In Nebraska, courts would consider DNA test results of a paternal aunt and uncle establishing a probability of paternity of a brother of 99.16 percent as part of a package of evidence to rebut the presumption of paterntiy and establish the claimant's relationship with the number holder by the clear and convincing standard.

You have asked for advice as to whether an illegitimate child can establish paternity and thus be entitled to child's benefits on the record of a deceased number holder based on the results of DNA testing of the child, the child's mother, and the child's alleged paternal aunt and uncle which establishes a probability of paternity of a brother of 99.16 percent. For the reasons discussed below, we believe that Nebraska courts would consider these DNA test results and the additional evidence in the file as establishing paternity by "clear and convincing" evidence within the meaning of Nebraska's intestacy statute such that child's benefits can be paid.

Factual Background

The documents sent with your request indicate that Walter H. A~ (deceased number holder) died on March 7, 1999, domiciled in Nebraska. Nancy B~ filed two prior applications for surviving child's benefits on behalf of her daughter, LaceyJae J. B~, who was born on December 21, 1993. Mrs. B~ protectively filed a third application for surviving child's benefits on August 14, 2007. Mrs. B~ alleged that the deceased number holder was the biological father of LaceyJae. Mrs. B~ and the deceased number holder were never married, had never attempted to marry, and were not engaged to be married. The deceased number holder was never ordered by a court to pay child support or decreed by a court to be the father of LaceyJae. There are no written acknowledgments of paternity, and the deceased number holder was not living with LaceyJae or contributing to her support at the time of his death.

The materials you sent also include other documents submitted by Mrs. B~. Mrs. B~ submitted a Relationship Report from LabCorp dated March 22, 2006, citing a 99.16 percent probability that the brother of Teresa S~ and Paul E. A~ Jr., (alleged paternal aunt and uncle) could be the biological father of LaceyJae. This conclusion was based on blood tests of LaceyJae, her mother, and the alleged paternal aunt and uncle (assuming prior probability equals .50). Additional evidence includes statements from Mark S~ and Donnie T~, both of whom indicated that the deceased number holder admitted to them orally that he was the natural father of LaceyJae J~ B~.

In documentation related to a previous application, Mrs. B~ stated that she was married to, but separated from Michael B~ at the time LaceyJae was conceived. She stated that she moved back in with her husband about two months before LaceyJae was born. In his recent application for disability benefits, Michael B~ listed LaceyJae as his daughter and noted that he was still married to Nancy B~.

Based on this information, the Field Office requested additional information from Mrs. B~. She reported that she was living with the deceased number holder at the time that LaceyJae was conceived. She reported that she remained married to Michael B~ from 1987 to the present, but that they were separated when LaceyJae was conceived. Mrs. B~ also reported that she did not have a relationship with anyone other than the deceased number holder during the time LaceyJae was conceived. Unsigned statements from the deceased number holder's brothers indicate that neither of them had a relationship with Mrs. B~ and that neither could be the biological father of LaceyJae. Both of the deceased number holder's brothers also reported that the deceased number holder lived with Mrs. B~ in 1992 and 1993. One of the deceased number holder's brothers stated that the deceased number holder told him that Mrs. B~ was expecting his child in December 1993.

Analysis

Section 202(d)(1) of the Social Security Act (Act) establishes the criteria for entitlement to child's insurance benefits. This section provides that every child (as defined in section 216(e)) of an individual who dies fully insured under the Act is entitled to benefits if the child applies for benefits, is unmarried and under 18 (or a full-time elementary or secondary school student and under age 19), or is under a disability that began before age 22, and was dependent on the deceased at the time of death. Id. A child who is "legitimate" or legally adopted by the insured individual is deemed dependent, and is thus entitled to benefits. Social Security Act § 202(d)(3).

