PR 01015.021 Louisiana
A. PR 01-039 Entitlement to Child's Benefits Under Louisiana State Law Where Paternity Is Established By DNA — Wage Earner Edwin T~, Jr., SSN ~
DATE: July 31, 2000
Under Louisiana State law, there is no accreditation requirement for testing laboratories. Instead, DNA test results must be certified by a sworn affidavit from the laboratory expert who conducted or supervised the test. Since SSA is acting as the State court would in this case, DNA tests results should only be considered if the required affidavit is provided by the testing laboratory. DNA test results alone, even showing a 99.9999 percent probability of paternity as in this case, are not enough to establish clear and convincing evidence of paternity after the NH's death under Louisiana law. Other corroborating evidence of paternity is required. This can include an informal acknowledgment of paternity by the alleged father prior to death,
the testimony of the surviving parent, and/or testimony from unrelated credible witnesses. In this case, the child's mother's statements are too general to give her claims the credibility required by a Louisiana court; moreover, other evidence of record contradicts her claims. In addition to development for an affidavit from the testing laboratory, the record could be further developed to include more detailed statements from the child's mother is necessary, in order to provide clear and convincing evidence of the child's paternity.
This memorandum is in response to your request for an opinion regarding whether or not a laboratory report is sufficient evidence to establish the relationship of the child, Devontay C. R~, to the number holder, Edwin T~, Jr., under Louisiana State law or under federal law, so that Devontay may qualify for Social Security benefits on Mr. T~' record. Specifically two questions will be addressed in this opinion:
(1) Does Louisiana State law require a testing laboratory to be accredited by a regulatory agency in the industry or in government?
(2) Is a DNA test result showing a 99.999 percent probability of paternity sufficient to establish the wage earner as the father of the child?
After reviewing the facts and relevant law, it is our opinion that Louisiana State law does not require accreditation for DNA (deoxyribonucleic acid) testing laboratories. However, for findings of DNA tests to be admissible in court, the testing laboratory must certify the test results by sworn affidavit. No affidavit was evident in the record of this case and until the test is properly certified, the results should not be used to establish paternity. Additionally, the Louisiana courts have held that a scientific test, by itself, does not constitute clear and convincing evidence of paternity. The courts require corroboration of test results with evidence such as testimony from the surviving spouse or testimony from unrelated credible witnesses.
The relevant facts in this case include the following. A DNA paternity evaluation report was submitted as evidence of Devontay's paternity in a request for survivor's benefits based on Mr. T~' earnings record. The facts show that Devontay was born to Diedra D. R~ on September 26, 1992 in New Orleans, Louisiana. Mr. T~ and Ms. R~ never married prior to Mr. T~' death in June 1998. No father's name was shown on Devontay's birth certificate, and he was given the R~ family name at birth. There is no evidence that Mr. T~ ever acknowledged Devontay as his child, lived in the same household as the child, supported Devontay financially, or was declared by a court to be the father of Devontay. Mr. T~ was also the father of Ms. R~'s other children. He formally acknowledged paternity of both children by signing their birth certificates and giving them the T~ family name. Mr. T~, also, contributed to their support financially.
In January, 2000, Ms. R~ filed for survivor's benefits for Devontay, claiming that Mr. T~ was Devontay's biological or natural father. Submitted with the application was a DNA paternity evaluation report dated June 8, 1999, which was prepared by Reliagene Technologies, Inc. The laboratory is located in New Orleans, Louisiana and is accredited by the Parentage Testing Committee of the American Association of Blood Banks. The report based its evaluation upon DNA samples from Devontay, Ms. R~, and Mr. T~. The report stated that the probability is 99.999 percent that Mr. T~ is Devontay's father, as compared to an untested, randomly chosen man of the African American population.
