TN 32 (04-17)

PR 01010.010 District of Columbia

A. PR 17-063 Legal Opinion as to Whether a Parent-Child Relationship Exists Between the Number Holder and the Claimant

Date: March 15, 2017

1. Syllabus

The number holder (NH) was a resident of Georgia until January 2013, when he was deported to his birthplace of Guyana. The NH was domiciled in Guyana at the time of his death. It is our opinion that the District of Columbia would apply its own law to determine whether a parent-child relationship can be established between the number holder and the claimant. Based on the evidence provided, it is our opinion that the DNA evidence submitted is insufficient to establish the paternity of the NH under the laws of the District of Columbia. Also, even if the District of Columbia applied the Georgia law, the evidence likewise would be insufficient to establish a parent-child relationship between the NH and the claimant. The claimant has the burden of proving by a preponderance of the evidence that the NH was her father. Therefore, based upon the evidence we received, the claimant would not be entitled to surviving child’s insurance benefits under section 216(h)(2)(A) of the Social Security Act (Act).

2. Opinion

QUESTION PRESENTED

This is in response to your January 11, 2017, request for our advice as to whether the District of Columbia would apply its own law or Georgia law to determine whether a parent-child relationship can be established between V~, the deceased Number Holder (NH), and W~ (the claimant), based on the March XX, 2015 deoxyribonucleic acid (DNA) test report prepared by LabCorp. You have also asked what the effective date of the relationship would be if a parent-child relationship is established.

SUMMARY

We have reviewed the information you provided and have researched the relevant provisions of the laws of the District of Columbia and Georgia. It is our opinion that the District of Columbia would apply its own law to determine whether a parent-child relationship can be established between the Number Holder and the claimant. It is our further opinion that the evidence of record is insufficient to establish a parent-child relationship between the NH and the claimant under the laws of the District. We note that even if the District of Columbia were to apply Georgia law, the evidence likewise would be insufficient to establish a parent-child relationship between the NH and the claimant. Therefore, based upon the evidence we received, the claimant would not be entitled to surviving child’s insurance benefits under section 216(h)(2)(A) of the Social Security Act (Act).

BACKGROUND

The NH was a resident of Georgia until January 2013, when he was deported to his birthplace of Guyana. He was domiciled in Guyana until his death on April XX, 2013.

The claimant was born on February XX, 2009, in Georgia. The Numident identifies the applicant, R~, as the biological mother. The father is not identified in the Numident.

On September XX, 2013, the claimant’s mother applied for surviving child’s benefits on behalf of the claimant, alleging a parent-child relationship between the NH and the claimant. With her application, the mother completed a Child Relationship Statement in which she stated that the NH had never been decreed by a court to be the claimant’s parent or ordered by a court to contribute to the claimant’s support. The mother denied that the NH had engaged in any of the fourteen listed activities that would demonstrate that he had held himself out as the father of the claimant. The agency denied the application for failure to provide proof of relationship between the NH and the claimant. The mother filed a second application on August XX, 2014, which the agency denied for the same reason.

With a third application for benefits on March XX, 2015, the mother provided a Relationship Report of a paternity test performed by Laboratory Corporation of America (LabCorp), signed and notarized on March XX, 2015. The report indicates that a sample from the NH, which had been collected on July XX, 2004, was tested with genetic material from the mother and the claimant. The test resulted in a 99.99% probability of paternity between the NH and the child. The report notes that the results for the NH were provided to LabCorp by the F~ County Superior Court. It also notes that the report (apparently from the court) indicates that LabCorp tested the NH in 2004. The LabCorp report acknowledges, however, that because it routinely destroys all records after seven years, it cannot confirm the authenticity of the document (the court report) or chain of custody of the alleged father’s sample. Finally, the LabCorp report states that all of the information for the alleged father was obtained from the report provided (by the court) to LabCorp. Labcorp is accredited by the American Association of Blood Banks (AABB). Based on this application, the agency awarded surviving child’s benefits with a month of entitlement of March 2015.

On June XX, 2015, the mother filed a request for reconsideration of the month of entitlement, seeking benefits as of the month of the NH death, April of 2013.

DISCUSSION

The Social Security Act provides that a child born out of wedlock can qualify for benefits if the child is entitled to inherit personal property under “such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which [the] insured individual . . . [was] domiciled at the time of his death, or, if [the] insured individual . . . was not so domiciled in any State, by the courts of the District of Columbia.” 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1), (4).1

According to the information provided, the NH was domiciled in Guyana at that time of his death. Therefore, the District of Columbia intestacy laws apply. 42 U.S.C. § 416(h)(2)(A).

