the person(s) who collected or received the specimens, or the place(s) where the specimens were collected. See Tex. Fam. Code Ann. § 160.504(b)(2)-(5). Therefore, the testing does not satisfy Texas law requirements for establishing reliability and authenticity.

In addition, the probability of the DNA test results in this case is insufficient to establish paternity under Texas law. As noted, DNA test results establish paternity if they show at least a 99 percent of probability of paternity with a combined paternity index of at least 100 to 1. See Tex. Fam. Code Ann. §§ 160.503(a); 160.504; 160.505(a). Here, the DNA test results show only an 87.709 percent probability that the number holder’s mother was N~’s paternal grandmother. Such probability is below the 99 percent probability threshold under Texas law for creating a rebuttable presumption of paternity and thus does not establish the number holder’s paternity. See Tex. Fam. Code Ann. § 160.505(a); accord Memorandum from Regional Chief Counsel, Dallas, to Ass’t Reg. Comm., Dallas - Texas Law – Status of Child Relationship Based on Deoxyribonucleic Acid Y Chromosome Test (March 8, 2011) (85.29 percent probability that one of grandmother’s sons was child’s biological father below the probability threshold that Texas requires to create rebuttable presumption of paternity); See Memorandum from Regional Chief Counsel, Dallas, to Ass’t Reg. Comm., Dallas - Texas Law – Status of Child Relationship (October 26, 2010) (96.88 percent probability that one of grandfather’s sons was child’s biological father below the probability threshold that Texas requires in order to create a rebuttable presumption of paternity); Memorandum from Regional Chief Counsel, Dallas, to Ass’t Reg. Comm., Dallas - Texas State Law Status of Child Based on Grandparent DNA Test (July 28, 2009) (grandparentage DNA testing did not comply with Texas law where report showed a 97.67 percent probability that one of grandmother’s sons was child’s biological father below the statutory probability threshold).

Since the DNA test report that the Panola County Court reportedly relied on meets neither Texas’ requirements for reliability and authenticity nor the threshold probability for creating a presumption of paternity, the court’s order does not satisfy section 160.301(c). Consequently, the order is not consistent with the law enunciated by the highest court in the state and the agency does not have to accept it under G~. In this case, the agency initially denied M~’s application for child’s benefits on N~’s behalf because the DNA report did not comply with Texas law. M~ then obtained a court order based, according to the evidence submitted, primarily on the DNA report that does not comply with Texas law. If the agency accepts a state court order determining a number holder’s paternity that is based on a deficient DNA report, individual’s seeking child’s benefits can circumvent agency policy and state requirements. See SSR 83-37c.

Texas Family Code Section 160.631(e)

The court’s order could still comply with SSR 83-37c’s fourth prong if the genetic testing report and other evidence submitted were consistent with section 160.631(e) of the Texas Family Code. Under section 160.631(e) of the Texas Family Code, if a Texas court finds that genetic testing does not identify or exclude the man as a child’s father, the results of the genetic testing along with other evidence are nonetheless admissible to adjudicate the issue of paternity. See Tex. Fam. Code Ann. § 160.631(e). While the statute does not speak to the standard of proof, our research reveals that it is clear and convincing evidence. See In Interest of A.S.L. 923 S.W.2d 814, 818 (Tex.App.–A~,1996) (quantum of evidence by which a minor must prove paternity of a deceased individual is clear and convincing) citing Garza v. Maverick Market, Inc., 768 S.W.2d 273, 276 (Tex.1989) (actions brought under the Texas Wrongful Death Act, an illegitimate child must establish his paternity by the clear and convincing evidence standard) and Tex.Prob.Code Ann. § 42(b) (section 42 of the Probate Code also accords a child claiming to be the biological child of a decedent, who is not otherwise presumed to be a child of the decedent, the opportunity to establish paternity by the clear and convincing evidence standard). “The clear and convincing standard is the degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be proved.” Villery v. Solomon, 16 S.W.3d 106, 107 (Tex.App.–Houston, 2000), quoting In the Interest of G.M., 596 S.W.2d 846, 847 (Tex.1980); In the Interest of J.N.R., 982 S.W.2d 137, 141 (Tex.App.—Houston, 1998).

In this case, other than the DNA report and the Panola County Court Order Adjudicating Parentage, the evidence M~ submitted to the agency include her remarks that she lived with the number holder, his mother, and his two adult cousins from November 2009 until his death in September 2010; that she did not have sexual relations with anyone else during that time; that she was pregnant with N~ at the time of the number holder’s death; that she and the number holder had known about the pregnancy for two weeks prior to his death; that they had only told their parents about the pregnancy; and that they were planning to get married after the baby was born. Agency records also show that M~ stated that she had requested that the number holder’s mother and the two cousins give a statement, but that they had not committed to giving a statement and we note that M~ did not submit any statements in support of her application on N~’s behalf. In addition, an uncertified copy of N~’s original birth certificate shows that no father is named.

In a case where an individual brought suit under the Texas Probate Code to establish that she was a deceased’s heir, a Texas court found that although a DNA report did not establish paternity, the court considered the following evidence and found that clear and convincing evidence showed that individual was deceased’s biological child: adult child’s testimony that she had known that the deceased was her father from the time she was born and that she knew the deceased’s sisters as her aunts and was introduced as the deceased’s daughter; deceased’s aunt testimony by deposition that deceased told her that individual was his child; deceased’s sisters testimony by deposition that deceased told them that individual was his daughter; witnesses testimony that the deceased had not informed them that the individual was his daughter. (Cite as: 16 S.W.3d 106, *109)

V~, 16 S.W.3d at 108-109. M~ indicated that she requested that family members provide supporting statements, but she did not submit them to the agency. Contrary to the evidence presented in V~, we conclude that M~ has not produced evidence in this case to establish by clear and convincing evidence under section 160.631(e) of the Texas Family Code that N~ is the number holder’s child.

B. Fifth Method under Tex. Prob. Code § 42(b) – Clear and Convincing Evidence

Finally, we look under section 42(b)(5) of the Texas Probate Code to whether the documentation in support of N~’s claim for surviving child’s benefits establishes by clear and convincing evidence that the number holder was N~’s biological father. See Tex. Prob. Code § 42(b)(5). As stated above, “[t]he clear and convincing standard is the degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be proved.” V~, 16 S.W.3d at 107; see also Tex. Fam. Code Ann. § 101.007. Here, other than statements she made to the agency, M~ initially submitted only the DNA report and the Panola County Court Order Adjudicating Parentage. After the agency inquired whether M~ had requested that the Bureau of Vital Statistics amend N~’s amended birth certificate based on the Panola Court Order naming the number holder as N~’s father, M~ submitted the amended document to support N~’s application for child benefits.

Agency records show that M~ stated that she had been living with the number holder, his mother, and two adult cousins from November 2009 until his death in September 2010; that she did not have sexual relations with anyone else during that time; that she was pregnant with N~ at the time of the number holder’s death; that she and the number holder had known about the pregnancy for only two weeks prior to his death; that they had only told their parents about the pregnancy; and that they were planning to get married after the baby was born. As discussed above, the DNA report does not comply with Texas law and the agency is not bound by the state court order. Agency records show that three other children are entitled to child’s benefits on the number holder’s record, but that M~ is not listed as the mother or representative payee for any of the other children. M~ submitted N~’s October 2012 amended birth certificate to the agency and asked the agency to change N~’s Numident record in late March or early April 2013. However, the amended birth certificate and Numident change were based on the Panola County Court order which, as explained above, does not comply with Texas law. See Tex. Fam. Code Ann. §§ 160.503, 160.504, 160.505. When a court renders an order adjudicating parentage, it may order that a child’s name be changed “[o]n request of a party and for good cause shown” and if the court determines that the name change is “in the child’s best interest.” Tex. Fam. Code section 160.636. Section 160.636 does not define good cause, but courts have referenced Black’s Law Dictionary’s definition that “good cause” is a “legally sufficient reason.” In re A.W.G., 2011 WL 3795237 at *2-3 (Tex. App. – Fort Worth, 2011); In re S.M.V., 287 S.W.3d 435, 448 (Tex. App. – Dallas, 2009). In addition, courts have considered a nonexclusive list of factors to consider whether a name change is in a child’s best interest, including whether: the changed name or the original name would best avoid embarrassment, inconvenience, or confusion for the custodial parent; whether the changed name or original name would best help identify the child with the family unit; the length of time that the child has carried the original name; the degree of community respect associated with the original and changed names; whether the change would positively or adversely affect the bond between the child and either parent or the parents’ families; the preference, maturity, and age of the child; parental misconduct; any delay in requesting the name change, whether the parent seeking the name change is motivated by an attempt to alienate the child from the other parent; and, assurances by the parent whose surname the child will bear that the parent will not change his or her surname at a later time. Id.; In re S.M.V., 287 S.W.3d at 449-50; In re M.C.F., 121 S.W.3d 891, 897-98 (Tex. App. – Fort Worth, 2003). The court relied, in part, on the deficient DNA report to determine that the number holder was N~’s father and that the Bureau of Vital Statistics could change his birth certificate to reflect the number holder’s name. Because the DNA report did not comply with Texas law, the change in the birth certificate is not determinative. Moreover, an uncertified copy of N~’s original birth certificate shows that no father is named. As such, we do not believe that the totality of the evidence shows by clear and convincing evidence that the number holder was N~’s biological father, as section 42(b)(5) requires. See Tex. Prob. Code § 42(b); see e.g., Slaton v. Slaton, 987 S.W.2d 180, 183 (Tex. App.—Houston [14th Dist.] 1980) (finding in the context of Texas property law that a self-serving statement did not amount to clear and convincing evidence).

Conclusion

It is our opinion that the Texas court order adjudicating parentage does not bind the agency and that the documentation in support of N~’s claim for surviving child’s benefits does not otherwise meet Texas law requirements for establishing inheritance rights as the number holder’s child. Therefore, it is our opinion that N~ is not currently entitled to surviving child’s benefits on the number holder’s account. If M~ provides this additional documentation, we will then determine whether such additional documentation complies with the requirements of relevant law.

Michael McGaughran

Regional Chief Counsel

By: ____________

Fatima Shah

Assistant Regional Counsel

D. PR 13-054 Texas State Law – Status of Child Conceived by Assisted Reproduction Using Donor Sperm (NH J~ SSN ~) – REPLY

DATE: March 4, 2013

1. SYLLABUS:

Under Texas intestacy law the following evidence may be used to establish the claimants are the number holder’s children:

  1. An application for child’s insurance benefits on children’s behalf on the NH’s Title II disability record. In support of the application, the NH provided the agency with a copy of a marriage license and signed statements from the NH and his spouse.

  1. Medical records pertaining to spouse, which document visits with two different physicians at an obstetrics/gynecological clinic.

Based on Texas law, the totality of the evidence submitted establishes that the children would have inheritance rights under Texas law as to the NH’s intestate property, and, therefore, would be considered the NH’s children under the Social Security Act (Act) for entitlement to child’s insurance benefits based on the NH’s record.

2. OPINION

QUESTION PRESENTED

This memorandum is in response to your request for a legal opinion on whether the evidence submitted by James, the number holder (NH), is sufficient to legitimate or give inheritance rights under Texas law to two children born during the NH’s marriage to his wife, where such children were conceived through assisted reproduction using donor sperm. We clarify that the more accurate and relevant question under Texas law and under these particular facts is whether a parent-child relationship exists between the NH and the two children under Texas’ intestacy laws. 9

ANSWER

Based on Texas law, the totality of the evidence submitted establishes that the children would have inheritance rights under Texas law as to the NH’s intestate property, and, therefore, would be considered the NH’s children under the Social Security Act (Act) for entitlement to child’s insurance benefits based on the NH’s record.

BACKGROUND

As we understand the facts, the NH and J~ were married on July 9, 1995. After undergoing an assisted reproduction procedure 10

using a donor’s sperm, J~ gave birth to E~ on October , in Oklahoma. After undergoing a second procedure using sperm from a donor, J~ gave birth to H~ on May , in Maryland. At the time of both births, the NH and J~ were married, and they are still married. The children’s Numident records indicate that the NH is named as the father on E~ and H~’s birth certificates.

On July 27, 2012, the NH, domiciled in Texas, filed an application for child’s insurance benefits on E~ and H~’s behalf on his Title II disability record. In support of his application, the NH provided the agency with a copy of a marriage license and signed statements from the NH and J~. In their statements, the NH and J~ indicated: (1) E~ and H~ have lived with the NH and J~ since birth; (2) the NH has always openly treated E~ and H~ as his own children; (3) E~ and H~ were enrolled on the NH’s military insurance policy; and (4) the NH participated in the children’s activities, including athletics and PTA activities.

The NH also submitted to the agency two medical records pertaining to J~, which document visits with two different physicians at an obstetrics/gynecological clinic. One record dated January 30, 1996, states that J~’s husband had a congenital lack of vas deferens and that J~ would need a referral to an infertility clinic to undergo assisted reproduction. In the other record, which is undated, a physician stated that J~ and “her husband” were counseled on their options and were planning to undergo fertilization using donor sperm. The record does not specifically name the NH, and he did not sign this record. The NH has not provided documentation showing his written consent to any particular assisted reproduction procedure. Both the NH and J~ stated that they searched their files and were unable to locate any documentation from the fertility clinics regarding the assisted reproduction.

ANALYSIS

Child Status Under the Social Security Act

The Act provides that a child may be eligible for Social Security benefits if he or she is the child of an individual who is entitled to old-age or disability benefits. 42 U.S.C. §§ 402(d)(1), 416(e)(1) (2012). To be entitled to child’s insurance benefits on an insured number holder’s account, a child must: (1) be the number holder’s child; (2) be dependent upon the number holder; (3) apply for benefits; (4) be unmarried; and (5) be under the age of 18. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a)(1)-(5). Here, the NH applied for benefits on E~ and H~’s behalf, both of whom are unmarried and under the age of 18. The agency will consider E~ and H~ to be dependent upon the NH if they are the NH’s natural children. See 20 C.F.R. § 404.361(a). Thus, the only remaining criterion E~ and H~ must establish is that they are the NH’s natural children. See 20 C.F.R. § 404.355(a).

To determine whether an applicant is a number holder’s natural child for the purposes of the Act, the agency will apply the intestacy laws of the state in which the number holder had his permanent home at the time he filed the application for benefits. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1),(3). If the child is eligible to inherit the number holder’s intestate property according to state law, the agency will consider him the number holder’s child for purposes of receiving child’s benefits under the Act. See 20 C.F.R. § 404.355(b)(1). Here, Texas law controls because the NH had his permanent home in Texas at the time he applied for benefits on behalf of E~ and H~. See 20 C.F.R. § 404.355(b)(1), (3). Thus, E~ and H~’s eligibility for child’s benefits on the NH’s account depends upon whether they could inherit property under Texas intestacy laws as the NH’s children 11 See id.

Inheritance Rights of Children Under Section 42(b)(1) of the Texas Probate Code

For purposes of inheritance, section 42(b)(1) of the Texas Probate Code specifies five methods for determining a father-child relationship. Section 42(b)(1) provides that “a child is the child of his biological 12 father” if:

(1) the child is born under circumstances described in section 160.201 of the Family Code;

(2) the child is adjudicated to be the child of the father by court decree as provided by Chapter 160 of the Family Code;

(3) the father adopted the child;

(4) the father executed an acknowledgement or like statement of paternity as provided by Subchapter D, Chapter 160 of the Family Code; or

(5) clear and convincing evidence establishes that the purported father was the biological father of the child.

See Tex. Prob. Code Ann. § 42(b)(1). 13 Under section 42(b)(1)’s second, third, and fourth methods, there is no evidence of an adjudication of paternity, adoption, or an executed voluntary acknowledgment or like statement of paternity. See Tex. Prob. Code Ann. § 42(b)(1). Because section 42(b)(1)’s first method of establishing parentage through section 160.201 of the Texas Family Code (the Uniform Parentage Act) is determinative of the NH’s parent-child relationship with E~ and H~, we need not address whether the evidence is also clear and convincing evidence under the fifth method of establishing child status for paternal inheritance purposes under section 42(b)(1). See id. Thus, under this first method, the Probate Code directs us to section 160.201 of the Uniform Parentage Act to determine whether the parent-child relationship exists between the NH and E~ and H~.

