TN 20 (10-13)

PR 01010.048 Texas

A. PR 13-025 Texas State Law - Evidence Requirements to Rebut the Presumption of Legitimacy of Child Relationship (NH James., SSN ) – REPLY

DATE: December 3, 2012

1. SYLLABUS

The evidence submitted rebuts the presumption that the number holder is Tyler’s biological father, but the agency cannot terminate Tyler’s entitlement to child’s benefits on the number holder’s account. If a claimant has been entitled to benefits as an insured individual’s child and a later determination reveals that another man is the child’s biological father,  this is not a terminating event under the Act.  The Act and Regulations provide that entitlement to child’s benefits ends with the month preceding the occurrence of certain terminating events, none of which are relevant or applicable to this case.

Even though Tyler was entitled to child’s insurance benefits on the number holder’s account more than four years ago, the agency can reopen the determination, but  only if Tyler’s mother obtained Tyler’s benefits through fraud or similar fault. The facts of this case do not amount to fraud or similar fault to allow the agency to reopen Tyler’s award.

2. OPINION

Questions

You asked us to provide a legal opinion regarding whether the evidence submitted rebuts the presumption that James a deceased number holder (number holder), is the biological father of Tyler , previously Tyler, who was born during the valid marriage of the number holder and Carolyn (Tyler’s mother).  If the evidence rebuts the presumption, you asked us whether the Social Security Administration (the agency) has sufficient documentation to terminate Tyler’s entitlement to child’s benefits on the number holder’s account, and whether the fraud or similar fault threshold has been met for the agency to reopen Tyler’s initial entitlement to child’s benefits on the number holder’s account under the Social Security Act (Act).

Answer

The evidence submitted rebuts the presumption that the number holder is Tyler’s father and shows by clear and convincing evidence that Mark is Tyler’s father.  However, because the agency originally determined that Tyler was entitled to child’s insurance benefits on the number holder’s account more than four years ago, the agency can reopen the determination only if Tyler’s mother obtained Tyler’s benefits through fraud or similar fault. The evidence submitted in this case is insufficient to find that Tyler’s mother made any false statement or misrepresentation of a material fact in Tyler’s application, or knowingly concealed information that was material to the determination of entitlement. Consequently, even though the evidence rebuts the presumption that the number holder is Tyler’s biological father, the agency cannot terminate Tyler’s entitlement to child’s benefits on the number holder’s account.

Background

The Number Holder’s Relationship with Tyler

As we understand the facts, the number holder and Tyler’s mother were married in 1995. The number holder filed for disability benefits on February 26, 1997, which the agency granted effective November 1996. The number holder and Tyler’s mother separated on December 15, 1997, but Tyler was born on October, while they were still married. Although the number holder states that he signed divorce papers, the Harris County Court never finalized their divorce.  In fact, the Court dismissed their divorce case on January 11, 1999, because neither party appeared on the established trial date. On April 22, 1999, Tyler’s mother filed an application for child’s benefits on Tyler’s behalf as the number holder’s natural child. The agency granted the claim since the number holder and Tyler’s mother were still married. The remarks on the agency’s Modernized Claims System (MCS) and Development Worksheet (DW01) screens used Tyler’s original birth certificate (not presently available) to establish his date of birth and his relationship to the number holder.  There is no evidence, however, that the number holder ever lived with or supported Tyler. The number holder died in May 2004 while living in Texas.

Mark’s Relationship with Tyler

On November 16, 1999, Mark filed a proceeding to determine Tyler’s parentage in Harris County Court, which the court later transferred to the Polk County Court. On November 17, 2000, Polk County Court Judge Stephen Phillips directed that Mark, Tyler’s mother, and Tyler submit to DNA testing. The DNA results revealed a 99.998 percent probability that Mark and Tyler are related.  Judge Phillips admitted the verified written results of the DNA testing into evidence.

After a hearing on November 14, 2001, Judge Phillips approved an Agreed Order on December 4, 2001, which named Mark and Tyler’s mother joint managing conservators and set forth various rights and duties involving Tyler, including that Tyler would continue to live with his mother, but the Order gave Mark visitation rights and ordered that Mark to pay child support of $400.00 per month, and to maintain health insurance for Tyler. The Order changed Tyler’s name from Tyler , Mark’s surname. Mark submitted the Agreed Order to the Texas Bureau of Vital Statistics in Harris County to officially change Tyler’s birth certificate to reflect his name as Tyler, and his parents as Mark and Carolyn. A copy of the corrected birth certificate is in the agency’s file. In April 2002, Mark submitted this information to the agency to change Tyler’s name on his Social Security card to Tyler. The agency used the Agreed Order and corrected birth certificate to change Tyler’s name on his Social Security card.

In 2006, Mark initiated an action in Polk County Court to modify the December 4, 2001 Agreed Order. After a hearing on November 21, 2006, a judge issued a Modified Agreed Order on June 27, 2007, removing Tyler’s mother as the managing conservator with the right to designate Tyler’s primary residence, and giving Mark the exclusive right to designate the primary residence of Tyler. The judge further ordered Tyler’s mother to pay child support of $300.00 per month to Mark, beginning January 15, 2007. Tyler’s mother stated in a June 2008 Affidavit that since December 26, 2006, Tyler was living with Mark.  In a January 12, 2012, statement to the agency, Mark also confirmed that he was Tyler’s biological father, and that Tyler had lived with him since December 26, 2006.

Legal Analysis

I.  Rebutting Presumption of Presumed Father

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, 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 purposes of the Act, 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). If the child is eligible to inherit the number holder’s intestate personal property according to such state law, the agency shall deem him the number holder’s child for purposes of receiving child’s benefits under the Act. See 42 U.S.C. §416(h)(2)(A); 20 C.F.R. §404.355(b). Thus, Tyler’s eligibility for Social Security benefits depends on whether he could inherit property through intestate succession as the number holder’s child.

Here, Texas law controls because the number holder had his permanent home in Texas at all relevant times. 20 C.F.R. § 404.355(b). The Texas Probate Code specifies five 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; 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) 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); Tex. Fam. Code §§ 160.201, 160.204.  The only methods relevant to the current issue are the first and fifth methods, whether Tyler was born under circumstances described in section 160.201 of the Texas Family Code and whether there is clear and convincing evidence that the number holder was Tyler’s biological father. See Tex. Fam. Code §§ 160.201, 160.204; Tex. Prob. Code § 42(b) (1), (5).

A.   Analysis Under Section 160.201

Under section 160.201, 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).  Texas law further provides that a presumption of paternity that arises in marriage, such as in this case, may be rebutted only by the following:  (1) an adjudication under a proceeding to determine the parentage of a child under Subchapter G of the Texas Family Code, sections 160.601-160.637; or (2) the filing of a valid denial of paternity by a presumed father as provided by section 160.303, in conjunction with the filing by another person of a valid acknowledgment of paternity as provided by section 160.305. See Tex. Fam. Code Ann §160.204(b)(1)-(2).  Based on the submitted documentation, Texas courts would presume that the number holder was Tyler’s father because he was born while the number holder and Tyler’s mother were married. See Tex. Fam. Code Ann. § 160.204(a). We therefore consider whether the evidence submitted rebuts the presumption that the number holder is Tyler’s father by looking at whether there was an adjudication of paternity under Subchapter G of the Texas Family Code.  The second method, the filing of a valid denial of paternity by a presumed father, cannot be met in this case because there is no documentation showing that the number holder filed a valid denial of paternity in accordance with section 160.303 of the Texas Family Code. Under this section, a presumed father’s denial of paternity is not valid unless it is in a record and is signed or otherwise authenticated under penalty of perjury. See Tex. Fam. Code § 160.303(2).

We find that the evidence submitted shows an adjudication of paternity consistent with the Texas Family Code to rebut the presumption that Tyler is the number holder’s biological child.  In determining paternity under Chapter 160, a Texas court will consider the results of genetic testing, provided that the genetic testing and corresponding 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 §§ 160.504, 160.505(a).  A discussion about establishing reliability and authenticity of DNA reports can be found in the Program Operations Manual System (POMS) and our prior opinions.  See e.g. Memorandum from Regional Chief Counsel, Dallas, to Assistant Regional Commissioner, Texas Law – Status of Child Relationship (NH Johnny) (October 28, 2011); POMS § GN 00306.640.A.4.c. In this case, the Polk County Court accepted into evidence the results of DNA testing and issued an adjudication of paternity based on this testing. A verified written DNA report that is performed pursuant to a court’s order is admissible as evidence of the truth of the facts asserted in the matters it contains. See Tex. Fam. Code § 160.621.  Texas courts deem scientific DNA paternity testing as a well-established and accepted method to rebut the presumption of paternity in Texas. Tipps v. Metropolitan Life Insurance Co., 768 F. Supp. 577, 579-580 (S.D. Tex. 1991).

