You have requested our opinion as to whether Shonie L~ is the child of the deceased
number holder (NH), John L~, for the purposes of receiving child's benefits. Based
on the information provided, the evidence rebuts the presumption that the NH was Shonie
L~'s father for the purpose of receiving child's benefits.
You advised us that the NH died on November 12, 2004, while domiciled in Missouri.
He was married to Andrea L~. Ms. L~ gave birth to a daughter, Shonie, on August 29,
2005. This was 289 days after the death of the NH. For reasons which were not explained,
Shonie was placed in custody of the Department of Social Services (DSS). DSS filed
a claim for Child's Benefits under Title II of the Social Security Act in October
2005. At that time, Shonie's mother, Andrea L~, signed a statement saying that she
was living with the NH at the time of his death and that he was Shonie's biological
father. In May 2006, Shonie was determined to be eligible for benefits on the record
of the NH retroactive to her birth.
Shonie's entitlement to benefits caused another child, Cameron L~, to be overpaid.
Cameron was born in April 1999 during the NH's prior marriage to Alice V~. In June
2006, Cameron's grandmother, Wilma B~, filed a request for a waiver of the overpayment.
This was apparently denied, but on reconsideration she submitted the results of a
DNA test which showed that the probability of half-siblingship between Shonie and
Cameron was .08%. The "DNA Siblingship Reports," signed and sworn by Michael L. B~,
Ph.D., of "DNA Diagnostics Center" states that the likelihood that the two children
did not share the same biological father was 1,176 to 1. The report also states that
it is not possible to determine with 100% certainty whether or not two people are
definitely siblings or not, only whether they are likely or not likely to be siblings.
Ms. B~ also submitted a letter from an attorney, James G~, dated October 13, 2006,
in which he stated that Andrea L~ confirmed that the NH was not Shonie's father in
sworn testimony, apparently in the course of a wrongful death suit. You stated that
you had been unable to obtain a transcript of the report to which the attorney referred.
On May 23, 2007, a claims representative contacted Andrea L~. Ms. L~ stated that she
was living with the NH when he died. She stated that she was "not with" another man
prior to his death, but "did sleep with someone a few weeks after his death." She
stated that she was not sure who the father was. She was not cooperative with further
questions. She did not return further calls.
A child of an individual who dies when fully or currently insured pursuant to the
Social Security Act is entitled to child's insurance benefits if he or she is the
insured's child as defined in 42 U.S.C. § 416(e), has applied for such benefits, is
unmarried, is under the age of 18, and was dependent upon the insured. See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350 (2007). Section 416(e) defines a "child"
as (1) the child or legally adopted child of an individual, (2) a stepchild under
certain circumstances, or (3) a person who is the grandchild or stepgrandchild under
certain circumstances. See 42 U.S.C. § 416(e). If the applicant for child's benefits is the insured's child
as defined in section 416(e), he or she is also considered dependent upon the insured
for purposes of determining eligibility for child's benefits. See 20 C.F.R. § 404.361(a).
An applicant may show that he or she is the "child" of an insured number holder by
presenting evidence establishing one of the following four circumstances:
1. The applicant could inherit the insured's property as the insured's child under
the law of intestate succession in the state where the insured was domiciled at the
time of death. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(4);
2. If the claimant does not qualify under the provisions of subparagraph (A), the
child shall nevertheless be deemed a child of the insured if the insured individual
and the mother or father of the child went through a marriage ceremony with the child's
other natural parent which resulted in a purported marriage between them that, except
for a procedural defect, would have been a valid marriage. See 42 U.S.C. § 416(h)(2)(B); 20 C.F.R. § 404.355(a)(2);
3. If one of the above two provisions is not met an individual shall be deemed a child
of the insured if, in the case of an insured individual entitled to old-age benefits,
the insured individual acknowledged in writing that the applicant was his son or daughter,
was decreed by a court to be the father or mother, or was ordered to contribute to
the support of the child because they are his son or daughter (subject to certain
time limitations). See 42 U.S.C. § 416(h)(3)(A)(i); 20 C.F.R. § 404.355(a)(3); or
4. The insured is shown by evidence satisfactory to the Commissioner of Social Security
to be the child's father, and the insured was living with or contributing to the child's
support at the time of death. See 42 U.S.C. § 416(h)(3)(A)(ii); 20 C.F.R. § 404.355(a)(4).
If the evidence establishes any of the above factual scenarios, the applicant is considered
the insured's child for purposes of entitlement to child's benefits. See 42 U.S.C. § 416(h)(3). While all four of the methods for showing that an individual
is a "child" of an insured number holder are presented above for consistency with
prior opinions, only the first test is relevant given the facts at hand.
Under these rules, it is necessary to determine whether the individual is the insured's
child under the law of intestate succession. See 42 U.S.C. § 416(h)(2)(A). The Act states that we must apply the law which is used
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 death. See id.; 20 C.F.R. § 404.355(b)(4) (2007). Applicants who would inherit as a child under the
laws of intestate succession are considered to be a "child" for the purpose of receiving
children's insurance benefits under the Act. See id.
Because the NH was domiciled in Missouri, we must apply Missouri law to determine
if the child is entitled to benefits on his record. See id.; 20 C.F.R. § 404.355 (2007). While Missouri has adopted a version of the Uniform Parentage
Act, the Missouri Supreme Court has held that "[i]n matters relating to probate, the
probate code -- and not the Uniform Parentage Act--governs determinations of paternity."
LeSage v. Dirt Cheap Cigarettes and Beer, Inc., 102 S.W.3d 1 (Mo. 2003) (citing In re Nocita, 914 S.W.2d 358 (Mo. B~ 1996)). However, it is not improper to use the evidentiary
standards and presumptions of the Parentage Act in proving paternity. See id.