An "illegitimate" child can be deemed dependent on a deceased insured individual in several ways. First, section 216(h)(3)(C)(ii) of the Act provides that the child can be deemed dependent on the insured by showing that the insured was his or her parent and was living with or contributing to his or her support at the time of the insured's death. Second, section 216(h)(2)(B) of the Act provides that the child can be deemed dependent on the insured if the child can show that the insured was his or her parent and that his or her parents went through a purported marriage ceremony, but their marriage was invalid because of a legal impediment. Third, section 216(h)(3)(C)(i) of the Act provides that the child can be deemed dependent on the insured if the child can show that the insured had, prior to his death: (a) acknowledged in writing the child as his child; (b) been decreed by a court to be the child's parent; or (c) been ordered by a court to contribute to the support of the child on the basis of parenthood. Section 202(d)(3) of the Act provides that any child who meets the tests in sections 216(h)(2) or (h)(3) "shall be deemed to be the legitimate child of such individual."

In this case, LaceyJae cannot meet any of the above requirements with regard to the deceased number holder. The deceased number holder was not living with or contributing to LaceyJae's support at the time of his death. Mrs. B~ and the deceased number holder were not married at the time LaceyJae was conceived or anytime thereafter. The deceased number holder did not acknowledge LaceyJae as his child in writing, nor was he decreed by a court to be her parent or ordered to pay support.

An "illegitimate" child who does not meet any of the above requirements for showing dependency can also be entitled to benefits under section 216(h)(2)(A) if the child could 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 such insured individual . . . was domiciled at the time of his death . . . ." Id. See also 20 C.F.R. § 404.355(a)(1)(2007); Program Operations Manual System (POMS) GN 00306.055. An illegitimate child who meets the standard which Congress set forth in section 216(h)(2)(A) of the Act is deemed to be legitimate and, therefore, dependent. See Matthews v. Lucas, 427 U.S. 495, 514-15 n.17 (1976). If the insured is deceased, the Social Security Administration applies the law on inheritance rights where the insured had his permanent home when he died. See 20 C.F.R. § 404.355(b)(1). In this case, you have indicated that the deceased number holder was domiciled in Nebraska; therefore, Nebraska intestacy law applies.

Nebraska Revised Statute § 30-2309 states that if, for purposes of intestate succession, a relationship of parent and child must be established to determine succession by, through, or from a person, a person born out of wedlock is a child of the father, if:

1. (i)  

   the natural parents participated in a marriage ceremony before or after the birth of the child, even though the attempted marriage is void; or

2. (ii)  

   the paternity is established by an adjudication before the death of the father or is established thereafter by strict, clear and convincing proof. The open cohabitation of the mother and alleged father during the period of conception shall be admissible as evidence of paternity. The paternity established under this subparagraph (ii) is ineffective to qualify the father or his kindred to inherit from or through the child unless the father has openly treated the child as his, and has not refused to support the child.

LaceyJae can only establish paternity under Nebraska's intestate succession law by "strict, clear and convincing proof." Neb. Rev. Stat. § 30-2309. Nebraska Courts have described clear and convincing evidence in intestate succession cases as "the amount of evidence which produces in the trier of fact a firm belief or conviction about the existence of a fact to be proved."

In re Estate of B~, 603 N.W.2d 688, 693 (Neb. Ct. App. 2000)(citing In re Interest of Joshua M. et al., 558 N.W.2d 548, 563 (Neb. 1997)).

In determining whether there is clear and convincing evidence that LaceyJae is the deceased number holder's child for purposes of intestate succession, it is important to note that Mrs. B~ was married to Michael B~ at the time LaceyJae was conceived and born. Nebraska law provides that a child born during a marriage is presumed the legitimate child of the parties of the marriage. See Quintela v. Quintela, 544 N.W.2d 111, 115 (Neb. Ct. App., 1996); see also Neb. Rev. Stat. § 42-377. Because LaceyJae was born during the marriage of Mr. and Mrs. B~, she is presumed the legitimate child of the marriage under Nebraska law. Additionally, Mrs. B~ has lived with and remained married to Mr. B~ since before LaceyJae's birth. Mr. B~ also claimed that LaceyJae was his child in his application for disability benefits. However, the presumption favoring legitimacy of children born during a marriage may be rebutted by clear, satisfactory, and convincing evidence. See Perkins v. Perkins, 253 N.W.2d 42, 45 (Neb. 1977); Quintela at 115.