In November 2000, the Polk County Court ordered that Tyler, his mother, and Mark undergo genetic testing to ascertain the possibility of probability of Mark’s parentage. The test report showed that Mark could not be excluded as Tyler’s biological father, that at least 99.98 percent of the male population was excluded from the possibility of being Tyler’s father, and that the probability of Mark’s paternity of Tyler was 99.998 percent to adjudicate the rights and duties of Tyler’s mother and Mark under Subchapter G of the Texas Family Code. See Tex. Fam. Code §§ 160.621, 160.631. In December 2001, a Polk County Court Judge issued an Agreed Order that changed Tyler’s surname to that of his biological father, Mark; made Mark and Tyler’s mother joint managing conservators; gave Mark visitation rights; and ordered Mark to pay child support of $400.00 per month to Tyler’s mother, and to maintain health insurance for Tyler. Subsequently, in June 2007, the Court issued an Order In Suit To Modify the Parent-Child Relationship, removing Tyler’s mother as managing conservator and ordering, inter alia, both parents to be joint managing conservators. Such findings are typical of Orders adjudicating parentage under Subchapter G of the Texas Family Code. See Tex. Fam. Code § 160.  Thus, we conclude that the evidence submitted rebuts the presumption that the number holder is Tyler’s father. 

B.    Clear and Convincing Evidence Analysis

Tyler can also establish paternal inheritance rights under the clear and convincing standard of the Texas Probate Code. See Tex. Prob. Code § 42(b)(5). 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.  In this case, we believe that the totality of the evidence constitutes clear and convincing evidence that Mark, not the number holder, is Tyler’s biological father. 

As discussed above, the evidence submitted includes the November 2000 results of genetic testing, the December 2011 Polk County Court Agreed Order, the June 2007 Modified Agreed Order, the amended birth certificate that shows Mark is Tyler’s father, and the agency’s change of Tyler’s surname on his social security card to Mark. On November 16, 1999, Mark filed a proceeding to determine Tyler’s parentage. On November 17, 2000, Polk County Court Judge Stephen Phillips directed that Mark, Tyler’s mother, and Tyler submit to DNA testing. See Tex. Fam. Code § 160.621 (a verified DNA report is admissible as evidence of the truth of the facts asserted therein); T, 768 F. Supp. at 579-580 (DNA test results may provide clear and convincing evidence of paternity).  The November 2000 DNA test results revealed that there was a 99.998 percent certainty that Mark was Tyler’s biological father, and it excluded at least 99.98 percent of the male population from the possibility of being Tyler’s biological father. 

In December 2001, the Polk County Court entered an Agreed Order referring to Mark as Tyler’s parent, changing Tyler’s surname to Tyler, and ordering Mark to comply with various duties involving Tyler’s care, control, protection, discipline, health, education, welfare, monetary support, etc. A copy of the corrected birth certificate is in the agency’s file. In April 2002, Mark submitted this information to the agency to change Tyler’s name on his Social Security card to Tyler. The agency used the Agreed Order and corrected birth certificate to change Tyler’s name on his Social Security card.

In 2006, Mark initiated an action in Polk County Court to modify the December 4, 2001 Agreed Order. After a hearing on November 21, 2006, a judge issued a Modified Agreed Order on June 27, 2007, removing Tyler’s mother as the managing conservator with the right to designate Tyler’s primary residence, and giving Mark the exclusive right to designate the primary residence of Tyler. Judge Phillips further ordered Tyler’s mother to pay child support of $300.00 per month to Mark, beginning January 15, 2007. Tyler’s mother stated in a June 2008 Affidavit that since December 26, 2006, Tyler was living with Mark. In a January 12, 2012, statement to the agency, Mark also confirmed that he was Tyler’s biological father, and that Tyler had lived with him since December 26, 2006.  The totality of the evidence constitutes clear and convincing evidence that Mark is Tyler’s biological father, and that the number holder is not.  Thus, Tyler has established paternal inheritance rights under two of the five methods provided under the Texas Probate Code.

II. Is the Agency Bound By The Polk County Adjudications

Social Security Ruling (SSR) 83-37c, which cites Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973), holds that the agency is bound by a state court adjudication if:  1) a state court of competent jurisdiction has previously determined an issue in a claim for Social Security benefits; 2) the issue was genuinely contested by parties with opposing interests; 3) the issue falls within domestic relations law; and 4) the resolution is consistent with the law of the highest court of the state.  In this matter, the Polk County Court adjudications meet all four requirements. SSR 83-37c.

With respect to the first G~ prong, the Polk County court issued an Agreed and a Modified Agreed Order referring to Mark as Tyler’s parent and ordering Mark to comply with certain duties, including support and visitation.  The Polk County court has proper jurisdiction over domestic relations cases. See e.g., Tex. Probate Code § 42(b) (person claiming to be a decedent’s biological child may petition the probate court for a determination of his right to inheritance). Therefore the Agreed and Modified Agreed Orders meet the first G~ prong. 

With regard to the second G~ prong, the Polk County Court issued an Agreed and a Modified Agreed Order, which were final and which had the same binding force of a final judgment rendered at the conclusion of adversary proceedings.  See In re J.M., IV, 373 S.W.3d 725, 729 (Tex. App.- San Antonio 2012), citing In re the Office of the Attorney General of Texas, 193 S.W. 3d 690, 692 (Tex. App. – Beaumont 2006) (agreed orders in suits affecting the parent-child relationship are accorded the same degree of finality as a final judgment from an adversary proceeding). Thus, the Agreed Orders meet the second G~ prong.

With regard to the third G~ prong, child custody and related issues fall within general domestic law in Texas. See In re N~, 160 S.W.3d 292, 292 (Tex. App. – Texarkana 2005) (involving child support modification).  The agency generally defers to a state court’s order interpreting state law, especially in those areas where a domestic relations or similar question arises under state law and the Social Security Act specifically incorporates State law requirements.   See G~, 474 F.2d at 1373 (stating that special deference should be given to the resolution of domestic relations problems by the state court, as the states have traditionally been considered the exclusive arbiter of such problems).  Thus, the Agreed Orders in this case, which determined child custody and related issues, meet the third G~ prong.

With regard to the fourth G~ prong, the Polk County Court’s Agreed Orders are consistent with the law the Texas highest courts’ have enunciated. Texas courts recognize that genetic testing is a reliable way to determine paternity and customarily establish the rights of duties of a child’s parents regarding custody, support, and visitation. See In re R~, 248 S.W. 3d 444, 451 (Tex. App. – Dallas 2008).  In this case, the Polk County Court referred to Mark as Tyler’s parent and determined his rights and duties, including custody, support, and visitation. Thus, the orders are consistent with Texas’ highest courts and meet the fourth G~ prong. As such, the Polk County Court’s Agreed and Modified Agreed Orders bind the agency. See SSR 83-37c.

III.   Terminating Events for Entitlement to Child’s Benefits

If a claimant has been entitled to benefits as an insured individual’s child, a later determination that another man is the child’s biological father is not a terminating event under the Act. See Section 202(d)(1) of the Act, 42 U.S.C. § 402(d)(1)(D)-(H); 20 C.F.R. § 404.352(b). The Act and Regulations provide that entitlement to child’s benefits ends with the month preceding the occurrence of certain terminating events, none of which are relevant to the analysis herein. See 42 U.S.C. § 402(d)(1)  The agency can terminate child’s benefits at the first occurrence of one of these events:  1) the month in which such child dies, or marries; 2) the month in which such child attains the age of 18, but only if he (i) is not under a disability ... at the time he attains such age, and (ii) is not a full-time elementary or secondary school student ...; 3) if such child was not under a disability ... at the time he attained the age of 18, the earlier of (i) the first month during no part of which he is a full-time elementary or secondary school student, or  (ii) the month in which he attains the age of 19, but only if he was not under a disability ... in such earlier month; 4) if such child was under a disability ... at the time he attained the age of 18 or if he was not under a disability ... at such time but was under a disability ... at or prior to the time he attained ... the age of 22 ...; and 5) if the benefits under this subsection are based on the wages and self-employment income of a stepparent who is subsequently divorced from such child’s natural parent, the month after the month in which such divorce becomes final.; 20 C.F.R. § 404.352(b); POMS § RS 00203.035; see also Memorandum from Regional Chief Counsel, Atlanta, to Associate Commissioner – Office of Central Operations, Effect of Paternity Test Results on a Child’s Benefits Claim (March 17, 2006).

Because no terminating event has occurred under 42 U.S.C. § 402(d)(1), the agency may only stop Tyler’s benefits based on the number holder’s earnings record if the agency can reopen the original April 1999 child-status determination.  See 20 C.F.R. § 404.988. When more than four years have elapsed from the date of the initial determination, the agency may reopen a determination only if it was obtained by fraud or similar fault, or the determination concerned one of several other factors not applicable here. See 20 C.F.R. § 404.988(c).

In regard to reopening, “fraud” exists where a person “[w]ith intent to defraud, conceals or fails to disclose a material fact for use in determining rights to Social Security benefits.” See POMS § GN 04020.010.A.1.b.  Similar fault exists when a person “[k]nowingly conceals information that is material to the determination. However, fraudulent intent is not required.” See POMS § GN 04020.010.A.2.b.  Courts have found that misrepresentations about domestic or financial status constitute fraud or similar fault for purposes of reopening a Social Security claim.  See, e.g., Austin v. Shalala, 994 F.2d 1170, 1174 (5th Cir. 1993) (holding claimant responsible for accuracy of information on forms she signs, and “at fault” if information is incorrect); Heins v. Shalala, 22 F.3rd 157, 162 (7th Cir. 1994) (holding reopening justified on ground of similar fault when claimant failed to report remarriage and signed application which stated none other to question regarding other marriages); Marshall v. Chater, 75 F.3d 1421, 1427 (10th Cir. 1996) (holding reopening justified when claimant fraudulently, or at least knowingly, made incorrect statements regarding his income and hours and/or withheld such material information); Fowler v. Bowen, 876 F.2d 1451, 1455 (10th Cir. 1989) (holding that substantial evidence supported ALJ’s finding that claimant’s incorrect statement regarding employment status and failure to reveal substantial earnings constituted fraud or similar fault). Thus, we must determine whether Tyler’s mother’s actions constitute fraud or similar fault to allow the agency to reopen Tyler’s award as the deceased number holder’s child. See POMS § GN 04020.010.

