TN 57 (07-17)

PR 01105.008 Connecticut

A. PR 17-100 Paternity status of a claim for a child born after the number holder’s death under Connecticut law

Date: June 15, 2017

1. Syllabus

Connecticut General Statutes provide that in any proceeding in which the question of paternity is at issue, the court or a family support magistrate may order deoxyribonucleic acid (DNA) tests, to be performed by a hospital, accredited laboratory, qualified physician or other qualified person designated by the court, to determine whether or not the putative father is the father of the child. The results shall constitute a rebuttable presumption that the putative father is the father of the child if the results of such tests indicate a ninety-nine per cent or greater probability that he is the father of the child, provided the petitioner has presented evidence that sexual intercourse occurred between the mother and the putative father during the period of time in which the child was conceived.

The DNA test results submitted are insufficient to establish a presumption of paternity because it was not done pursuant to a court order under conditions in which a credible chain of custody of the specimens could be established, DNA samples from the NH and the child’s mother were not tested, and the identity and authentication of the DNA specimens analyzed cannot be verified. The testing company also specifically disclaims any liability for misidentification of the persons tested and further explains that the results of its home DNA test are not legally binding or admissible in court.

2. Opinion

I. Question Presented

The number holder (“NH”), C~, who resided in Connecticut, died on February xx, 2014. On July XX, 2014, the female child claimant, C2~, was born in Connecticut. The child’s mother is D~. The birth certificate does not identify the father. D~ has filed for benefits on behalf of her child as the child of the deceased NH. The question presented is whether a parent-child relationship exists between the child and the deceased NH for purposes of surviving child’s benefits.

II. Short Answer

The child claimant’s mother has not established that a parent-child relationship exists between the child claimant and the deceased NH under Connecticut law.

III. Background

On May XX, 2017, we received your request for an opinion as to whether a parent-child relationship exists between the child claimant and the deceased NH.

D~ has stated that she and the NH were in a relationship and that the NH is the father of the female child claimant. There is no indication that they lived together, and no evidence that the NH acknowledged the child as his own, in writing, before his death. The NH died in February 2014, and the child was born in July 2014. Although the birth certificate does not identify the child’s father, D~ named the child after the NH.1 D~ also submitted a home paternity test purporting to show that there is a 99.9% probability that the claimant is the half-sister of another child named E~, whose father is allegedly C~. No DNA sample from the NH was tested.

IV. Applicable Law

A. Federal Law

The Social Security Act provides for determination of family status for application purposes. 42 U.S.C. § 416(h). Relevant here, the Act states:

In determining whether an applicant is the child . . . of a fully or currently insured individual for purposes of this title, the Commissioner of Social Security shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual . . . was domiciled at the time of his death . . . Applicants who according to such law would have the same status relative to taking intestate personal property as a child . . . shall be deemed such.

42 U.S.C. § 416(h)(2)(A); see also 20 C.F.R. §§ 404.350, 404.355.

Additionally, An applicant who is the son or daughter of a fully or currently insured individual, but who is not (and is not deemed to be) the child of such insured individual under paragraph (2), shall nevertheless be deemed to be the child of such insured individual if:

. . .

(C) in the case of a deceased individual

(i) such insured individual

(I) had acknowledged in writing that the applicant is his or her son or daughter,

(II) had been decreed by a court to be the mother or father of the applicant, or

(III) had been ordered by a court to contribute to the support of the applicant because the applicant was his or her son or daughter,

and such acknowledgment, court decree, or court order was made before the death of such insured individual, or

(ii) such insured individual is shown by evidence satisfactory to the Commissioner of Social Security to have been the mother or father of the applicant, and such insured individual was living with or contributing to the support of the applicant at the time such insured individual died.

42 U.S.C. § 416(h)(3)(C); see also 20 C.F.R. §§ 404.350, 404.355.

Since the NH was domiciled in Connecticut at the time of his death, the agency must determine whether the Connecticut State courts would consider the child claimant to be the child of the NH for purposes of intestacy.

