You asked whether evidence of DNA testing showing a probability of 0.00% of paternity
is sufficient evidence to rebut the presumption of paternity and to allow for the
reopening of the claim, which had allowed Jonathan B~ to receive benefits on the record
of the Number Holder (NH), James E. B~, Jonathan's putative father.
There is sufficient evidence to allow for the reopening of this claim, and the evidence
in this case, including (but not limited to) the DNA testing showing a probability
of 0.00% of paternity, is likely sufficient to rebut the presumption that NH is the
father of the Jonathan B~.
On November 3, 2004, Michelle C~, on behalf of Jonathan B~ (Jonathan), filed an application
for child's insurance benefits on the record of NH, which was granted on November
23, 2004. Jonathan's natural mother, Michele G~, was married to NH from June 1985
through 1992, and Jonathan was born during that time -- on March 29, 1990. However,
Michele B~ informed the Agency that NH was not Jonathan's father, and that a DNA paternity
test confirmed this. Michele B~ also reported to the Agency that Michelle C~ was aware
of these test results. When questioned by the Agency, Michelle C~ indicated that she
was aware of the DNA testing, but did not know of the results; however, she submitted
the DNA test results a couple of days later. The DNA test was performed in October
2003, and the report, verified by Tricia D. F~, Ph.D., reports that there was 0.00%
probability that NH was the father of Jonathan. The report further indicated that
NH “cannot be the biological father of Jonathan B~, since he and the child do not
share necessary paternal markers in multiple genetic systems.” The record also includes
a copy of the December 4, 2003 court order acknowledging that NH is not the father
of Jonathan, and lists Michelle C~ as the defendant in that civil action. Furthermore,
the record includes a copy of Jonathan's birth certificate; however, this certificate
is devoid of both NH and Jonathan's mother's signatures.
The Agency has the regulatory authority to reopen the November 23, 2004 determination
that Jonathan is entitled to monthly child's benefits.
The Agency's regulations provide several options for reopening the November 23, 2004
determination that entitled Jonathan to monthly child's benefits. First, the regulations
provide that a determination, revised determination, decision, or revised decision
may be reopened within 12 months of the date of the initial determination for any
reason. See 20 C.F.R. § 404.988(a) (2005). Thus, the Agency may reopen the November 23, 2004 decision
at any time prior to November 22, 2005 to address the results of the DNA testing between
NH and Jonathan and to allow a Social Security Administration (SSA) adjudicator to
conclude that Jonathan is not entitled to benefits as NH's child.
Should the Agency be unable to reopen the November 23, 2004 decision prior to November
22, 2005, the regulations permit the Agency to reopen the determination within four
years of the November 22, 2005 determination, provided there is good cause. See 20 C.F.R. § 404.988(b). The regulations provide that there is good cause to reopen
a determination or decision if “new and material evidence is furnished.” 20 C.F.R.
§ 404.989(a)(1). In this case, the Agency has received both the results of the DNA
testing establishing that NH cannot be the biological father of Jonathan and a court
order reflecting the same. Such evidence would most certainly qualify as “new and
material evidence,” and thus, the Agency could find “good cause” to reopen the November
23, 2004 determination that Jonathan is entitled to monthly child's benefits in accordance
with 20 C.F.R. § 404.988(b).
Finally, the regulations provide that a determination, revised determination, decision,
or revised decision may be reopened at any time if it was obtained by fraud or similar
fault. See 20 C.F.R. § 404.988(c)(1).
2. The results of the DNA testing between NH and Jonathan and the subsequent court
order, both precluding NH's paternity of Jonathan, is likely sufficient to rebut the
presumption that NH is the father of Jonathan and warrant the reopening of the November
23, 2004 determination.
The determination to reopen this case essentially hinges on whether the results of
the DNA testing and subsequent court order is sufficient to rebut the presumption
that Jonathan is the legitimate child of NH and Michele B~, who were married at the
time of Jonathan's birth, March 29, 1990.
In South Carolina, there is a rebuttable presumption that the husband of the child's
mother is the child's father. See Mid-South Insurance Co. v. Doe, 274 F. Supp 2d 757, 763 (D.S.C. 2003); Chandler v. Merrell, 353 S.E.2d 133, 134-35 (S.C. 1987). This presumption, however, can be rebutted by
clear evidence that it was impossible for the husband to have been the father of the
child. See Brown v. Ryder Tuck Rental, 389 S.E.2d 161 (S.C. Ct. App. 1990).
Although the law is unclear as to what constitutes “clear evidence,” the courts have
provided some guidance. The presumption of NH being the father “must be overcome by
the showing of a strong state of circumstances such as impossibility of access, absolute
non-access, abandonment, or something equally conclusive.” Lewter v. Thompson, 315 S.E.2d 821, 823 (S.C. Ct. App. 1984) (emphasis added). In Douglass v. Boyce, 519 SE.2d 802 (S.C. Ct. App. 1999), the South Carolina Court of Appeals indicated
that a child is presumed to be a legitimate child of the marriage, “unless a paternity
action proves otherwise.” Id. at 805. Likewise, the parties' stipulation that the husband is not the biological
father of the child “rebuts the presumption that he was not [the child's] natural
father.” Mid-South Insurance Co., 274 F. Supp 2d at 763.