One of the key pieces of evidence in determining whether LaceyJae can establish paternity under Nebraska intestate law and rebut the presumption of legitimacy is the DNA testing performed on LaceyJae, her mother, and two of the deceased number holder's siblings. Nebraska Revised Statute § 43-1415 addresses the admissibility of genetic tests to prove paternity. It states:

1. (a) 

   The results of the tests, including the statistical probability of paternity, shall be admissible evidence and, except as provided in subsection (2) of this section, shall be weighed along with other evidence of paternity.

2. (b) 

   When the results of tests, whether or not such tests were ordered pursuant to section 43-1414, show a probability of paternity of ninety-nine percent or more, there shall exist a rebuttable presumption of paternity.

3. (c) 

   Such evidence may be introduced by verified written report without the need for foundation testimony or other proof of authenticity or accuracy unless there is a timely written request for personal testimony of the expert at least thirty days prior to trial.

Neb. Rev. Stat. § 43-1415; see also POMS GN 00306.550.

Nebraska statutory law only addresses a presumption based on the probability of paternity. The statute does not address testing of collateral relatives. Nebraska courts have not addressed the applicability of the section 43-1415 presumption in cases where the tests were performed on collateral relatives. We do not believe testing of collateral relatives, such as aunts and uncles, falls within the presumption described by this statute. Although there is no Nebraska case law specifically addressing whether aunt or uncle blood tests are probative in establishing clear and convincing evidence of paternity, the results of genetic testing are admissible evidence to be weighed along with other evidence of paternity. See Neb. Rev. Stat. § 43-1415; State v. Snelling, 637 N.W.2d 906, 909-10 (Neb. Ct. App. 2001)(noting that genetic tests are weighed with other evidence of paternity). DNA testing of a deceased father's parents has been allowed in other jurisdictions as evidence to prove paternity. We believe that a Nebraska court would consider the DNA testing submitted in this case in a clear and convincing proof analysis.

Other evidence supporting a finding that the deceased number holder is LaceyJae's father includes statements from two witnesses who indicated that the deceased number holder admitted to them orally that he was LaceyJae's natural father. Additionally, one of the deceased number holder's brothers stated that the deceased number holder told him that Mrs. B~ was expecting a child in December 1993 and that he was the father. Mrs. B~ reported that she was living with the deceased number holder at the time LaceyJae was conceived and did not have a relationship with any other man during that time period. Both of the deceased number holder's brothers confirmed that the deceased number holder was living with Mrs. B~ in 1992 and 1993. LaceyJae was born in December 1993. Under Nebraska law, the open cohabitation of the mother and alleged father during the period of conception "shall be admissible evidence of paternity". Neb. Rev. Stat. § 30-2309.

While the Nebraska courts have not considered this exact situation, the courts have found that the presumption of legitimacy was properly rebutted in similar situations. In State o/b/o Hopkins v. Batt, 573 N.W.2d 425, 433 (Neb. 1998), the court found clear, satisfactory, and convincing evidence to overcome the presumption of legitimacy. The evidence in that case included the mother's testimony that she did not have sexual relations with anyone other than the alleged father during the time period in which the child was conceived. See id. The record also contained results of genetic testing which indicated a 99.98 percent probability that the alleged father was the child's biological father. See id. In Cavanaugh v. deBaudiniere, 493 N.W.2d 197, 210 (Neb. Ct. App. 1992), the court found that a blood test alone, which showed that the husband was not the biological father of the child born during the marriage, was enough to rebut the presumption of legitimacy.

In the fact situation you present, we believe that the Nebraska courts would find that LaceyJae has rebutted the presumption of legitimacy and has provided clear and convincing evidence that she is the daughter of the deceased number holder for intestacy purposes. The DNA evidence is strong evidence supporting a finding that the deceased number holder is LaceyJae's father. Additionally, the deceased number holder made statements to others that he was LaceyJae's biological father and openly cohabitated with Mrs. B~ during the time LaceyJae was conceived.

Based on the materials submitted, we believe it is reasonable to conclude that the evidence establishes that the deceased number holder was the father of LaceyJae Jessica B~ by clear and convincing proof within the meaning of Nebraska's intestacy statute. Therefore, LaceyJae has met the requirements for entitlement to child's benefits under section 216(h)(2)(A).

Kristi A. S~

Acting Chief Counsel, Region VII

By

Angela G. T~-M~

Assistant Regional Counsel