The facts of this case do not amount to fraud or similar fault to allow the agency to reopen Tyler’s award. Tyler’s mother filed for benefits on Tyler’s behalf on the number holder’s earning record in April 1999; however, in December 2009, the agency destroyed the paper version of that application, and the agency’s MCS and DW01 electronic screens do not contain any helpful remarks or statements.  These screens indicate that the agency allowed the original claim because the number holder and Tyler’s mother were still married, and there was an original birth certificate (not presently available) that established Tyler’s date of birth and his relationship to the number holder. The agency does not have any other evidence concerning the original entitlement determination. While a subsequent DNA report dated November 28, 2000, established the probability that Mark was Tyler’s biological father and the Polk County Court’s Agreed and Modified Agreed Orders refer to Mark as Tyler’s parent, there is nothing in the file to indicate that Tyler’s mother was certain the number holder was not Tyler’s biological father in April 1999, when she filed Tyler’s application for benefits on the number holder’s earnings record

Therefore, the evidence before the agency is insufficient to establish that Tyler’s mother knowingly made any false statement or representation of a material fact in Tyler’s April 1999 application.  The evidence is also insufficient for the agency to find that Tyler’s mother knowingly concealed information that was material to the agency’s initial determination of Tyler’s entitlement to child’s insurance benefits on the number holder’s account. Accordingly, the agency cannot show fraud or similar fault on the part of Tyler’s mother to allow the agency to reopen Tyler’s original child-status determination.  However, if any further investigation establishes that Tyler’s mother knowingly made false or misleading statements or that she concealed material information when she filed Tyler’s application in April 1999, we would be pleased to re-address this issue based on additional evidence the agency may obtain.

IV Conclusion

The evidence submitted rebuts the presumption that the number holder is Tyler’s father and shows by clear and convincing evidence that Mark is Tyler’s father. However, because the agency originally determined that Tyler was entitled to child’s insurance benefits on the number holder’s account more than four years ago, the agency can reopen the determination only if Tyler’s mother obtained Tyler’s benefits through fraud or similar fault. The evidence submitted in this case is insufficient to find that Tyler’s mother knowingly made any false statement or misrepresentation of a material fact in Tyler’s application, or knowingly concealed information that was material to the determination of entitlement. Consequently, even though the evidence rebuts the presumption that the number holder is Tyler’s biological father, the agency cannot terminate Tyler’s entitlement to child’s benefits on the number holder’s account.

Michael McGaughran
Regional Chief Counsel
By:___________________________
Christopher Carillo
Assistant Regional Counsel

B. PR 07-175 Texas State Law - (NH Estevan , SSN ) - REPLY

DATE: July 11, 2007

1. SYLLABUS

In a case where the claimant was born during the marriage of her mother to the deceased number holder, a statement from her mother denying the number holder's paternity combined with a divorce decree which omits the claimant as a child of the marriage would not be sufficient to rebut the presumption the a child of a marriage is the child of the husband under the Texas Uniform Parentage Act.

2. OPINION

You asked us to provide a legal opinion regarding whether Sarah may be entitled to Social Security survivor benefits on the earnings record of Estevan, the deceased number holder (number holder). Specifically, you asked whether a statement from Sarah's mother regarding paternity and a divorce decree that does not name Sarah as a child of the marriage is sufficient to rebut the presumption that the number holder was Sarah's father. In our opinion, this evidence is not sufficient to rebut this presumption. Consequently, the Social Security Administration (the Agency) should treat Sarah as the number holder's child. As such, she is entitled to benefits on the number holder's Social Security record.

The number holder was born on August. On November 14, 1984, the number holder married Diana in Texas. In January 1997, the couple separated, and they divorced on September 16, 1999. The number holder died on July 31, 2006, while living in Texas.

As we understand the facts, Diana gave birth to three children during her marriage to the number holder. Diana was born on July. Stephanie was born on September. Sarah was born on January. Sarah's birth certificate identifies the number holder as the father. Diana reported to the Agency that she did not have any relations with the number holder after they separated in January 1997; that while they were separated, she began dating Juan; that she conceived Sarah during the time when she and the number holder were separated; that the number holder was not Sarah's biological father; and that Juan is Sarah's biological father. The divorce decree, which grants the divorce between the number holder and Diana, does not mention Sarah as a child of the marriage.

In September 2001, Diana went to an Agency field office to file an application for Social Security survivor benefits on behalf of her three daughters. An Agency employee told Diana that Sarah did not qualify for benefits on the number holder's Social Security record, and the Agency did not take Sarah's application. In August 2006, Diana filed another application for Social Security survivor benefits, on the number holder's Social Security record, on behalf of Sarah. Along with the application, she presented Sarah's birth certificate that identifies the number holder as the father and a divorce decree that the court granted on September 16, 1999, over a year after Sarah's birth.

A child may be eligible for Social Security survivor benefits if he or she is the child of an individual who died fully or currently insured. See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350 (2007). To determine whether an applicant is the child of a deceased wage earner for the purposes of the Social Security Act (the Act), the Commissioner of the Social Security Administration will apply the intestacy laws of the state in which the wage earner had his permanent home when he died. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b). An applicant who would have the same status relative to taking intestate personal property as the deceased individual's child, according to such state law, shall be deemed a child of the insured individual for Social Security purposes. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b). Thus, the applicant's eligibility for Social Security benefits depends on whether the applicant could inherit property through intestate succession as the child of the deceased wage earner.

Here, Texas law controls because the number holder had his permanent home in Texas when he died. The Texas Probate Code (Probate Code) provides two methods to establish paternity for heirship purposes, "presumed paternity and paternity found by clear and convincing evidence in the probate court." See In Re Estate of C~, 993 S.W.2d 311, 318 (Tex. App. - San Antonio, 1999, no writ) (citing Tex. Prob. Code Ann. § 42(b)(1)). Under the presumed paternity method, the Probate Code states that a child is the child of his biological father if the father-child relationship is established under the Texas Family Code (Family Code). See Tex. Prob. Code Ann. § 42(b) (Vernon 2007).

Texas adopted the Uniform Parentage Act (the Uniform Act) in 2001. See Tex. Fam. Code Ann. §§ 160.001-160.763 (Vernon 2007). The Uniform Act governs every determination of paternity in Texas. Tex. Fam. Code Ann. § 160.103(a) (Vernon 2007). Under the Uniform Act, a man is presumed to be the father of a child if he is married to the mother of the child and the child is born during the marriage. Tex. Fam. Code Ann. § 160.204(a) (Vernon 2007); see also Dickerson v. Doyle, 170 S.W.3d 713, 717 (Tex. App. - El Paso 2005) (husband of the child's mother presumed to be the child's father, even though another man sometimes lived and slept with the child's mother and claimed that he was the child's father).

The Uniform Act provides that a presumption of paternity that arises in marriage may be rebutted only by the following: (1) an adjudication under a proceeding to determine the parentage of a child under Subchapter G of the Texas Family Code, Sections 160.601-637; 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 as provided by section 160.305 of the Uniform Act. See Tex. Fam. Code Ann. § 160.204(b)(1)-(2) (Vernon 2007). The 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) (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 and can be rebutted only by clear and convincing evidence showing the impossibility that the husband fathered the child); Etchison v. Greathouse, 596 S.W.2d 233, 236 (Tex. App. - Houston 1980) (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, provided that there is no clear evidence of non-access or impotency of the man).

In this case, Sarah was born during the marriage of Diana and the number holder. Thus, the number holder is presumed to be Sarah's father. No court has determined Sarah's parentage in a civil proceeding. The number holder never filed a denial of paternity and no other person filed a valid acknowledgment of paternity. Given these facts, no one has rebutted the presumption that the number holder was Sarah's father. Under the express provisions of Texas law, Diana's statements, which are contradictory, and the divorce decree, which does not mention Sarah as a child of the marriage, are not sufficient to rebut the presumption of the number holder's paternity. See Tex. Fam. Code Ann. § 160.204(b)(1)-(2). Consequently, the Agency should treat Sarah as a person who could inherit property through intestate succession as the child of the deceased number holder. See Tex. Prob. Code Ann. § 42(b)(1) (Vernon 2007); Tex. Fam. Code Ann. §§ 160.201, 160.204 (Vernon 2007). Therefore, Sarah is entitled to Social Security survivor benefits on the number holder's Social Security record.

Tina M. Waddell
Regional Chief Counsel
By:___________________________
Ruben Montemayor
Assistant Regional Counsel

C. PR 07-122 Texas State Law Evidence to Rebut Presumption of Paternity and Effective Date of Child Relationship (NH Bryan; SSN ) -- REPLY

DATE: April 27, 2007

1. SYLLABUS

In Texas, in a case in which the mother and her husband consented to the DNA testing showing a 99.97 percent probability that the number holder is the claimant's father, that report combined with the husband's statement that he is not the child's father is sufficient to rebut the presumption of paternity by the clear and convincing standard.

