TN 25 (02-15)

PR 01010.052 Virginia

A. PR 14-147 Reply to Your Request for a Legal Opinion as to Whether, Under Virginia Law, a Child Conceived By Artificial Insemination During a Marriage Can Receive Benefits Based on the Gestational Mother’s Deceased Husband’s Record

DATE: August 14, 2014

1. SYLLABUS

The laws of the Commonwealth of Virginia provide for a presumption of legitimacy of a child born from an assisted conception that occurred during a marriage. The husband of the gestational mother is considered to be the child’s father unless he commences a legal action to determine that he did not consent to the conception. In this case, there is no record that the NH commenced any legal or other action to demonstrate his lack of consent to the claimant’s conception or subsequent birth. Furthermore, there is no evidence that the NH did not consider himself to be the claimant’s father. The claimant should be considered the NH’s child under Virginia law and is entitled to receive benefits on the NH’s earnings record.

2. OPINION

QUESTIONS PRESENTED

On July 1, 2014 you asked for our opinion as to whether a child, J~, (SSN: ~), who was conceived by artificial insemination during a marriage between his gestational mother, K~, and the now deceased NH, D~, (SSN: ~) (“NH”), can receive benefits based on the NH’s earnings record.

BACKGROUND

On March 20, 2014, K~ contacted SSA to schedule an appointment to file for child’s insurance benefits – survivor claim -- on behalf of J~ (“claimant”) based on the NH’s earnings record. K~ subsequently filed an application for benefits on claimant’s behalf on June 19, 2014.

The NH began receiving retirement benefits in August 1978 at age 65. K~ and the NH were married on November 21, 1991. K~ stated that she and the NH could not naturally conceive children, but that the NH consented to K~ obtaining sperm from the NH’s friends, which she used to inseminate herself and, subsequently, conceive two children.

The first child, D2~, was born in February 1999, during the marriage. The second child, claimant, was born in November 2004, during the marriage. The NH did not formally adopt either child. However, the NH’s tax returns from 2004 through 2007 list both D2~ and claimant as the NH’s dependents and as his sons. The NH died in April 2007.

K~ appears to have applied for survivor’s benefits for D2~ in May 2007 and D2~ began receiving benefits based on the NH’s earnings record dating back to November 2006.

K~ applied for survivor’s benefits for claimant on June 19, 2014. K~ stated that the reason D2~ and claimant have different last names was because the NH wanted D2~ to have the NH’s last name, and she wanted claimant to have the same surname as K~’s oldest son, M~, whom the NH identified as his stepson on his tax returns. Neither claimant’s nor D2~’s birth certificates identify a father.

DISCUSSION

The Social Security Act (the “Act”) and implementing regulations provide that surviving child’s benefits may be granted based on the earnings record of a fully insured individual if the child, as defined in 42 U.S.C. § 416(e),1 has (1) filed an application for child’s insurance benefits; (2) was unmarried at the time of application; (3) was under the age of eighteen; and (4) was “dependent” upon the insured. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a) (2013). Section 402(d)(3) of the Act further provides that a child may be deemed to be dependent, and therefore, the legitimate child of the insured, if he satisfies the provisions of 42 U.S.C. §416(h)(2)(A) (would be able to inherit personal property from an intestate NH according to the law of the state where the NH was domiciled at the time of death); and, if not, then, alternatively, he may satisfy the provisions of § 416(h)(2)(B)2 or § 416(h)(3).3 4 The husband of the gestational mother of a child is the child's father, notwithstanding any declaration of invalidity or annulment of the marriage obtained after the performance of assisted conception, unless he commences an action in which the mother and child are parties within two years after he discovers or, in the exercise of due diligence, reasonably should have discovered the child's birth and in which it is determined that he did not consent to the performance of assisted conception.

Va. Code Ann. § 20-158(A)(2).

Further, the Act provides that,

[a] child whose status as a child is declared or negated by this chapter is the child only of his parent or parents as determined under this chapter, Title 64.2, and, when applicable, Chapter 3.1 (§ 20-49.1 et seq.) of this title for all purposes including, but not limited to, (i) intestate succession; (ii) probate law exemptions, allowances, or other protections for children in a parent's estate; and (iii) determining eligibility of the child or its descendants to share in a donative transfer from any person as an individual or as a member of a class determined by reference to the relationship.

Va. Code Ann. § 20-164.

Moreover, the Virginia Supreme Court recently reiterated that the “assisted conception statute was written specifically with married couples in mind. The statute’s primary purpose is to protect cohesive family units from claims of third-party intruders who served as mere donors.” L.F. v. Breit, 285 Va. 163, 179, 736 S.E. 2d 711, 720 (2013). Applied here, we believe that the Virginia Supreme Court would find that claimant and NH had a parent-child relationship.

First, the Assisted Conception Act essentially provides for a presumption of legitimacy of a child born from an assisted conception that occurred during a marriage. Va. Code Ann.

§ 20-158(A)(2). Indeed, the Act expressly provides that the husband of the gestational mother is considered to be the child’s father unless he commences a legal action to determine that he did not consent to the conception. Id. (emphasis added). Here, there is no record that the NH commenced any legal or other action to demonstrate his lack of consent to claimant’s conception or subsequent birth. Thus, the statutory exception to the legal presumption of paternity has not been met.

Moreover, there is no evidence that NH did not consider himself to be claimant’s father. To the contrary, claimant was born in 2004, almost three years prior to the NH’s death and appears to have cohabited with claimant during that time. In addition, during the NH’s lifetime, the NH listed claimant on his tax returns for 2004, 2005, 2006 and 2007, as both his dependent and son. See Va. Code Ann. § 64.2-103 (identifying certain documents, including tax returns, as clear and convincing evidence to establish biological paternity for children born out of wedlock); see also Jones v. Eley, 256 Va. 198, 201-02, 501 S.E.2d 405, 407 (1998). Thus, in the absence of any evidence to defeat the presumption of legitimacy, and in light of the statutory intent, we believe that the Virginia Supreme Court would find that a parent-child relationship existed between the NH and claimant.

CONCLUSION

For the reasons stated above, it is our opinion that a Virginia court would likely find that the claimant has presented sufficient evidence to demonstrate a parent-child relationship under the laws of the Commonwealth of Virginia.

Nora Koch
Regional Chief Counsel

By:__________
Naomi Mendelsohn
Assistant Regional Counsel

B. PR 11-095 Whether the Parent-Child Relationship Found To Exist Between the Number Holder (S~) and B~ Has Been Rebutted, SSN: ~

DATE: April 27, 2011

1. SYLLABUS

It is the opinion of the RCC that the Agency’s determination that B~ (the child) was entitled to CIB on the number holder’s account can be reopened. The determination was obtained through fraud, specifically misrepresentations that S~ (the mother) offered about the relationship between B~ and the number holder. A determination obtained through fraud can be reopened at any time and the Agency can disregard the court order because it was based on fraud.

2. OPINION

INTRODUCTION

This memorandum is in response to your request for our opinion whether the determination that B~ B. F~ (B~) was the child of S~ (number holder) can be reopened based on new evidence and, if so, whether an existing court order requiring the number holder to pay child support to B~ can be disregarded. Based on the evidence that you provided and our research, it is our opinion that the decision can be reopened. Recently obtained new and material evidence provides good cause for reopening the matter. Further, the new evidence shows that the determination and court order were obtained by fraud. The agency can reopen a determination obtained through fraud at any time and is not bound by state court decisions obtained through fraud.

BACKGROUND

B~ was born on October, in Rocky Mount, Virginia. Her mother is C~ (S~); no father is listed on the NUMI. S~ and the number holder were never married, but, based on the information you provided, at some point after B~’s birth, a Virginia state court ordered the number holder to provide child support to B~ and declared that B~ was the number holder’s child. (Case ~~- ~~~).

On or about April 17, 2008, S~ filed an application for child’s benefits on behalf of B~, and the agency approved the claim based on the abovementioned court order. B~ began receiving benefits in April 2008. In a letter dated August 27, 2010, S~ asked the agency to stop paying benefits to B~ on the number holder’s account, confirmed that the number holder was not B~’s father, and admitted that her previous statements about the parent-child relationship were false. On or about April 9, 2011, the agency input a suspense action stopping payments to B~ after receiving S~’s letter and a March 20, 2009 DNA test showing a zero-percent chance that the number holder was B~’s father.

DISCUSSION

Because the agency has already determined that B~ and the number holder have a qualifying parent-child relationship under the Act, the threshold question is whether the agency can reopen that determination based on new evidence that the child’s benefits were procured by fraud or similar fault. It is also necessary to determine what effect, if any, the Virginia state court order declaring B~ to be the number holder’s child has on the agency’s ability to reopen the determination.