You have asked whether the District of Columbia would apply its own laws or that of Georgia to determine whether the claimant is the child of the NH. Specifically, you rely on POMS GN 00306.005B.1 for the general rule that where the NH is domiciled in a different State from the State of his domicile when the child was born, the courts of the State of Domicile will usually look to the legitimation law of the State of domicile when the child was born. This POMS provision states that the usual rule is that a child will be recognized as legitimate in all States if she is legitimate under the law of the State of the father’s domicile at the time the child was born.

It is our understanding that POMS GN 00306.005B.1 sets forth a general proposition that some states may look to the legitimation laws of the State of the NH’s domicile when the child was born. In this case, however, we have found no statutory or case law to suggest that the District of Columbia would look to the state of the NH’s domicile when the child was born. Absent such law, we conclude that the District of Columbia would apply its own intestacy laws to determine whether a parent-child relationship exists between the NH and the claimant. See POMS GN 00305.001A.2.b (directing the agency to apply the law that the courts of the District of Columbia would apply where the NH was domiciled in a foreign country at the time of death).

Turning to the law of the District of Columbia, the evidence here is not sufficient to establish the NH paternity under District of Columbia law. The D.C. Code provides that children born out of wedlock can inherit from their mother or from their father “if parenthood has been established.” D.C. Code § 19-316 (2001) However, standards for establishing parenthood are not defined in any provision under Titles 19 or 20, respectively entitled “Descent, Distribution, and Trusts” and “Probate and Administration of Decedents’ Estates.”

In order to define the standards for establishing parenthood, the courts in the District of Columbia have looked to relevant provisions of the District of Columbia Marriage and Divorce Act at D.C. Code § 16-909 (2001). See In re Estate of Johnson, 2006 WL 3302857 *2 (D.C.Super. June 21, 2006) (citing In re Estate of Glover, 470 A.2d 743, 749-50 (D.C. 1983) (holding that § 19-316 provides for parenthood determinations subsequent to the death of a putative father and § 16-909(a) sets the burden of proof to be met by the child born out of wedlock)). Section 16-909(a) provides that a child’s relationship to his or her father is established by a preponderance of the evidence. A preponderance of the evidence in the District of Columbia “requires the court to merely determine who has the most competent evidence.” In re E.D.R., 772 A.2d 1156 (D.C. 2001).

Section 16-909(a) provides that there shall be a presumption created if the child proves by a preponderance of evidence that he has met any of the following subsections:

  • if he and the child’s mother are or have been married, or in a domestic partnership, at the time of either conception or birth, or between conception and birth, and the child is born during the marriage or domestic partnership, or within 300 days after the termination of marital cohabitation by reason of death, annulment, divorce, or separation ordered by a court, or within 300 days after the termination of the domestic partnership; or

  • if, prior to the child’s birth, he and the child’s mother have attempted to marry, and some form of marriage has been performed in apparent compliance with law, though such attempted marriage is or might be declared void for any reason, and the child is born during such attempted marriage, or within 300 days after the termination of such attempted marital cohabitation by reason of death, annulment, divorce, or separation ordered by a court; or

  • if, after the child’s birth, he and the child’s mother marry or attempt to marry, (with the attempt involving some form of marriage ceremony that has been performed in apparent compliance with law), though such attempted marriage is or might be declared void for any reason, and he has acknowledged the child to be his; or

  • if the putative father has acknowledged paternity in writing.

Section 16-909(b) provides that a presumption created by § 16-909(a)(1)-(4) may be overcome upon proof of clear and convincing evidence presented to the Superior Court. Section 16-909(b-1) provides that a conclusive presumption of paternity shall be created as follows:

  • Upon a result and an affidavit from a laboratory of a genetic test of a type generally acknowledged as reliable by accreditation bodies designated by the Secretary of the U.S. Department of Health and Human Services that is performed by a laboratory approved by such a body indicating a 99% probability that the putative father is the father of the child; or

  • If the father has acknowledged paternity in writing as provided in § 16-909.01(a)(1).

D.C. Code § 16-909(b-1).

Here, the claimant is not entitled to a presumption under § 16-909(a) because there was no evidence of marriage between the applicant (R~) and the NH, and no written acknowledgement of paternity by the NH. D.C. Code § 16-909 (a) (1)-(4). Therefore, the claimant has the burden of proving by a preponderance of the evidence that the NH was her father. D.C. Code § 16-909(a). Under a preponderance of the evidence standard, however, a court in the District of Columbia would likely find that the claimant did not establish a parent-child relationship.