Under Texas' Uniform Parentage Act a man is presumed to be the father of a child if he is married to the mother of the child and the child is born during the marriage. This presumption can only be rebutted by a court decision or by the husband's filing of a valid denial of paternity in conjunction with the filing by another person of a valid acknowledgment of paternity. In this case, the courts would accept the DNA test results as admissible since the husband consented to the testing being performed.

The claimant's relationship to the number holder is established effective February 12, 2007, the date the husband submitted his denial of paternity.

2. OPINION

You have requested an opinion regarding whether a deoxyribonucleic acid (DNA) test report showing that Bryan (the number holder) is the biological father of Kaitlyn is sufficient to rebut the presumption that Kaitlyn is the legitimate child of Mark , who was married to Kaitlyn's mother (Mrs. U) at the time of Kaitlyn's birth. You have also asked whether the DNA test report grants inheritance rights and, if so, as of what date is Kaitlyn entitled to child's benefits on the account of the number holder. ]

In our opinion, because Mark and Kaitlyn consented to the DNA test report showing that the number holder is Kaitlyn's father and because Bryan stated he is not Kaitlyn's biological/natural father, the report is sufficient to rebut the presumption of Mark's paternity. Kaitlyn has established by clear and convincing evidence that she is entitled to inherit from the number holder under Texas law as of February 12, 2007, the date that Mark submitted what, we believe, amounts to a denial of paternity. She is entitled to benefits on the number holder's account as of that date. The benefits that she received prior to that date constitute an overpayment.

As we understand the facts, the number holder died on June 6, 2001, while domiciled in Texas. Kaitlyn was born in Texas on November. While Mark and Kaitlyn were not married at the time of Kaitlyn's conception, they were married at the time of Kaitlyn's birth. Kaitlyn's birth certificate lists Mark as her father. The Mark and Kaitlyn are still married and are raising Kaitlyn. Mark has not filed a legal action attempting to disavow paternity.

On November 22, 2005, Kaitlyn filed an application for child's benefits on behalf of Kaitlyn on the number holder's account. Kaitlyn submitted a DNA test report dated November 8, 2005, showing the probability of the number holder's paternity of Kaitlyn as 99.97 percent.

The Agency mistakenly granted Kaitlyn's application, and subsequently requested a legal opinion.

In our earlier legal opinion, issued on December 26, 2006, we determined that Kaitlyn was not entitled to child's benefits on the number holder's account because Kaitlyn had not submitted sufficient evidence to rebut the presumption that Mark was her father. As a result, on January 29, 2007, the Agency issued a notice that it would stop paying Kaitlyn benefits. On February 12, 2007, Kaitlyn filed a request for reconsideration and submitted additional evidence, including: (1) a statement that she was pregnant with Kaitlyn before marrying Mark and that she placed Mark's name on Kaitlyn's birth certificate because Kaitlyn's biological father was deceased; (2) a statement dated February 1, 2007, signed by Mark, in which he stated that he was not Kaitlyn's natural/biological father, that Kaitlyn had a DNA test for paternity to serve as proof that the number holder is Kaitlyn's biological father, and that Mark consented to the DNA test.

Under section 216(h)(2)(A) of the Social Security Act (Act), a child is entitled to benefits on the earnings record of a deceased wage earner if the child could inherit the wage earner's property as his natural child under the intestacy laws of the state in which the wage earner was domiciled at the time of his death. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1). If, under state law, a child could take intestate personal property as a number holder's child, she is considered the number holder's child for Social Security benefit purposes. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1). A child's relationship to a number holder, under section 216(h)(2) of the Act, can be established without the need for a court determination of paternity. See 20 C.F.R. § 404.355(b)(2).

Because the number holder was domiciled in Texas at the time of his death, the question is whether a Texas court would consider Kaitlyn to be the number holder's child for purposes of intestate succession. The Texas Probate Code specifies five methods by which a right to paternal inheritance may be established. These methods are: 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) 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); Tex. Fam. Code §§ 160.201, 160.204. An action to establish paternity can be brought after the death of the alleged father. See In the Interest of A.S.L., 923 S.W.2d 814, 817-18 (Tex. App. 1996). The first, third and fourth methods are not relevant in this case under the facts as you have presented them. The second and fifth methods are, however, relevant.

Under the second method of section 42(b)(1) of the Texas Probate Code, if a court adjudicated Kaitlyn to be the child of the number holder, as provided in Chapter 160 of the Texas Family Code, she would be entitled to inherit from the number holder. See Tex. Prob. Code § 42(b)(1).

As long as the mother and the presumed father consent, the results of genetic tests, such as those that Kaitlyn submitted, may be used to adjudicate the issue of paternity and are evidence that a Texas court would consider. See Tex. Fam. Code §§ 160.505, 160.621, 160.631. A man is rebuttably identified as the father of a child if 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 § 160.505(a). The results of genetic testing can only be rebutted by other genetic tests. See Tex. Fam. Code §§ 160.505(b), 160.631. The DNA report Kaitlyn submitted shows the probability of the number holder's paternity as 99.97 percent and appears to satisfy the statutory requirements for genetic testing. See Tex. Fam. Code § 160.503.

We believe that a Texas court would admit the DNA test report as evidence to adjudicate Mark's paternity and conclude that Mark is not Kaitlyn's father. The evidence that you submitted shows that Marl and Kaitlyn both consented to the DNA testing.

Under the fifth method of section 42(b), if Kaitlyn could show by clear and convincing evidence that the number holder was her biological father, she would be entitled to inherit from him. See Tex. Prob. Code § 42(b)(1). Clear and convincing evidence is defined 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.

The presumption of paternity that arises in marriage, such as in this case, is strong and very difficult to rebut. But we believe that the evidence you submitted constitutes clear and convincing evidence that rebuts the presumption that Mr. U is Kaitlyn's father. See J v. M, 623 S.W.2d 442, 443-444 (Tex. App. 1981) (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).

The presumption of paternity may be rebutted by two methods. First, it may be rebutted by an adjudication to determine the parentage of a child under Subchapter G of the Texas Family Code. See Tex. Fam. Code § 160.601. Second, it may be rebutted when a presumed father files a valid denial of paternity in conjunction with the filing by another person of a valid acknowledgment of paternity as provided by section 160.305 of the Texas Family Code. See Tex. Fam. Code Ann. §§ 160.204(b)(1)-(2), 160.305.

Under the first method, paternity of a child having a presumed father, such as Kaitlyn, may be disproved by admissible results of genetic testing excluding that man as the father of the child. See Tex. Fam. Code § 160.631(b); Tex. Fam. Code § 160.503 (setting forth requirements for genetic testing). The results of genetic testing must show that a putative father has at least a 99 percent probability of paternity and a combined paternity index of at least 100 to 1. See Tex. Fam. Code § 160.505(a)(1),(2); see, e.g., T v. Metropolitan Life Insurance Co., 768 F. Supp. 577, 579-80 (S. D. Tex. 1991) (grandparentage DNA). Because Mark stated that he is not Kaitlyn's natural/biological father and because he consented to the DNA test, we believe that the results of the genetic testing are sufficient to rebut the presumption that Mr. U is Kaitlyn's father. See Tex. Fam. Code § 160.621 (c)(1).

Under the second method, paternity can be rebutted when a presumed father files a valid denial of paternity with the Bureau of Vital Statistics in conjunction with the filing by another person of a valid acknowledgment of paternity as provided by section 160.305 of the Texas Family Code. See Tex. Fam. Code Ann. §§ 160.204(b)(2). While Mark did not file a denial with the Texas Bureau of Vital Statistics, he submitted a statement to the Agency denying that he is Kaitlyn's biological father. Thus, under these circumstances, we find that Kaitlyn has rebutted the presumption that Mr. U is her father.

Finally you asked whether the DNA test report grants inheritance rights only and whether it operates prospectively from the date of the November 2005 DNA report or retroactively from the number holder's death in June 2001. The child of a deceased number holder becomes entitled to benefits in the first month covered by her application in which she meets all requirements for entitlement. 20 C.F.R. § 404.352(a)(1). 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). Actions that confer inheritance rights operate only from the date of their occurrence. Here, Kaitlyn did not meet all requirements for entitlement until February 12, 2007, the date that Mr. U submitted a denial of paternity and rebutted the presumption that he was her father. As of that date, the Agency should treat Kaitlyn as an individual who could inherit property through intestate succession as the deceased number holder's child. Tex. Prob. Code Ann. § 42(b)(1); Tex. Fam. Code Ann. §§ 160.201, 160.204. Because the Agency began paying benefits to Kaitlyn prior to the time, February 12, 2007, that she met all requirements for entitlement, she received an overpayment.

In conclusion, because Mark and Kaitlyn consented to the DNA test report showing that the number holder is Kaitlyn's father and because Bryan stated he is not Kaitlyn's biological/natural father, the report is sufficient to rebut the presumption of Bryan's paternity. Kaitlyn has established by clear and convincing evidence that she is entitled to inherit from the number holder under Texas law as of February 12, 2007, the date that Bryan submitted what, we believe, amounts to a denial of paternity. She is entitled to benefits on the number holder's account as of that date. The benefits that she received prior to that date constitute an overpayment.