I. The Agency Can Reopen the Determination Because S~’s Misrepresentations About B~’s Parentage Constitute “Fraud or Similar Fault.”

We believe that the agency can reopen the determination that B~ was entitled to benefits on the number holder’s account because of the discovery of new and material evidence that the determination of entitlement was based on fraud or similar fault. The agency can reopen a disability determination on its own initiative, or when a party to the determination asks that it be reopened. 20 C.F.R. § 404.987. A decision may be reopened:

1. Within twelve months of the date of the notice of initial determination for any reason;

2. Within four years of the date of the notice of initial determination where there is good cause to reopen the case; or

3. At any time if the decision was obtained by fraud or similar fault.

20 C.F.R. § 404.988; POMS GN 040001.010.

S~’s misrepresentations about B~’s parentage allow the agency to reopen the determination on the basis of fraud or similar fault. 20 C.F.R. § 404.988. “Similar fault” does not require fraudulent intent and exists when a person knowingly makes an incorrect or incomplete statement that is material to the determination or knowingly conceals information that is material to the determination. POMS GN 04020.010.5

We believe that a Virginia Court would find that S~ made fraudulent statements regarding the number holder’s paternity. Under Virginia Law, fraud exists when there is “(1) a false representation, (2) of a material fact, (3) made intentionally and knowingly, (4) with intent to mislead, (5) reliance by the party misled, and (6) resulting damage to the party misled.” Batrouny v. Batrouny 412 S.E.2d 721, 723 (Va. App. 1991) (vacating child support provisions of a divorce decree where the wife later admitted that she knew the husband was not the child’s father). According to S~’s August 2010 letter, her representations about the material fact of B~’s parentage were false, she knew that they were false when she made them, and she made these representations in order mislead the number holder and obtain a benefit for herself and B~. Both the number holder and the Virginia state court relied on these representations, and this reliance resulted in damages to the number holder (i.e., child support payments). In this case, the unambiguous statements in S~’s letter, that her previous assertions about the B~’s parentage were false, meet that standard and establish the intent to defraud. Batrouny, 412 S.E.2d at 723.

Because the evidence of paternity was false or fraudulent, we believe that there is not clear and convincing evidence to establish inheritance rights under Virginia law. The Act provides that when determining whether an applicant is the child of an insured individual, the Commissioner will apply the inheritance law of the state in which the insured individual was domiciled at the time the application was filed. 42 U.S.C. 416(h)(2)(A); 20 C.F.R. 404.355(b)(1). The number holder was domiciled in Virginia at the time B~’s CIB application was filed, so Virginia law will be applied in determining whether a parent-child relationship exists.

Under Virginia law, a child born out of wedlock may inherit from a decedent's estate based upon a showing that the decedent is the father of the child. Va. Code Ann.  64.15.1. To inherit, the child must establish paternity by clear and convincing evidence as set forth in Virginia's intestacy statute. Va. Code Ann. §§ 64.15.1(3)(b), 64.15.2. Clear and convincing evidence in Virginia is “that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established.” Lanning v. Va. Dep’t of Transportation, 561 S.E.2d 33, 36 (Va. App. 2002). The Code of Virginia provides that a child born out of wedlock may establish inheritance rights by clear and convincing evidence of paternity including “the common use of [the purported father’s] surname by the child.” Va. Code Ann. § 64.15.2(3). Because court order was not provided, we do not know if this was the only “clear and convincing evidence” the court relied on. Based on Virginia law and the evidence you provided, it is possible that the number holder claimed B~ on a tax return or other government document or voluntarily claimed paternity in writing and under oath or before the court that adjudicated the order. Va. Code Ann. §§ 64.1-5.2(4)-(6).

No matter which basis the Virginia court relied on, if a statement from S~ affirmatively stating that the number holder was not B~’s father had been available in April 2008, the agency would not have found that a parent-child relationship existed between B~ and the number holder. 6

II. The Court Order Will Not Prevent The Agency From Reopening the Determination Because the Court Order Was Obtained Through Fraud.

The agency is not bound by state court decisions related to parent-child status when those decisions are inconsistent with the respective state’s law. POMS GN 00306.001; SSR 83-37c. Courts interpreting this ruling have found that a decision is inconsistent with state law where it was obtained through bad faith in an attempt to receive social security benefits, George v. Sullivan, 909 F.2d 857, 861 (6th Cir. 1990), and where the facts of the case could not possibly support the court’s conclusion. Outwater for McClinchey v. Sec. of Health and Human Services, 894 F.Supp. 1114, 1120 (E.D.Mich. 1995). We believe that the original court order in this case is inconsistent with Virginia state law because it is based on fraudulent statements designed to obtain social security and other benefits, and because S~’s repudiation of her former parentage assertions leaves the court order with no evidentiary support for a finding of paternity.

Virginia’s law regarding the finality of court orders obtained through fraud reinforces our belief that such orders are inconsistent with Virginia state law. Virginia law generally provides that collateral estoppel prevents the relitigation of matters regarding paternity, support, and other family law matters once those matters are finalized through a court order or other legal proceeding. Slagle v. Slagle, 398 S.E.2d 346 (Va. App. 1990). However, court orders regarding child support can be vacated when they are obtained through fraud. Batrouny, 412 S.E.2d at 723 (vacating child support provisions of a divorce decree and noting that the wife’s “admission that she has always known the child was not born of the marriage, when viewed in light of her [earlier] assertion . . . to the contrary, is convincing evidence of her intent to defraud”); see also, Com., Dept. of Social Services, Div. of Child Support Enforcement ex rel. Breakiron v. Farmer, 528 S.E.2d 183, 186 (Va. App. 1993) (vacating child support order where new evidence disproved the purported father-child relationship and noting that “a judgment obtained by ‘intrinsic fraud’ is . . . voidable and can be challenged . . . by direct appeal or by a direct attack in an independent proceeding”); Slagle, 398 S.E.2d at 350 (“Principles of collateral estoppel may not be invoked to sustain fraud.”).

The facts in this case are nearly identical to those in Batrouny. S~ obtained the child support order, and subsequent CIB determination, by making fraudulent representations about the purported, parent-child relationship between B~ and the number holder. She has since admitted that these representations were false. Therefore, the court order finding paternity can be vacated by a Virginia state court. Accordingly, we believe that the agency is not bound by the existing court order that is premised on a mistaken and fraudulent finding of paternity.

We believe that the misrepresentations about the relationship between B~ and the number holder that S~ used to obtain the Court Order and subsequent CIB constitute fraud. Therefore, collateral estoppel cannot be invoked to prevent a reopening of this matter.

CONCLUSION

For the reasons stated above, it is our opinion that the Agency’s determination that B~ was entitled to CIB on the number holder’s account can be reopened. The determination was obtained through fraud, specifically misrepresentations that S~ offered about the relationship between B~ and the number holder. A determination obtained through fraud can be reopened at any time and the Agency can disregard the court order the court order because it was based on fraud.

Sincerely,

Eric P. Kressman
Regional Chief Counsel

By:__________
Adam Siry
Assistant Regional Counsel

C. PR 09-061 Whether the presumption of legitimacy has been rebutted between the Number Holder (J~) and child, I~, SSN: ~.

DATE: February 17, 2009

1. SYLLABUS

Under Virginia law, evidence that forces the conclusion of non-access beyond all reasonable doubt is required in order to use that issue to overcome the presumption of legitimacy. The evidence in this case does not meet the "strong, distinct, satisfactory and conclusive" standard required under the statute.

2. OPINION

QUESTION PRESENTED

On January 14, 2009, you requested a legal opinion regarding whether the presumption of legitimacy between J~, the Number Holder, and I~ has been rebutted under the law of Virginia.

BACKGROUND

According to the information you provided, we understand the facts to be as follows:

The Number Holder (NH) was a resident of Stafford, VA. He died on August 31, 2007, in Greenville, NC, where he was stationed in the military. The Number Holder was married to A~ (A~) on May 25, 1996, and they remained married at the time of his death. Prior to 2007, the couple had three children, and the Number Holder is listed as the father on each of their birth certificates, and on their NUMIs. A~ gave birth to I~ (I~) on July. I~'s birth certificate and NUMI do not list a father's name.

A~ stated that the NH was stationed in North Carolina beginning in September, 2006. She alleges that the NH had some visits home after that time, but that she does not recall the dates of those visits. She stated that the NH may or may not be I~'s father, and that it is possible that I~ was fathered by another man, named L~. She also stated that the NH knew that I~ may not have been his child, and that he did not state to other family members that she was definitely his child. No DNA testing has been performed.