Section 160.201(b) of the Uniform Parentage Act concerns establishment of a father-child relationship and also specifies five methods for establishing a father-child relationship. See Tex. Fam. Code Ann. § 160.201(b). Under section 160.201(b) of the Uniform Parentage Act, a father-child relationship exists if:

(1) an unrebutted presumption of paternity arises in a marriage;

(2) the man acknowledges his paternity;

(3) a court adjudicates the man’s paternity;

(4) the man adopts the child; or

(5) the man consents to assisted reproduction and his wife gives birth.

See Tex. Fam. Code Ann. § 160.201(b)(1)-(5). Under section 160.201(b)’s second, third, and fourth methods, there is no evidence of an executed voluntary acknowledgment of paternity, an adjudication of paternity, or adoption. See Tex. Fam. Code Ann. § 160.201(b)(2)-(4). Under the facts presented, namely that both children were born during the marriage of the NH and J~, and the children were conceived through assisted reproduction, section 160.201(b)(1)’s first and fifth methods for establishing a father-child relationship are relevant and determinative of the NH’s parent-child relationship with E~ and H~. See Tex. Fam. Code Ann. §§ 160.201(b)(1),(5), 160.204, 160.704. As addressed below, we find that the parent-child relationship is established under the first and fifth methods of section 160.201 of the Uniform Parentage Act, and as a consequence, E~ and H~ are the NH’s children under the first method of section 42(b)(1) of the Probate Code. See Tex. Fam. Code Ann. §§ 160.201(b)(1),(5), 160.204, 160.704; Tex. Prob. Code Ann. § 42(b)(1).

Under Sections 160.201(b)(1) and 160.204(a)(1) of the Uniform Parentage Act, the Parent-Child Relationship is Established by an Unrebutted Presumption of Paternity Arising From the Marriage Between the NH and J~, and Therefore, E~ and H~ are the NH’s Children under Section 42(b)(1) of the Probate Code

With regard to the first method under section 160.201 of the Uniform Parentage Act, a father-child relationship is established if there is an unrebutted presumption of paternity under section 160.204 of the Uniform Parentage Act. See Tex. Fam. Code Ann. §§ 160.201(b)(1), 160.204. Under section 160.204(a)(1), Texas courts presume a man to be a child’s father if the man is married to the child’s mother and the child is born during the marriage. See Tex. Fam. Code Ann. § 160.204(a)(1); POMS GN 00306.640(B)(3)(a). Here, the evidence establishes that the NH and J~ are validly married, that J~ is the children’s mother, and that the children were born during their marriage. Thus, a presumption of paternity arises with respect to the NH and the children. See Tex. Fam. Code Ann. §§ 160.201(b)(1), 160.204(a)(1). We must next determine whether this presumption has been rebutted.

Texas courts have long interpreted the presumption of paternity that arises in marriage to be strong and very difficult to rebut. See, e.g., Joplin v. Meadows, 623 S.W.2d 442, 443-444 (Tex. App.—Texarkana 1981, no writ) (the presumption that a child conceived during marriage is the legitimate child of the husband and wife is one of the strongest presumptions known to the law); Etchison v. Greathouse, 596 S.W.2d 233, 236 (Tex. App.—Houston [1st Dist.] 1980, no writ) (the highest consideration of public policy supplies every reasonable presumption in favor of the legitimacy of a child born during the marriage of a man and a woman). Section 160.204(b) of the Uniform Parentage Act specifies that a presumption of paternity that arises under marriage may be rebutted only by: (1) an adjudication under a proceeding to determine the parentage of a child; or (2) the filing of a valid denial of paternity by a presumed father, in conjunction with the filing by another person of a valid acknowledgment of paternity. See Tex. Fam. Code Ann §§ 160.204(b), 160.301 (acknowledgment of paternity), 160.303 (denial of paternity), 160.601 (civil proceeding to adjudicate parentage). Thus, there are two methods for rebutting the presumption of paternity under section 160.204(b), and we must determine if either method is applicable in the present matter. See Tex. Fam. Code Ann. §§ 160.204(b).

With regard to the first method of rebutting the presumption of paternity under section 160.204(b)(1), the evidence indicates that no court has made an adjudication of E~ and H~’s parentage in a civil proceeding. See Tex. Fam. Code Ann. §§ 160.204(b)(1), 160.601 – 160.637. Further, the time limitation for bringing an action to adjudicate the parentage of E~, age 14, and H~, age 9, has passed. See Tex. Fam. Code Ann. § 160.607 14 Thus, the first method for rebutting the presumption of paternity is not met. See Tex. Fam. Code Ann § 160.204(b)(1).

With regard to the second method of rebutting the presumption of paternity under section 160.204(b)(2), the evidence indicates that the NH has not filed a denial of paternity, and no other person (i.e. the donor) has filed a valid acknowledgment of paternity. See Tex. Fam. Code Ann. §§ 160.204(b)(2), 160.301 – 160.316 (requirements for acknowledgment of paternity and denial of paternity). Indeed, a sperm donor is not a parent of a child conceived by means of assisted reproduction. See Tex. Fam. Code Ann. § 160.702. Thus, the second method for rebutting the presumption of paternity is not met. See Tex. Fam. Code Ann. § 160.204(b)(2).

Accordingly, the NH’s status as H~ and E~’s presumed father has not been rebutted or confirmed in a judicial proceeding, and a presumed father is recognized to be the child’s father. See Tex. Fam. Code Ann. § 160.102(13). Consequently, based on an unrebutted presumption of paternity under sections 160.201(b)(1) and 160.204(a)(1) of the Uniform Parentage Act, the agency should treat E~ and H~ as persons who could inherit property through intestate succession as the NH’s children under section 42(b)(1) of the Probate Code. See Tex. Prob. Code Ann. § 42(b)(1); Tex. Fam. Code Ann. §§ 160.201(b)(1), 160.204(a)(1).

Under Sections 160.201(b)(5) and 160.703 of the Uniform Parentage Act, the Parent-Child Relationship is Established Because the NH and J~ Openly Treated the Children Born of Assisted Reproduction Using Donor Sperm As Their Own, and Therefore, E~ and H~ are the NH’s Children under Section 42(b)(1) of the Probate Code

With regard to the fifth method under section 160.201 of the Uniform Parentage Act, a father-child relationship is established when a married man consents to assisted reproduction by his wife in accordance with sections 160.703 and 160.704 of the Uniform Parentage Act, which results in the birth of the child. See Tex. Fam. Code Ann. §§ 160.201(b)(5), 160.703, 160.704. 15 Under section 160.703, if a husband provides sperm for or consents to assisted reproduction by his wife in accordance with section 160.704, he is the resulting child’s father. See Tex. Fam. Code Ann. §§ 160.703, 160.704; POMS GN 00306.640(C)(2)(b). Here, because the NH stated that he and J~ used a donor’s sperm, we examine whether the NH consented under the requirements of section 160.704. See Tex. Fam. Code Ann. §§ 160.703, 160.704.

Section 160.704(a) provides that a married woman’s consent to assisted reproduction must be in a record 16 signed by the woman and her husband and kept by a licensed physician. See Tex. Fam. Code Ann. § 160.704(a). Both the NH and J~ stated that they searched their files and were unable to locate any documentation from the fertility clinics regarding the assisted reproduction. While there is no evidence of written consent, the lack of written consent is not determinative. See Tex. Fam. Code Ann. § 160.704(b).

Section 160.704(b) expressly provides that the husband’s failure to sign a written consent before or after the child’s birth does not preclude a finding that the husband is the father of a child born to his wife if the wife and husband openly treated the child as their own. See Tex. Fam. Code Ann. § 160.704(b); 17 POMS GN 00306.640(C)(2)(b), Note 1 (if the husband did not consent to the assisted reproduction and did not provide the sperm, but he and his wife openly treated the child as their own, obtain a Regional Chief Counsel opinion). Thus, the lack of written consent in a record does not preclude the existence of the father-child relationship, and the focus is rather upon whether the husband and wife openly treated the child as their own.

Even before the adoption of the Uniform Parentage Act in Texas in 2001, Texas courts, examining prior statutes that required written consent and that did not contain a provision similar to section 160.704(b), have held that even when the husband did not consent in writing, a father-child relationship may be established by his ratification of the assisted reproduction. See In re M.C. and R.S. , 65 S.W.3d 188, 193-194 (Tex. App.—A~ 2001, no pet.) (examining Tex. Fam. Code Ann. § 151.101, which was repealed in 2001 and required the consent to be in writing, and finding that the trial court erred in not admitting evidence concerning the husband’s knowledge and actions that may have ratified the assisted conception); K.B. v. N.B., 811 S.W.2d 634, 636 (Tex. App.—San Antonio 1991, writ denied) (examining Tex. Fam. Code Ann. § 12.03, which was repealed in 1995 and required consent to be in writing and acknowledged). 18 Because there do not appear to be any cases examining section 160.704(b) specifically, these cases concerning ratification help explain what a court might be looking for in determining whether a wife and husband openly treated a child of assisted reproduction as their own for purposes of section 160.704(b). See Tex. Fam. Code Ann. § 160.704(b). Ratification occurs when a person who knows all of the material facts confirms or adopts a prior act that did not then legally bind him and which he could have repudiated. K.B., 811 S.W.3d at 638. Three elements are essential to a finding of ratification: (1) approval by act, word, or conduct; (2) with full knowledge of the facts of the earlier act; and (3) with the intention of giving validity to the earlier act. Id. Ratification may be inferred from conduct and need not be express. Id. A key element is establishing that the ratifying party acted upon full knowledge of material facts. Id. Thus, we examine the evidence to determine whether a Texas court would find that the NH and J~ openly treated, or ratified, E~ and H~ as their own children. See Tex. Fam. Code Ann. § 160.704(b).

The evidence provided in the NH’s and J~’s statements to the agency and in the medical records shows that the NH: (1) was present for at least one discussion of fertility options; (2) is named as the father on E~ and H~’s birth certificates; (3) is married to and has lived with J~ and E~ and H~ since their births; (4) has been active in the children’s activities; (5) listed E~ and H~ as dependents to be covered on his military insurance policy; and (6) has publicly held out E~ and H~ as his own children since their births. We believe this evidence is as strong as the evidence in the K.B. case. See K.B., 811 S.W.3d at 639. Therefore, we believe the NH ratified the assisted reproduction by his actions and established a father-child relationship with E~ and H~. See Tex. Fam. Code Ann. §§ 160.703, 160.704(b).

Furthermore, we believe a Texas court would not allow a challenge to the NH’s paternity since the statute of limitations for initiating a suit to determine parentage has long passed given that E~ is 14 years old and H~ is 9 years old. See Tex. Fam. Code Ann. § 160.705. 19 Moreover, we believe that a Texas court would strongly disfavor a disavowal of paternity because the NH has been E~ and H~’s presumed father all of their lives and overturning that presumption would likely be detrimental to them. See In re Attorney General of Texas, 195 S.W.3d 264 (Tex. App. – San Antonio 2006, no pet.) (overturning trial court’s order granting genetic testing where the presumed father had been the child’s “legal father for virtually all of her life” and where genetic testing could cause “permanent, irreversible harm to” her). This concern with the detriment to the children is even more significant here where the biological father is an anonymous sperm donor with whom the children, ages 9 and 14, have had no contact, and where section 160.702 expressly provides that a donor is not a parent of a child conceived by means of assisted reproduction. See Tex. Fam. Code Ann. § 160.702; see also In re H.C.S., 219 S.W.3d 33 (Tex. App. – San Antonio 2006, no pet.) (holding that an unmarried man who provided sperm as a donor used for assisted reproduction and who did not sign and file an acknowledgment of paternity, does not have standing to pursue a suit to determine the paternity of the child born through the assisted reproduction). Thus, we do not believe that a Texas court would allow a challenge to the NH’s paternity.

Accordingly, under sections 160.201(b)(5), 160.703, and 160.704 of the Uniform Parentage Act, because the NH and J~, who are married, have openly and continuously treated E~ and H~, who were conceived using assisted reproduction and donor sperm, to be their own, the NH is their father. See Tex. Fam. Code Ann. §§ 160.201(b)(5), 160.703, 160.704. Consequently, the agency should treat E~ and H~ as individuals who could inherit property through intestate succession as the NH’s children through section 42(b)(1) of the Probate Code. See Tex. Prob. Code Ann. § 42(b)(1); Tex. Fam. Code Ann. §§ 160.201(b)(5), 160.703, 160.704.

The Parent-Child Relationship Has Been Established Since Birth

We next look to when the parent-child relationship between the NH and E~ and H~ was established. A child becomes entitled to benefits the first month covered by the application for benefits in which the child meets all the requirements for entitlement. See 20 C.F.R. § 404.352(a)(2). As indicated above, these requirements include proof that the child: (1) is the number holder’s child; (2) is dependent upon the number holder; (3) has applied for benefits; (4) is unmarried; and (5) is under the age of 18. See 20 C.F.R. § 404.350(a)(1)-(5). The Texas Family Code provides that a “presumed father” is, by operation of law, “recognized as the father of the child until that status is rebutted or confirmed in a judicial proceeding.” Tex. Fam. Code Ann. § 160.102(13); see Tex. Fam. Code §§ 160.201(b)(1), 160.204(a)(1), (b). As outlined in detail above, no court has determined E~ or H~’s parentage in a civil proceeding. See Tex. Fam. Code Ann. § 160.204(b)(1). Furthermore, the time to bring such an action has passed. See Tex. Fam. Code Ann. §§ 160.204(b)(1), 160.607. Additionally, the NH has not filed a valid denial of paternity and no other person has filed a valid acknowledgment of paternity. See Tex. Fam. Code Ann. § 160.204(b)(2). Indeed, a donor is excluded from being a parent. See Tex. Fam. Code Ann. § 160.702. Finally, the NH has openly and continuously treated E~ and H~ as his own since birth. See Tex. Fam. Code Ann. §§ 160.201(b)(5), 160.703, 160.704. Therefore, we can conclude that the parent-child relationship has been established since the birth of each child. See 20 C.F.R. § 404.352(a)(2) (if the insured is living, the child’s entitlement to child’s benefits begins with the first month covered by the application throughout which the child meets all other requirements for entitlement); 20 C.F.R. § 404.621(a)(1) (if a claimant files an application after the first month the claimant could have been entitled to benefits, the claimant may receive benefits for up to 12 months immediately before the month in which she filed her application).

Conclusion

Under Texas law, the totality of the evidence establishes a parent-child relationship between the NH and E~ and H~ since their births. As such, under Texas law, E~ and H~ would have inheritance rights as the NH’s children. Therefore, the agency should consider E~ and H~ to be the NH’s children for Social Security purposes.

Michael McGaughran

Regional Chief Counsel

By: ____________

Kristine Dittmeier Vitemb

Assistant Regional Counsel

E. PR 13-039 Texas Law – Status of Child Based on Probate Court Order Adjudicating Parentage (NH R~, SSN ~) – REPLY

DATE: January 4, 2013

1. SYLLABUS:

The Regional Chief Counsel determined that under Texas law, the evidence submitted does not bind the agency and the child is not currently entitled to benefits on the NH’s account. The Chief Counsel did not address the question of whether the Order legitimizes the child or date of entitlement.

The Chief Counsel based his decision on the following evidence:

1. A Texas Probate Court Order Adjudicating Parentage (Order) legitimized the child with respect to the deceased number holder (NH) such that the child would be entitled to benefits prior to the date that genetic testing showed the probability that the NH was the child’s father.