Tina M. Waddell
Regional Chief Counsel
By:___________________________
Julia Denegre
Assistant Regional Counsel

D. PR 07-036 Texas State Law Evidence to Rebut Presumption of Legitimacy and Effective Date of Child Relationship (NH Bryan; SSN ) -- REPLY

DATE: December 26, 2006

1. SYLLABUS

In Texas, DNA test results showing a 99.97 probability that the claimant is actually the child of our deceased number holder is not sufficient evidence to rebut the presumption that the claimant is the legitimate child of the man who was married to the child's mother at the time of conception.

Under Texas' Uniform Parentage Act a man is presumed to be the father of a child if he is married to the mother of the child and the child is born during the marriage. This presumption can only be rebutted by a court decision or by the number holder's filing of a valid denial of paternity in conjunction with the filing by another person of a valid acknowledgment of paternity.

Texas courts would not consider DNA testing as evidence to rebut the presumption unless the tests were conducted with the consent of both the mother and the presumed father.

2. OPINION

You have requested an opinion regarding whether a deoxyribonucleic acid (DNA) test report showing that Bryan (the number holder) is the biological father of Kaitlyn is sufficient to rebut the presumption that Kaitlyn is the legitimate child of Mark , who was married to Kaitlyn's mother (Mrs. U) at the time of Kaitlyn's conception and birth. You have also asked whether the DNA test report grants inheritance rights and, if so, as of what date is Kaitlyn entitled to child's benefits on the account of the number holder.

In our opinion, the DNA test report showing that the number holder is Kaitlyn's father is not sufficient to rebut the presumption of Mark's paternity. Kaitlyn has not established that she is entitled to inherit from the number holder under Texas law.

As we understand the facts, the number holder died on June 6, 2001, while domiciled in Texas. Kaitlyn was born in Texas on November . At the time of Kaitlyn's conception and birth, her mother, Kaitlyn, was legally married to Mark. Kaitlyn's birth certificate lists Mark as her father. From the information we received, the Mark’s are still married and are raising Kaitlyn, and Mark has not filed a legal action attempting to disavow paternity. On November 22, 2005, Kaitlyn filed an application for child's benefits on behalf of Kaitlyn on the number holder's account. Kaitlyn submitted a DNA test report dated November 8, 2005, showing the probability of the number holder's paternity of Kaitlyn as 99.97 percent.

Under section 216(h)(2)(A) of the Social Security act (Act), a child is entitled to benefits on the earnings record of a deceased wage earner if the child could inherit the wage earner's property as his natural child under the intestacy laws of the state in which the wage earner was domiciled at the time of his death. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1). If, under state law, a child could take intestate personal property as a number holder's child, she is considered the number holder's child for Social Security benefit purposes. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1). A child's relationship to a number holder, under section 216(h)(2) of the Social Security Act, can be established without the need for a court determination of paternity. See 20 C.F.R. § 404.355(b)(2).

If a child is not a number holder's child for purposes of intestate succession, however, she could still establish eligibility as the number holder's natural child if the number holder acknowledged paternity in writing, was decreed by a court to be her father, or was ordered by a court to pay child support. See 42 U.S.C. § 416(h)(3)(B)(i); 20 C.F.R. § 404.355(a)(3). The child could also establish eligibility by other evidence, such as that she lived with the number holder or that he contributed to her support. See 42 U.S.C. § 416(h)(3)(B)(ii); 20 C.F.R. § 404.355(a)(4).

Because the number holder had his permanent home in Texas at the time of his death, the question is whether a Texas court would consider Kaitlyn to be the number holder's child for purposes of intestate succession. The Texas Probate Code specifies five methods by which a right to paternal inheritance may be established. See Tex. Prob. Code § 42(b)(1). These methods are: 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) 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); Tex. Fam. Code §§ 160.201, 160.204. An action to establish paternity can be brought after the death of the alleged father. See In the Interest of A.S.L., 923 S.W.2d 814, 817-18 (Tex. App. 1996).

The first, third and fourth methods are not relevant in this case under the facts as you have presented them. The second and fifth methods are, however, relevant.

Under the second method of section 42 of the Texas Probate Code, if a court adjudicated Kaitlyn to be the child of the number holder, as provided in Chapter 160 of the Texas Family Code, she would be entitled to inherit from the number holder. See Tex. Prob. Code § 42(b)(1). The results of genetic tests, such as those that Kaitlyn submitted, may be used to adjudicate the issue of paternity and are evidence that a Texas court would consider. See Tex. Fam. Code §§ 160.505, 160.621, 160.631. A man is rebuttably identified as the father of a child if 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 § 160.505(a). The results of genetic testing can only be rebutted by other genetic tests. See Tex. Fam. Code §§ 160.505(b), 160.631. The DNA report submitted by Mrs. U in this case shows the probability of the number holder's paternity as 99.97 percent and appears to satisfy the statutory requirements for genetic testing. See Tex. Fam. Code § 160.503.

While the DNA test report satisfies Texas' genetics testing requirements, we do not believe that a Texas court would admit the evidence to adjudicate Mark's paternity. If a child has a presumed father, as Kaitlyn does in this case, the results of genetic testing are inadmissible to adjudicate parentage unless performed with the consent of both the mother and the presumed father. See Tex. Fam. Code § 160.621 (c)(1). The evidence that you submitted does not show that Mark consented to the genetic testing.

Under the fifth method of section 42(b), if Kaitlyn could show by clear and convincing evidence that the number holder was her biological father, she would be entitled to inherit from him. See Tex. Prob. Code § 42(b)(1). Clear and convincing evidence is defined 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.

We do not believe that clear and convincing evidence exists to show Kaitlyn is the number holder's child. The presumption of paternity that arises in marriage, such as in this case, is strong and very difficult to rebut. See Joplin v. Meadows, 623 S.W.2d 442, 443-444 (Tex. App. 1981) (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. 1980) (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). Kaitlyn was born during the marriage of Kaitlyn and Mark. Therefore, Mark is presumed to be Kaitlyn's father and she is rebuttably entitled to inherit from him.

The presumption of paternity may be rebutted by two methods. First, it may be rebutted by an adjudication to determine the parentage of a child under Subchapter G of the Texas Family Code, Tex. Fam. Code § 160.601. Second, it may be rebutted when a presumed father files a valid denial of paternity in conjunction with the filing by another person of a valid acknowledgment of paternity as provided by section 160.305 of the Texas Family Code. See Tex. Fam. Code Ann. §§ 160.204(b)(1)-(2), 160.305.

Under the first method, paternity of a child having a presumed father, such as Kaitlyn, may be disproved by admissible results of genetic testing excluding that man as the father of the child. See Tex. Fam. Code § 160.631(b); see also Tex. Fam. Code § 160.503 (setting forth requirements for genetic testing). The results of genetic testing must show that a putative father has at least a 99 percent probability of paternity and a combined paternity index of at least 100 to 1. See Tex. Fam. Code § 160.505(a)(1),(2). Using the clear and convincing evidence standard, DNA testing has been used to support a finding that the presumption of legitimacy was rebutted. See, e.g., Tipps v. Metropolitan Life Insurance Co., 768 F. Supp. 577, 579-80 (S. D. Tex. 1991) (grandparentage DNA). Again, the results of the genetic testing would not rebut the presumption that mark is Kaitlyn's father because there is no evidence that Mark consented to the genetic testing. See Tex. Fam. Code § 160.621 (c)(1).

Under the second method, paternity can be rebutted when a presumed father files a valid denial of paternity in conjunction with the filing by another person of a valid acknowledgment of paternity as provided by section 160.305 of the Texas Family Code. See Tex. Fam. Code Ann. §§ 160.204(b)(2). The evidence presented does not show that Mark filed a denial of paternity.

Kaitlyn is also not eligible to receive benefits under section 216(h)(3)(B)(i) of the Act as the evidence does not show that the number holder acknowledged paternity in writing, was decreed by a court to be her father, or was ordered by a court to pay child support. See 42 U.S.C. § 416(h)(3)(B)(i); 20 C.F.R. § 404.355(a)(3). In addition, Kaitlyn is not eligible to receive benefits under section 216(h)(3)(B)(ii) of the Act. Because the number holder died six months before Kaitlyn was born, he did not live with Kaitlyn or contribute to her support. See 42 U.S.C. § 416(h)(3)(B)(ii); 20 C.F.R. § 404.355(a)(4).

Finally you asked whether the DNA test report grants inheritance rights only and whether it operates prospectively from the date of the November 2005 DNA report or retroactively from the number holder's June 2001 death. Because we do not believe that a Texas court would find that Kaitlyn is the number holder's child, these questions are moot.

In conclusion, the DNA test report showing that the number holder is Kaitlyn's father is not sufficient to rebut the presumption of Mark's paternity since there is no indication that Mark consented to the genetic testing. Moreover, Kaitlyn has not provided clear and convincing evidence to show that she is the number holder's child. Because Kaitlyn has not established that she is entitled to inherit from the number holder under Texas law, your question regarding the date of entitlement is moot.

Tina M. Waddell
Regional Chief Counsel
By:___________________________
Julia Denegre
Assistant Regional Counsel

E. PR 06-112 Texas State Law Evidence Requirements to Rebut the Presumption of Legitimacy of Child Relationship (NH Rudy SSN - REPLY

DATE: April 18, 2006

1. SYLLABUS

Under Texas' Uniform Parentage Act a man is presumed to be the father of a child if he is married to the mother of the child and the child is born during the marriage. This presumption can only be rebutted by a court decision or by the number holder's filing of a valid denial of paternity in conjunction with the filing by another person of a valid acknowledgment of paternity.