Officer M~ at the Marine Quantico Base stated that the NH was deployed from September 12, 2006 through December 10, 2006, and would not have been able to go home during that time. He also stated that the NH claimed I~ as his child for the purpose of health benefits, and that the Marine Corps has I~ listed in its system as the NH's child.

DISCUSSION

1) Applicable Law

The Social Security Act provides that an unmarried minor child of a deceased individual who was insured under the Act may receive Child's Insurance Benefits if she was "dependent upon such individual" at the time of that individual's death. 42 U.S.C. § 402(d)(1)(C)(ii). A child is deemed dependent upon a fully or currently insured individual if she is the legitimate or adopted child of such individual. 42 U.S.C. § 402(d)(3).

Under Virginia law, a presumption of law exists in favor of the legitimacy of a child born in wedlock. Wyatt v. Dep't of Social Srvcs., 397 S.E.2d 412, 415 (Va. App. 1990) (upholding a trial court's determination that the presumption of legitimacy was rebutted by blood test results, testimony of the mother, and corroborating testimony by the alleged father). This presumption can be rebutted by "strong, distinct, satisfactory and conclusive" evidence. Cassady v. Martin, 266 S.E.2d 104, 106 (Va. 1980) (holding that non-access of the husband must be proved beyond all reasonable doubt to rebut the presumption of legitimacy).

The presumption of legitimacy is not rebutted by "proof of circumstances, which only create doubt and suspicion." Cassady at 106 (quoting Scott v. Hillenberg, 7 S.E. 377, 378 (1888)). Although a wife is permitted to testify to non-access of her husband, and therefore bastardize her child, improbability of access by the husband at the time of conception is not by itself sufficient to rebut the presumption of legitimacy. Id. Rather, only evidence that forces the conclusion of non-access of the husband to the wife beyond all reasonable doubt may be sufficient to rebut the presumption of legitimacy. Id.

2) Analysis

Based on the facts provided, and our review of Virginia law, we believe that sufficient evidence was not presented to rebut the presumption of legitimacy. In the instant case, A~ and the NH were married at the time of I~'s birth, creating the presumption that the NH was I~'s father. The evidence regarding the NH's possible access to A~ at the time of conception is contradictory. A~ stated that the NH had some visits home after his deployment, but Officer M~ stated that the NH would not have been able to go home between September and December of 2006 (the period when conception would have occurred). As noted above, Virginia law requires evidence that forces the conclusion of non-access beyond all reasonable doubt. We do not believe that these statements alone do so.

We also do not believe that A~'s statements regarding I~'s parentage constitute sufficient evidence to rebut the presumption of legitimacy. A~ made no conclusive statement that L~ was I~'s father, stating merely that she was unsure who the father was, and that the NH knew of the possibility that he may not be I~'s father. Further, no father was listed on I~'s birth certificate or Social Security records. In addition, the NH claimed I~as his child for purposes of health insurance. Although I~was given L~'s last name, there is no indication that L~ consented to this, and none of the other pieces of evidence enumerated in the statute has been supplied. Consequently, we do not believe that the evidence provided rises to the level required by Virginia law to rebut the presumption that the NH is I~'s father.

CONCLUSION

Thus, based upon our review of Virginia law and the facts you provided to us, we believe that the presumption of legitimacy was not rebutted in this case. As discussed above, we do not believe that sufficient evidence was presented to rebut the presumption that the NH was I~'s father.

Sincerely,

Eric P. Kressman
Regional Chief Counsel

By:__________
Katrina Lederer
Assistant Regional Counsel

D. PR 08-037 Rebuttal of Acknowledgment of Parent-Child Relationship Between Number Holder (H~) and E~ and C~ SSN: ~

DATE: December 14, 2007

1. SYLLABUS

In Virginia, DNA test results excluding the number holder as the father of our beneficiaries combined with a statement from the mother that she had never been sure he was the father are sufficient to rebut to presumption of legitimacy. In cases such as these, SSA regulations on Administrative Finality may limit our ability to reopen and revise the earlier award.

2. OPINION

QUESTION PRESENTED

On November 6, 2007, you asked us to advise you whether a deoxyribonucleic acid (DNA) test excluding H~ (H~) as the father of E~ (E~) and C~ (C~) was sufficient evidence to rebut the presumption of legitimacy under Virginia law for a child born in wedlock. In addition, you asked whether a parent-child relationship continued to exist between E~ and E~ and/or C~and whether benefits should continue to be paid on the basis of such relationship. If not, you asked when we would cease benefits for E~ and C~on the earnings record of E~.

SUMMARY

Based on our review of the facts and relevant Virginia law, we believe that the December 18, 2006 DNA test disproving paternity likely would be sufficient evidence to rebut the presumption of legitimacy of E~ and C~. As a result of this DNA test, the parent-child relationship of E~ to E~, and E~ to C~, both terminated on December 18, 2006. Although E~'s parent-child relationship technically ended on December 18, 2006, E~'s benefits do not cease, because his July 1, 1997 entitlement decision cannot be reopened pursuant to our regulations. On the other hand, C~'s benefits should cease on December 18, 2006, the date of the DNA test disproving paternity, because his December 2004 entitlement decision can be reopened.

BACKGROUND

E~ became entitled to disability benefits in January 1994. He married K. R. (R~) in November 1996, and E~ L. E~ was born May. The validity of the marriage is not in question. R~ filed an application for child's benefits on E~'s behalf in May 1997, and, on July 1, 1997, he was found entitled to benefits beginning in June 1997.

R~ had a second child, C~, on February, while she continued to be married to E~. R~ filed an application for child's benefits on C~'s behalf in December 2005, and, on December 21, 2005, he was found entitled to benefits beginning December 2004.

DNA tests performed on December 18, 2006 excluded E~ as the father of either E~ or C~. The Commonwealth of Virginia, Circuit Court for Dickenson County, granted a divorce between E~ and R~ on September 28, 2007. On October 3, 2007, the Court awarded sole custody to R~.

E~ stated on October 1, 2007 that he still considered E~ and C~to be his children, that he had made investments on their behalf, and that he wanted them to receive his property if anything should happen to him. However, when a claims representative informed E~ that R~ would be receiving benefits as representative payee for the children, E~ asked that the benefits to E~ and C~be terminated.

R~ applied to become representative payee for E~ and C~on October 9, 2007. R~ indicated that although she had not been sure either child was E~'s, she did not definitely know that he was not the father until she received the DNA test results. R~ became the representative payee for E~ and C~. Once R~'s representative payee status became final, E~ again requested that benefits to E~ and C~based on his earnings record be terminated.

DISCUSSION

The Social Security Act provides that in determining whether an applicant is the child of an insured individual, the Commissioner will apply the inheritance law of the state in which the insured individual was domiciled at the time the application was filed.

42 U.S.C. ' 416(h)(2)(A); 20 C.F.R. 404.355(b)(1) (2007). E~ was a resident of Virginia at the time both applications for childs' benefits were filed. Accordingly, Virginia law of intestacy applies in this case.

Virginia law construes inheritance rights in terms of a child's legitimate status. Va. Code Ann. § 64.1-5.1. Virginia law requires that the father and child relationship be established by "clear and convincing evidence, including scientifically reliable genetic testing . . ." Va. Code Ann. § 64.1-5.1(3)(b). However, under Virginia law, a presumption of law exists in favor of the legitimacy of a child born in wedlock. Va. Code Ann. § 64.1-5.1(3)(a); Wyatt v. Dep't of Social Services, 397 S.E.2d 412, 415 (Va. App. 1990). The presumption of legitimacy is not rebutted by proof of circumstances which can only create doubt and suspicion. Cassady v. Martin, 266 S.E.2d 104, 106 (Va. 1980). Rather, to rebut the presumption of legitimacy, the evidence must be clear and convincing, or "strong, distinct, satisfactory and conclusive." Wyatt, 397 S.E.2d at 415. Courts have considered DNA evidence to rebut the presumption of legitimacy, when weighted with all of the evidence. Id. at 415; NPA v. WBA, 8 Va. App. 246 (1989) (holding that evidence consisting of blood test results which conclusively disproved paternity, in conjunction with the wife's admission of intercourse with another during a period of separation, was sufficient to overcome the presumption of legitimacy). Virginia courts have not addressed whether DNA test results alone are sufficient to rebut the presumption of legitimacy.