2. A DNA report performed on March 15, 2012, comparing apparent blood samples from the child and the NH. The DNA report states a 99.996% probability of biological paternity exists between the child and the NH. 20

Also, the Chief Counsel determined that the child could provide the following in order to comply with relevant law: The child’s mother’s Motion to Adjudicate Parentage and any other documentation to show that the proceeding was genuinely contested and that the NH’s other children or other parties with an interest were informed of or were made a party to the proceeding; an Order that contains his date of birth; and a clear and identified picture of the child provided by the genetic testing facility with correct identifying information. If the child provides this additional documentation, and such documentation complies with the requirements of relevant law his office will determine the date that the child is entitled to benefits.

2. OPINION

This memorandum is in response to your request for a legal opinion on the status of a child under Texas law based on a subsequent probate court order adjudicating parentage. Specifically, you asked whether, under Texas law, a Texas Probate Court Order Adjudicating Parentage (Order) legitimized the child with respect to the deceased number holder (NH) such that the child would be entitled to benefits prior to the date that genetic testing showed the probability that the NH was the child’s father. Based on the evidence you submitted, under Texas law, the Order does not bind the Agency and the child is not currently entitled to benefits on the NH’s account. Thus, we do not address your question of whether the Order legitimizes the child or the date of entitlement.

A. Facts

As we understand the facts, R~ (NH) died on February 8, 2007, while domiciled in Texas. At the time of his death, the NH was married to T~ and had two legitimate children. The Social Security Administration (agency) allowed Title II survivor benefits for T~ and the NH’s two legitimate children. Previously, on March 1994, H~ was born to M~. There is no evidence that the NH was married to H~’s mother at any point, and there is no evidence that the NH lived with, supported, or acknowledged H~ during his lifetime.

In May 2012, H~ filed a claim for survivor benefits. In support of his claim, he provided a DNA report performed on March 15, 2012, comparing apparent blood samples from H~ and the NH. The DNA report states a 99.996% probability of biological paternity exists between H~ and the NH. 21

H~ also provided the May 25, 2012 Order, which purports to adjudicate parentage. The certified Order notes that genetic testing shows that H~ is the NH’s child, and that there have been no prior findings of parentage with regard to H~, and orders that the NH is H~’s biological father. The Order further notes that H~ is eligible for any and all benefits entitled as the NH’s biological child, and that H~ is the NH’s heir.

Based on the Order and the DNA report, the agency adjudicated H~’s claim with a date of entitlement of March 2012, the date of the DNA report. After the adjudication of entitlement, you asked whether H~ was the NH’s legitimate child. Thus, we surmise that your question essentially concerns whether H~ is entitled to retroactive benefits. As stated, we find that H~ is not entitled to benefits on the NH’s account and, therefore, do not address your question of whether H~ is the NH’s legitimate child.

B. Discussion

To be entitled to survivor’s benefits on an insured NH’s account, a child must: (1) be the NH’s child; (2) be dependent upon the NH; (3) apply for benefits; (4) be unmarried; and (5) be under the age of 18. See 20 C.F.R. § 404.350(a)(1)-(5). Here, during the period at issue, i.e., six months prior to child’s application until the date the agency determined child’s entitlement (November 2011 to March 2012), H~ was under the age of 18, and based on the agency’s entitlement determination, was unmarried. The agency will consider a child dependent upon a NH if the child is the NH’s natural child. See 20 C.F.R. § 404.361(a). Thus, the only remaining criterion H~ must establish is that he is the NH’s natural child.

To determine whether an applicant is a deceased NH’s natural child, the agency will apply the intestacy laws of the state in which the NH had his permanent home at the time of death. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b). Texas law controls because the NH’s permanent home was in Texas when he died. Thus, H~’s eligibility for survivor’s benefits on the deceased NH’s account depends upon whether he could inherit property under Texas intestacy laws as the NH’s child. See id.

Analysis Under Section 42(b) of the Texas Probate Code

The Texas Probate Code provides the framework for determining father-child relationships for inheritance purposes. See Tex. Prob. Code § 42(b). For purposes of inheritance, a child is his biological father’s child if: (1) he was born under circumstances described in Section 160.201 22 of the Family Code; (2) he was adjudicated to be the child of the father by court decree as provided by Chapter 160 of the Family Code; (3) the father adopted him; (4) the father executed an acknowledgement or like statement of paternity as provided by Subchapter D of Chapter 160 of the Family Code; or (5) clear and convincing evidence establishes that the purported father was the biological father of the child. Id. The third and fourth methods set forth in the Texas Probate Code are not applicable in this case, as the NH neither adopted H~ nor executed an acknowledgment of paternity. Thus, for H~ to establish he had a right to paternal inheritance from the NH, it must be under the first, second, or fifth methods.

(i) Analysis Under Section 42(b)(1) and (2)

The first and second methods of section 42(b) as relevant herein, recognize a child as an individual’s biological child if a court adjudicated the child’s paternity. H~ provided the Order, which purports to adjudicate parentage and orders that H~ is the NH’s heir. See Tex. Prob. Code §§ 42(b)(1)-(2); Tex. Fam. Code § 160.201(b)(3). However, because the agency must only follow a state court decision under limited circumstances, we discuss the elements below. See Social Security Ruling (SSR) 83-37c.

Analysis Under SSR 83-37c

Pursuant to SSR 83-37c, which adopts the Sixth Circuit Court of Appeals decision in Gray v. Richardson, 474 F.2d 1370, 1373 (6th Cir. 1973), the agency is bound by state court decisions where (1) a state court of competent jurisdiction has previously adjudicated an issue in a claim for Social Security benefits; (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. Here, the Order meets SSR 83-37c’s first and third prongs. However, we do not have enough information to determine whether the Order meets the second prong and the Order does not meet the fourth prong. Therefore, it does not bind the agency.

With respect to the first prong of SSR 83-37c, the Texas Probate Court is a court of competent jurisdiction because probate courts have exclusive jurisdiction over all probate proceedings. See Tex. Prob. Code Ann. § 4F(a). And pursuant to the Texas Family Code, the Order is a final judgment, which may be appealed as any other final judgment. See Tex. Fam. Code Ann.§ 160.637(e). With respect to the third prong of SSR 83-37c, the Order involves an issue within the general category of domestic relations law because it involves the issue of paternity. Therefore, the Order meets the first and third prongs.

We do not, however, have enough information to determine whether the order meets SSR 83-37c’s second prong - that the issue was genuinely contested before the state court by parties with opposing interests. While the Guardian ad litem and T~’s attorney approved the Order “as to law,” there is no indication that the NH’s two children that he had with T~ had an opportunity to be a part of the proceeding. See e.g., Tex. Probate Code § 49 (decedents’ heirs must be parties to proceedings to institute heirship). It appears that the court only considered the DNA report and T~’s “Motion to Adjudicate Parentage.” The evidence submitted with this request for a legal opinion did not include T~’s motion. In addition, no other documentation shows that the NH’s other children were informed of or were made a party to the proceeding. Thus, we are unable to determine whether the Order was the product of a genuine contest of the issues in order to meet SSR 87-37c’s second prong.

The Order does not meet SSR 83-37c’s fourth prong – that the Order is consistent with the law enunciated by the highest court in the state. Pursuant to section 160.636(b) of the Texas Family Code, the Order must identify the child by name and date of birth. While the Order contains H~’s full name, it does not contain his date of birth. See Tex. Fam. Code Ann. § 160.636(b) (an order adjudicating parentage must identify the child by name and date of birth). The Order further does not comply with SSR 83-37c’s fourth prong because, as explained below, the DNA report that the court relied on to determine that the child could inherit from the NH is inconsistent with the Texas Family Code provisions related to adjudication of paternity with genetic testing evidence.

Under the Texas Family Code provisions, a court may adjudicate a man as a child’s father in two scenarios relevant to this opinion: (1) where the results of genetic testing complying with section 160.505 show the man to be the child’s father; or (2) if the court finds the genetic testing under section 160.505 does not identify or exclude the man as the father of the child, the results of the genetic testing and other evidence are nonetheless admissible to adjudicate the issue of paternity. 23 See Tex. Fam. Code Ann. §§ 160.631(c), (e). The Order does not indicate which subsection the court relied on when it granted the Order, and so we discuss both provisions.

With regard to section 160.631(c), the court stated in its Order that the DNA report showed that H~ was the NH’s biological child. See Tex. Fam. Code Ann. § 160.631(c). However, the DNA report does not comply with Texas’ requirements for genetic testing. 24 See Tex. Fam. Code Ann. § 160.505. A Texas court will consider the results of genetic testing provided the DNA report meets specific requirements to establish reliability and authenticity, and that the testing reveals at least a 99 percent probability of paternity and a combined paternity index of at least 100 to 1. See Tex. Fam. Code Ann. §§ 160.503(a); 160.504(a),(b); 160.505(a). In this case, the testing does not meet all of Texas’ specific requirements to establish reliability and authenticity.

In order to establish reliability and authenticity, first the genetic testing must take place in a laboratory accredited by the American Association of Blood Banks, the American Society for Histocompatibility and Immunogenetics, or another accrediting body the Secretary of the United States Department of Health and Human Services designates. See Tex. Fam. Code Ann. § 160.503(a). Second, a laboratory designee must sign the DNA report under penalty of perjury. See Tex. Fam. Code Ann. § 160.504(a). Third, testimony or documentation must establish a reliable chain of custody by: (1) the names and photographs of the persons whose specimens have been taken; (2) the names of the persons who collected the specimens; (3) the places and dates the specimens were collected; (4) the names of the persons who received the specimens in the testing laboratory; and (5) the dates the specimens were received. See Tex. Fam. Code Ann. § 160.504(b).

The DNA report shows that the paternal probability is 99.996 percent. See Tex. Fam. Code Ann. § 160.505(a). However, the testing does not meet all of Texas’ specific requirements to establish reliability and authenticity. While the genetic testing took place at an accredited facility and Ed, Ph.D., the Assistant Paternity Laboratory Director, certified the DNA analysis report, there is insufficient evidence for us to determine if the report complies with the chain of custody requirements under section 160.504. See Tex. Fam. Code Ann. §§ 160.503, 160.504(a).

Texas law requires a photograph of each individual who supplied specimens for testing. See Tex. Fam. Code Ann. § 160.504(b)(1). The evidence you provided includes what appears to be a photograph of a person. However, this photograph is nearly blacked-out, and does not identify the person whose photograph it is. See Tex. Fam. Code Ann. § 160.504(b)(1). While the correct case number, PL12-01684, is noted on the photograph, the individual number assigned to H~, 12-04991, is not. Although it is possible your original copy of the photograph is clearer than our copy, the photograph also does not state the name of the person in the photograph, and therefore we cannot state that this is a photograph of H~. Because we do not have sufficient evidence to conclude that the court reviewed a proper photograph of H~ provided by the genetic testing facility, we cannot determine if the chain of custody was proper. 25 See id. Because the genetic testing evidence submitted does not meet Texas’ requirements to establish reliability and authenticity, it does not satisfy section 160.301(c) (“man identified as the father of a child under 160.505 shall be adjudicated as being the father of the child”). Therefore, it does not comply with SSR 83-37c’s fourth prong.

The evidence submitted could still comply with SSR 83-37c’s fourth prong if it was consistent with section 160.631(e). Under section 160.631(e), if a Texas court finds that genetic testing does not identify or exclude the man as a child’s father, the results of the genetic testing along with other evidence are nonetheless admissible to adjudicate the issue of paternity. See Tex. Fam. Code Ann. § 160.631(e). Here, it appears that, in addition to the DNA report, the court also considered M~’s Motion to Adjudicate Parentage when determining whether to issue the Order. However, H~ did not provide M~’s Motion to Adjudicate Parentage, and therefore we are unable to discuss M~’s statements contained therein. As stated above, we are unaware of any additional evidence or testimony the court considered before issuing the Order, or what may be probative to determining whether the Order is in compliance with subsection (e). Thus, because the genetic testing does not comply with Texas requirements on genetic testing and because M~’s Motion to Adjudicate Parentage is not available, we cannot determine whether the Order complies with subsection (e) such as to comply with SSR 83-37c’s fourth prong. Thus, the Order does not bind the agency and it is not conclusive evidence that H~ is the NH’s child.

(ii) Analysis Under Section 42(b)(5)

Finally, we look to whether the supporting information establishes by clear and convincing evidence that the NH was the child’s biological father. See Tex. Prob. Code 42(b)(5); Tex. Prob. Code § 101.007 (“clear and convincing evidence means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established”). H~ submitted the genetic testing and the Order to support her claim for benefits. As set forth above, the genetic testing does not comply with Texas law and the agency is not bound by the state probate court Order. We find that the totality of the evidence does not show that the NH was the child’s father.

C. Conclusion

Based on the evidence you submitted, under Texas law, the Order does not bind the agency and the child is not currently entitled to benefits on the NH’s account. Thus, we do not address your question of whether the Order legitimizes the child or the date of entitlement.

H~ could provide the following in order to comply with relevant law: (i) M~’s Motion to Adjudicate Parentage and any other documentation to show that the proceeding was genuinely contested and that the NH’s other children or other parties with an interest were informed of or were made a party to the proceeding; (ii) an Order that contains his date of birth; and (iii) a clear and identified picture of H~ provided by the genetic testing facility with correct identifying information. If H~ provides this additional documentation, and such documentation complies with the requirements of relevant law as discussed supra, our office will determine the date that H~ is entitled to benefits.

Michael McGaughran

Regional Chief Counsel

By: ____________

Kristine Dittmeier Vitemb

Assistant Regional Counsel

F. PR 13-028 Texas State Law – Status of Child Relationship with Zimbabwe Birth Certificate (NH A~ ( SSN~) – REPLY

DATE: December 4, 2012

1. SYLLABUS:

Under Zimbabwe law, a birth certificate bearing a putative father’s name is a valid acknowledgment of paternity. Under Texas law, an acknowledgment of paternity is the equivalent of an adjudication of the child’s paternity and confers on the acknowledged father all rights and duties of a parent. The Chief Counsel’s opinion is that the Number Holder (NH) validly acknowledged the claimant’s paternity under Zimbabwe law, and that under Texas law, the claimant would be eligible to inherit personal property as the NH’s child. She is therefore entitled to Social Security surviving child’s benefits on NH’s earnings record.

2. OPINION

Questions

You asked us to provide a legal opinion regarding whether M~ was entitled to Social Security surviving child’s benefits on the earnings record of A~ , who died on May 15, 2011, while domiciled in Texas. Specifically, you asked whether Texas State law would accept M~’s Zimbabwe birth certificate as A~’s acknowledgment of paternity.

Answer

We believe that Texas would apply Zimbabwe laws in determining whether A~ acknowledged M~’s paternity. According to an opinion from the Law Library of Congress, under Zimbabwe law, a birth certificate bearing a putative father’s name is a valid acknowledgment of paternity. Under Texas law, an acknowledgment of paternity is the equivalent of an adjudication of the child’s paternity and confers on the acknowledged father all rights and duties of a parent. We believe A~ validly acknowledged M~’s paternity under Zimbabwe law, and that under Texas law, M~ would be eligible to inherit personal property as A~’s child. She is therefore entitled to Social Security surviving child’s benefits on A~’s earnings record.

Background

As we understand the facts, P~ is seeking surviving child benefits on behalf of her daughter, M~, based upon a claim that M~ is the surviving child of A~, who died on May 15, 2011, while domiciled in Texas. In a Social Security claim for surviving child benefits, a child must prove she is the child of the person through whom she is claiming benefits.

Events Surrounding M~’s Birth in Zimbabwe

P~ states that when she and A~ conceived M~ in Zimbabwe, A~ lived and worked five hours away in Bulawayo, but would come to Harare to visit her and his brother every couple of weeks. They did not live together because A~ had not paid her family the l~ (bride price), and were not married when M~ was born on January. P~ states that when M~ was born, A~ visited her and M~ at the hospital with his family; he gave M~ the name T~, and told the hospital staff that she should be referred to as baby K~ (A~’s surname). P~ states that a few weeks later, A~ went to the nearby town of Bindura to apply for M~’s birth certificate. The birth registry official did not allow P~ to sign the application until after A~ had completed the initial application. The Zimbabwe birth registry official issued M~’s birth certificate on March, and it shows that she was born January, her father is A~, her mother is P~, and her full name is M~.