Since neither occurred in this case, the presumption that the beneficiaries are children of the deceased number holder holds despite the existence of statements from the mother and another man that he is the actual father.

2. OPINION

You asked us to provide a legal opinion regarding whether Karla and Carlos may be entitled to Social Security survivor benefits on the earnings record of Rudy (the deceased number holder). Specifically, you asked whether the statements of Karla and Carlos's mother and purported biological father are sufficient to rebut the presumption that the number holder was Karla and Carlos's father. We believe that these statements are not sufficient to rebut this presumption. Therefore, the Social Security Administration (the Agency) should treat Karla and Carlos as the number holder's children. As such, they are entitled to benefits on his account.

The number holder was born on December. On November 26, 1984, he married the former Maria in El Paso, Texas. From 1987 until the number holder's death in July 2003, the Rudy remained married. During this period, however, the number holder lived in Austin, Texas, Rudy lived in El Paso, and the number holder visited Rudy every three to six months. From 1989 until 2001, Rudy lived intermittently with Jesus .

As we understand the facts, Rudy gave birth to three children during her 18-year marriage to the number holder. Adrian was born on October; Karla was born on August; and Carlos was born on December. Karla and Carlos's birth certificates do not identify a father.

In August 2003, shortly after the number holder died, Rudy filed a claim for Social Security survivor benefits for Adrian on the number holder's account. The Agency granted this claim. Rudy did not list any other children on the August 2003 application.

In August 2005, Rudy filed claims for Social Security survivor benefits for Karla and Carlos on the number holder's account. In September 2005, however, Rudy signed a statement for the Agency in which she averred that Karla was Carlos and Carlos's biological father. Carlos signed a similar statement for the Agency. Rudy listed Carlos as Karla and Carlos's father on Title XVI applications that she filed on behalf of the children. She also listed Carlos as Karla's father on SS-5 applications that she completed for Karla in 1991 and 1996.

No one has conducted paternity testing to help establish the identity of Karla and Carlos's biological father. The number holder never filed a denial of paternity with the state bureau of vital statistics. Similarly, Carlos never filed an acknowledgment of paternity with the state bureau of vital statistics. No court proceedings to determine paternity have taken place.

A child may be eligible for Social Security survivor benefits if he or she is the child of an individual who died fully or currently insured. See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.355. To determine whether an applicant is the child of a deceased wage earner for the purposes of the Social Security Act (the Act), the Commissioner will apply the intestacy laws of the state in which the wage earner had his permanent home when he died. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b). Thus, the applicant's eligibility for Social Security benefits depends on whether the applicant could inherit property through intestate succession as the child of the deceased wage earner. See id.

Here, Texas law controls because the number holder had his permanent home in Texas when he died. Texas adopted the Uniform Parentage Act (the Uniform Act) in 2001. See Tex. Fam. Code Ann. §§ 160.001-160.763 (Vernon 2006). The Uniform Act governs every determination of paternity in Texas. Tex. Fam. Code Ann. § 160.103(a) (Vernon 2006). Under the Uniform Act, a man is presumed to be the father of a child if he is married to the mother of the child and the child is born during the marriage. Tex. Fam. Code Ann. § 160.204(a) (Vernon 2006); see also Dickerson v. Doyle, 170 S.W.3d 713, 717 (Tex. App. - El Paso 2005) (husband of the child's mother presumed to be the child's father, even though another man sometimes lived and slept with the child's mother and claimed that he was the child's father).

The Uniform Act provides that a presumption of paternity that arises in marriage may be rebutted only by the following: (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 as provided by section 160.305 of the Uniform Act. See Tex. Fam. Code Ann. §§ 160.204(b)(1)-(2) (Vernon 2006). The 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) (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 and can be rebutted only by clear and convincing evidence showing the impossibility that the husband fathered the child); Etchison v. Greathouse, 596 S.W.2d 233, 236 (Tex. App. - Houston 1980) (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, provided that there is no clear evidence of non-access or impotency of the man).

In this case, Karla and Carlos were born during the marriage of Rudy and the number holder. Thus, the number holder is presumed to be the children's father. No court has determined Karla and Carlos's parentage in a civil proceeding. The number holder never filed a valid denial of paternity, and Karla never filed a valid acknowledgment of paternity. Given these facts, no one has rebutted the presumption that the number holder was Karla and Carlos's father. Under the express provisions of Texas law, the statements of Rudy and Carlos are not sufficient to rebut this presumption. See Tex. Fam. Code Ann. §§ 160.204(b)(1)-(2) (Vernon 2006). Consequently, the Agency should treat Karla and Carlos as individuals who could inherit property through intestate succession as the children of the deceased number holder. See Tex. Prob. Code Ann. § 42(b)(1) (Vernon 2006); Tex. Fam. Code Ann. §§ 160.201, 160.204 (Vernon 2006). As such, they are entitled to Social Security survivor benefits on his account.

Tina M. Waddell
Regional Chief Counsel
By:___________________________
Eric D. Poole
Assistant Regional Counsel

F. PR 06-111 Texas State Law Evidence Requirements to Rebut the Presumption of Legitimacy of Child Relationship (NH Loyde, SSN ) - REPLY

DATE: April 18, 2006

1. SYLLABUS

Under Texas' Uniform Parentage Act, a man is presumed to be the father of a child if he is married to the mother of the child and the child is born during the marriage. That presumption may be rebutted only by the following: (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.

In this case, the lack of a father's name on the child's birth certificate and statements on paternity by the child's mother are not enough to overcome the presumption.

2. OPINION

You asked us to provide a legal opinion regarding whether Jamodrick may be entitled to Social Security survivor benefits on the earnings record of Loyde (the deceased number holder). Specifically, you asked whether certain evidence (i.e., statements from Jamodrick's mother regarding paternity and a birth certificate that does not name a father) is sufficient to rebut the presumption that the number holder was Jamodrick's father. We believe that this evidence is not sufficient to rebut this presumption. Consequently, the Social Security Administration (the Agency) should treat Jamodrick as the number holder's child. As such, he is entitled to benefits on the number holder's account.

The number holder was born on June. On October, he married the former Sheryl in Louisiana. The couple remained married until October 7, 2005, when the number holder died while living in Texas.

As we understand the facts, Sheryl gave birth to two children during her marriage to the number holder. Lloyd , III (Lloyd) was born on September. Jamodrick was born on November. Jamodrick's birth certificate does not identify a father. Sheryl has reported to the Agency that the number holder was not Jamodrick's biological father.

The number holder was a truck driver who spent long periods of time away from home. He and Sheryl separated many times. Still, Lloyd and the number holder had regular contact with each other throughout their marriage. The number holder apparently never took action to show that he was not Jamodrick's father. On the contrary, Sheryl reports that the number holder always treated Jamodrick as his son. Sheryl recently filed claims for Social Security survivor benefits for Lloyd and Jamodrick on the number holder's account.

A child may be eligible for Social Security survivor benefits if he or she is the child of an individual who died fully or currently insured. See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.355. To determine whether an applicant is the child of a deceased wage earner for the purposes of the Social Security Act (the Act), the Commissioner will apply the intestacy laws of the state in which the wage earner had his permanent home when he died. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b). Thus, the applicant's eligibility for Social Security benefits depends on whether the applicant could inherit property through intestate succession as the child of the deceased wage earner. See id.

Here, Texas law controls because the number holder had his permanent home in Texas when he died. Texas adopted the Uniform Parentage Act (the Uniform Act) in 2001. See Tex. Fam. Code Ann. §§ 160.001-160.763 (Vernon 2006). The Uniform Act governs every determination of paternity in Texas. Tex. Fam. Code Ann. § 160.103(a) (Vernon 2006). Under the Uniform Act, a man is presumed to be the father of a child if he is married to the mother of the child and the child is born during the marriage. Tex. Fam. Code Ann. § 160.204(a) (Vernon 2006); see also Dickerson v. Doyle, 170 S.W.3d 713, 717 (Tex. App. - El Paso 2005) (husband of the child's mother presumed to be the child's father, even though another man sometimes lived and slept with the child's mother and claimed that he was the child's father).

The Uniform Act provides that a presumption of paternity that arises in marriage may be rebutted only by the following: (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 as provided by section 160.305 of the Uniform Act. See Tex. Fam. Code Ann. §§ 160.204(b)(1)-(2) (Vernon 2006). The 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) (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 and can be rebutted only by clear and convincing evidence showing the impossibility that the husband fathered the child); Etchison v. Greathouse, 596 S.W.2d 233, 236 (Tex. App. - Houston 1980) (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, provided that there is no clear evidence of non-access or impotency of the man).

In this case, Jamodrick was born during the marriage of Sheryl and the number holder. Thus, the number holder is presumed to be Jamodrick's father. No court has determined Jamodrick's parentage in a civil proceeding. The number holder never filed a denial of paternity. Given these facts, no one has rebutted the presumption that the number holder was Jamodrick's father. Under the express provisions of Texas law, Jamodrick's statements and Jamodrick's birth certificate are not sufficient to rebut the presumption of the number holder's paternity. See Tex. Fam. Code Ann. §§ 160.204(b)(1)-(2). Consequently, the Agency should treat Jamodrick as a person who could inherit property through intestate succession as the child of the deceased number holder. See Tex. Prob. Code Ann. § 42(b)(1) (Vernon 2006); Tex. Fam. Code Ann. §§ 160.201, 160.204 (Vernon 2006). As such, he is entitled to Social Security survivor benefits on the number holder's account.