The Social Security Act (the Act) provides that the Social Security Administration (SSA) will apply the state inheritance laws of the state where a deceased was domiciled when he died when determining if an applicant is a child for Social Security benefit eligibility purposes. See 42 U.S.C. §416(h)(2)(A). The Act and regulations provide that an insured's natural child may be eligible for benefits if he or she could inherit personal property under State inheritance laws if the insured died without a will. See Id. Under revised regulations, a child's relationship to a number holder can now be established without the need for a court determination of paternity. See 20 C.F.R. § 404.355(b)(2). Moreover, under the new regulations any State inheritance law which requires that an action be taken within a specified period of time after the insured's death or the child's birth, or that an action to establish paternity must have been started or completed before the insured's death, will not be applied. See 20 C.F.R. § 404.355. Thus, in order to evaluate the evidence of paternity, the Agency will use the same standard of proof used by the Louisiana courts, but will not require a court determination of paternity.
Under Louisiana law, if deceased dies without a valid will the undisposed property passes by operation of law to descendants, ascendants, and collaterals, and a current spouse. See La. Civ. Code Ann. art. 880 (West 2000). When a relationship is established by blood or adoption, inheritance rights pass to such a relative regardless of the legitimacy of the relationship. See La. Civ. Code Ann. art. 880 (West 2000 & Supp. 2000). In cases such as this one, where the alleged father is deceased, Louisiana law requires clear and convincing evidence to establish filiation/. See La. Civ. Code Ann. art. 209(B) (West 2000); Chatelain v. State, 586 So.2d 1373, 1378 (La. 1991)(requiring a standard of proof higher then a preponderance of the evidence, but less than a reasonable doubt for filiation and legitimation when not presented until after the death of the alleged parent because such claims are replete with danger of fraud); Hines v. Williams, 567 So.2d 1139, 1141 (La. App. 2nd Cir. 1990)(holding illegitimates are required to prove filiation to an alleged deceased parent by clear and convincing evidence to protect individuals and families from potentially fraudulent claims brought at a time when the putative father cannot defend himself against paternity allegations).
As to your first question, Louisiana law does not require testing laboratories to be accredited. Instead, to verify the chain of custody, the DNA test results must be certified by a sworn affidavit from the laboratory expert who conducted or supervised the test. See La. Rev. Stat. Ann. §9:397.3, subd. A (West 2000) (affidavit shall include affiant's name and qualifications; how test samples were obtained; who, how, when, and where samples were obtained; chain of custody from the time samples were obtained until the tests were completed; results and probability of paternity; and the procedures performed to obtain the test results); State v. C. Simien, 677 So.2d 1138, 1141 (La. App. 3rd Cir. 1996). Otherwise, the DNA test results are not admissible evidence and may be excluded by the court. See State v. Johnson, 651 So.2d 366, 368 (La. App. 2nd Cir. 1995). Since the Agency is acting as the state court would in this case, we believe that DNA test result should only be considered if the required affidavit is provided by the testing laboratory. See 20 C.F.R. § 404.355. After searching the available evidence of record, we did not find the required affidavit. Therefore, until the DNA test results have been certified by sworn affidavit, they should not be used to identify Mr. T~ as Devontay's father.
In order to answer your second question we will assume that a sworn affidavit is available and the DNA test results will be considered by the adjudicator. Under Louisiana law, evidence of statistical probability of paternity established at 99.9 percent or more creates a rebuttable presumption of paternity. See La. Rev. Stat. Ann. §9:397.3 (West 2000); State v. Johnson, 753 So.2d 388, 390 (La. App. 1st Cir. 2000). In cases where a putative father is living, he has thirty days after the test results are filed with the court to object, or the results will be held to be admissible evidence. See La. Rev. Stat. Ann. §9;397.3 subd. B (West 2000); State v. McCain, 637 So.2d 650, 652 (La. App. 2nd Cir. 1994). The court has held that blood test results, admitted without objection, are prima facie proof of paternity. See Robinson v. Sims, 721 So.2d 90, 93 (La. App. 2nd Cir. 1998). Yet, if the alleged living parent does object to the test results, the courts have held that the test results alone were insufficient to prove paternity and must be supported by other objective evidence, such as testimony from credible witnesses. See State v. Givens, 616 So.2d 259, 261 (La. App. 2nd Cir. 1993)(affirming that scientific testing alone is not sufficient to prove paternity, but when supported by objective testimony it may establish proof of paternity).