Events Since A~, P~ and M~ Moved to the United States

In 1999, A~ moved to Dallas, Texas to work. In early 2000, P~ and M~ moved to Houston, Texas, and then towards the end of 2000, they moved to North Carolina to live near P~’s cousins. P~ said that A~ visited with her and M~ in North Carolina once or twice a year beginning in 2002. P~ reported that in 2004, A~ made arrangements with his family in Zimbabwe to pay the l~, and that she consented for their marriage ceremony to be done in absentia in Harare, Zimbabwe. P~ said that in accordance with the Shona tribe customary marriage laws, A~ and his family contacted her family for her hand in marriage. P~ said that their two families met in Harare, Zimbabwe, conducted a day-long customary marriage ceremony, and A~’s family paid the l~. P~ said that because she and A~ were not present in Zimbabwe, her sister represented her and A~’s brother represented him during the ceremony. P~ states that she and M~ did not subsequently live with A~ in Texas, but that A~ would send a few dollars for M~ here and there, and that A~ kept in touch with them until his death on May 15, 2011.

In June 2012, P~ filed an application for Social Security surviving child’s benefits on A~’s earnings record. In support of her application, P~ presented to the agency a Certified Copy of an Entry of Birth Registered in the District of Harare in Zimbabwe (birth certificate), which contains an Authentication from Melusi Mathiya, Secretary for Home Affairs of the Government of Zimbabwe, dated February 29, 2012.

Legal Analysis

A child may be eligible for Social Security benefits if she is an individual’s child who is entitled to old-age or disability benefits, or who has died fully or currently insured. See 42 U.S.C. §402(d)(1); 20 C.F.R. § 404.350 (2012). To determine whether an applicant is a number holder’s child for the purposes of the Social Security Act (the Act), the agency will apply the intestacy laws of the state in which the number holder had his permanent home at the time of his death. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b). If the child is eligible to inherit the number holder’s intestate personal property according to applicable state law, the agency shall deem her the number holder’s child for purposes of receiving surviving child’s benefits under the Act. See 42 U.S.C. §416(h)(2)(A); 20 C.F.R. §404.355(b). Thus, M~’s eligibility for child’s benefits depends on whether she could inherit property through Texas intestacy laws as A~’s child since A~ had his permanent home in Texas when he died.

The Texas Probate Code specifies the following methods by which a right to paternal inheritance may be established:

(1) the child is born under circumstances described in Section 160.201 of the Family Code; 26

(2) the child is adjudicated to be the child of the father by court decree as provided by Chapter 160 of the Family Code (i.e., the Uniform Parentage Act);

(3) the father adopted the child;

(4) the father executed an acknowledgement of paternity as provided by Subchapter D, Chapter 160 of the Family Code, or a like statement properly executed in another jurisdiction, so that the child and her issue shall inherit from the father and paternal kindred, both descendants, ascendants, and collaterals in all degrees, and they may inherit from the child and her issue; or

(5) the child establishes by clear and convincing evidence that the purported father was the biological father of the child.

See Tex. Prob. Code § 42(b)(1). The evidence submitted does not support a finding that A~’s paternity has been established under the first, second, or third method of section 42(b)(1). 27 The facts presented demonstrate that the fourth method is met in the present case because A~ validly acknowledged paternity in Zimbabwe when he had his name placed on M~’s birth certificate. In addition, the fifth method is met because the submitted evidence establishes by clear and convincing evidence that A~ was M~’s biological father.

A~ Acknowledged Paternity of M~ Pursuant to Subchapter D, Section 160 of the Family Code

As stated, under section 42(b)(1) of the Texas Probate Code, a child may establish paternal inheritance by showing that the father executed an acknowledgement of paternity as provided by Subchapter D, Chapter 160 of the Family Code (i.e., Tex. Fam. Code §§ 160.301-160.315). See Tex. Prob. Code §42(b)(1). Under Subchapter D, Section 160 of the Texas Family Code, a valid acknowledgment of paternity (1) is in a record; (2) is signed or otherwise authenticated; (3) states that the child does not have a presumed or another acknowledged or adjudicated father; (4) states whether there is genetic testing; and (5) states that the signatories understand that the acknowledgment is the equivalent of a judicial adjudication of paternity. See Tex. Fam. Code §§160.201(b)(3); 160.302(a)(1)-(5).

Because this case involves international laws, we sought guidance from the Law Library of Congress, Global Legal Research Center on the issue of whether the Zimbabwe birth certificate is sufficient to meet the requirements of Subchapter D, Section 160 of the Texas Family Code to show an acknowledgment of paternity.28 See Tex. Fam. Code §§ 160.301-160.315. Under Zimbabwe law, notification and registration of any child’s birth in Zimbabwe after June 20, 1986, is compulsory. See Zimbabwe Births and Deaths Registration Act of 1986, Chapter 5:02, § 10 (2005). The notice shall be given to a registrar of births in a prescribed form. Id. at § 11. After considering Zimbabwe law, the Law Library of Congress concluded that a birth certificate bearing the name of a putative father, such as the one submitted in this case, is evidence of acknowledgment of paternity for several reasons.

First, the Law Library of Congress noted that Zimbabwe law explicitly states a putative father’s name can be inserted into the birth certificate of a child born out of wedlock only if the father allows it. 29 On receipt of the notice of birth form, the registrar shall examine the document and cause any defect or inaccuracy therein to be remedied or corrected. Id. at § 24(1). A person is subject to a fine and/or imprisonment up to one year if they give false information or neglect to state any of the particulars in the form prescribed. Id. at § 27(2). Thus, the Law Library of Congress concluded that because A~ indicated he was M~’s father in the application for the birth certificate and was subject to a fine and imprisonment for giving false information, the birth certificate is evidence of his paternity.

Second, the Law Library of Congress opined that Zimbabwe law is clear that “[a] document purporting to be a copy of any entry in any register certified under the hand of the Registrar-General or a registrar to be a true copy shall, . . . be prima facie evidence in all courts of the dates and facts therein stated.” Id. at § 7. As noted, the Certified Copy of M~’s birth certificate, which contains an Authentication from Melusi, Secretary for Home Affairs of the Government of Zimbabwe, shows that she was born January, and lists A~ as her father and P~ as her mother. Thus, the Law Library of Congress concluded that M~’s birth certificate is prima facie evidence that A~ acknowledged that he is M~’s father.

Texas Courts shall give full faith and credit to an acknowledgment of paternity that is effective or otherwise in compliance with the laws in another jurisdiction. See Tex. Fam. Code § 160.311. In fact, similar to Zimbabwe law, Texas law provides that “items on a birth certificate relating to a child’s father shall be completed only if: (1) the child’s mother was married to the father . . . (2) paternity is established by order of a court of competent jurisdiction; or (3) a valid acknowledgment of paternity executed by the father has been filed with the bureau of vital statistics as provided by Subchapter D, Chapter 160, Family Code.” See Tex. Health & Safety Code § 192.005(a)(2),(3) (emphasis added). Thus, because the Zimbabwe registrar certified that the information on M~’s birth certificate is accurate, and because A~’s name could not appear on M~’s birth certificate without his approval, Texas Courts would find that A~ properly executed a valid acknowledgement of paternity in accordance with the laws of another jurisdiction. See e.g., Tex. Fam. Code § 101.035 (tribunal includes an administrative agency authorized to determine paternity).

Under Texas law, a valid acknowledgment of paternity is the equivalent of an adjudication of the paternity of the child and confers on the acknowledged father all rights and duties of a parent. See Tex. Fam. Code §§160.305(a), 160.201(b). Thus, because M~ could inherit from A~ under Texas law, she is entitled to Social Security surviving child’s benefits on A~’s earnings record.

Clear and Convincing Evidence Establishes A~ as M~’s Biological Father

Under section 42(b)(1) of the Texas Probate Code, a child may establish paternal inheritance by showing clear and convincing evidence that the man is the child’s biological father. See Tex. Prob. Code § 42(b)(1). The Texas Family Code defines “clear and convincing evidence” as “the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” See Tex. Fam. Code §101.007; Villery v. Solomon, 16 S.W.3d 106, 107 (Tex. App. – Houston (1st Dist.), 2000, no writ) (citing In the Interest of G.M., 596 S.W.2d 846, 847 (Tex. 1980)). 30

The evidence submitted in the present case shows that a Texas Court would deem A~ to be M~’s father because “he acknowledged his paternity under applicable law” (i.e., Zimbabwe law). See Texas Family Code § 101.024. A Zimbabwe registrar of births determined that A~ had proved proper paternity. See Zimbabwe Births and Deaths Registration Act of 1986, Chapter 5:02, § 24(1) (“On receipt of the notice of birth form, the registrar shall examine the document and cause any defect or inaccuracy therein to be remedied or corrected.”); and § 12 (“A registrar shall not enter in the register [a document from which the particulars in a birth certificate are drawn] the name of any person as the father of a child born out of wedlock, except . . . (a) upon the joint request of the mother and the person acknowledging himself to be the father of the child.”).

A valid acknowledgment of paternity filed with the bureau of vital statistics is the equivalent of an adjudication of the child’s paternity. See Tex. Fam. Code §160.305(a); In re S.R.B., 262 S.W.3d 428, 430 (Tex. App. – Houston (14th Dist.), 2008). Thus, we believe that a Texas court would accept M~’s Zimbabwe birth certificate, which names A~ as M~’s father as clear and convincing evidence of his paternity. See Tex. Fam. Code §101.007; Villery v. Solomon, supra.

Conclusion

M~ may inherit property from the A~ under Texas intestacy law, and she is entitled to surviving child’s benefits on A~’s account.

Michael McGaughran

Regional Chief Counsel

By: ____________

C~ Carillo

Assistant Regional Counsel

G. PR 12-053 Texas Law – Status of Child Relationship - Resubmission (NH J~ , SSN ~) – REPLY

DATE: February 14, 2012

1. SYLLABUS:

The evidence is sufficient to establish paternal inheritance rights under the Texas Probate Code. C~ has established that the number holder is T~’s father, and the agency should consider T~ to be the number holder’s child for Social Security purposes.

2. OPINION

This memorandum is in response to your request for an updated legal opinion on whether, under Texas law, a deoxyribonucleic acid (DNA) report involving a deceased number holder, the child’s mother, and the child is sufficient to establish a parent-child relationship between the child and the deceased number holder when the DNA report shows a 99.99 percent probability that the deceased number holder and child are related. Based on the new evidence submitted, it is our opinion that, under Texas law, the facts presented here are now sufficient to establish the child’s paternity. The DNA report satisfies the probability provision for genetic testing under Texas law, and the DNA report meets the Texas statutory requirements to establish paternity because the documentation is now sufficient to establish a reliable chain of custody. 31

As we understand the facts, J~ (number holder) died on August 24, 2010, while domiciled in Texas. At the time of his death, the number holder was married to C~ . On February , T~ was born to C~. C~ claimed that the number holder was T~’s father; however, the number holder was married to T~. during the time C~ was pregnant and gave birth to T~, and he did not live with, support, or acknowledge T~ during his lifetime.

On February 17, 2011, C~ filed for child’s survivor benefits on T~’s behalf on the number holder’s account, claiming that the number holder was T~’s father. On March 29, 2011, the Social Security Administration (agency) denied the February 2011 application for child’s benefits because C~ failed to provide any evidence to establish a biological relationship between the number holder and T~. On August 10, 2011, C~ requested reconsideration of the agency’s denial. In support of her request for reconsideration, C~ provided a May 26, 2011, DNA report. The report tested DNA samples from the number holder, C~, and T~. With T~ ’s consent, C~ obtained blood samples the Bexar County Medical Examiner’s Office secured after the number holder’s death. The DNA report showed that there was a 99.99 percent probability that the number holder was T~’s biological father.

To be entitled to child’s benefits on an insured number holder’s account, a child must: (1) be the number holder’s child; (2) be dependent upon the number holder; (3) apply for benefits; (4) be unmarried; and (5) be under the age of 18. See 20 C.F.R. § 404.350(a)(1)-(5). Here, C~ applied for benefits on T~’s behalf on the number holder’s account. T~ is unmarried and under the age of 18. The agency will consider T~ to be dependent upon the number holder if T~ is the number holder’s natural child. See 20 C.F.R. § 404.361(a). Thus, the only remaining criterion T~ must establish is that she is the number holder’s natural child.

To determine whether an applicant is a deceased number holder’s natural child, the agency will apply the intestacy laws of the state in which the number holder had his permanent home at the time of death. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b). Texas law controls because the number holder’s permanent home was in Texas when he died. Thus, T~’s eligibility for child’s benefits on the deceased number holder’s account depends upon whether she could inherit property under Texas intestacy laws as the number holder’s child. See id.

The Texas Probate Code provides the framework for determining father-child relationships for inheritance purposes. Tex. Prob. Code § 42(b)(1). For purposes of inheritance, a child is her biological father’s child if: (1) she was born under circumstances described in Section 160.201 32 of the Family Code; (2) she was adjudicated to be the child of the father by court decree as provided by Chapter 160 of the Family Code; (3) the father adopted her; (4) the father executed an acknowledgement or like statement of paternity as provided by Subchapter D of Chapter 160 of the Family Code; or (5) clear and convincing evidence establishes that the purported father was the biological father of the child. Id. The third and fourth methods set forth in the Texas Probate Code are not applicable in this case, as the number holder neither adopted T~ nor executed an acknowledgment of paternity. Thus, for C~ to establish that T~ had a right to paternal inheritance from the number holder, it must be under the first, second, or fifth methods.

Under the first and second methods, if a court adjudicated T~ to be the number holder’s child, she would be entitled to child’s insurance benefits on the number holder’s account. See Tex. Fam. Code § 160.201(3) (parent-child relationship is established between a man and a child by an adjudication of the man’s paternity). Although we are unaware of an adjudication of paternity in this case, Social Security regulations provide that, if applicable state inheritance law requires a court determination of paternity, “we will not require that you obtain such a determination.” 20 C.F.R. § 404.355(b)(2). Instead, the agency “decide[s a child’s] paternity by using the standard of proof that the State court would use as the basis for a determination of paternity.” Id. Thus, we next look to whether a Texas court would recognize the number holder as T~’s father.

In determining paternity under chapter 160 of the Texas Family Code, a Texas court will consider the results of genetic testing, provided the DNA testing and the DNA report meet specific requirements to establish reliability and authenticity, and the testing reveals at least a 99 percent probability of paternity. See Tex. Fam. Code § 160.505(a). In order to establish reliability and authenticity, the DNA testing must first take place in a laboratory accredited by the American Association of Blood Banks, the American Society for Histocompatibility and Immunogenetics, or another accrediting body the Secretary of the United States Department of Health and Human Services designates. See Tex. Fam. Code § 160.503(a). Second, a laboratory designee must sign the DNA report under penalty of perjury. See Tex. Fam. Code § 160.504(a). Third, testimony or documentation must establish a reliable chain of custody by: (1) the names and photographs of the persons whose specimens have been taken; (2) the names of the persons who collected the specimens; (3) the places and dates the specimens were collected; (4) the names of the persons who received the specimens in the testing laboratory; and (5) the dates the specimens were received. See Tex. Fam. Code § 160.504(b). In this case, the DNA report showed a 99.99 percent probability that the number holder is T~’s biological father, which satisfies the probability provision of the Texas Family Code. Tex. Fam. Code § 160.505(a). Further, the DNA testing and the DNA report meets the Texas statutory requirements for genetic testing to establish paternity because the documentation now establishes a reliable chain of custody. See Tex. Fam. Code § 160.504(b)(1)-(5).