Tina M. Waddell
Regional Chief Counsel
By:___________________________
Eric D. Poole
Assistant Regional Counsel

G. PR 00-070 Entitlement to Surviving Child's Benefits Upon Establishment of Paternity By Birth Certificate—(James, SSN )

DATE: June 23, 1999

1. SYLLABUS

Where the only evidence of relationship submitted is a birth certificate showing the NH as the father of a child born out of wedlock, the birth certificate is not sufficient to establish a presumption of paternity under Texas law.

2. OPINION

This memorandum is in response to a request by the Assistant Regional Commissioner in the Southeastern Program Service Center for an opinion regarding the possible entitlement of Jonathan to surviving child's benefits on the account of deceased wage earner James based upon a birth certificate showing James as the father. In summary, we believe that the birth certificate showing James as the father is not sufficient to establish a presumption of paternity under Texas law. Thus, the birth certificate showing James as the father cannot be properly considered sufficient evidence of paternity.

Texas law on paternity and inheritance of children governs the determination by the Social Security Administration as to whether Jonathan should be regarded as the “child” of James . 42 U.S.C. §416(h)(2)(A). Moreover, 42 U.S.C. 416(h)(3) requires that Jonathan be the natural child of James in order for Jonathan to qualify for benefits as the “child” of James under that subsection.

Texas law provides for a child's right to paternal inheritance if a presumption of paternity exists between a man and a child. Tex. Prob. Code Ann. § 42(b) (1997). Under Texas law, it is presumed that a man is the biological father of a child if he and the child's biological mother have or were married to each other and the child was born during the marriage. Tex. Fam. Code Ann. § 151.002(a)(1) (1997).

James , the purported father of Jonathan , died on February 8, 1998. On March 9, 1998, Catherine, Jonathan's mother, filed a claim for Social Security benefits on behalf of Jonathan as the illegitimate child of James. Catherine was unable to prove the relationship, and the claim was denied on June 1, 1998. On September 22, 1998, an attorney retained by the child's maternal grandmother asked for reconsideration of the case.

The only evidence submitted was Jonathan's birth certificate listing James as the father. Section 192.005 of the Texas Health and Safety Code provides:

(a) The items on a birth certificate relating to the child's father shall be completed only if: (1) the child's mother was married to the father: (A) at the time of the child's conception; (B) at the time of the child's birth; or (C) after the child's birth; (2) paternity is established by order of a court of competent jurisdiction; or (3) the father signed the birth certificate or consented in writing, on a form prescribed by the department, to be named as the father of the child on the child's birth certificate. (b) The father of a child who has no presumed father may acknowledge paternity by signing the certificate of birth or may acknowledge paternity in accordance with Section 160.202, Family Code. (c) A person may apply to the state registrar for the removal of any indication of the absence of paternity of a child who has no presumed father from the person's birth record. (d) If the items relating to the child's father are not completed on a birth certificate filed with the state registrar, the state registrar shall notify the attorney general.

Further, Section 160.202 of the Texas Family Code states:

(a) The statement of paternity authorized to be used by this subchapter must: (1) be in writing; (2) be signed by the man alleging himself to be the father of the child; (3) state whether the man alleging himself to be the father is a minor; and (4) clearly state that the man signing the statement acknowledges the child as his biological child. (b) The statement may include a waiver of citation in a suit to establish the parent-child relationship and may include a waiver of the right to notice of the proceedings. (c) The statement must be executed before a person authorized to administer oaths under the laws of this state. (d) The statement may be signed before the birth of the child. (e) The statement must include the social security number of the father.

It is undisputed that James and Catherine were never married. Also, no court order from a competent jurisdiction establishing paternity has been produced. Likewise, there is no evidence that James ever signed the birth certificate or consented in writing on the proper form to be named as the father of Jonathan on the Jonathan's birth certificate. Therefore, paternity has not been established under section 192.005 of the Texas Health and Safety Code.

Similarly, paternity has not been established under Section 160.202 of the Texas Family Code. Under this section, a statement of paternity must be in writing, signed by James with a statement on whether he is a minor, and clearly state that James acknowledges Jonathan as his biological child.

The only evidence produced by the claimant is a birth certificate showing James as father. However, the requisite signature is not on the birth certificate, and there is no statement of paternity.

For these reasons, Catherine has not established Jonathan as the natural child of James. Thus, Jonathan is not entitled to benefits under the Social Security Act.

H. PR 00-069 Revised Opinion Regarding DNA Analysis to Rebut the Presumption of Paternity in Texas

DATE: February 15, 1999

1. SYLLABUS

The presumption of the NH's paternity of a child born during his marriage to the child's biological mother is effectively rebutted by the exclusion of the NH as the possible father through DNA testing. The Texas Court's admission and reliance on the verified written report of paternity demonstrates that the laboratory satisfied any requisite standards or accreditations.

2. OPINION

This memorandum responds to your request for our opinion about whether an exclusion of paternity on a Deoxyribonucleic Acid (DNA) Test rebuts a presumption of paternity under Texas law. Specifically, you asked the following questions:

1. Does an exclusion on a DNA test constitute sufficient evidence to rebut the presumption of paternity under Texas law?

2. Is a particular Texas State Court Order binding on the Social Security Administration?

3. Is the laboratory that performed the DNA analysis required to meet certain standards to deem the results of the DNA test admissible to prove that Leonard is not the biological father of the child Leonard?

Based on our review of applicable Federal and State laws, it is our opinion that the presumption of Leonard paternity of Leonard was effectively rebutted by the exclusion of Leonard as the possible father of Leonard through DNA testing. In light of the exclusion and the Order of the 245th Judicial District Court, Harris County, Texas decreeing Leonard not to be the father of Leonard, we are of the opinion that Leonard is not eligible for Social Security benefits as Leonard natural born child. /

Leonard, a minor child born during the marriage of Leonard's biological mother, Katherine , received child's insurance benefits on the account of Leonard effective April 1997. / In late 1997, B filed suit for dissolution of the marriage from Leonard in the Texas Court, requesting an award of child support. Pursuant to Leonard’s denial of paternity of Leonard, the Texas Court ordered the parties to submit to DNA testing as directed by Tex. Fam. Code. Ann. §§ 160.101(c), 160.102(a) (West 1997). The DNA test revealed an exclusion of Leonard as the possible father of Leonard. On May 7, 1998, P submitted a copy of the verified written report on paternity and the Texas Court Order to the Social Security Administration (SSA). You now request a legal opinion as to whether the exclusion on the DNA test rebuts the presumption of paternity which allowed Leonard to be found entitled to benefits as P's natural child. /

Under 42 U.S.C. § 416 (h)(2)(A), the determination as to whether a person is the "child" of a living wage earner is made pursuant to the law of inheritance of the state in which the wage earner was domiciled at the time the application for benefits is filed. At the time Katherine filed for child's benefits on behalf of Leonard, was a resident of Texas. Thus, Texas law on a child's right of paternal inheritance is the definitive law for determining Leonard's eligibility for child's benefits on the account of Leonard.

Texas law provides for a child's right to paternal inheritance if a presumption of paternity exists between a man and a child. Tex. Prob. Code Ann. § 42b(1) (West 1997). Under Texas law, it is presumed that a man is the biological father of a child if he and the child's biological mother have or were married to each other and the child was born during the marriage. Tex. Fam. Code Ann. § 151.002(a)(1) (West 1997). However, this presumption of paternity may be rebutted by scientifically accepted paternity testing which excludes the paternity of the presumed father. Tex. Fam. Code Ann. §§ 151.002(b);160.110(d) (West 1997). Once a dispute arises as to a presumed father's paternity of a child, a Texas court is required to order the mother, the child and the presumed father to submit to the taking of blood, body fluid or tissue samples for scientifically accepted parentage testing. Tex. Fam. Code Ann. § 160.102(a) (West 1997).

At present, Texas law specifically states that DNA evidence is sufficient to rebut the presumption of paternity. The amendments made in 1995 to the Texas Family Code ratify the principle that scientifically accepted testing, such as DNA, is the preferred method for resolving paternity disputes. Specifically, the Code mandates a court dismiss, with prejudice, a claim regarding a presumed father whose paternity is excluded by scientifically accepted paternity testing. Id. at § 160.110(d). Essentially, the statute renders an exclusion of paternity by use of DNA analysis as conclusive evidence of non-paternity. Id. Accordingly, it is our opinion that the exclusion of Leonard paternity of Leonard through DNA testing effectively rebutted the presumption of Leonard paternity of Leonard under Texas Law.