Section GN 00306.440 of the Program Operations Manual System (“POMS”) discusses Connecticut intestacy laws. Specifically, the POMS provides:

SSA will . . . find a parent-child relationship to exist after the father’s death where there is unrebutted genetic testing with the statistical probability of paternity of 99.0 percent or greater provided that the petitioner has presented evidence that sexual intercourse occur[r]ed between the mother and this individual during the period of time that the child was conceived. Where the above evidence is not present, or where evidence is presented to rebut the genetic testing evidence, SSA will determine if a parent-child relationship exists based on a preponderance of the evidence, which may include any of the evidence presented in GN 00306.440.D.

POMS GN 00306.440.B.3. Section D further provides:

Evidence considered in paternity adjudications includes genetic testing as well as testimony from the mother and alleged father. Genetic testing with a statistical probability of 99.0 percent or greater creates a rebuttable presumption of paternity provided that the petitioner has presented evidence that sexual intercourse occurred between the mother and this individual during the period of time that the ch[i]ld was conceived.

POMS GN 00306.440.D.

B. Connecticut Law

Section 46b-168 of the Connecticut General Statutes provides:

In any proceeding in which the question of paternity is at issue, the court or a family support magistrate, on motion of any party, may order genetic tests which shall mean deoxyribonucleic acid tests, to be performed by a hospital, accredited laboratory, qualified physician or other qualified person designated by the court, to determine whether or not the putative father or husband is the father of the child. The results of such tests, whether ordered under this section or required by the IV-D agency under section 46b-168a, shall be admissible in evidence to either establish definite exclusion of the putative father or husband or as evidence that he is the father of the child without the need for foundation testimony or other proof of authenticity or accuracy, unless objection is made in writing not later than twenty days prior to the hearing at which such results may be introduced in evidence.

In any proceeding in which the question of paternity is at issue, the results of such genetic tests . . . shall constitute a rebuttable presumption that the putative father is the father of the child if the results of such tests indicate a ninety-nine per cent or greater probability that he is the father of the child, provided the petitioner has presented evidence that sexual intercourse occurred between the mother and the putative father during the period of time in which the child was conceived.

Conn. Gen. Stat. § 46b-168(a) and (b).

V. Analysis

The evidence does not show that the child claimant was the child of the deceased NH within the meaning of 42 U.S.C. § 416(h)(2)(A). Both the POMS and CT law provide for a rebuttable presumption of paternity based on genetic testing indicating that there is a 99.0 percent or greater probability that the putative father is the father of the child, provided that there is evidence that sexual intercourse occurred between the mother and the putative father during the period in which the child was conceived. Here, D~ has presented the results of a home genetic test purporting to show that there is a 99.9% probability that the claimant is the half-sister of another child named E~, whose father is allegedly C~.

The test results that D~ has submitted are insufficient to establish a presumption of paternity, however. Although the test appears to have been done by an accredited laboratory, it was not done pursuant to a court order under conditions in which a credible chain of custody of the specimens could be established. Moreover, DNA samples from the NH and D~ were not tested. In addition, the report states that the two individuals tested–the claimant and a minor named E~–were “entirely responsible for the information [and DNA specimens] provided,” and that the “identity and authentication of the DNA specimens analyzed on this report cannot be verified.” The testing company also specifically disclaims any liability for misidentification of the persons tested and further explains that the results of its home DNA test are not legally binding or admissible in court unlike a “legal DNA test.” For these reasons, it is unlikely that a Connecticut court would admit the results of this test to establish a presumption that the NH is the child claimant’s father. 2