In this case, DNA testing took place at DNA Diagnostics Center (DDC). The documentation shows that American Association of Blood Banks accredited DDC, and that T~ , Ph.D., the Laboratory Director, certified the DNA analysis report. See Tex. Fam. Code §§ 160.503, 160.504(a). The documentation also shows that Dr. Elizabeth and Sarah of the Bexar County Medical Examiner’s Office collected the specimens in May 2011, and that the specimens were received in the DDC testing laboratory in May 2011. See Tex. Fam. Code § 160.504(b)(2), (3), (5). In addition, the supplemental documentation you recently submitted shows that in May 2011, Dr. T~ filled out and signed a Supplemental Request/Specimen Transfer Chain of Custody form, indicating that she took “spot card circle” DNA samples from the deceased number holder. See Tex. Fam. Code § 160.504.

Although the report contains C~’s, T~’s, and the number holder’s names, and C~’s and T~’s photograph, it does not include a photograph of the number holder. See Tex. Fam. Code § 160.504(b)(1). Since the number holder was deceased and the DNA sample consisted of the number holder’s blood specimen secured after his death by the Bexar County Medical Examiner’s Office, DDC provided a photograph of the specimen taken from the medical examiner’s office. However, the photograph is partially blocked by the photograph of C~ and T~ and does not clearly identify the blood specimen as being that of the deceased number holder. Regardless, we note that in the comments to Section 504 of the Uniform Parentage Act (upon which section 160.504(b) of the Texas Family Code is modeled), the drafter stated that “samples from a deceased individual may be obtained from a coroner’s office and a picture of the individual need not be taken.” See Tex. Fam. Code § 160.504(b); Unif. Parentage Act § 504. Thus, a photograph of the deceased is not necessary to provide sufficient verification of the identity of the blood specimen. However, we note that the drafter in the comments section continued and stated that, in such cases of a deceased individual with no photograph, “proof of the chain of custody of the body maintained by the coroner may be provided.” Id. Thus, we next look at whether the documentation from the Bexar County Medical Examiner’s Office is sufficient to establish a reliable chain of custody. See id.

In this case, a Postmortem Specimen Identification Form shows that “Dr. T~” collected the blood specimen from the deceased number holder. The form also showed that Dr. T~ was “unable to sign” the affirmation that she had collected the blood specimen, properly identified the deceased number holder’s specimen, and properly labeled the container and package with the deceased number holder’s name, date of birth, and date of collection. Although Sarah did sign and affirm that she properly packaged the blood specimen, she did not collect the blood specimen from the deceased number holder; instead, Dr. T~ collected the blood specimen. However, the additional documentation you recently submitted shows that Dr. T~ signed the Supplemental Request/Specimen Transfer Chain of Custody form indicating that she took the “spot card circle” DNA samples from the deceased number holder. As such, we believe that the totality of the evidence, including Dr. T~’s signature and affirmation that she collected the blood specimen from the deceased number holder, constitutes sufficient verification of the identity of the blood specimen obtained from the Bexar County Medical Examiner’s Office to satisfy section 160.504(b)(1) of the Texas Family Code. Thus, we believe that a Texas court would consider the May 26, 2011, DNA report as evidence of the number holder’s paternity. Accordingly, T~ would be entitled to inherit from the number holder under the first or second method for determining paternal inheritance rights.

In conclusion, the evidence is sufficient to establish paternal inheritance rights under the Texas Probate Code. Consequently, C~ has established that the number holder is T~’s father, and the agency should consider T~ to be the number holder’s child for Social Security purposes.

Michael McGaughran

Regional Chief Counsel

By: ____________

Carolyn A. Ebbers

Assistant Regional Counsel

H. PR 12-017 Follow up to October 5, 2011 Memo About Whether a Texas Probate Court Judgment Conclusively Determines the Parentage of the Children of the Deceased Number Holder, J~ , SSN ~.

DATE: November 14, 2011

1. SYLLABUS:

We conclude that the Texas probate court Judgment Declaring Heirship is not conclusive evidence to determine the parentage of the children of the deceased NH.  The Texas probate court order must satisfy the requirements of SSR 83-37c in order to conclusively determine the parentage of the children of the deceased NH. In this case, the court order does not satisfy the requirements of SSR 83-37c because it was not the result of a genuinely disputed issue by opposing parties.

2. OPINION

QUESTIONS PRESENTED

After receiving our October 5, 2011 memo, you received more evidence from the claimant and asked for additional guidance on whether the Texas probate court order satisfied the requirements of Social Security Ruling (SSR) 83-37c.  Specifically, whether 1) the court order was the result of a genuinely disputed issue by opposing parties; and 2) the court order was consistent with the laws enunciated by the Texas Supreme Court?

SHORT ANSWER

The Texas probate court order is not conclusive evidence to determine the parentage of the deceased NH’s children.  The court order does not satisfy the requirements of SSR 83-37c because it was not the result of a genuinely disputed issue by opposing parties.

BACKGROUND

Based on the information you provided, the NH died on January 31, 2010, while domiciled in Mexico. In February 2010, the agency denied survivor claims for children’s benefits from A~ and J~.  A~ was born in September, and J~ was born in October. There was no father’s name listed on their birth certificates. There is no evidence that the NH married either of the respective mothers of the two applicants.

At some point after the NH’s death, V~, A~’s mother, filed an application to determine heirship of the NH’s estate. In her application, A~ alleged that A~ and J~ were the NH’s children.  The El Paso County Texas Statutory Probate Court No. 2 scheduled a hearing. According to a statement that you received from A~, A~’s attorney did not ask the NH’s mother to be present at the hearing and the NH’s father was deceased. A~ claims that she asked one of the NH’s brothers to be present at the hearing, but he did not respond. It is not clear whether A~ or her attorney informed the NH’s other siblings about the heirship proceeding. 

On June 29, 2011, the probate court conducted a hearing. R~ , Esq., A~’s attorney, presented the testimony of four witnesses: V~, Jessica, S~ and Madai. C~, Esq., represented the unknown heirs as an attorney ad litem.  An attorney ad litem refers to an attorney appointed by the court to act in a lawsuit on behalf of another party who is deemed incapable of representing themselves.  See Legal Explanations.com at http://www.legal-explanations.com/definitions/ad-litem.htm (last visited on November 7, 2011). As an attorney ad litem, C~’s role was to protect the interests of any potential heirs of the NH that the applicant had not identified in her application. At the hearing, A~ testified that the NH was the father of A~ and J~.  The other three witnesses supported A~’s testimony. C~ questioned the witnesses about whether the NH might have any other heirs, but he did not challenge the veracity of their statements.  

On July 1, 2011, the Texas probate court issued a Judgment Declaring Heirship. The court ruled that the following people were the heirs of the NH and entitled to one-fourth of his estate: J~ (son), S~ (daughter), A~ (daughter), and J~ (son).

Based on the court order, A~ and J~ have filed new claims for children’s benefits.   

DISCUSSION

The Texas Probate Court Judgment Does Not Conclusively Determine that the Deceased NH is the Parent of the Claimants Because the Court Order Does Not Satisfy the Requirements of  SSR 83-37c.  

As we discussed in our first memo, the Texas probate court order must satisfy the requirements of SSR 83-37c in order to conclusively determine the parentage of the children of the deceased NH.  Because the probate court order does not satisfy the second requirement of SSR 83-37c, it is not conclusive evidence that A~ and J~ are the NH’s children.  

Pursuant to SSR 83-37c, which adopts the Sixth Circuit Court of Appeals decision in  Gray v. Richardson, 474 F.2d 1370, 1373 (6th Cir. 1973), the agency is bound by state court decisions where (1) a state court of competent jurisdiction has previously adjudicated an issue in a claim for Social Security benefits; (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.

As discussed in our first memo, the Texas probate court order meets the first and third prong of the itest.  The Texas probate court is a “court of competent jurisdiction,” and, clearly, the ruling on heirship falls within the category of domestic relations law. 

The probate court’s order, however, does not satisfy the second prong of G~ because it was not the result of a genuinely disputed issue by opposing parties. A court judgment is not the product of a genuine contest of the issues when there is no evidence presented challenging the plaintiff’s position and plaintiff is not cross-examined by another party opposed to that position. Winters v. Sec’y of Health & Human Servs., No. C-3-87-419, 1989 WL 280323, *2 (S.D. Ohio Dec. 11, 1989); see also Outwater for McClinchey v. Sec’y Health & Human Servs.,

894 F. Supp. 1114, 1120 (E.D. Mich 1995) (holding that the court proceeding failed to show a “genuine contest” when the only evidence presented was on behalf of the claimant). 

Notably, in W~, the court upheld the ALJ’s finding that a Texas probate court judgment was not the product of a genuine contest because there was no evidence presented challenging the claimant’s position nor was cross-examination undertaken by a party opposed to the claimant’s position. W~, 1989 WL 280323 at *2. In W~, the claimant’s mother received a Texas probate court judgment that the claimant was the heir of a deceased NH. Id. at *1. At the hearing, all of the witnesses testified in support of the claimant. Id.  The guardian ad litem conducted the cross-examination of the witnesses, and the cross examination was limited to the issue of whether the deceased NH had any other heirs. Id.  

As in W~, the claimant’s mother in this case obtained a Texas probate court judgment that the claimant was the heir of a deceased NH. Id. Just as in our case, the judge heard testimony only from plaintiff’s witnesses, the guardian ad litem conducted the only cross-examination of the witnesses, and the cross examination was limited to the issue of whether the deceased NH had any other heirs. Id. No party challenged plaintiff’s position that the claimant was an heir of the deceased NH. Therefore, like W~, this Texas probate court order fails the “genuinely contested” requirement of SSR 83-37c. We also note that the claimants may not have satisfied the fourth prong of because the hearing transcript calls into question whether the probate court order was consistent with the law enunciated by the highest court in the State. At the hearing, Mr. T~ informed the judge that the NH did not own property and that the purpose of the heirship application was so that A~ could qualify her child for Social Security benefits through the deceased NH.  Because a deceased person generally has to own or be entitled to property for a court to hold an heirship proceeding, it is not clear that the Texas probate court followed the applicable state laws. See Tex. Prob. Code Ann. § 48 (West 2011) (when a person dies intestate owning or entitled to property in Texas, the court where the deceased person’s property is situated may hold a proceeding to determine heirship and declare who are the heirs and their respective interests). We need not determine, however, whether the fourth criterion was met, since the probate court’s finding in this case is not binding on SSA because the second criterion was not met.  

In conclusion, the Texas probate court order cannot satisfy the requirements of G~ because it was not the result of a genuinely disputed issue by opposing parties. Therefore, the probate court order is not conclusive evidence to determine the parentage of the deceased NH.

CONCLUSION

Accordingly, we conclude that the Texas probate court Judgment Declaring Heirship is not conclusive evidence to determine the parentage of the children of the deceased NH. 

Eric P. Kressman

Regional Chief Counsel

By: ____________

Chantal R. Jenkins

Assistant Regional Counsel

I. PR 12-009 Texas Law – Status of Child Relationship (NH J~, SSN ~)

DATE: October 28, 2011

1. SYLLABUS:

Under the Texas Probate Code, the facts presented are insufficient to establish the child’s paternity. Although the DNA report satisfies the probability provision for genetic testing under Texas law, the DNA report does not meet the Texas statutory requirements to establish paternity because the documentation is insufficient to establish a reliable chain of custody. In addition, while Texas law provides that paternity can be established through other clear and convincing evidence, the facts presented in this case do not meet that standard.

2. OPINION

This memorandum is in response to your request for a legal opinion on whether, under Texas law, a deoxyribonucleic acid (DNA) report involving a deceased number holder, the child’s mother, and the child is sufficient to establish a parent-child relationship between the child and the deceased number holder when the DNA report shows a 99.99 percent probability that the deceased number holder and child are related. It is our opinion that, under Texas law, the facts presented here are insufficient to establish the child’s paternity. Although the DNA report satisfies the probability provision for genetic testing under Texas law, the DNA report does not meet the Texas statutory requirements to establish paternity because the documentation is insufficient to establish a reliable chain of custody. In addition, while Texas law provides that paternity can be established through other clear and convincing evidence, the facts presented in this case do not meet that standard.

As we understand the facts, J~ (number holder) died on August 24, 2010, while domiciled in Texas. At the time of his death, the number holder was married to Charlotte. In February, T~ was born to C~. C~ claimed that the number holder was T~’s father; however, the number holder was married to Charlotte during the time C~ was pregnant and gave birth to T~, and he did not live with, support, or acknowledge T~ during his lifetime.

On February 17, 2011, C~ filed for child’s survivor benefits on T~’s behalf on the number holder’s account, claiming that the number holder was T~’s father. On March 29, 2011, the Social Security Administration (agency) denied the February 2011 application for child’s benefits because C~ failed to provide any evidence to establish a biological relationship between the number holder and T~. On August 10, 2011, C~ requested reconsideration of the agency’s denial. In support of her request for reconsideration, C~ provided a May 26, 2011, DNA report. The report tested DNA samples from the number holder, C~, and T~. With Charlotte’s consent, C~ obtained blood samples the Bexar County Medical Examiner’s Office secured after the number holder’s death. The DNA report showed that there was a 99.99 percent probability that the number holder was T~’s biological father.

To be entitled to child’s benefits on an insured number holder’s account, a child must: (1) be the number holder’s child; (2) be dependent upon the number holder; (3) apply for benefits; (4) be unmarried; and (5) be under the age of 18. See 20 C.F.R. § 404.350(a)(1)-(5). Here, C~ applied for benefits on T~’s behalf on the number holder’s account. T~ is unmarried and under the age of 18. The agency will consider T~ to be dependent upon the number holder if T~ is the number holder’s natural child. See 20 C.F.R. § 404.361(a). Thus, the only remaining criterion T~ must establish is that she is the number holder’s natural child.

To determine whether an applicant is a deceased number holder’s child, the agency will apply the intestacy laws of the state in which the number holder had his permanent home at the time of death. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b). Texas law controls because the number holder’s permanent home was in Texas when he died. Thus, T~’s eligibility for child’s benefits on the deceased number holder’s account depends upon whether she could inherit property under Texas intestacy laws as the number holder’s child. See id.

The Texas Probate Code provides the framework for determining father-child relationships for inheritance purposes. Tex. Prob. Code § 42(b)(1). For purposes of inheritance, a child is her biological father’s child if: (1) she was born under circumstances described in Section 160.201 33 of the Family Code; (2) she was adjudicated to be the child of the father by court decree as provided by Chapter 160 of the Family Code; (3) the father adopted her; (4) the father executed an acknowledgement or like statement of paternity as provided by Subchapter D of Chapter 160 of the Family Code; or (5) clear and convincing evidence establishes that the purported father was the biological father of the child. Id. The third and fourth methods set forth in the Texas Probate Code are not applicable in this case, as the number holder neither adopted T~ nor executed an acknowledgment of paternity. Thus, for C~ to establish that T~ had a right to paternal inheritance from the number holder, it must be under the first, second, or fifth methods.

Under the first and second methods, if a court adjudicated T~ to be the number holder’s child, she would be entitled to child’s insurance benefits on the number holder’s account. See Tex. Fam. Code § 160.201(3) (parent-child relationship is established between a man and a child by an adjudication of the man’s paternity). Although we are unaware of an adjudication of paternity in this case, Social Security regulations provide that, if applicable state inheritance law requires a court determination of paternity, “we will not require that you obtain such a determination.” 20 C.F.R. § 404.355(b)(2). Instead, the agency “decide[s a child’s] paternity by using the standard of proof that the State court would use as the basis for a determination of paternity.” Id. Thus, we next look to whether a Texas court would recognize the number holder as T~’s father.