Your second question asked whether SSA is required to deny child's benefits to Leonard on the record of Leonard as a result of the Texas Court's adjudication that Leonard is not the father of Leonard. The fact that Leonard secured a Texas Court Order establishing his non-paternity of Leonard is not necessarily binding on SSA. The adjudication of Leonard’s non-paternity of Leonard before the Texas Court, where SSA was not a party, is considered an ex parte order. The law is clear that ex parte orders of state courts do not bind the Commissioner. CIR v. Bosch, 387 U.S. 456 (1967); Warren v. Secretary of HHS, 868 F.2d 1444, 1446-47 (5th Cir. 1989). For example, the Fifth Circuit has held the Commissioner may properly reject an ex parte state court ruling where the judgment was against the overwhelming weight of the evidence. Voss v. Shalala, 32 F.3d 1269, 1271 (5th Cir. 1994). However, the Commissioner is not free simply to ignore an ex parte state court order. When SSA is determining a claimant's status, ex parte court orders must be considered. Garcia for Rodriguez v. Sullivan, 883 F.2d 18, 20 (5th Cir. 1989). Moreover, in adopting Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973), Social Security Ruling 83-37c states that the Commissioner is not free to ignore an adjudication of a state trial court where the following prerequisites are found: (1) an issue in a claim for social security benefits previously has been determined by a state court of competent jurisdiction; (2) this 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 set forth above, Texas' law on paternal inheritance of children governs the determination as to whether Leonard should be regarded as the "child" of Leonard under 42 U.S.C. § 416(h)(2)(A). Moreover, 42 U.S.C 416(h)(3) requires that Leonard be the natural child of Leonard in order for Leonard to qualify for benefits as the "child" of Leonard under that subsection. As previously discussed, Texas Law provides that an exclusion of paternity through DNA analysis sufficiently rebuts the presumption of paternity. Following Leonard’s exclusion by a DNA test, the Texas Court, pursuant to Tex. Fam. Code Ann. §160.110(d), properly entered an order decreeing that no parent-child relationship existed between his and Leonard. Because the facts in the instant case coincide with the prerequisites set forth in Social Security Ruling 83-37c and information available to SSA does not indicate the Texas Court's Order was issued in error or against the great weight of the evidence, it is our opinion the Texas Court Order should be followed.

You also asked whether the laboratory designated to analyze Leonard, katherine and Leonard's DNA is required to meet certain standards to deem the test results admissible for proving Leonard is not the father of Leonard. Pursuant to Tex. Fam. Code Ann. § 160.104(a) (West 1997), Texas courts are mandated to appoint qualified experts to perform DNA analysis in paternity disputes. The court, by written order, designates a qualified laboratory to analyze the DNA and provide the court with a written report on the possibility of an alleged father's paternity. A verified written report on paternity, conducted according to the written court's order, is admissible to prove paternity or the lack thereof. Tex. Fam. Code Ann. §160.105(d) (West 1997). As evidenced by the Order dated May 1, 1998, the Texas Court admitted the written report on paternity into evidence and deemed the report sufficient proof to terminate the parent-child relationship between his and Leonard. In our opinion, the Texas Court's admission and reliance on the verified written report of paternity demonstrates that the laboratory satisfied any requisite standards or accreditations.

I. PR 99-107 Entitlement to Surviving Child's Benefits Based Upon Establishment of Paternity by DNA Testing — Kenneth , SSN

1. SYLLABUS

Under section 13.06(c) of the Texas Family Code, scientific paternity tests are admissible if they show the possibility of paternity. Testing which does not exclude an individual from paternity and does exclude 99% of the male population will create a presumption of paternity. (This is not a requirement that the likelihood of paternity must be established with a 99% or greater certainty.)

A decree of paternity issued by an Oregon court presumptively establishes a child's right to intestate inheritance under Texas law. Under the Full Faith and Credit Clause of the United States Constitution, the introduction of a facially valid foreign order creates a prima facie case for its recognition and enforcement. Such an order can be attacked only on limited grounds, and the burden of proof is on the party challenging the order.

2. OPINION

This memorandum is in response to your request for an opinion regarding a request by the Regional Commissioner in San Francisco for an opinion regarding the possible entitlement of Jolene to surviving child's benefits on the account of deceased wage earner Kenneth based upon DNA tests indicating a 98% probability of paternity and a decree of heirship and paternity issued by an Oregon court after Kenneth's death. In summary, we believe that the DNA testing evidence in this case, while not sufficient to establish a presumption of paternity under Texas law, may be properly considered as evidence of paternity. Also, while the Oregon decree of paternity can not establish paternity under the Social Security Act (the “Act”) because it was issued after Kenneth death, it would be sufficient to establish Jolene's right to intestate inheritance in Texas under the Full Faith and Credit Clause of the United States Constitution. Our analysis of the requirements of the Social Security Act and relevant Texas law and our recommendation based upon that analysis are set forth more fully below.

Kenneth, the purported father of Jolene , died on January 4, 1995. Upon hearing of Kenneth death, Vicky, Jolene's mother, filed an action to establish paternity and obtained biological samples for testing purposes. In a report dated October 2, 1995, the DNA Diagnostic Laboratory of the Oregon Health Sciences University stated that their DNA testing indicated a 75% probability of Kenneth being the biological father of Jolene. After further testing, the DNA Diagnostic Laboratory issued a report dated May 22, 1996, stating:

. . . we cannot exclude Kenneth as the biological father of Jolene. All of our DNA data are completely consistent with Kenneth being the true biological father. The probability of Kenneth being the biological father is greater than 98%.

On October 9, 1996, the Circuit Court of the State of Oregon for the County of Washington issued a decree of heirship and paternity declaring Kenneth to have been the biological father of Jolene, noting that DNA testing indicated a “greater than ninety-eight percent” probability of paternity. This decree was entered as a stipulated judgment with the consent of the representatives of Kyle, an acknowledged illegitimate child of Kenneth, and with the consent of Kenneth estate. On October 11, 1996, Vicky filed an application for surviving child's benefits on behalf of Jolene.

The purported child of a deceased wage earner may be considered that individual's child for purposes of the Social Security Act if:

(1) the child may inherit through intestate succession under the laws of the state in which the wage earner was domiciled when his died; (2) the parents of the child went through a marriage ceremony which did not create a valid marriage because of a legal impediment; (3) prior to his death, the wage earner had acknowledged the child in writing, had been decreed by a court to be the father of the child, or had been ordered to contribute to the support of the child because of paternity; or (4) the wage earner is shown by satisfactory evidence to be the father of the child and was living with the child or contributing to the child's support.

See 42 U.S.C. 416(h)(2) (1996).

It is undisputed that Kenneth never acknowledged Jolene and never lived with her or contributed to her support. It is also undisputed that Vicky and Kenneth never attempted marriage. Because the Oregon court's decree of paternity was issued after Kenneth death, it may not serve to establish paternity under the Act. Thus, the only possible avenue to establish Jolene as the child of E for purposes of the Act is through a showing that she would be entitled to intestate inheritance under the laws of Texas, the state in which Kenneth was domiciled when he died.

Texas Probate Code 42(b)(1) “provides the exclusive means by which an illegitimate child may establish the right to inherit from his biological father.” Matherson v. Pope, 852 S.W.2d 285, 288 (Tex. Ct. App. 1993). “The statute describes five different ways by which such a child may show his right to inherit.” Id.

In effect, section 42(b)(1) permits an illegitimate child to rely on (1) a presumption of paternity under the provisions of section 12.02 of the Family Code, (2) a court decree adjudicating paternity under Chapter 13 of the Family Code, (3) his adoption by his father, or (4) a statement of paternity executed by his father . . . . In addition, as a fifth method of establishing paternity and therefore the right to inherit under section 42(b)(1), the probate court may be petitioned for a determination of the right to inherit based upon clear and convincing evidence that the purported father was the biological father of the child.

Id. None of the presumptions of paternity enumerated in 12.02 of the Texas Family Code apply to Jolene, and the paternity action in this case was not filed in Texas. Kenneth neither adopted Jolene nor executed any statements of paternity. Thus, the only part of Texas Probate Code 42(b)(1) under which paternity could be established is the fifth option, a showing of biological paternity by clear and convincing evidence.

Under section 13.06(c) of the Texas Family Code, which was in effect at the time of Kenneth’s death, scientific paternity tests are admissible at trial if they show the possibility of paternity. See In re M~, 881 S.W.2d 531, 535 (Tex. Ct. App. 1994). While 13.06(c) does states that testing which does not exclude an individual from paternity and does exclude 99% of the male population will create a presumption of paternity, this is not a requirement that the likelihood of paternity must be established with a 99% or greater certainty. The nature of the testing which took place in this case concerned only the probability of paternity, and no opinion was offered with regard to the exclusion of other males as possible fathers. Thus, while a presumption of paternity would not be appropriate under 13.06(c), the DNA tests in question are certainly evidence which may be properly considered in determining paternity.

However, there may be no need to make a determination of whether the DNA testing in this case is “clear and convincing evidence” of paternity. The decree of paternity rendered by the Oregon court presumptively establishes Jolene's right to intestate inheritance under Texas law.

Under the Full Faith and Credit Clause of the United States Constitution, the introduction of a facially valid foreign order creates a prima facie case for its recognition and enforcement. Such an order can be attacked only on limited grounds, and the burden of proof is on the party challenging the order.

Villanueva v. Office of the Attorney General of Texas, 935 S.W.2d 953, 954-55 (Tex. Ct. App. 1996) (internal citations omitted). Thus, in the absence of an attack, the Oregon court's decree declaring Jolene to be an intestate heir of Kenneth is entitled to enforcement. Since all parties of interest to this matter assented in the issuance of the Oregon court's decree, there is little likelihood of a challenge. Since Jolene has been declared to be the intestate heir of Kenneth in a decree which is presumptively enforceable in Texas, Jolene should be considered the child of Kenneth under 42 U.S.C. 416(h)(2)(A).


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PR 01010.048 - Texas - 10/28/2013
Batch run: 10/28/2013
Rev:10/28/2013