TN 43 (05-16)

PR 01105.025 Michigan

A. PR 16-099 - Legal Opinion: Whether Genetic Test Results from Alleged Paternal Grandparents Alone are Sufficient to Establish Paternity

Date: March 16, 2016

1. Syllabus

The number holder (NH) was a Michigan resident at the time of his death; therefore, we look to Michigan law. We have concluded that the DNA test is insufficient to establish inheritance rights under Michigan law. The NH’s DNA results show that there is a 99.997% probability of grandparent age of the claimant. Although there is a definitive and highly probable link between the NH’s parents and the claimant, the DNA testing alone is inadequate to show by a preponderance of the evidence that the claimant is the child of the NH. However, if sufficient additional evidence is presented on behalf of the child, inheritance rights could be established.

2. Opinion

You asked whether, for purposes of child’s benefits, a child would be considered the daughter of a deceased numberholder based on DNA testing of the child and the numberholder’s biological mother and biological father. The numberholder was a Michigan resident at the time of his death, and therefore Michigan law controls this matter. For the reasons discussed below, we conclude that the DNA test is insufficient to establish inheritance rights under Michigan law. However, if sufficient additional evidence is presented on behalf of the child, inheritance rights could be established.

FACTS

T1~ asserts that her child, M1~, is the daughter of the numberholder. The numberholder died on January XX, 20XX; numberholder was a resident of Flint, MI when he passed away. M1~ was born on February XX, 20XX. M1~’s birth certificate does not list any person as the father, and we assume that T1~ was not married shortly before or at the time of M1~’s birth. T1~ and the numberholder were never married. The numberholder was not listed on any of M1~’s NUMIDENT records. Further, the numberholder did not live with M1~ at any point and he did not provide support for M1~. M1~ was not mentioned in the numberholder’s obituary.

In March 2015, T1~ provided the Agency with the results of a DNA test, which examined genetic similarities between M1~ and the numberholder’s biological parents, T2~ and M2~. The results of the test indicated a “probability of grandparentage” of 99.997%. T2~ Numberholder’s Certificate of Death list T2~ and M2~ as his parents. T2~ and M2~ have multiple sons together.

T1~ applied for child survivor benefits on behalf of M1~ on April XX, 20XX.

ANALYSIS

Section 202(d) of the Social Security Act provides for the payment of benefits to the child of an insured numberholder who is retired, disabled, or deceased. 42 U.S.C. § 402(d). The Act provides that, when determining whether an applicant is the child of a numberholder, the Agency will apply the law that would be applied to determine the devolution of intestate personal property by the courts of the state where the numberholder was domiciled at the time of death. 42 U.S.C. § 416(h)(2)(A), 20 C.F.R. § 404.355(b)(4). Here, the numberholder was domiciled in Michigan at the time of his death. Thus, if M1~ could inherit the numberholder’s property under Michigan’s intestate succession laws, then she is the numberholder’s child for the purpose of eligibility for benefits. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(4).

Michigan’s intestacy law lists several ways a child born out of wedlock can be considered a man’s natural child for purposes of intestate succession including: an acknowledgment of parentage by the man and the mother; a written request to correct a birth certificate that results in a substituted certificate; a mutually acknowledged relationship between the man and child that began before the child became 18; a court ordered filiation establishing paternity as provided in the Paternity Act; or a determination by a probate court that a man is the child’s father using the standards and procedures established under the Paternity Act.  See Mich. Comp. Laws Ann. § 700.2114(1)(b) (West). The facts on file do not indicate that any of these statutory criteria for establishing a parent-child relationship for purposes of intestate succession have been met.

However, even though M1~ has not established paternity under any of the above statutory criteria, SSA may still permit him to establish paternity. SSA regulations provides that“[i]f applicable State inheritance law requires a court determination of paternity, we will not require that you obtain such a determination but will decide your 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). See also POMS GN 00306.525(B)(9).

Under the Michigan Paternity Act, paternity is presumed when the DNA results of the mother, child, and alleged father, conducted by a person accredited for paternity determinations, show a 99% or higher probability of paternity. See Mich. Comp. Laws Ann. § 722.716(5) (West).  The Michigan statute does not address whether there is a presumption when DNA testing establishes the likelihood of a grandparent relationship. Id. Absent a presumption of paternity, Michigan law requires that paternity actions be established with a preponderance of the evidence. Bowerman v. MacDonald, 427 N.W.2d 477 (Mich. 1988); POMS PR 01115.025 (PR 12-073). The Michigan Supreme Court has defined a preponderance of the evidence as “that evidence which outweighs that which is offered to oppose it.” Martucci v.Ballenger, 33 N.W. 2d, 789, 791 (Mich. 1948). See also POMS GN 00306.525 (H) (noting that a preponderance of the evidence is more than 50%).

As we advised previously, we believe that the Michigan courts would consider a grandparent’s DNA test as probative of the issue of paternity. POMS PR 01115.025 (PR 12-073). In In Re Estate of Jones, 525 N.W.2d 493, 497 (Mich. Ct. App. 1994), the court stated that “one method of proving paternity in this case is to utilize a DNA profile by using the child’s tissue and the tissue of either decedent or decedent’s mother.” The court provided no reason why decedent’s mother’s DNA profile would be more or less probative than decedent’s father’s DNA profile so it is reasonable to extend the court’s reasoning to find decedent’s father’s DNA profile equally acceptable.