In determining paternity under chapter 160 of the Texas Family Code, a Texas court will consider the results of genetic testing, provided the DNA testing and the DNA report meet specific requirements to establish reliability and authenticity, and the testing reveals at least a 99 percent probability of paternity. See Tex. Fam. Code § 160.505(a). In order to establish reliability and authenticity, the DNA testing must first take place in a laboratory accredited by the American Association of Blood Banks, the American Society for Histocompatibility and Immunogenetics, or another accrediting body the Secretary of the United States Department of Health and Human Services designates. See Tex. Fam. Code § 160.503(a). Second, a laboratory designee must sign the DNA report under penalty of perjury. See Tex. Fam. Code § 160.504(a). Third, testimony or documentation must establish a reliable chain of custody by providing: (1) the names and photographs of the persons whose specimens have been taken; (2) the names of the persons who collected the specimens; (3) the places and dates the specimens were collected; (4) the names of the persons who received the specimens in the testing laboratory; and (5) the dates the specimens were received. See Tex. Fam. Code § 160.504(b). In this case, the DNA report showed a 99.99 percent probability that the number holder is T~’s biological father, which satisfies the probability provision of the Texas Family Code. See Tex. Fam. Code § 160.505(a). However, the DNA testing and the DNA report do not meet the Texas statutory requirements for genetic testing to establish paternity because the documentation is insufficient to establish a reliable chain of custody. See Tex. Fam. Code § 160.504(b)(1)-(5).

In this case, DNA testing took place at DNA Diagnostics Center (DDC). The documentation shows that American Association of Blood Banks accredited DDC, and that T~, Ph.D., the Laboratory Director, certified the DNA analysis report. See Tex. Fam. Code §§ 160.503, 160.504(a). In addition, the documentation shows that Dr. T~ and Sarah of the Bexar County Medical Examiner’s Office collected the specimens in May 2011, and that the specimens were received in the DDC testing laboratory in May 2011. See Tex. Fam. Code § 160.504(b)(2), (3), (5). However, the DNA report does not include additional documentation Texas law requires to satisfactorily document the chain of custody of the DNA samples. See Tex. Fam. Code § 160.504.

Although the report contains C~’s, T~’s, and the number holder’s names, and C~’s and T~’s photograph, no photograph of the number holder is provided. See Tex. Fam. Code § 160.504(b)(1). Since the number holder was deceased and the DNA sample consisted of the number holder’s blood specimen secured after his death by the Bexar County Medical Examiner’s Office, DDC provided a photograph of the specimen taken from the medical examiner’s office. However, the photograph is partially blocked by the photograph of C~ and T~ and does not clearly identify the blood specimen. Regardless, we note that in the comments to Section 504 of the Uniform Parentage Act (upon which section 160.504(b) of the Texas Family Code is modeled), the drafter stated that “samples from a deceased individual may be obtained from a coroner’s office and a picture of the individual need not be taken.” See Tex. Fam. Code § 160.504(b); Unif. Parentage Act § 504. Thus, a photograph of the deceased is not necessary to provide sufficient verification of the identity of the blood specimen. However, we note that the drafter in the comments section continued and stated that, in such cases of a deceased individual with no photograph, “proof of the chain of custody of the body maintained by the coroner may be provided.” Id. Thus, we next look at whether the documentation from the Bexar County Medical Examiner’s Office is sufficient to establish a reliable chain of custody.

In this case, a Postmortem Specimen Identification Form shows that “Dr. T~” collected the blood specimen from the deceased number holder. However, the form states that Dr. T~ was “unable to sign” the affirmation that she had collected the blood specimen, properly identified the deceased number holder’s specimen, and properly labeled the container and package with the deceased number holder’s name, date of birth, and date of collection. Although Sarah did sign and affirm that she properly packaged the blood specimen, she did not collect the blood specimen from the deceased number holder; instead, Dr. T~ collected the blood specimen. As such, we believe that, without Dr. T~’s signature and affirmation that she collected the blood specimen from the deceased number holder, no sufficient verification of the identity of the blood specimen obtained from the Bexar County Medical Examiner’s Office exists to satisfy section 160.504(b)(1) of the Texas Family Code. In fact, under Texas law, if the May 26, 2011, DNA report was presented in a Texas court without Dr. T~’s signature, we believe that the DNA report would not be self-authenticating, and that the court would require additional testimony, or a signed affidavit from Dr. T~, before accepting the DNA results. See Tex. Fam. Code § 160.504 (a DNA report that meets all the requirements in this sub-chapter is self-authenticating); Unif. Parentage Act § 504 (“proof of the chain of custody of the body maintained by the coroner may be provided”).

We conclude that, without further evidence satisfying all of the reliability and authenticity provisions of the Texas Family Code, a Texas court would not consider the May 26, 2011, DNA report as evidence of the number holder’s paternity. 34 Accordingly, T~ would not be entitled to inherit from the number holder under the first or second method for determining paternal inheritance rights.

T~ also cannot establish paternal inheritance rights under the fifth method, because the facts do not provide clear and convincing evidence that the number holder was T~’s biological father. See Tex. Prob. Code § 42(b)(1). The Texas Family Code defines “clear and convincing evidence” as “the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” Tex. Fam. Code § 101.007. Although a Texas court would consider the May 26, 2011, DNA report when deciding whether the evidence in a particular case is clear and convincing, the DNA test results must demonstrate by clear and convincing evidence that the number holder was or was not T~’s biological father. Tipps v. Metropolitan Life Ins. Co., 768 F.Supp. 577, 579-81 (S.D. Tex. 1991).

As discussed above, the May 26, 2011, DNA report does not satisfy all of the reliability and authenticity provisions of the Texas Family Code. See Texas Family Code § 160.504(b). Thus, the May 26, 2011, DNA report does not constitute clear and convincing evidence that the number holder was T~’s biological father.

C~ stated in a Child Relationship Statement that the number holder’s sister told her that the number holder included T~ in his family tree and verbally acknowledged to his sister and his niece that T~ was his child. However, we do not believe that C~’s statements, standing alone, constitute clear and convincing evidence that the number holder was T~’s biological father. Since C~’s statements would not instill a firm belief or conviction in a fact finder that the number holder was T~’s biological father, coupled with the fact that no other corroborating evidence exists, we do not believe that a Texas court would find the statements to constitute clear and convincing evidence. Thus, C~ has not established paternal inheritance rights under any of the five methods provided under the Texas Probate Code.

The evidence is insufficient to establish paternal inheritance rights under the Texas Probate Code. Consequently, C~ cannot establish that the number holder is T~’s father, and the agency should not consider T~ to be the number holder’s child for Social Security purposes.

Michael McGaughran

Regional Chief Counsel

By:____________

Carolyn Ebbers Whitson

Assistant Regional Counsel

J. PR 12-003 Whether a Texas Probate Court Judgment Conclusively Determines the Parentage of the Children of the Deceased Number Holder, Joel, SSN ~.

DATE: October 5, 2011

1. SYLLABUS:

Because the NH died in Mexico, a jurisdiction not defined in the Act as a state, the law of the District of Columbia was applied in determining the status of A~ and J~.

Accordingly, it was concluded that there is not sufficient evidence to determine whether the Texas probate court Judgment Declaring Heirship is conclusive evidence to determine the parentage of the children of the deceased NH under the District of Columbia law. Accordingly, it was recommended that the agency require the claimant to provide additional evidence that establishes 1) that the court order was the result of a genuinely disputed issue by opposing parties; and 2) that the court order was consistent with the laws enunciated by the Texas Supreme Court.

2. OPINION

QUESTIONS PRESENTED

  1. Is a Texas probate court Judgment Declaring Heirship conclusive evidence under District of Columbia law to determine the parentage of the children of the deceased number holder (“NH”), Joel, who died while domiciled in Mexico?

  2. Is the Texas probate court order a final judgment?

SHORT ANSWER

There is insufficient evidence to establish that the Texas probate court Judgment Declaring Heirship is conclusive evidence to determine the parentage of the children of the deceased NH. We believe that the Texas probate court is a “court of competent jurisdiction” because the probate court had subject matter jurisdiction. We further believe that the Texas probate court order is a final judgment based on the applicable Texas statutes. However, there is not enough evidence to determine that the Texas court order met the requirements for SSR 83-37c: specifically, 1) whether the court order was the result of a genuinely disputed issue by opposing parties; and 2) whether the court order was consistent with the law as enunciated by the Texas Supreme Court. Therefore, the agency should require that the claimant provide additional information.

BACKGROUND

Based on the information you provided, the NH died on January 31, 2010, while domiciled in Mexico. In February 2010, the agency denied survivor claims for children’s benefits from A~ and J~. A~ was born on September , and J~ was born on October . There was no father’s name listed on their birth certificates. There is no evidence that the NH married either of the respective mothers of the two applicants.

At some point after the NH’s death, V~, A~’s mother, filed an application to determine heirship of the NH’s estate. 35 On June 29, 2011, the El Paso County Texas Statutory Probate Court No. 2 conducted a hearing at which the following four witnesses testified: V~, J~, S~, and M~. 36

On July 1, 2011, the Texas probate court issued a Judgment Declaring Heirship. The court ruled that the following people were the heirs of the NH and entitled to one-fourth of his estate: J~ (son), S~ (daughter), A~ (daughter), and J~ (son).

Based on the court order, A~ and J~ have filed new claims for children’s benefits.

DISCUSSION

  1. Under the Relevant Provisions of the Social Security Act, the District of Columbia Law Applies.

The Social Security Act provides that in determining paternity for the purposes of entitlement to social security benefits, the Commissioner will apply the inheritance law of the state in which the insured individual was domiciled at the time the application was filed or, if the insured individual is dead, of the state in which the insured individual was domiciled at the time of his death. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1)(2011). If a child would be considered a child under the applicable state intestacy law, then the child is deemed as such for purposes of entitlement to benefits. Id. If the insured individual dies in a jurisdiction not defined in the Act as a state, the law applied by the courts of the District of Columbia determines the child’s status. Id.

Because the NH died in Mexico, a jurisdiction not defined in the Act as a state, the law of the District of Columbia must be applied in determining the status of A~ and J~. Id. The District of Columbia intestacy statute addressing persons born out of wedlock indicates that an individual born out of wedlock is capable of inheriting from his or her mother or father if parenthood has been established. D.C. Code Ann. §19-316 (2011). The D.C. statute addressing proof of a child’s relationship to his/her parents, provides that a child’s relationship to his/her father is established if one of the following determines the parentage of a child: a) the Superior Court of the District of Columbia, b) any other court of competent jurisdiction, c) the IV-D Agency of another state,37 or d) any entity of another state authorized to determine parentage, in compliance with jurisdictional and procedural requirements of that state. D.C. Code Ann. § 16-909 (c)(1) (2011).

  1. There is Insufficient Evidence to Establish that the Texas Probate Court Order is Conclusive Evidence to Determine the Parentage of the Children of the Deceased NH.

    1. A District of Columbia Court Would Likely Hold That a Texas Probate Court is a “Court of Competent Jurisdiction” and the Texas Probate Court Judgment is a Final Judgment.

Our research indicates that the Texas probate court is a “court of competent jurisdiction” because the probate court had subject matter jurisdiction over the case.38

The District of Columbia legislature has not defined the phrase “court of competent jurisdiction.” 39 However, the District of Columbia Circuit Court of Appeals (D.C. Circuit) recently recognized that the phrase “court of competent jurisdiction” refers to subject matter jurisdiction. See Pirelli Armstrong Tire Corp. ex rel. Fed. Nat. Mortg. Ass’n v. Raines, 534 F.3d 779, 797 (D.C. Cir. 2008). The D.C. Circuit’s interpretation of the phrase “court of competent jurisdiction” is consistent with the interpretations of the United States Supreme Court and other United States Appellate Courts. See, e.g. Wachovia Bank, Nat’l Ass’n v. Schmidt, 546 U.S. 303, 316 (2006); United States v. Morton, 467 U.S. 822, 828 (1984); Califano v. Sanders, 430 U.S. 99 (1977); See also, Oneida Indian Nation v. Hunt Const. Group, Inc., 888 N.Y.S.2d 828, 829 (N.Y. Sup. Ct. 2009); Lloyd Noland Foundation, Inc. v. HealthSouth Corp., 979 So.2d 784, 795 (Ala. Sup. Ct. 2007).

In addition to the case law, leading legal commentators have evaluated the phrase “court of competent jurisdiction” as requiring a court to have subject matter jurisdiction over the case. For example, Black’s Law Dictionary defines “court of competent jurisdiction” as one that “has the power and authority to do a particular act,” or “one recognized by law as possessing the right to adjudicate a controversy.” See Black’s Law Dictionary (9th ed. 2009).

In Texas, probate courts have exclusive jurisdiction over all probate proceedings. See Tex. Prob. Code Ann., § 4F(a) (West 2011).40 Therefore, we believe that a District of Columbia court would find that the Texas probate court was a “court of competent jurisdiction.”

Further, the Texas Probate Court Judgment of Heirship is a final judgment. Pursuant to the Texas Probate Code, a Judgment Declaring Heirship is a final judgment, which may be appealed as any other final judgment. See Tex. Prob. Code. Ann. §§ 55, 4A (West 2011).

  1. The Texas Probate Court Order Does Not Bind the Agency Because There is insufficient Evidence to Determine Whether the Court Order Complies with SSR 83-37c.

The Texas probate court order does not bind the agency because there is insufficient evidence to determine whether the court order complies with SSR 83-37c. 41

Pursuant to SSR 83-37c, which adopts the Sixth Circuit Court of Appeals decision in Gray v. Richardson, 474 F.2d 1370, 1373 (6th Cir. 1973), the agency is bound by state court decisions where (1) a state court of competent jurisdiction has previously adjudicated an issue in a claim for Social Security benefits; (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.

The Texas probate court order meets the first and third prong of the G~ test. As discussed above, the Texas probate court is a “court of competent jurisdiction,” and, clearly, the ruling on heirship falls within the category of domestic relations law.

There is insufficient evidence to determine whether the court order satisfies the second and fourth prongs of the G~ test. With respect to the second prong, it is not clear that the probate court’s order was the result of a genuinely disputed issue by opposing parties. Although the court held a proceeding, it is not clear that any of the alleged heirs testified against the others. We need the transcript of the proceeding in order to determine whether there was a contest.

With respect to the fourth prong of G~, there is insufficient information to determine whether the Texas probate court’s judgment was consistent with the law enunciated by the highest court in the State. We are unaware of any reported cases where the Texas Supreme Court has ruled on the validity of a Texas probate court Judgment Declaring Heirship. Where the State Supreme Court has not spoken on the particular area of law at issue, the Commissioner “is not required to follow a lower court’s decision to which he was not a party,” but can disregard the decision if he feels that it is contrary to what the Supreme Court of that State would rule if presented with the question. See Rogers v. Sullivan, 795 F.Supp. 761, 764-65 (E.D.N.C. 1992) (quoting Cain v. Sec’y of Health, Educ. & Welfare, 377 F.2d 55, 57 (4th Cir. 1967)); Warren v. Sec’y of Health & Human Servs. , 868 F.2d 1444, 1447 (5th Cir. 1989) (a lower court decision should be followed if it is fair and logical and no authoritative decision to the contrary exists). The Texas probate court order does not indicate how the probate court determined heirship. Under Texas law, A~, the applicant who initiated the heirship proceeding, was required to submit an application and an affidavit (sworn statement) that the application was true in substance and in fact, and that no material fact or circumstance had, within Ms. A~’s knowledge, been omitted from the application. See Tex. Prob. Code Ann. § 49(b) (West 2011); see also Wilson v. Wilson, 378 S.W.2d 156, 159 (Tex. Civ. App. 1964). In addition, before the Texas probate court issued a decision, it was required to appoint an attorney ad litem to represent the interests of any unknown heirs. See Tex. Prob. Code Ann. § 53(b) (West 2011). Without this information, we cannot determine whether the Texas probate court order was consistent with Texas state law and, thus, would be upheld by the Texas Supreme Court.

Therefore, further development is necessary in order to answer these questions. Because it is the claimant’s burden to prove entitlement, the claimant should provide additional relevant evidence on these issues. Such evidence may include, but would not be limited to, her application to determine heirship, her affidavit, and the hearing transcript. See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.355.

Thus, the agency should require that the claimant provide additional evidence so that we can determine whether the Texas probate court met the second and fourth prongs of G~ as set forth in SSR 83-37c.