Given this authority, we believe an adjudicator could reasonably conclude, based on
the facts you provided, that there is clear evidence to rebut the presumption that
NH is the father of Jonathan. Despite the fact that Jonathan's mother was married
to NH at the time of Jonathan's birth, the results of the October 4, 2003 DNA testing
show a 0.00% probability of paternity that NH fathered Jonathan. The DNA test report
stated that NH “cannot be the biological father of Jonathan B~, since he and the child
do not do share necessary paternal markers in multiple genetic systems.” Likewise,
NH was conclusively presumed not to be the father of Jonathan in a subsequent court
order dated December 4, 2003.? Even Jonathan's mother has acknowledged to the Agency
that NH is not the father of Jonathan. We believe that Jonathan's mother's own acknowledgment
that NH is not the father, the court order establishing that NH is not the father,
and the DNA test results revealing the 0.00% probability of NH being the father is
clear evidence that is conclusive to rebut the presumption of legitimacy. As such,
a reopening of the claim, which had allowed Jonathan to receive benefits on the record
of the NH, appears appropriate.
3. The birth certification provided is insufficient to establish a rebuttable presumption
of paternity under South Carolina Law.
In South Carolina, a birth certificate containing a signature of the mother and the
putative father is evidence that creates a rebuttable presumption of paternity. See S.C. Code Ann. § 20-7-956(A)(6). The courts in South Carolina have also recognized
that the mere presence of the alleged father's name on the child's birth certificate
is insufficient to prove paternity. See Freeman v. Freeman, 473 S.E.2d 467, 472-73 n. 4 (S.C. Ct. App. 1996) (“[a]lthough [the father's] name
is on the birth certificate, his signature is not”); see also Pinckney v. Warren, 544 S.E.2d 620, 626 (S.C. 2001) (an unsigned birth certificate is insufficient to
establish paternity). In this case, the birth certificate provided does not include
a signature of either NH or Jonathan's mother. As such, the birth certificate provided
would not create a presumption of paternity. ?
4. A reopening of this claim to investigate the potential of fraud in this case is
Section 208(a)(4) of the Social Security Act (Act), 42 U.S.C. § 408(a), provides that
whoever has knowledge of the occurrence of any event affecting the initial or continued
right to any payment of any individual in whose behalf he/she has applied for, conceals
or fails to disclose such event with an intent fraudulently to secure payment, either
in a greater amount than is due or when no payment is authorized, shall be guilty
of a felony and upon conviction thereof shall be fined under Title 18, United States
Code, or imprisoned for not more than five years or both. Likewise, Section 1129(a)(1)
of the Act, 42 U.S.C. § 1320a-8(a)(1), provides that any person who makes, or causes
to be made, a statement or representation of a material fact for use in determining
any initial or continuing right to monthly insurance benefits that the person knows
or should know is false or misleading or knows or should know omits a material fact
or make such a statement with knowing disregard for the truth shall be subject to,
in addition to any other penalties that may be prescribed by law, a civil money penalty
of not more than $5,000 for each statement or representation.
The facts of this case reveal that Michelle C~, who filed for benefits on behalf of
Jonathan in November 2004, informed the Agency after the fact that she was aware of
the DNA testing between NH and Jonathan, but indicated that she had not received the
results. However, she subsequently provided the Agency with the DNA test results showing
that NH was not the father.
It is highly unlikely that Michelle C~ was unaware of these October 2003 test results
when she filed for benefits in November 2004. Michelle C~ was one of the defendants
in the civil action that led to the December 4, 2003 court order finding that NH was
not the father of Jonathan. In addition, the court order specified that DNA test results
showed “a zero probability of paternity.” Given that Michelle C~ was a party to this
civil action, it is highly unlikely that she did not know of its outcome. We believe
that referral to the Office of the Inspector General for further fact finding as to
whether child's benefits were obtained by fraud is appropriate.
The Agency has the regulatory authority to reopen the November 23, 2004 determination
that Jonathan is entitled to monthly child's benefits. In addition, the evidence of
record, including the DNA testing showing a 0.00% probability of paternity and the
court order concluding that NH is not the father, is likely sufficient to rebut the
presumption that NH is the father of the Jonathan, even though NH was married to Jonathan's
mother at the time Jonathan was born. Furthermore, the birth certificate with NH's
name is insufficient to establish a rebuttable presumption of paternity, because the
birth certificate was unsigned by either NH or Jonathan's mother, and even if a signed
birth certificate had been provided, the evidence of record is likely to rebut the
presumption of paternity. Finally, the facts of this case raise a suspicion that the
benefits in question have been obtained through fraud, and we believe that further
investigation of this issue is appropriate.
Mary A. S~
Regional Chief Counsel
Assistant Regional Counsel