A presumption of legitimacy exists in this case because both E~ and C~ were born during a valid marriage between E~ and R~. However, DNA testing revealed a 0.00% probability that E~ was the father of E~ or C~. In addition, R~'s statement that she had never been sure whether E~ was the father of E~ or C~ suggests that she may have had sexual relations with another man at the time of E~ and C~'s conceptions. The DNA test results weighed with R~'s statements that she now believes E~ was not the father and that she was never sure that he was their father may be clear and convincing evidence to rebut the presumption of legitimacy. See Va. Code Ann. ' 64.1 5.2(7) (providing that clear and convincing evidence of paternity may include "[t]he results of scientifically reliable genetic tests, including DNA tests, weighted with all the evidence"); see also Va. Code Ann. ' 20 49.1(B)(1) (providing that blood tests results that affirm at least a 98% probability of paternity have the same legal effect as a judgment to determine parentage).

Once the presumption of legitimacy has been rebutted, the next question is whether the initial decisions awarding child's benefits to E~ and C~ may be reopened. The Social Security Administration may reopen initial determinations in the following circumstances:

  • Within 12 months of the date of the notice of initial determination for any reason;

  • Within four years of the date of the notice of initial determination, if we find good cause to reopen the case; or

  • At any time for specific reasons set forth in 20 C.F.R. ' 404.988(c) and explained in POMS GN 04020.001ff. 1

20 C.F.R. ' 404.988 (2007); POMS GN 040001.010.

Consequently, E~'s entitlement determination may not be reopened because the July 1, 1997 decision entitling E~ to child's benefits was made well beyond both the one-year and four-year benchmarks provided by the regulations. Additionally, the DNA testing does not fall within any of the eleven specific reasons that reopening can occur "at any time" as set forth in 20 C.F.R. §404.988(c)(1)-(11) (2007). Absent evidence of "fraud or similar fault," or other conditions permitting reopening of a determination after four years, we have no legal process by which to reopen the favorable determination to terminate E~'s benefits. The information provided does not demonstrate that any of the conditions for reopening are met in this case.

Because the decision entitling C~to child's benefits was made on December 21, 2005, more than one year ago but less than four years ago, the Agency may reopen its decision for good cause. The Agency will find that there is good cause to reopen a determination or decision if:

  1. New and material evidence is furnished;

  2. A clerical error in the computation or recomputation of benefits was made; or

  3. The evidence that was considered in making the determination or decision clearly shows on its face that an error was made.

20 C.F.R. § 404.989 (2007); POMS GN 04010.001. In this case, the Agency may find good cause to reopen the award of benefits to C~ because new and material evidence has been submitted that shows that E~, the Number Holder, is not the father of C~.

New and material evidence is evidence which:

  • Was not part of the claims . . . file when the final determination or decision was made; but

  • Relates back to the original determination or decision; and

  • Shows facts that would result in a conclusion different from that originally reached had the new evidence been introduced or available at the time of the original determination.

POMS GN 04010.030. Here, the evidence submitted includes DNA test results proving that E~ is not C~'s father. This evidence is new, in that it was not part of the claims file when the final determination or decision was made. It is material because it relates back to the question of paternity as of C~'s birth in February 2004. See POMS GN 04010.030C (providing as an example a situation where a revised court order, received after the initial determination, showed that a child was not the child of the number holder).

The only remaining question in determining whether the new evidence is material is whether the evidence shows facts that would have resulted in a conclusion different from the original decision, had the evidence been introduced or available at the time of the original determination. POMS GN 04010.030. The evidence submitted by R~ and E~ is material because a different determination would have been reached with respect to the paternity of C~if the DNA test results had been available in December 2005. As previously stated, under Virginia law, DNA test results showing a 0.00% probability of paternity weigheted with all the other evidence would be clear and convincing to rebut the presumption of legitimacy. Wyatt, 397 S.E.2d at 415; NPA, 8 Va. App. at 246. Therefore, the new evidence is material and justifies a reopening based on good cause.

Upon reopening, the Agency must determine the date of the termination of the parent-child relationship between E~ and C~. POMS GN 00306.055 directs that where a state law confers inheritance rights based on an adjudication of paternity (but does not legitimate the child), and the provision is effective prospectively only, the claimant’s status as the number holder’s child is established effective with the following dates:

  • if one piece of evidence satisfies the applicable standard of proof (e.g., blood test results constitute clear and convincing evidence), the date of that piece of evidence;

  • if more than one piece of evidence is needed to satisfy the applicable standard of proof, the date of the latest necessary piece of evidence.

Under Virginia law, a child may be granted inheritance rights based on the establishment of a parent-child relationship by "clear and convincing evidence," but this determination does not legitimate the child. Va. Code Ann. § 64.1-5.1. Because Virginia law confers inheritance rights based on an adjudication of paternity, but does not legitimate the child, and the DNA test results weighted with the other evidence of record constitute clear and convincing evidence disproving paternity, the parent-child relationship between E~ and C~ should have been terminated as of December 18, 2006, the date of the DNA test.

CONCLUSION

Based on the above, we have concluded that DNA test results, weighted with the other evidence, rebut the presumption that E~ and C~ are the children of the Number Holder, E~. Accordingly, neither E~ nor C~ is entitled to child's benefits under E~'s account. C~'s award of benefits should be reopened to terminate the parent-child relationship as of December 18, 2006, the date of the DNA test disproving paternity. However, unless the Agency obtains evidence of "fraud or similar fault" or another condition permitting reopening after more than four years have elapsed, E~'s benefits should be continued.

Sincerely,

Michael Mc Gaughran
Regional Chief Counsel

By:__________
Kelly C. Connelly
Assistant Regional Counsel

1 A determination may be reopened at any time if: (1) it was obtained by fraud or similar fault; (2) another person files a claim on the same earnings record and allowance adversely affects the claim; (3) the Number Holder previously determined to be dead is later found to be alive; (4) you did not prove that a person was dead and death is later established; (5) the Railroad Retirement Board has awarded duplicate benefits; (6) there are gratuitous credits on the earnings record; (7) no insured status; (8) clerical error that appears on the face of the evidence; (9) you are convicted of a felony; (10) your earnings record is adversely affected by World War II; and (11) your conviction is overturned. 20 C.F.R. § 404.988(c)(1)-(11).

E. PR 06-023 Effective Date of Parent-Child Relationship Between C~ and J1~ and J2~, SSN: ~

DATE: December 1, 2005

1. SYLLABUS

Under Virginia law, negative DNA results and a subsequent court order are sufficient to rebut the presumption of legitimacy between the one of the claimants and the number holder. In the case of the other claimant, a sister born on the same date as the first claimant, the DNA results showed the probability of paternity by the number holder to be 99.99 % and the presumption was not rebutted.

2. OPINION

QUESTION PRESENTED

On November 7, 2005, you requested a legal opinion regarding: (1) whether a parent-child relationship exists between the number holder (NH) C~ and J~ E~; (2) whether a parent-child relationship exists between the NH and J~ E~; (3) the effective date of the parent-child relationship between the NH and J~ and/or J~; and (4) whether retroactive child's benefits can be paid.

SUMMARY

We have reviewed the information that you have provided and have researched the relevant provisions of Virginia law regarding the presumption of legitimacy of a child born during a valid marriage. Based on our review of the facts of this case and our research of relevant Virginia statutes and case law, we have concluded that J~ is the natural child of the NH and, as such, is entitled to child's benefits retroactively based upon the NH's earnings record. With regard to J~, we have determined that DNA test results and a subsequent Virginia court order rebut the presumption that J~ is the NH's natural child. Accordingly, we believe that a parent child relationship does not exist between the NH and J~. Without the requisite parent-child relationship, J~ is not entitled to child's insurance benefits on the NH's earnings record.

BACKGROUND

The NH, a resident of Rustburg, Virginia, married C~ on January 14, 1980. J1~ and J2~ were born on January. The birth certificates for J1~ and J2~ state that C~ is their mother. No father is listed on the birth certificates. On February 26, 1991, the Circuit Court for the City of Danville, Virginia, entered a divorce decree for the NH and C~. The divorce decree states that one child, M~, was born of the marriage on May.

On March 22, 1994, the Commonwealth of Virginia Juvenile and Domestic Relations District Court granted sole custody of J1~ and J2~ to their aunt, B~ W~. On November 20, 2002, deoxyribonucleic acid (DNA) testing performed between the NH, J~, and C~ indicated the probability of paternity between the NH and J~ as 99.99%. DNA testing performed between the NH, J~, and C~ indicated a probability of paternity between the NH and J~ as 0.00%. DNA testing between J~, C~, and C~, indicated a probability of paternity between J~ and C~ as 99.99%. On February 26, 2003, the Commonwealth of Virginia Juvenile and Domestic Relations District Court, based on the results of the DNA testing, issued an order finding the NH to be the father of J~ and not to be the father of J~.