CONCLUSION

Accordingly, we conclude that there is not sufficient evidence to determine whether the Texas probate court Judgment Declaring Heirship is conclusive evidence to determine the parentage of the children of the deceased NH under the District of Columbia law. Accordingly, we recommend that the agency require the claimant to provide additional evidence that establishes 1) that the court order was the result of a genuinely disputed issue by opposing parties;

and 2) that the court order was consistent with the laws enunciated by the Texas Supreme Court.

Eric P. Kressman

Regional Chief Counsel

By:____________

Chantal R. Jenkins

Assistant Regional Counsel

K. PR 11-009 Texas Law – Status of Child Relationship (NH C~, SSN ~) – REPLY

DATE: October 26, 2010

1. SYLLABUS:

In the State of Texas, it is reasonable to conclude that a NH would be considered the biological father of the claimant when considering deoxyribonucleic (DNA) of a purported paternal grandparent, the child’s mother, and the child. Under Texas law, if the DNA testing and DNA test report satisfy the reliability and authenticity requirements, and the testing reveals at least a 99 percent probability of paternity with a combined index of at least 100 to 1, a man is rebuttably identified as the child’s father.

The DNA test showed a 96.88 percent probability and did not meet the Texas Statutory requirements for genetic testing to establish paternity, as the test showed that the probability of relationship was lower than Texas law requires in order to create a presumption of paternity.

2. OPINION

This memorandum is in response to your request for a legal opinion on whether, under Texas law, a deoxyribonucleic acid (DNA) test report involving a purported paternal grandparent, the child’s mother, and the child, is sufficient to establish a parent-child relationship between the child and the deceased number holder when the DNA test report shows a 96.88 percent probability that the purported grandparent and child are related. It is our opinion that, under Texas law, the facts presented here are insufficient to establish the child’s paternity. The DNA test did not meet the Texas statutory requirements for genetic testing to establish paternity, as the test showed that the probability of relationship was lower than Texas law requires in order to create a presumption of paternity. In addition, while Texas law provides that paternity can be established through other clear and convincing evidence, the facts presented in this case do not constitute clear and convincing evidence.

As we understand the facts, C~ (number holder) died on July 27, 2009, while domiciled in Texas. J~ was born to S~ in January . The number holder lived with S~ for three to six months prior to his death, but they never married, and he did not provide support for J~. J~’s birth certificate lists J~ as her father.

On March 5, 2010, M~, the number holder’s stepmother who has temporary guardianship of J~, 42 filed for child’s benefits on J~’s behalf on the number holder’s account, claiming that the number holder was J~’s father. M~ claimed that the number holder introduced M~ to his family on July 4, 2009, and announced that she was pregnant with the number holder’s child. On April 2, 2010, the Social Security Administration (agency) denied the March 2010 application for child’s benefits because the number holder did not acknowledge paternity in writing, no court had found the number holder to be J~’s father, J~’s birth certificate listed J~ as the father, and M~ failed to provide clear and convincing evidence that the number holder was J~’s father,

On April 6, 2010, M~ requested reconsideration of the agency’s denial. In support of her request for reconsideration, M~ provided a February 1, 2010, grandparentage DNA report, as well as statements from the number holder’s brothers. The grandparentage report tested DNA samples from J~ , who is the number holder’s father, M~, and J~. The number holder’s mother, who is divorced from M~, declined to be tested. The grandparentage DNA test showed that there was a 96.88 percent probability that one of M~’s three sons was J~’s biological father. Statements from the number holder’s brothers, M~ and J~, allege that they both first met S~ when she was already pregnant.

S~ also provided three statements in support of the reconsideration – one from herself, one from J~, the number holder’s father, and one from J~. 43 S~ stated that J~’s birth certificate listed J~ as the father because she thought he was the father at the time of J~’s birth. She also stated that, although she lived with the number holder as boyfriend and girlfriend, they were experiencing difficulties. She stated that, although she was not sure who J~’s father was when she was born, when she saw the DNA test results, she knew the number holder was the father. M~ claimed that, although the number holder told his family on July 4, 2009, that the number holder was J~’s father, the number holder also told him on July 23, 2009, that there was a chance he was not J~’s father. However, M~ stated that he now believes, based on the DNA test results, the number holder was J~’s father. M~ stated that he signed the acknowledgment of paternity and J~’s birth certificate because he was told at the hospital that “someone had to sign it.” He also believes that, based on the DNA test results, he is not J~’s father.

To be entitled to child’s benefits on an insured number holder’s account, a child must:

(1) be the number holder’s child; (2) be dependent upon the number holder; (3) apply for benefits; (4) be unmarried; and (5) be under the age of 18. See 20 C.F.R. § 404.350(a)(1)-(5). Here, M~, as temporary guardian, applied for benefits on J~’s behalf on the number holder’s account. J~ is unmarried and under the age of 18. The agency will consider J~ to be dependent upon the number holder if J~ is the number holder’s natural child. See 20 C.F.R. § 404.361(a). Thus, the only remaining criterion J~ must establish is that she is the number holder’s natural child.

To determine whether an applicant is a deceased number holder’s child, the Commissioner will apply the intestacy laws of the state in which the number holder had his permanent home. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b). Texas law controls because the number holder’s permanent home was in Texas when he died. Thus, J~’s eligibility for child’s benefits depends upon whether she could inherit property under the Texas intestacy law as the number holder’s child. See id.

The Texas Probate Code provides the framework for determining father-child relationships for inheritance purposes. Tex. Prob. Code § 42(b)(1) (2009). For purposes of inheritance, a child is her biological father’s child if: (1) she was born under circumstances described in Section 160.201 44 Id. The third and fourth methods set forth in the Texas Probate Code are not applicable in this case, as the number holder neither adopted J~ nor executed an acknowledgment of paternity. Thus, for M~ to establish that J~ had a right to paternal inheritance from the number holder, it must be under the first, second, or fifth methods.

Under the first and second methods, if a court adjudicated J~ to be the number holder’s child, she would be entitled to child’s insurance benefits on the number holder’s account. See Tex. Fam. Code § 160.201(3) (parent-child relationship is established between a man and a child by an adjudication of the man’s paternity). Although we are unaware of an adjudication of paternity in this case, Social Security regulations provide that, if applicable state inheritance law requires a court determination of paternity, “we will not require that you obtain such a determination.” 20 C.F.R. § 404.355(b)(2). Instead, the agency “decide[s a child’s] paternity by using the standard of proof that the State court would use as the basis for a determination of paternity.” Id.

In determining paternity under chapter 160 of the Texas Family Code, a Texas court will consider the results of genetic testing, provided the DNA testing and the DNA test report meet specific requirements to establish reliability and authenticity. 45 See Tex. Fam. Code §§ 160.503, 160.504, 160.631. In this case, the DNA testing and the DNA test report met the requirements.46

Under Texas law, if the DNA testing and DNA test report satisfy the reliability and authenticity requirements, and the testing reveals at least a 99 percent probability of paternity with a combined paternity index of at least 100 to 1, a man is rebuttably identified as the child’s father. See Tex. Fam. Code § 160.505(a). When the man has died and cannot provide a specimen for genetic testing, the court may consider the results of genetic testing of the man’s parents. See Tex. Fam. Code § 160.508(a)(1); see also Tipps v. Metropolitan Life Ins. Co., 768 F.Supp. 577, 579-80 (S.D. Tex. 1991) (after death of purported father, Texas court may draw inferences from grandparentage DNA testing to determine paternity). The results of genetic testing can only be rebutted by other genetic tests. Tex. Fam. Code §§ 160.505(b); 160.631.

Here, as Texas law allows, M~, the number holder’s father, underwent grandparentage DNA testing because the number holder is deceased. Although the number holder’s mother declined to be tested, there is no explicit requirement under Texas law that both purported paternal grandparents must participate in DNA testing for the court to determine paternity. Rather, as stated, when a man is deceased, section 160.508 of the Texas Family Code allows DNA testing of his parents, brothers or sisters, any other children of the man and their mothers, and other relatives. Tex. Fam. Code § 160.508(a). Thus, while the DNA test of only one purported grandparent may, in certain instances, be sufficient to establish a parent-child relationship with the deceased, in this case, the DNA testing and the DNA test report did not satisfy the probability provision of the Texas Family Code. See Tex. Fam. Code § 160.505(a).

The DNA test report showed only a 96.88 percent probability that one of M~’s sons was J~’s biological father, which was below the 99 percent probability threshold Texas requires in order to create a presumption of paternity. See Tex. Fam. Code § 160.505(a). Because the DNA test report reveals a relationship probability below the threshold, J~ would not be entitled to inherit from the number holder under the first or second methods for determining paternal inheritance rights.

J~ also cannot establish paternal inheritance rights under the fifth method, because the facts do not provide clear and convincing evidence that the number holder was J~’s biological father. See Tex. Prob. Code § 42(b)(1). The Texas Family Code defines “clear and convincing evidence” as “the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” Tex. Fam. Code § 101.007. Although a Texas court will consider grandparentage DNA test results when deciding whether the evidence in a particular case is clear and convincing, the test results must demonstrate by clear and convincing evidence that the number holder was or was not J~’s biological father. See T~, 768 F.Supp. at 479-80. As discussed above, the 96.88 percent probability that one of M~’s sons was J~’s biological father is below the probability threshold that Texas requires in order to create a rebuttable presumption of paternity. See Tex. Fam. Code § 160.505(a). Thus, it is clear that the grandparentage DNA test report cannot constitute clear and convincing evidence that the number holder was J~’s biological father.

Moreover, the grandparentage DNA test report also is not clear and convincing evidence that the number holder is J~’s biological father because it does not rule out M~’s other sons, Mark and J~, as J~’s biological father. Thus, further DNA testing of the number holder’s brothers would be necessary to rule them out as J~’s father. See Tex. Fam. Code § 160.505(c); Tex. Fam. Code § 160.508 (permits a court to order genetic testing of relatives, including brothers, when the alleged father is not available); Tex. Fam. Code § 160.631(e) (if a court finds that genetic testing does not identify or exclude a man as the father of a child, the results of genetic testing and other evidence are admissible to adjudicate the issue of paternity). Although Mark and J~, made statements that they could not be J~’s biological father because they both first met S~ after she was pregnant with J~, we do not believe that these statements alone can eliminate the possibility that either could have fathered J~. For this reason, we cannot conclude that J~ is the number holder’s child for child’s benefits purposes.

The only other evidence favorable to M~’s claim that the number holder was J~’s biological father consists of statements from M~, M~, and S~ that the number holder told them S~ was pregnant with his child. However, the number holder also told his father that he was not sure he was J~’s father. In addition, J~’s birth certificate lists J~ as J~’s father because S~ thought he was the father at the time of J~’s birth, and it was only the DNA test results that convinced her that the number holder was J~’s father. But, as noted above, the DNA test results do not constitute clear and convincing evidence that the number holder was J~’s biological father.

Although J~ reported in a statement that he was J~’s biological father and that he signed the acknowledgment of paternity and J~’s birth certificate because he was told “someone had to sign it,” J~’s signature on his statement remains unverified. Since J~’s, M~, and S~’s statements would not instill a firm belief or conviction in a fact finder that the number holder was J~’s biological father, we do not believe that a Texas court would find the statements to constitute clear and convincing evidence. Thus, M~ has not established paternal inheritance rights under any of the five methods provided under the Texas Probate Code.

The evidence is insufficient to establish paternal inheritance rights under the Texas Probate Code. Consequently, M~ cannot establish that the number holder is J~’s father, and the agency should not consider J~ to be the number holder’s child for Social Security purposes.

Michael McGaughran

Regional Chief Counsel

By:____________

Carolyn Ebbers Whitson

Assistant Regional Counsel


Footnotes:

[1]

The evidence submitted for review included the Agreed Order validating the Gestational Agreement, in addition to the Egg Donor Contract and the Surrogacy Agreement; however, the actual Gestational Agreement dated November 16, 2004 and the supporting affidavits were not provided to the agency. These documents are referenced as Exhibits A – G in the Agreed Order. Because we do not have the underlying Gestational Agreement, we rely upon the language of the Agreed Order referencing and validating its contents in providing this legal opinion, along with the other documents provided.

[2]

We recognize that the agency “must explore all possibilities of entitlement before disallowing a child’s claim because the relationship requirements are not met.” Program Operations Manual System GN 00306.001(D). To qualify as a child of an insured individual under section 216(e) of the Act, the applicant must be the natural child, legally adopted child, stepchild, grandchild, step-grandchild, or equitably adopted child of the insured individual. See 42 U.S.C. § 416(e); see also 20 C.F.R. §§ 404.354 – 404.359. Here, the claim is that T~ and P~, although born via a gestational surrogate using a donor’s egg, are the NH’s natural children. There is no claim or evidence of adoption, status as a stepchild, or status as a grandchild.

See 42 U.S.C. § 416(e)(1); 20 C.F.R. § 404.354. Here, it is undisputed that T~ and P~ are unmarried, under the age of 18, and that the NH applied for benefits on their behalf. The agency will consider T~ and P~ to be dependent on the NH if they are the NH’s natural children. See 20 C.F.R. § 404.361(a). Thus, the remaining issue is whether T~ and P~ are the NH’s natural children.

To determine whether an applicant is a number holder’s natural child, the agency will apply the intestacy laws of the state in which the number holder had her permanent home at the time the applicant applied for benefits.

[3]

We recognize that there are three other methods for proving status as a number holder’s natural child. See 42 U.S.C. §§ 416(h)(2)(B), (3); 20 C.F.R. § 404.355(a)(1)(4). However, because application of Texas’ intestacy laws establishes that T~ and P~ are the NH’s natural children, we do not further examine these other methods.

[4]

The Texas Legislature repealed the Texas Probate Code and enacted the Texas Estates Code, effective January 1, 2014. See Acts 2009, 81st Leg., ch. 680; Acts 2011, 82nd Leg., ch. 823 (H.B. 2759); and Acts 2011, 82nd Leg. Ch. 1338 (S.B. 1198). The provisions concerning maternal and paternal inheritance formerly found in section 42 of the Texas Probate Code are now contained in sections 201.051 and 201.052 of the Texas Estates Code. These sections were amended to provide for the exception for “intended parents” as discussed herein.

For purposes of inheritance, the code generally refers to biological or adopted children. See id. The law provides an exception and states, “[h]owever, if a child has intended parents, as defined by Section 160.102, Family Code, under a gestational agreement validated under Subchapter I, Chapter 160, Family Code, the child is the child of the intended mother and not the biological mother or gestational mother unless the biological mother is also the intended mother.” See id.; see also Tex. Fam. Code §§ 160.751 – 160.763 (provisions concerning gestational agreements). The Texas Family Code defines “intended parents” as the individuals who enter into an agreement providing that the individuals will be the parents of a child born to a gestational mother

[5]

Gestational mother is defined as the woman who gives birth to a child conceived under a gestational agreement. See Tex. Fam. Code Ann. § 160.751.

[6]

Assisted reproduction is defined as the method of causing pregnancy other than sexual intercourse, including, but not limited to, donation of eggs; donation of embryos; and in vitro fertilization and transfer of embryos. See Tex. Fam. Code Ann § 160.102(2)(B)-(D).

[7]

We note that an anonymous egg donor who provides eggs for assisted reproduction is not a mother under Texas law. See Tex. Fam. Code Ann. §§ 160.102(6), 160.702.

[8]

Arkansas law provides that for purposes of birth registration, the mother is deemed to be the woman who gives birth to the child, unless otherwise provided by state law or determined by a court of competent jurisdiction prior to the filing of the birth certificate. See Ark. Code Ann. § 20-18-401(e). Given that the NH, not the Surrogate, is listed as the mother on the birth certificate, it would appear that the NH provided the Agreed Order establishing her as the parent of the children.