We also conclude that SSA should not find a parent-child relationship based on a preponderance of the evidence. See POMS GN 00306.440.B.3 (“Where [genetic testing] evidence is not present, . . . SSA will determine if a parent-child relationship exists based on a preponderance of the evidence . . .”). The agency “decide[s] . . . paternity by using the standard of proof that the State court would use as the basis for a determination of paternity.” 20 C.F.R. § 404.355(b)(2). Prior to DNA testing, the State of Connecticut did not allow paternity suits against deceased individuals. See Hayes v. Smith, 194 Conn. 52, 63, 480 A.2d 425, 431 (1984). In Hayes, the court explained, “Because the question of paternity is one of fact and not of law[,] the decedent’s continued availability would be a substantial factor in contributing to the reliability of the factfinding process on this question.” Hayes, 194 Conn. at 64, 480 A.2d at 432. More recently, however, the Connecticut Superior Court allowed a paternity suit against a deceased individual because “the ‘proof problem’ identified by the court in Hayes has been ameliorated [by the scientific techniques available to determine paternity].” Lach v. Welch, No. FA 93-0063955, 1994 WL 271518, at *3, 7 (Conn. Super. Ct. June 13, 1994). In other words, for Connecticut courts, genetic testing is crucial evidence in paternity determinations where the alleged father is deceased.

In this case, D~ presented three letters, two signed and one unsigned, from individuals who stated that the NH had acknowledged that he was the father of the child claimant. In one letter, a nurse from DK~ Healthcare stated that the NH had accompanied the mother during an ultrasound appointment. As stated above, D~ also presented the purported results from a home-administered DNA test. Considered together, we do not believe these materials rise to the level of a preponderance of the evidence under Connecticut law. In 2000, the Connecticut Superior Court essentially rejected a defendant’s “unconventional” DNA test, explaining that “[w]ithout proper foundation and supporting evidence, this court cannot accord more than minimal weight to the test results [from a DNA test that was not court-ordered].” White v. Cordier, No. FA 940616380, 2000 WL 773006, at *2-3 (Conn. Super. Ct. June 1, 2000). And in Brancato v. Moriscato, No. CV 030472496S, 2003 WL 1090596 at *1 (Conn. Super. Feb. 27, 2003), the Connecticut Superior Court ordered the exhumation of the deceased putative father for paternity testing purposes. Based on these cases, we believe a Connecticut court would likely not rely on the letters to establish paternity and would require court-ordered testing to establish paternity where the putative father is deceased and thus unable to testify on his own behalf or challenge the evidence presented by the mother.

The evidence also establishes that the child claimant was not the child of the deceased NH within the meaning of 42 U.S.C. § 416(h)(3)(C). The deceased NH did not acknowledge the child as his own in writing before his death. The deceased NH had not been decreed by a court to be the father of the child claimant or been ordered by a court to contribute to the child’s support before his death. And the NH was not living with or contributing to the support of the child claimant at the time of his death, as the child had not yet been born.

VI. Conclusion

Based on the foregoing, we believe that a Connecticut State court would not extend rights of inheritance to the child claimant based on the evidence submitted to date in this case, and, thus, that the child claimant’s mother has not established by a preponderance of the evidence that a parent-child relationship exists between the child claimant and the deceased NH.

Michael J. Pelgro

Regional Chief Counsel

By: Molly Carter

Assistant Regional Counsel


Footnotes:

[1]

We are aware of no CT law requiring written consent or a court order for a child’s surname to be the same as the alleged father on a birth certificate. See POMS GN BOS00306.120.B.

[2]

Ms. D~ also presented evidence—in the form of three third-party letters—suggesting that she had sexual intercourse with the NH during the period of time in which the child claimant was conceived. However, it was unnecessary to reach this prong of the rebuttable presumption analysis because the first prong—acceptable genetic testing—was not satisfied. Conn. Gen. Stat. § 46b-168(b). If acceptable genetic testing is obtained, we can then evaluate whether a Connecticut court would accept these third-party statements as sufficient evidence that Ms. D~ and Mr. M~ had sexual intercourse during the period the claimant was conceived.


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PR 01105.008 - Connecticut - 07/13/2017
Batch run: 07/13/2017
Rev:07/13/2017