On October 29, 2003, the NH filed an application for Social Security disability insurance benefits (DIB). On his DIB application, the NH indicated that J~ was his dependent child. On August 8, 2005, an administrative law judge granted the NH's DIB application and found the NH disabled beginning in August 2004. On September 7, 2005, B~ Wyatt filed an application for child's benefits for J~ and J~ based on the NH's earnings record.

DISCUSSION

The Commissioner's regulations provide that an individual is entitled to child's benefits on the earnings record of an insured person who is entitled to DIB if the individual: (1) is the insured person's child; (2) is dependent on the insured; (3) applies for child's benefits; (4) is unmarried; and (5) is under age 18, is 18 years old or older and has a disability that began before age 22, or is 18 years or older and qualifies for benefits as a full-time student. 20 C.F.R. § 404.350(a)(1) (5) (2005). An individual can satisfy the first requirement for entitlement to child's benefits mentioned above by showing that she could inherit a child's share of the insured's personal property if the insured were to die without leaving a will. 20 C.F.R. § 404.355(a)(1), (b)(1). The regulations explain that when making this determination, the Court will consider the state inheritance laws for the state where the insured was living when he applied for benefits. The relevant Virginia intestacy law states, in pertinent part:

Course of descents generally- When any person having title to any real estate of inheritance shall die intestate as to such estate, it shall descend and pass in parcenary to such of his kindred, male and female, in the following course:

First. To the surviving spouse of the intestate, unless the intestate is survived by children or their descendants, one or more of whom are not children or their descendants of the surviving spouse, in which case two-thirds of such estate shall pass to all the intestate's children and their descendants and the remaining one-third of such estate shall pass to the intestate's surviving spouse.

Second. If there be no surviving spouse, then the whole shall go to all the intestate's children and their descendants.

Va. Code Ann. § 64.1-1 (1995).

Regarding the second requirement that must be satisfied in order to qualify for child's benefits, an individual will be considered dependent on the insured person if the individual is the insured person's natural child. 20 C.F.R. § 404.361(a). A natural child is a child who is born to the parent, i.e., a biological child. See POMS GN 00306.010(A)(1). Under Virginia law, a presumption of law exists in favor of the legitimacy of a child born in wedlock. Wyatt v. Dep't of Social Srvcs., 397 S.E.2d 412, 415 (Va. App. 1990). In Virginia, this presumption is referred to as the "presumption of legitimacy." Id. We note that the term "presumption of legitimacy" as used in Virginia case law refers to the presumption that a child of a married couple is the biological (natural) child of both parents. To rebut the "presumption of legitimacy" in Virginia, the evidence must be clear and convincing, namely "strong, distinct, satisfactory and conclusive." Wyatt, 397 S.E.2d at 415. Such evidence may include DNA evidence, which courts have considered to rebut the "presumption of legitimacy." Wyatt, 397 S.E.2d at 415; NPA v. WBA, 8 Va. App. 246 (1989) (evidence consisting of blood test results which conclusively disproved paternity in conjunction with wife's admission of intercourse with another during the period of separation was sufficient to overcome the presumption of legitimacy).

J~ E~

J~ is entitled to child's insurance benefits based on the earnings record of the NH because J~ satisfies the five requirements for entitlement under 20 C.F.R. § 404.350(a)(1)-(5). First, J~ is considered the child of the NH because she would be entitled to inherit a child's share the NH's personal property if the NH were to die without leaving a will. 20 C.F.R. § 404.355(a)(1), (b)(1). Second, J~ is considered dependent on the NH because J~ is the NH's natural child. 20 C.F.R. § 404.361(a). As a child born to the NH during wedlock, J~ is presumed to be the natural child of the NH and no evidence exists to rebut this presumption. To the contrary, a significant amount of evidence exists to support the presumption that J~ is the NH's natural child. DNA testing indicated a probability of paternity between J~ and the NH of 99.99%. Based upon these results, the Commonwealth of Virginia Juvenile and Domestic Relations District Court issued an order finding the NH to be the father of J~ and requiring the NH to pay monthly child support to J~. Additionally, when filing his DIB application the NH indicated that J~ was his dependent child.

J~ also satisfies the remaining three requirements for entitlement to child's insurance benefits because she applied for child's insurance benefits based on the NH's earnings record, there is no evidence that she is married, and she is currently 13 years of age. 20 C.F.R. § 404.350(a)(3)-(5). Therefore, based upon the evidence presented, J~ would be entitled to child's benefits based upon the NH's earnings record.

The effective date of the parent-child relationship between the NH and J~ is January 18, 1991, the date of J~'s birth. This is because J~ was born during the marriage of the NH and C~ and the "presumption of legitimacy" has not been rebutted.

Regarding the issue of retroactive benefits, the regulations provide that, if the insured is living, child's insurance benefits begin with the first month covered by the application throughout which all other requirements for entitlement are met. 20 C.F.R. § 404.352(a)(2)(i). Additionally, under 20 C.F.R. § 404.621(a)(i), child's benefits may be paid retroactively for up to twelve months with benefits beginning with the first month in the twelve month period in which all requirements for entitlement are met. See also POMS GN 00204.030. The administrative law judge found the NH disabled beginning in August 2004 and, following the 5 month disability waiting period, the NH began receiving DIB in February 2005. Therefore, J~ would be entitled to retroactive benefits beginning in February 2005.

Absent evidence of "fraud or similar fault" or other condition permitting reopening after four years have elapsed, the favorable determination cannot be reopened to terminate J~'s benefits. The information provided does not demonstrate that any of the conditions for reopening would be met in this case.

J~ E~

J~ is not entitled to child's benefits based on the earnings record of the NH. Although J~ was born during the valid marriage of the NH and C~ and the paternity of the NH is presumed, DNA testing revealed a 0.00% probability that the NH was the father of J~ and a 99.99% probability that C~ was the father of J~. Based upon the results of the DNA testing, the Commonwealth of Virginia Juvenile and Domestic Relations District Court ruled on February 26, 2003, that the NH is not the father of J~.

Therefore, in light of the DNA test results and subsequent court order, we conclude that the presumption of legitimacy has been rebutted and no parent-child relationship exists between J~ and the NH. As such, J~ would not be entitled to child's benefits based upon the earnings record of the NH.

CONCLUSION

Based on the above, we have concluded that J~ is entitled to child's benefits based on the NH's earnings record and that she would be entitled to retroactive benefits. We have also concluded that the DNA test results and subsequent Virginia court order rebut the presumption that J~ is the NH's natural child. Accordingly, J~ is not entitled to child's benefits under the NH's account.

Sincerely,

Donna L. Calvert
Regional Chief Counsel

By:
Nicole A. Schmid
Assistant Regional Counsel

F. PR 06-003 Rebuttal of Presumption of Parent-Child Relationship Between L~ and J~, SSN: ~

DATE: November 8, 2005

1. SYLLABUS

Under Virginia law, negative DNA results of tests performed on the claimant and the number holder are sufficient to rebut the presumption of legitimacy and determine that no parent-child relationship exists. In this case, SSA still is barred from reopening the decision unless evidence of fraud or similar fault or another condition permitting reopening after more than four years is provided.

2. OPINION

QUESTION PRESENTED

On October 17, 2005, you requested a legal opinion regarding: (1) whether the Virginia court ruling and the DNA test results constitute sufficient evidence to rebut the presumption of legitimacy; (2) does a parent-child relationship continue to exist between L~, the number holder (NH), and J~; (3) should benefits continue to be paid for J~; and (4) if not, as of what date the benefits should end.

SUMMARY

We have reviewed the information that you have provided and have researched the relevant provisions of Virginia law regarding the presumption of legitimacy of a child born during a valid marriage. Based on our review of the facts of this case and our research of relevant Virginia statutes and case law, we have concluded that the DNA test results and subsequent court order rebut the presumption that J~ is the NH's child. Accordingly, we believe that a parent-child relationship does not exist between the NH and J~. Without the requisite parent-child relationship, J~ is not entitled to child's insurance benefits on the NH's earnings record. However, based upon the information provided, we do not believe that J~'s December 1992 application and subsequent award of child's benefits can be reopened to terminate her benefits. Absent evidence of "fraud or similar fault" or another condition to justify reopening after more than four years have elapsed, we believe that J~'s benefits should continue.