[9]

As to your request whether the evidence legitimates the children, we recognize that the Social Security Administration’s (agency’s) policy described in the Program Operations Manual System (POMS) General (GN) sections at GN 00306 pertaining to child relationship and dependency differentiate among natural legitimate children, illegitimate children that are legitimated, and illegitimate children with inheritance rights. Though the agency’s policy sets forth such distinctions, the Texas parentage statute of the Family Code and inheritance statute of the Probate Code make no distinction between legitimate and illegitimate children, and thus, because such distinction does not exist, there are no acts under Texas law that can be undertaken to “legitimate” a child. See Tex. Fam. Code Ann. § 160.202 (“[a] child born to parents who are not married to each other has the same rights under the law as a child born to parents who are married to each other.”); Tex. Prob. Code Ann. § 42(b)(1). Indeed, Texas removed all references to children as legitimate and illegitimate in various codes and statutes, including the Texas Family Code and Texas Probate Code, in 1989. See Senate Bill 401, Acts 1989, 71st Leg., ch. 375, § 17; Tex. Att’y Gen. Op. No. DM-97, 1992 WL 525155 (March 13, 1992) (the legislature intended to eradicate what it considered an odious term that wrongfully stigmatized the child of an “illicit union”). The fact that no acts under Texas law can legitimate an illegitimate child after birth (because such distinctions do not exist) is of no consequence in the present situation given that these children were born during the valid marriage of the NH and his wife. See POMS GN 00306.010(A)(2) (a legitimate child is born of a valid marriage).

[10]

It is unclear whether J~ underwent an in vitro fertilization or artificial insemination procedure. However, the lack of such information does not affect our analysis, as the applicable statutes treat the two procedures the same. Assisted reproduction means a method of causing pregnancy other than sexual intercourse. Tex. Fam. Code Ann. § 160.102(2). The term includes: (a) intrauterine insemination; (b) donation of eggs; (c) donation of embryos; (d) in vitro fertilization and transfer of embryos; and (e) intracytoplasmic sperm injection. Id.

[11]

The fact that E~ was born in Oklahoma and H~ was born in Maryland raises the issue of whether Oklahoma and Maryland law, rather than Texas law, would apply in determining paternity. However, section 160.103 of the Texas parentage statute provides that courts shall apply Texas law to adjudicate the parent-child relationship regardless of the child’s birthplace or residence. See Tex. Fam. Code § 160.103(b). Therefore, we will apply only Texas law in our analysis.

[12]

Given that the NH and J~ have acknowledged that the children were conceived through artificial reproduction using a donor’s sperm, we know that the children are not the NH’s biological children; however, this is not a determinative factor in establishing the parent-child relationship. Texas courts have held that proof of a biological link to the father was not required for child to be considered a “child of his biological father” and to inherit from the testator under section 42(b) of the Probate Code. See Wilson v. Estate of Williams, 99 S.W.3d 640, 649-50 (Tex. App. – Waco 2003, no pet.) (noting that a biological father also includes a man who has a adopted a child without a biological link); see also Spiers v. Maples, 970 S.W.2d 166 (Tex. App.—Fort Worth 1998, no pet.) (non-biological child that testator adopted by estoppel was entitled to inherit from her). Therefore, the fact that the NH does not have a biological link to E~ and H~ is not determinative here of the parent-child relationship.

[13]

The Texas Legislature has repealed the Texas Probate Code and enacted the Texas Estates Code. The changes take effect January 1, 2014. See Acts 2009, 81st Leg., ch. 680; Acts 2011, 82nd Leg., ch. 823 (H.B. 2759); and Acts 2011, 82nd Leg., ch. 1338 (S.B. 1198). The provisions concerning maternal and paternal inheritance found in section 42 of the Texas Probate Code are contained in sections 201.051 and 201.052 of the Texas Estates Code.

[14]

Section 160.607(a) of the Uniform Parentage Act provides that a proceeding to adjudicate the parentage of a child having a presumed father shall be commenced before a child’s fourth birthday. See Tex. Fam. Code Ann. § 160.607(a). The purpose of the time limitation for bringing a proceeding to determine parentage when a child has a presumed father is to protect the family unit. In re S.C.L., 175 S.W.3d 555, 560 (Tex. App. - Dallas 2005, no pet.). The exceptions to this time limitation are when: (1) the presumed father and mother of the child did not live together or engage in sexual intercourse with each other during the probable time of conception; or (2) the presumed father was precluded from commencing a proceeding to adjudicate the parentage of the child before the child’s fourth birthday because of the mistaken belief that he was the child’s biological father based on misrepresentations that led him to that conclusion. See Tex. Fam. Code Ann. § 160.607(b). Based on the evidence provided, these exceptions do not appear to apply here. Thus, the time limitation for contesting the NH’s status as a presumed father has passed.

[15]

Section 160.7031 specifies the manner for establishing an unmarried man’s paternity of a child of assisted reproduction. See Tex. Fam. Code Ann. §§ 160.7031. However, this section is not relevant here because the NH and J~ are married.

[16]

“Record” is defined as “information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in a perceivable form.” Tex. Fam. Code Ann. § 160.102(15).

[17]

We note that this section of Texas Uniform Parentage Act is modeled on section 704 of the Uniform Parentage Act. See Tex. Fam. Code Ann. Title 5, Subt. B, Ch. 160, Refs. & Annos.; Unif. Parentage Act § 704 (2002). In the comments to this subsection of the Uniform Parentage Act, the drafter noted that even if the husband, or an unmarried man who intends to be a parent of the child, did not consent to assisted reproduction, he may nonetheless be found to be the father of a child born through that means if he and the mother openly hold out the child as their own. The comments explain that the holding out requirement substitutes evidence of the parties’ consent after the child is born for the requirement of formal consent in the record to prospective assisted reproduction.

[18]

In K.B., the couple had been unable to conceive a child because the husband had undergone a vasectomy that proved to be irreversible, and as a result, the couple conceived and had a child through artificial insemination by a third-party donor during the marriage. 811 S.W.3d at 636. In subsequent divorce and custody proceedings, the husband denied paternity based on his lack of written consent to the artificial insemination. Id. The court found it significant that the husband knew about the artificial insemination process and participated in it willingly, and that he acknowledged the child and publicly held him out as his own child for several years. Id. at 639. The court found that under the circumstances of that case, the husband ratified the parent-child relationship. Id. Thus, under a ratification theory, the court held that a father-child relationship existed. Id.

[19]

Section 160.705(a) provides that the husband of a wife who gives birth to a child by means of assisted reproduction may not challenge his paternity of the child unless (1) he commences a proceeding to adjudicate paternity before the fourth anniversary of the date of learning of the child’s birth; and (2) the court finds that he did not consent to the assisted reproduction. See Tex. Fam. Code Ann. § 160.705(a). E~ is 14 years old and H~ is 9 years old. The evidence indicates that the NH was aware of E~’s birth and H~’s birth at the time of their actual births. Thus, the NH did not timely commence a proceeding to adjudicate paternity. We note that section 160.705(b) provides that a proceeding to adjudicate paternity may be maintained at any time if the court determines that (1) the husband did not provide the sperm for or consent to the assisted reproduction by his wife; (2) the husband and mother have not cohabitated since the probable time of assisted reproduction; and (3) the husband never openly treated the child as his own. See Tex. Fam. Code Ann. § 160.705(b). However, the evidence indicates that the NH and J~ were married and cohabitating at the time of the assisted reproductions and at the time of E~ and H~’s births, and are still married and cohabitating. Further, the evidence shows that the NH has openly treated the children as his own. Thus, the time has passed for a challenge to the NH’s paternity under these provisions.

[20]

As we discuss more fully below, the DNA report does not comply with Texas state law.

[21]

As we discuss more fully below, the DNA report does not comply with Texas state law.

[22]

Under section 160.201 of the Texas Family Code, a father-child relationship exists if: (1) an unrebutted presumption of paternity arises in a marriage; (2) the man acknowledges his paternity; (3) a court adjudicates the man’s paternity; (4) the man adopts the child; or (5) the man consents to assisted reproduction and his wife gives birth. See Tex. Fam. Code § 160.201(b)(1)-(5). H~ does not meet the methods described in (1), (2), (4), or (5) because he was not born under any of those circumstances. See Tex. Fam. Code § 160.201(b)(1)-(5).

[23]

Tex. Fam. Code Ann. § 160.505 provides, in pertinent part: (a) a man is rebuttably identified as the father of a child under this chapter if the genetic testing complies with this subchapter and the results disclose: (1) that the man has at least a 99 percent probability of paternity, using a prior probability of 0.5, as calculated by using the combined paternity index obtained in the testing; and (2) a combined paternity index of at least 100 to 1.

[24]

While the Texas probate court accepted the DNA report when it issued the Order, the agency is not bound by these results because we conclude that the DNA report does not comply with Texas state law.

[25]

We find that the chain of custody of the NH’s genetic sampling was sufficient under Texas law. While we did not receive a photograph of the deceased NH, the comments to section 504 of the Uniform Parentage Act (UPA) (upon which section 160.504(b) of the Texas Family Code is modeled), states that “samples from a deceased individual may be obtained from a coroner’s office and a picture of the individual need not be taken.” See Tex. Fam. Code Ann. § 160.504(b); UPA § 504. Thus, a photograph of the deceased is not necessary to provide sufficient verification of the identity of the blood specimen. However, the comments continue that, in such cases of a deceased individual with no photograph, “proof of the chain of custody of the body maintained by the coroner may be provided.” Id. In that regard, we find that documentation from the Galveston County Medical Examiner’s Office is sufficient to establish a reliable chain of custody for the NH’s genetic sample. See id. A “Chain of Custody Paternity” form provides the names and signatures of those individuals who collected the specimens, the dates they were collected, and the location of the collection. See Tex. Fam. Code Ann. §§ 160.504(b)(2) – (3). The form also shows who received the specimens and the dates these individuals received them. See Tex. Fam. Code Ann. § 160.504(b) (4) – (5). This form notes that the NH’s specimen was a “blood stain card from M.E. [medical examiner’s] office.” With respect to the deceased NH’s specimen, we also received a “Chain of Custody / Affidavit of Identity – Paternity” form signed by John, an employee of the Galveston County Medical Examiner’s Office, who signed under penalty of perjury that he collected the NH’s specimen. As such, we believe that the evidence, including John’s signature and affirmation that he collected the blood specimen from the deceased NH, constitutes sufficient verification of the identity of the NH’s blood specimen to satisfy section 160.504(b) of the Texas Family Code.

[26]

Under section 160.201 of the Texas Family Code, a father-child relationship exists if: (1) an unrebutted presumption of paternity arises in a marriage; (2) the man acknowledges his paternity; (3) a court adjudicates the man’s paternity; (4) the man adopts the child; or (5) the man consents to assisted reproduction and his wife gives birth. See Tex. Fam. Code § 160.201(b)(1)-(5). M~ does not meet the methods described in (1), (3), (4), and (5) because A~ and P~ were not married at the time M~ was born, no court adjudicated M~ to be A~’s child, A~ did not adopt M~, and M~ was not born using assisted reproduction. Id.

[27]

M~ does not satisfy these first three methods of the Tex. Prob. Code § 42(b)(1) because as noted above, she was not born under circumstances described in section 160.201 of the Family Code.

[28]

In addition to requesting guidance on the effect of A~’s name on M~’s birth certificate, we asked the Law Library of Congress about the validity of A~’s and P~’s alleged customary marriage that they contracted in abstentia under the rites of the Shona ethnic group. The Law Library of Congress noted that although there is nothing specifically indicating that the Shona customary marriage rites permit absentia proxy marriages, the fact the husband and wife play a minimal role in the process of creating a marital relationship under Shona custom suggests that an absentia proxy marriage would not be a dramatic departure from the Shona’s general practice. Resolution of this issue is not necessary; however, because the agency can rely on M~’s birth certificate to determine her entitlement to surviving child’s benefits on A~’s account.

[29]

Specifically, the Zimbabwe Births and Deaths Registration Act of 1986 at § 12 states: (1) Notwithstanding section eleven, no person shall be required to give information acknowledging himself to be the father of a child born out of wedlock. (2) A registrar shall not enter in the register [a document from which the particulars in a birth certificate are drawn] the name of any person as the father of a child born out of wedlock, except . . . (a) upon the joint request of the mother and the person acknowledging himself to be the father of the child.

[30]

The agency will not require a person to obtain a court determination of paternity but will decide the paternity issue by using the standard of proof that the state court would use as the basis for a determination of paternity. See 20 C.F.R. § 404.355(b)(2).

[31]

Our previous legal opinion in this matter dated October 28, 2011, found that the DNA report did not establish a reliable chain of custody of the DNA samples taken by the Bexar County Medical Examiner’s Office from the deceased number holder under Texas law. As such, the evidence was insufficient to establish the child’s paternity. See Texas State Law Status of Child Relationship ( – October 28, 2011). However, on January 26, 2012, you submitted additional documentation from the Bexar County Medical Examiner’s Office, which we have analyzed in this updated opinion.

[32]

Under section 160.201 of the Texas Family Code, a father-child relationship exists if: (1) an unrebutted presumption of paternity arises in a marriage; (2) the man acknowledges his paternity; (3) a court adjudicates the man’s paternity; (4) the man adopts the child; or (5) the man consents to assisted reproduction and his wife gives birth. See Tex. Fam. Code § 160.201(b)(1)-(5). T~ does not meet the methods described in (1), (2), (4), or (5) because she was not born under any of those circumstances. See Tex. Fam. Code § 160.201(b)(1)-(5).

[33]

Under section 160.201 of the Texas Family Code, a father-child relationship exists if: (1) an unrebutted presumption of paternity arises in a marriage; (2) the man acknowledges his paternity; (3) a court adjudicates the man’s paternity; (4) the man adopts the child; or (5) the man consents to assisted reproduction and his wife gives birth. See Tex. Fam. Code § 160.201(b)(1)-(5). T~ does not meet the methods described in (1), (2), (4), or (5) because she was not born under any of those circumstances. See id.

[34]

We believe that, if DDC obtained Dr. T~’s signature on the Postmortem Specimen Identification Form, this would provide sufficient verification of the identity of the blood specimen obtained from the Bexar County Medical Examiner’s Office to satisfy section 160.504(b)(1) of the Texas Family Code. See Unif. Parentage Act § 504 (noting that only a minimal showing of reliability of the chain of custody is needed and that a defect may be corrected by affidavit). If such information is received, please forward the information to our Office, and we will provide an updated opinion.

[35]

When a person dies intestate owning or entitled to property in Texas, the court where the property is situated may hold a proceeding to determine heirship and declare who are the heirs and their respective interests. See Tex. Prob. Code Ann. § 48 (updated June 17, 2011). This proceeding may be instituted by a person claiming an interest in the estate of the deceased person. See Tex. Prob. Code Ann. § 49 (West 2011). An individual who files an application with a Texas probate court for an heirship proceeding must provide the court with the names of any other potential heirs of the deceased person’s estate. Id. The court will then notify all potential heirs of the proceeding. See Tex. Prob. Code Ann. § 50 (West 2011).

[36]

This is based on information we received from court reporter, Camilla, who transcribed the hearing.

[37]

A state agency that runs a child support program under Title IV-D of the Social Security Act of 1975. See Social Security Laws at http://www.ssa.gov/OP_Home/ssact/title04/0400.htm (last visited on Oct. 5, 2011).

[38]

Subject matter jurisdiction means jurisdiction over the nature of the cause and the type of relief sought. See Black’s Law Dictionary (9th ed. 2009).

[39]

There are also no District of Columbia cases that address D.C. Code Ann. § 16-909(c)(1)(B).

[40]

In the more populated counties, the Texas Legislature created statutory probate courts. These courts have original and exclusive jurisdiction over their counties’ probate matters. See Texas Courts Online, Statutory Probate Courts, http://www.courts.state.tx.us/courts/probate.asp (last visited on Oct. 5, 2011).

[41]

Because the issues raised in the request for a legal opinion referenced Texas law, we consulted with the Region VI Office of the General Counsel before providing a legal opinion, which agrees that further development of the evidence is required.

[42]

M~ reported that the Texas Department of Child Protective Services (CPS) gave her temporary guardianship of J~ while CPS investigated whether S~ used drugs during her pregnancy.S~ was not allowed to be left al