However, when the alleged parent is deceased, the courts require corroboration of the DNA test results, in order to meet the clear and convincing standard of proof. See Guidry v. Mouton, 689 So.2d 621, 623 (La. App. 3rd Cir. 1997)(holding that DNA test results with trial and deposition testimony constituted clear and convincing evidence that plaintiff was the natural child of the deceased alleged father).
Since scientific tests alone are insufficient to prove paternity in Louisiana under the circumstances of this case, "other corroborating evidence of paternity" in addition to the DNA test results is required. See Landrum v. Matthews, 612 So.2d 854, 858 (La. App. 1st Cir. 1992). That corroboration can include an informal acknowledgment of paternity by the alleged father prior to death, or the testimony of the surviving parent. See Chatelain, 586 So.2d at 1379; Guidry v. Mouton, 689 So.2d at 623.
In this case, the child's mother, Ms. R~, named Mr. T~ as Devontay's father in the application for survivor's benefits. Ms. R~ stated that she and Mr. T~ lived separately before and after the child's birth, but he visited the child every week, took him home on the weekends, and occasionally babysat while Ms. R~ was taking classes. Ms. R~ further stated that Mr. T~ did not contribute financial support, but he did purchase clothing for Devontay.
While Ms. R~'s comments illustrate the quality of relationship Mr. T~ had with Devontay, the statements lack the type of details that the Courts have looked for in similar cases. See Guidry v. Mouton, 689 So.2d at 623 (affirming that DNA test results in combination with surviving parent's testimony regarding opportunity for sexual intimacy, constituted clear and convincing evidence); Landrum v. Matthews, 612 So.2d 854 at 856 (holding that testimony of mother regarding time of conception and frequency of intercourse, in combination with DNA test results was sufficient to establish paternity). The courts have looked for the specifics of the couple's relationship to give the surviving parent's claims of paternity credibility.
Here, Ms. R~'s statements are too general to give her claims the credibility required by the court. Moreover, other evidence of record contradicts Ms. R~'s claims.
For example, Mr. T~ apparently fathered two of Ms. R~'s other children, and formally acknowledged paternity by signing their birth certificates and giving them the T~ family name. In contrast, Mr. T~ did not sign Devontay's birth certificate and did not give Devontay the T~ family name as his name. Mr. T~ also contributed to the financial support of the other two children; but did not contribute to Devontay's support.
To resolve these apparent contradictions, Ms. R~ should expand her original statements with credible details about her relationship with Mr. T~. Also, testimony from unrelated witnesses could be provided because Louisiana courts have considered abundant testimony from credible witnesses to accumulate clear and convincing weight. See Succession of Stevenson, 492 So.2d 100, 102 (La. App. 1st Cir. 1986)(citing corroboration by witnesses assisted in satisfying burden of proving paternity by clear and convincing evidence).
In light of the foregoing discussion, it is our opinion that under Louisiana State law there is no accreditation requirement for testing laboratories. Even so, since there is no affidavit in this case, the DNA test results have not been properly certified. Therefore, the results would be inadmissible evidence in Louisiana courts and should not be used to establish the Devontay's inheritance rights. Given the sophistication of many laboratories, it is probable that Reliagene Technologies, Inc. has an affidavit on file or can supply one. A request by Ms. R~, or Devontay's attorney of record, would probably be sufficient to acquire the affidavit required by Louisiana law. Further, even though the laboratory found a 99.999 percent probability that Mr. T~ was Devontay's father, those results alone are not enough to establish paternity. The record could be further developed to include detailed statements from Ms. R~ about her relationship with Mr. T~ and statements from witnesses regarding Mr. T~'s conduct toward Devontay, in order to provide clear and convincing evidence of Devontay's paternity.