BACKGROUND

The NH and P~ were married on February 11, 1984. J~ was born on December . J~'s birth certificate indicates that NH is her father. The NH completed an application for Auxiliary Child Benefits on December 15, 1992. NH and P~ received their final decree of divorce on February 25, 2004. Based upon a report dated July 22, 2005, DNA testing performed on J~, NH, and Patricia revealed that there was a 0.00% probability that NH is the biological father of J~. Accordingly, the Commonwealth of Virginia, Juvenile and Domestic Relations District Court ruled on August 11, 2005, that NH is not the father of J~ L. L~. At that time, the court also issued a final order awarding custody of J~ to Patricia U~.

DISCUSSION

Under Virginia law, a presumption of law exists in favor of the legitimacy of a child born in wedlock. Wyatt v. Dep't of Social Srvcs., 397 S.E.2d 412, 415 (Va. App. 1990). The presumption of legitimacy is not rebutted by proof of circumstances which can only create doubt and suspicion. Cassady v. Martin, 266 S.Ed.2d 104, 106 (Va. 1980). To rebut the presumption of legitimacy, the evidence must be clear and convincing, namely "strong, distinct, satisfactory and conclusive." Wyatt, 397 S.E.2d at 415. The presumption may be rebutted by other testimony. Cassady, 266 S.E.2d at 106. In fact, courts have considered DNA evidence to rebut the presumption of legitimacy. Wyatt, 397 S.E.2d at 415; NPA v. WBA, 8 Va. App. 246 (1989)(evidence consisting of blood test results which conclusively disproved paternity in conjunction with wife's admission of intercourse with another during the period of separation was sufficient to overcome the presumption of legitimacy).

In this case, DNA testing revealed a 0.00% probability that NH was the father of J~ L. L~. Based upon the results of the DNA testing, a Commonwealth of Virginia, Juvenile and Domestic Relations District Court ruled on August 11, 2005, that NH is not the father of J~ L. L~ and awarded custody to J~'s mother. Therefore, in light of the DNA test results and subsequent court order, we conclude that the presumption of legitimacy has been rebutted and a parent-child relationship does not exist between NH and J~.

Without the requisite parent-child relationship, J~ is not entitled to child's insurance benefits on the NH's earnings record. This raises an issue of whether the DNA test results and the subsequent court order would allow SSA to reopen the initial determination that granted J~ child's insurance benefits. See 20 C.F.R. § 404.987(b) (defining determinations about an applicant's entitlement to benefits as an initial determination). SSA can reopen and revise a final determination on its own initiative under certain conditions. 20 C.F.R. § 404.987(b). However, because more than four years have elapsed since the date of the notice of initial determination, SSA can only reopen the determination if one of the conditions of reopening "at any time" is met, such as "fraud or similar fault." 20 C.F.R. § 404.988(c)(1)-(11).

Absent evidence of "fraud or similar fault" or other condition permitting reopening after four years have elapsed, the favorable determination cannot be reopened to terminate J~'s benefits. The information provided does not demonstrate that any of the conditions for reopening would be met in this case.

CONCLUSION

Based on the above, we have concluded that DNA test results and subsequent court order rebut the presumption that J~ is the NH's child. Accordingly, J~ is not entitled to child's benefits under the NH's account. However, unless evidence is obtained of "fraud or similar fault" or another condition permitting reopening after more than four years have elapsed, J~'s benefits should be continued.

Donna L. Calvert
Regional Chief Counsel

By:
Tara A. Czekaj
Assistant Regional Counsel

G. PR 03-182 Rebuttal of Presumption of Parent-Child Relationship Between the Number Holder (B~) and T~, SSN: ~

DATE: August 28, 2003

1. SYLLABUS

Unrebutted DNA test results showing a 99. 96% statistical probability that another man is the child claimant's father, weighted with the other man's signed admission of parentage and a court order that he pay child support, constitute clear and convincing evidence that the other man is the child's father. Accordingly, a Virginia court would conclude that there is "strong, distinct, satisfactory and conclusive" evidence that the presumption of legitimacy has been rebutted, and that the NH is not the child's father.

2. OPINION

QUESTION PRESENTED

This is in response to your July 28, 2003 request for an opinion as to (1) whether the presumption of legitimacy between the Number Holder and M~ (T~) has been rebutted under Virginia law; (2) whether a parent-child relationship between the Number Holder and T~ has been established; (3) the effective date of that relationship; and (4) whether T~ is entitled to retroactive benefits.

CONCLUSION

We have reviewed the information that you provided and have researched the relevant provisions of Virginia law regarding the presumption of legitimacy of a child born during a valid marriage. Based on our research, we have concluded that DNA test results and other evidence are sufficient to overcome the presumption that T~ is the Number Holder's child. Accordingly, T~ is not entitled to child's benefits under the Number Holder's account.

BACKGROUND

The following is a summary of the relevant facts in this matter. The Number Holder married P~ (P~) on January 10, 1983. The couple subsequently divorced on July 15, 1987, but were remarried on December 21, 1987. T~ was born during the marriage on January, and her birth certificate identifies the Number Holder as her father. Two Social Security number applications (NUMI) for T~, filed on February 14, 1990 and May 17, 1995, also identify the Number Holder as T~'s father.

On January 1, 1995, the Number Holder and P~ again divorced. They remarried six months later, on July 5, 1995, and divorced on August 10, 1999. Based on a September 2000 application, the Number Holder was found disabled commencing August 1, 2000. On February 11, 2003, the Number Holder married P~ for the fourth time. Shortly thereafter, on May 8, 2003, P~ filed applications for child benefits and benefits for a young spouse caring for a child on the Number Holder's account.

By telephone contact on May 13, 2003, the Number Holder denied that T~ was his child. In addition, the Number Holder submitted March 2000 DNA test results performed on P~, T~, and C~ D~ (C~), demonstrating a 99.96% probability that C~ is T~'s biological father. According to the information you provided to us, Virginia's Department of Social Services, Division of Child Support, determined the following day that C~ was T~'s biological father, and ordered C~ to pay child support. [1][1] On May 18, 2003, C~ signed a statement admitting that T~ is his child. He also stated that he has been paying voluntary child support since March 2000, when he learned of his parentage, and provided additional monies when school began each fall to assist with school expenses. Finally, C~ reported that Tanya moved into his home in Ruckersville, Virginia on May 18, 2003.

DISCUSSION

Child's benefits may be granted based on the earnings record of an insured person who is entitled to disability benefits if the applicant is the insured's child, and is dependent on the insured. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a) (2003). In determining whether an applicant is the insured's child, the Commissioner will apply the inheritance law of the state in which the insured was domiciled at the time the application was filed. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1). The Number Holder was domiciled in the Commonwealth of Virginia at the time T~'s mother filed the applications for benefits. Accordingly, Virginia law applies.

Virginia's intestacy statute requires clear and convincing evidence of paternity, including, but not limited to, evidence that the putative father allowed the child's use of his surname, an admission of paternity under oath, and results of scientifically reliable genetic tests, including DNA tests, weighted with all the evidence. Va. Code Ann. § 64.1-5.2 (2003). While Virginia's intestacy statute is silent as to the probability of paternity that constitutes clear and convincing evidence, Virginia's domestic relations and child support enforcement statutes state that blood test results that affirm at least a 98% probability of paternity have the same legal effect as a judgment of parentage. See Va. Code Ann. §§ 20-49.1(B)(1), 63.2-1913.

Ordinarily, a presumption exists in favor of the legitimacy of a child born in wedlock. Wyatt v. Dep't of Social Srvcs., 397 S.E.2d 412, 415 (Va. App. 1990). While this presumption cannot be rebutted by proof of circumstances which only create doubt and suspicion, see Cassady v. Martin, 266 S.E.2d 104, 106 (Va. 1980), it can be rebutted "by 'strong, distinct, satisfactory and conclusive' evidence." Wyatt, 397 S.E.2d at 415 (quoting Cassady). Significantly, the Wyatt court held that blood test results indicating a 99.37% probability of another man's paternity, along with the mother's testimony, were sufficient to rebut the presumption that the mother's husband was the child's father. Id.

We believe that strong, distinct, satisfactory and conclusive evidence exists to overcome the presumption of legitimacy. While the Number Holder allowed T~ to use his surname, and T~'s birth certificate and NUMI applications identified the Number Holder as her father, the Number Holder specifically denied that he was Tanya's father. In support of his statement, the Number Holder submitted unrebutted DNA test results demonstrating a 99.96% statistical probability that C~ is T~'s father. Indeed, C~ filed a signed statement with the Agency acknowledging paternity. Further, Virginia's Department of Social Services, Division of Child Support Enforcement, concluded that C~ was T~'s father, and ordered that he pay child support. The DNA test results, weighted with the signed admission of parentage and the support order, constitute clear and convincing evidence that C~ is Tanya's father. See Va. Code Ann. § 64.1-5.2. Accordingly, we believe a Virginia court would conclude that there is "strong, distinct, satisfactory and conclusive" evidence that the presumption of legitimacy has been rebutted, and that the Number Holder is not T~'s father.

if more than one piece of evidence is needed to satisfy the applicable standard of proof, the date of the latest necessary piece of evidence;

POMS GN 00306.055. Since, as stated above, Virginia law confers inheritance rights based on an adjudication of paternity, but does not legitimate the child, and the DNA test was the latest necessary piece of evidence establishing paternity under Virginia law, the parent-child relationship is effective February 14, 2002, the date of the DNA test.