Under the Missouri intestacy statute, the part of an estate not distributable to a
surviving source will descend and be distributed to the decedent's children. See Mo. Rev. Stat. § 474.010(2) (2006). All posthumous children of the intestate shall
inherit in like manner, as if they were born in the lifetime of the deceased. See Mo. Rev. Stat. § 474.050 (2006). In determining the status of a child, we do not apply
any state statute of limitations which might apply to establishing paternity under
the probate code. See 20 C.F.R. § 404.355(b)(2) (2007).
In Missouri, a child born to a woman who is married at the time of birth is presumed
to be the legitimate child of the woman's husband. See L.M.K. v. D.E.K, 685 S.W. 2d 614, 616 (Mo. App. 1985). Likewise, a child born to a wife within 300
days of the death of the husband is presumed to be a child of the husband. See Mo. Rev. Stat § 210.822(1). This is a strong presumption, and the evidence to rebut
this presumption must be "clear and convincing."
See LMK, 685 S.W. 2d at 617, E.S. v. G.M.S., 520 S.W.2d. 652 (Mo.App.1975). The presumption may be overcome by competent evidence
so clear and convincing that no other conclusion is reasonable. See L.M.K., 685 S.W.2d at 617; Mo Rev. Stat. § 210.822.2 (2006).
Clear and convincing evidence is defined as "evidence that instantly tilts the scales
in the affirmative when weighed against the opposing evidence and that leaves the
fact finder with the abiding conviction that the evidence is true." Marsh v. State, 942 S.W.2d 385, 390 (Mo.App.1997). In the context of a Social Security case, the
Seventh Circuit has interpreted the Missouri probate standard of "clear and convincing
proof" as less than "proof beyond a reasonable doubt." See Jones for Jones v. Chater, 101 F.3d. 509, 512 (7th Cir. 1996); see also Sherrill v. Bowen, 835 F.2d 166, 168 (8th Cir. 1987). Clear and convince evidence is also described
as evidence which clearly convinces the fact finder that the evidence is true.
See Eldridge for Eldridge v. Sullivan, 980 F.2d 499, 500 (8th Cir. 1992).
Blood rest results, weighed in accordance with the evidence of statistical probability
of paternity, can be used to rebut paternity as can all other relevant evidence. See Mo. Rev. Stat. § 210.836 (2006). A DNA test is included as a type of blood test which
can be used in determining parenthood. See Mo. Rev. Stat. § 210.817(1) (2006). When a court finds that the results of a blood
test show that a person presumed or alleged to be the father is not the father, this
evidence will be conclusive of non-paternity. See Mo. Rev. Stat. § 210.834.4 (2006).
Social Security Ruling (SSR) 06-02p provides guidance on the use of siblingship DNA
testing. A siblingship DNA test may be used to ascertain whether a second child (C2)
is a child of the number holder when a first child's (C1) relationship to the worker
has already been established. See SSR 06-02p. Under this policy, we "will determine
whether the evidence relating to C2's relationship to the known child of the worker
(C1), and any other evidence of C2's relationship to the worker, establishes that
C2 is the worker's child under the standards of the applicable state law" Id. This "avoids the redundancy . . . that would occur if we reviewed C1's relationship
to the worker under State law when we have already determined that C1 is the worker's
child . . ." Id. Here, C1 is Cameron, born in 1999, and C2 is Shonie, born in 2005. Under the ruling,
we need not re-evaluate Cameron's status but may instead use a DNA test to show whether
Cameron and Shonie are siblings, and then whether Shonie is a child of the NH.]
Based on the facts presented, Shonie is presumed to be the child of the NH because
she was born within 300 days of his death, and at the time of his death the NH was
married to Shonie's mother Andrea. See Mo. Rev. Stat. § 210.822(1). However, the NH's parentage can be rebutted with clear
and convincing evidence. See L.M.K., 685 S.W.2d at 617; Mo Rev. Stat. § 210.822.2 (2006).
There are two key pieces of evidence which, together, constitute clear and convincing
evidence in this case. First, Andrea admitted to an SSA representative, in a contact
on May 23, 2007, that she did "sleep" with another man a "few weeks" after the NH's
death, and that she was not sure who the father was. Using the common usage of a "few"
weeks, that would date this event at approximately 275 days prior to Shonie's birth.
Second, the siblingship DNA test shows that there is only a slight possibility that
Shonie and Cameron could be siblings. There was only a .08% chance that the two children
shared the same father. Stated another way, the likelihood was 1,176 to 1 that they
did not share the same father. There is only a remote possibility that the two children
could share the same father. We have no evidence to rebut the validity of the DNA
test, and we do not have any reason to question its validity. However, should the
claimant question it, she does have the right to appeal your determination and present
appropriate evidence. Given that there is no reason to doubt the DNA evidence that
was submitted, there is no basis at the present time for further development the evidence.
Because of the combination of the admissions of Shonie's mother and the DNA siblingship
test, the possibility that the NH was the father is highly unlikely. We believe that
a Missouri probate court would find that clear and convincing evidence shows that
the NH was not the father of Shonie based on this evidence, and that the presumption
of paternity was rebutted.
Based on the evidence you have presented, the DNA siblingship testing along with the
oral statements of Andrea L~ are sufficient to overcome the presumption that the child,
Shonie, is the child of the deceased MH. We believe it is reasonable to conclude that
she is not entitled to child's benefits on the NH's.
Kristi A. S~ III
Chief Counsel, Region VII
Bert W. C~
Assistant Regional Counsel