The claimant has produced DNA test results showing a 99.99% probability of paternity between the NH and the child. Although the test results satisfy the statistical probability required under section 16-909(b-1) of the D.C. Code and are from an accredited laboratory, they do not satisfy the chain of custody requirements of D.C. law.

Genetic test results are admissible as evidence of paternity provided that they meet the requirements outlined in section 16-2343.01(a)(1)-(3) of the D.C. Code:

Expert reports that show the statistical probability of the alleged parent’s paternity may be admissible into evidence.

Certified documentation of the chain of custody of the test specimens is competent evidence to establish the chain of custody.

Test results that show the statistical probability of the alleged parent’s paternity shall be admitted into evidence unless a substantiated objection is made that the test did not comply with the requirements of this subchapter.

Here, LabCorp acknowledged that it could not confirm the authenticity of the report it received from the F~ County Superior Court or the chain of custody of the NH’s sample. LabCorp’s DNA paternity test report, therefore, is not legally acceptable under the District of Columbia Code. Compare Johnson, 2006 WL 3302857 at *3 (finding that a certified copy of the laboratory findings, to which there was attached an affidavit, was in accordance with § 16-909(b-1)(1)). In Johnson, the court noted that because the child produced “certified documentation of the chain of custody,” the test results were admissible under D.C. Code § 16-2343.01, which governs the admissibility of tests determining paternity. Id. at *4, (citing D.C. Code § 16-2343.01(a), (e) (2001) (requiring certified documentation of the chain of custody of the test specimens)). Therefore, absent certified documentation of the chain of custody, a child is barred from admitting DNA results in a court of the District of Columbia. Id. Thus, without an admissible DNA report, a court in the District of Columbia would likely find that the claimant has not established the NH’s paternity.

Finally, we note that even if the District of Columbia applied the law of the state of the NH’s domicile when the child was born, there would not be sufficient evidence for the claimant to establish paternity under Georgia law. The Georgia code permits a child born out of wedlock to inherit if paternity is established by clear and convincing evidence. Ga. Code Ann. § 53-2-3(2) (2016). Genetic testing that establishes at least a 97% probability of paternity provides a rebuttable presumption of paternity. Ga. Code Ann. § 53-2-3(2)(B)(ii). Although, here, the blood test results of 99.99% probability of paternity exceed the Georgia statutory requirement of 97%, the test does not satisfy the foundation requirements. As in the District of Columbia, Georgia requires that genetic tests be conducted by a laboratory that is certified by the AABB and that the results meet the standards the AABB requires in order for such results to be admitted as evidence in a court of law. Ga. Code Ann. § 19-7-45. The admission of blood test evidence also requires proof of chain of custody. See Pinson v. State, 391 S.E. 2d 28, 29 (Ga. Ct. App. 1990) (admitting into evidence blood tests where samples were handled according to normal laboratory procedures and chain of custody was maintained). Thus, here, where LabCorp has acknowledged that it cannot confirm the authenticity of the document or the chain of custody of the NH’s sample, a Georgia court would likely find that the blood test results are insufficient evidence with which to establish the NH’s paternity.

CONCLUSION

Based on the evidence provided, it is our opinion that the DNA evidence is insufficient to establish the paternity of the NH under the laws of the District of Columbia. It is also our opinion that the District of Columbia would apply its own laws to determine whether a parent-child relationship is established between the NH and the claimant. However, even if the District of Columbia were to apply Georgia law, the evidence is insufficient to establish the paternity of the NH for the same reason that it fails to satisfy the foundation requirements under Georgia law. Therefore, the claimant would not be entitled to surviving child’s insurance benefits under the Act.


Footnotes:

[1]

The Act also provides an alternative method for such a child to qualify for benefits under the earnings record of a worker who is deceased. 42 U.S.C. § 416(h)(3)(C). Section 416(h)(3)(C) provides that a claimant may prove that she is the child of the worker if the insured, before his death, acknowledged paternity in writing, was decreed the child’s father by a court, was ordered to contribute to the support of the child by a court, or the insured is shown by “satisfactory” evidence to have been the father of the child “and” was living with or contributing to the support of the child at the time of the insured’s death. Here, as you have indicated, the claimant has failed to establish paternity under section 216(h)(3)(C) of the Act.


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PR 01010.010 - District of Columbia - 04/24/2017
Batch run: 04/24/2017
Rev:04/24/2017