Finally, the regulations provide that, if the insured is deceased, the child is entitled to benefits beginning with the first month covered by the application in which he meets all other requirements for entitlement. 20 C.F.R. § 404.352(a)(1). The regulations provide that a child may receive retroactive benefits for up to twelve months preceding the date of his application. 20 C.F.R. § 404.621(a). However, benefits can only be paid from the first month that all requirements for entitlement are met. 20 C.F.R. §§ 404.620(a)(1), .621(a). In this case, the application date is June 3, 2002, approximately four months after completion of the DNA testing on February 14, 2002. Accordingly, retroactive benefits should be paid in this case from February 14, 2002, forward.

CONCLUSION

For the reasons stated above, it is our opinion that the DNA testing performed in this case between G~ and the referenced children, combined with the other evidence submitted by the applicant, is sufficient to establish a parent-child relationship between G~ and both L~ and B~. Therefore, we believe there is clear and convincing evidence of a parent-child relationship between B~ and twin children, L~. and B~~, effective February 14, 2002. Finally, we believe that benefits should be paid retroactive to February 14, 2002.

James A. Winn
Regional Chief Counsel

By: ___________
Amy E. Nalence
Assistant Regional Counsel

H. PR 02-124 Sufficiency of DNA Testing in Establishing a Parent-Child Relationship Between the Number Holder, B~ (SSN: ~), and Twin Children, L~ and B~.

DATE: September 3, 2002

1. SYLLABUS

The presumption of legitimacy of twins conceived in wedlock is overcome by clear and convincing evidence, including DNA test results, showing that a man other than the biological mother's husband was the children's biological father. The DNA test results, in addition to the unrebutted statements of the children's mother and the NH's mother give the children inheritance rights with respect to the NH under Virginia law, effective with the date of the DNA tests.

2. OPINION

QUESTION PRESENTED

On July 29, 2002, you asked our advice as to whether there is sufficient evidence to establish a parent-child relationship between B~ G~ (B~), the deceased number holder, and twin children, L~ (L~) and B~ (B~). Additionally, if a parent-child relationship can be established, you asked for the effective date of that relationship and whether retroactive benefits can be paid.

SUMMARY

We have reviewed the material you provided and have researched the relevant provisions of Virginia law as it pertains to paternity. Based on our research, it is our opinion that a parent-child relationship was established between G~ and both referenced children, effective February 14, 2002. Thus, retroactive benefits should be allowed from February 14, 2002.

BACKGROUND

G~ died on August 3, 2001, in the state of Virginia. On June 3, 2002, C~ (C~) filed an application on behalf of her twin sons L~ and B~ (date of birth November 24, 2001) for surviving child's benefits based on G~'s account. Along with this application, C~ submitted evidence including the results of DNA testing, the birth certificates of the referenced children, and several written statements.

1. DNA Evidence

C~ submitted the results of DNA tests performed on February 14, 2002, utilizing samples of G~'s DNA which had been kept on file by the military during G~'s period of service. G~'s DNA was compared to the DNA of both L~ and B~ with the following results: the probability that G~ was the father of L~ was 99.98%; the probability that G~ was the father of B~ was 99.99%.

2. Other Evidence

G~ and C~ were never married. C~ was actually married to another man (M~) during the entire period of her pregnancy. However, C~ submitted a statement indicating that she and G~ had resided together from December 2000 through the date of G~'s death in August 2001. While no evidence was submitted to support this statement, there is also nothing in the file to contradict the allegation.

L~'s birth certificate does not identify a father, but lists G~'s date of birth in the relevant location. B~'s birth certificate does not identify a father. In addition, neither child's application for a Social Security Number includes the identity of the father.

A statement completed by C~ and submitted with the applications filed on behalf of L~ and B~ indicates that G~ made an allotment for both children while serving in the military, made oral admissions of paternity of both children, and made regular and substantial contributions to their support. There is no indication in the documentation as to whether supporting evidence was offered for these averments.

A second statement submitted with the applications reiterates that G~ resided with C~ for the relevant time period and that G~ admitted paternity to his family and his commanding officer. This statement adds that G~ also attended medical appointments with C~ during her pregnancy.

You have indicated that no supporting evidence was submitted to prove these averments.

Finally, a report of contact made with G~'s mother, D~ (D~), states that G~ told D~ of C~'s pregnancy. Diane did not know whether G~ and C~ had ever resided together.

DISCUSSION

In determining entitlement to surviving child's benefits, the Commissioner shall apply the inheritance laws of the state in which the insured had his permanent home at the time that he died. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1) (2001). A child born out of wedlock in Virginia will only be deemed legitimate by the subsequent intermarriage of the mother and father. Va. Code. Ann. § 20-31.1; Program Operations Manual System (POMS) GN 00306.055. Under Virginia law, however, a child born out of wedlock may inherit from a decedent's estate based upon a showing that the decedent is the father of the child. Va. Code Ann. § 64.1-5.1. Evidence that a man is the father of a child born out of wedlock shall be clear and convincing and may include, among other things, evidence that he cohabited with the mother during all of the ten months immediately prior to the time the child was born, a voluntary admission of paternity in writing and under oath, and/or the results of scientifically reliable genetic tests, including DNA tests, weighted with all the evidence. Va Code Ann. § 64.1-5.2 (1), (6), (7). With regard to genetic testing, another section of the Virginia Code, pertaining to domestic relations proceedings, provides that blood test results that affirm at least a 98% probability of paternity are sufficient to establish a parent-child relationship. Va. Code Ann. § 20-49.1(B)(1). See also Veeney ex rel. Strother v. Sullivan, 973 F.2d 326 (4th Cir. 1992) (holding that blood test evidence should be considered in addition to all other probative evidence in determining the putative father's paternity for purposes of awarding Social Security benefits).

In this case, based on the facts you provided us, we believe there is clear and convincing evidence that G~ is the father of both L~ and B~. The unrebutted DNA test results, which utilized actual samples from G~ and the two children, sufficiently establish that there is at least a 99.98% probability that G~ is the biological father of both children. In addition, there is other evidence that supports a conclusion of paternity between G~ and the children. The unrebutted evidence contained in the relevant documentation indicates that G~ lived with C~ through the date of his death, a time period which included several months of C~'s pregnancy, even though she was married to another man at the time. Though not made in writing or under oath, we have inferred that G~ made an admission of paternity to his family as evidenced by his conversation with his mother advising her of C~'s pregnancy. G~ apparently made regular contributions to the financial support of the children, and both children use G~'s surname. One of the children also shares his first name. Finally, at least one twin's birth certificate makes reference to G~'s date of birth in a location specifically designated for the father's date of birth. Even though none of these other items of evidence, standing alone, is sufficient to meet the specific statutory requirements of section 64.1-5.2 of the Virginia Code, when they are considered in conjunction with the results of the DNA testing, we believe a Virginia Court would rule that there is clear and convincing evidence of paternity in this case. See Jones v. Eley, 256 Va. 198, 200-02 (1998) (holding that evidence, such as voluntary admissions of paternity made by the putative father to family members and contributions made by the putative father to the financial support of the children, was sufficient to establish a parent-child relationship between the putative father and the children even without DNA evidence); Wyatt v. Virginia Dept. of Soc. Serv., 11 Va. App. 225, 229-30 (1990) (holding that the presumption of legitimacy of a child born in wedlock was overcome by clear and convincing evidence, including DNA test results, that proved a man other than the biological mother's husband was the biological father of the child in question).

Thus, based on the information you have provided, it appears likely that a Virginia court would find G~ to be the father of both L~ and B~ under its inheritance statutes.

Regarding the effective date of the parent-child relationship, the POMS GN 00306.055 directs that where a state law confers inheritance rights based on an adjudication of paternity (but does not legitimate the child), and the provision is effective prospectively only, the claimant's status as the nameholder's child is established effective with the following dates:

if more than one piece of evidence is needed to satisfy the applicable standard of proof, the date of the latest necessary piece of evidence;

POMS GN 00306.055. Since, as stated above, Virginia law confers inheritance rights based on an adjudication of paternity, but does not legitimate the child, and the DNA test was the latest necessary piece of evidence establishing paternity under Virginia law, the parent-child relationship is effective February 14, 2002, the date of the DNA test.

Finally, the regulations provide that, if the insured is deceased, the child is entitled to benefits beginning with the first month covered by the application in which he meets all other requirements for entitlement. 20 C.F.R. § 404.352(a)(1). The regulations provide that a child may receive retroactive benefits for up to twelve months preceding the date of his application. 20 C.F.R. § 404.621(a). However, benefits can only be paid from the first month that all requirements for entitlement are met. 20 C.F.R. §§ 404.620(a)(1), .621(a). In this case, the application date is June 3, 2002, approximately four months after completion of the DNA testing on February 14, 2002. Accordingly, retroactive benefits should be paid in this case from February 14, 2002, forward.

CONCLUSION

For the reasons stated above, it is our opinion that the DNA testing performed in this case between G~ and the referenced children, combined with the other evidence submitted by the applicant, is sufficient to establish a parent-child relationship between G~ and both L~ and B~. Therefore, we believe there is clear and convincing evidence of a parent-child relationship between B~ M. G~ and twin children, L~ M. and B~ M. G~, effective February 14, 2002. Finally, we believe that benefits should be paid retroactive to February 14, 2002.

James A. Winn
Regional Chief Counsel

By:
Amy E. Nalence
Assistant Regional Counsel

I. PR 02-037 Rebuttal of Acknowledgment of Parent-Child Relationship Between the Number Holder (J~) and child, C~, SSN: ~

DATE: February 4, 2002

1. SYLLABUS

The mother's mere statement that another man is the child's father is not legally sufficient to overcome the presumption of legitimacy in Virginia. She did not present any conclusive evidence that her husband is not the father of the child, or that anyone else is the child's father.

2. OPINION

QUESTIONS PRESENTED

You have asked for a legal opinion as to whether the evidence submitted is sufficient to rebut the presumption of legitimacy established by the valid marriage of the child's mother and the Number Holder in the Commonwealth of Virginia.

CONCLUSION

We have reviewed the material you provided and have researched Virginia statutory and case law as it pertains to rebutting the presumption of paternity. Based on our research, it is our opinion that although C~'s mother, D~, attempted to and is legally able to rebut the presumption that C~ was the child of her husband, the Number Holder, her mere statement that another man is C~'s father is not legally sufficient to overcome the presumption of legitimacy in Virginia. Therefore, we believe that C~ H~ should continue to receive survivors benefits.

BACKGROUND

On December 20, 1997, D~ was married to the Number Holder. During the marriage, D~ gave birth to C~ M. H~ on May. At the hospital and subsequently, on an application for a social security number (NUMI), the Number Holder indicated that he was the father of C~.

The Number Holder became ill and was in a coma, when on July 18, 2000, H~ filed an application for social security disability benefits on his behalf. The Number Holder died on July 30, 2000 during his waiting period, and therefore, did not receive any disability benefits.

On August 9, 2000, D~ filed for survivor's benefits on behalf of herself and three children. C~'s NUMI was used to entitle C~ because “enumeration at birth process was done when she was born listing” the Number Holder as the father. Incidentally, C~'s siblings, T1~ and T2~, were not awarded benefits because they were unable to provide proof of paternity.

On August 23, 2000, H~, however, claimed to a Prince Edward County Department of Social Services Representative that she gave fraudulent information to the Agency, and further stated that another person, D~, was C~'s biological father. H~ later signed a statement in a Social Security office stating that the Number Holder knew that C~ was not his child, but signed the paperwork at the hospital, anyway, and had decided to raise C~ as his own.

DISCUSSION

A review of the relevant statutes and case law supports our conclusion that C~ should continue to receive survivors benefits on the Number Holder's account. As you indicated in your request, for purposes of entitlement to social security benefits, a child born in wedlock is considered the natural legitimate child of the mother's husband, and is eligible for benefits. 20 C.F.R. § 404.355(a)(2) (2001); Programs and Operations Manual System (POMS) GN 00306.010.

Here, H~, the child's mother, however, has provided a statement that the Number Holder is not the father. Although a mother is not stopped from introducing evidence that another man, other than her husband, is the father of her child, that evidence must be “strong, distinct, satisfactory and conclusive” evidence. Cassady v. Martin, 220 Va. 1093 (1980)(quoting Scott v. Hillenberg, 85 Va. 245 (1888)). According to the law, H~' mere statement is insufficient to rebut Virginia's favor of legitimacy.

First, H~ has not presented any conclusive evidence that her husband is not the father of C~. Initially, courts considered whether the husband was physically able to procreate and whether he had access to the wife. Bowles v. Bingham, 16 Va. 442 (1811); Scott v. Hillenberg, 85 Va. 245 (1888). Even then, the improbability of known access by the husband, in and of itself, was insufficient to overcome the legitimacy presumption; the evidence had to be clear and positive. Cassady v. Martin, 220 Va. 1093, 1098 (1980). More recently, courts have considered DNA evidence to rebut the presumption of legitimacy. Wyatt v. Virginia Dep't of Soc. Serv., 11 Va. pp. 225 (1990); NPA v. WBA, 8 Va. App. 246 (1989)(evidence consisting of blood test results which conclusively disproved paternity in conjunction with wife's admission of intercourse with another during the period of separation was sufficient to overcome the presumption of legitimacy).

Second, H~ did not present any conclusive evidence that anyone else, such as R~, is C~'s father. Although the Virginia Code does not specifically set forth a standard of proof sufficient to overcome the presumption of legitimacy, it does state that clear and convincing evidence is the standard of proof in any action to establish parentage. Va. Code Ann. § 20-49.4; Wyatt, 11 Va. App. 225. Moreover, all relevant evidence of paternity is admissible. Brooks v. Rogers, 18 Va. App. 585 (1994). Other than her unsupported and unsubstantiated statement that R~ is C~'s father, H~ has not provided any clear and convincing evidence of C~'s paternity.

On the other hand, the fact that the Number Holder held himself out as the father of the child, and put his name on the birth certificate is sufficient evidence to establish paternity in Virginia. It is well-settled that “every fair presumption should be indulged in favor of legitimacy.” Hoover v. Hoover, 131 Va. 546 (1921). Thus, a parent-child relationship was established between the Number Holder and C~ on May 2, 2000, the date of C~'s birth.

James A. Winn
Regional Chief Counsel

By:__________________________
Shawn C. Carver
Assistant Regional Counsel


Footnotes:

[1]

“Child” is defined in part in this section of the Act as (1) the child or legally adopted child of an insured, or (2) a stepchild if, in the case of a deceased insured, he has been a stepchild for not less than nine months immediately preceding the day on which the insured died. There is no evidence that the NH legally adopted claimant. When questioned, K~ indicated that NH did not adopt the children before his death because they did not give it any thought.

[2]

Section 416(h)(2)(B) provides that if a child is not deemed to be a child under section 416(h)(2)(A), then the child may be deemed to be the child of the insured if the mother or father went through a marriage ceremony resulting in a purported marriage, which, but for a legal impediment, would have been a valid marriage.

[3]

Section 416(h)(3) provides that an applicant who is the son of a fully insured individual, but who is not the child of the insured under 416(h)(2), shall, nevertheless, be deemed to be the child of a deceased insured (1) if the insured had acknowledged in writing that the applicant was his child, had been decreed by a court to be the father of the applicant, or had been ordered by a court to contribute to the support of the applicant and such acknowledgement was made before the death of the insured; or (2) the insured is shown by evidence satisfactory to the Commissioner to have been the father of the applicant and the insured was living with or contributing to the support of the applicant at the time the insured died.

We believe that claimant can be deemed to be the child of the NH under § 416(h)(2)(A) of the Act because he could inherit the property of the NH pursuant to the laws of Virginia, where NH was domiciled at the time of his death.

The relevant Virginia statute provides that, in order to determine “rights in and to property. . . . a relationship of parent and child must be established.” Va. Code. Ann. § 64.2-102. A parent-child relationship for a child born as a result of assisted conception is determined by reference to Virginia law enacted in 1991 at Title 20, Chapter 9, Code §§ 20-156 to 165, an Act related to the Status of Children of Assisted Conception (the “Assisted Conception Act”).

Section 20-158 of the Assisted Conception Act provides that, in determining the parentage of a child conceived through assisted conception

[4]

,The Act defines assisted conception as “a pregnancy resulting from any intervening medical technology…which completely or partially replaces sexual intercourse as the means of conception.