Here, numberholder’s parents’ DNA results1 show that there is a 99.997% probability of grandparentage of M1~ Numberholder’s Certificate of Death lists T2~ and M2~ as his mother and father. Thus, there is a definitive and highly probable link between numberholder’s parents and M1~

However, this DNA testing alone is inadequate to show by a preponderance of the evidence that M1~ is decedent’s child. T2~ and M2~ have multiple sons together. The file does not indicate how many sons these two had together. However, even one other son would significantly lower the chance that decedent was M1~’s natural father. A preponderance of the evidence is more than 50%. Therefore, in order to establish numberholder’s paternity, it is crucial to assess the likelihood that any of numberholder’s brothers fathered M1~

Therefore, we suggest that you seek additional information from T1~ and numberholder’s parents. For example, it would be useful to know how many sons T2~ and M2~ had together. A statement from either of them ought to be sufficient to gather that information. Also useful would be a declaration from T1~ stating that she did not have sexual relations with any of numberholder’s brothers at or around the time of M1~’s conception. Kienutske v. Barnhart, 375 F.Supp. 2d 556, 561-62 (E.D. Mich. 2004) (noting that Plaintiff met the statutory requirement of “satisfactory evidence” because she submitted a wealth of uncontradicted evidence that the number holder was the father including an affidavit that she “did not have sexual relations with anyone other than [the numberholder] during the period of time [her] child Jacob was conceived,” and there was “no possibility that anyone other than [the numberholder] was the natural father.”). Finally, additional information concerning numberholder’s brothers is necessary. Statements from each of these individuals explaining where they lived at or around the time that M1~. was conceived and whether they had previous relationships of any type with T1~ will help establish numberholder’s paternity by a preponderance of the evidence.

CONCLUSION

In summary, we believe that the evidence submitted is insufficient to demonstrate that M.P. is numberholder’s child. We recommend requesting additional evidence from T1~, T2~, and M2~, and the numberholder’s brothers. If credible additional evidence is produced, we believe the Agency could conclude by a preponderance of the evidence that the numberholder was M1~’s father.

Kathryn Caldwell

Acting Regional Chief Counsel, Region V

By:

Michael Gregory

Assistant Regional Counsel

B. PR 15-175 - Eligibility of Child’s Benefits Where Numberholder is the Biological Father and Claimant is Under A Court-Appointed Legal Guardian

Date: August 4, 2015

1. Syllabus

The NH was domiciled in Michigan at the time of his death; therefore, we look to Michigan state laws to determine whether the Claimant is the child of a NH. According to the evidence provided, the NH had not taken any affirmative action in accordance with Michigan’s intestacy law to demonstrate parentage between himself and the claimant. We do not see any basis on which to conclude that the claimant could inherit from the NH, therefore we conclude that the existing evidence is insufficient to establish that the claimant is the NH’s child for purposes of child’s benefits.

2. Opinion

You asked whether a child could be paid child’s benefits on the record of a deceased numberholder who is the biological father of the child. At the time of the child’s birth, the child’s mother was married to another man, and currently the child has a court-appointed legal guardian. For the reasons discussed below, we conclude that the existing evidence is insufficient to establish that the claimant is the numberholder’s child for purposes of child’s benefits.

FACTS

N~ (claimant) was born on September XX, 19XX. A birth certificate was provided which listed S~ as the claimant’s mother and J~ as the claimant’s father.

A marriage certificate was also provided showing that S~ and J~ were married on April XX, 19XX demonstrating that they were married at the time of the claimant’s birth.

A DNA test conducted by National Legal Laboratories, Inc. on February XX, 19XX showed a zero probability that J~ was the claimant’s father. A DNA test for M~ the numberholder, showed a 99.99% probability that he was the father of the claimant.

In April 1999, S~ had her parental rights terminated and the claimant was placed under guardianship. An Order Appointing Guardian/Co-Guardian of A Minor from April XX, 19XX ordered that full guardianship be appointed to C1~ and D~. The order also noted that J~ was excluded as the father. Therefore, he was not obligated to pay support to the guardians. Further, the numberholder was listed as absent and thus he did not have to pay support either.

An Order Following Annual Review of Juvenile Guardianship from September xx, 20xx shows that the claimant has been under the temporary guardianship of R~ and C2~ since September xx, 20xx.

The numberholder applied for disability insurance benefits and was subsequently awarded such benefits. On his application, the numberholder did not list the claimant as his child.

On October xx, 20xx, the numberholder, a Michigan resident, died. You indicated that the numberholder was never ordered to pay child support, or otherwise supported the claimant.

ANALYSIS

Section 202(d) of the Social Security Act provides for the payment of benefits to the child of an insured numberholder who is retired, disabled, or deceased. 42 U.S.C. § 402(d). The Act provides that, when determining whether an applicant is the child of a numberholder, the Agency will apply the law that would be applied to determine the inheritance of intestate personal property by the courts of the state where the numberholder was domiciled at the time of death. 42 U.S.C. § 416(h)(2)(A), 20 C.F.R. § 40.355(b)(4).2 Thus, if the claimant could inherit the numberholder’s property under Michigan’s intestate succession laws, he would be considered the numberholder’s child for the purpose of eligibility for benefits. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 400.355(b)(4).

Under Michigan intestacy law, the right to inherit is based on a showing of paternity. MCLS § 700.2114. Both spouses are the presumed natural parents when a child is born during a marriage. MCLS § 700.2114(1)(a). If the child is born during the marriage but is not an issue of that marriage, the marital father can still be considered the child’s natural father if his name appears on the birth certificate. MCLS § 700.2114(1)(b)(ii). J~ was married to the claimant’s mother when he was born and his name appears on the claimant’s birth certificate. Therefore J~ is also considered the claimant’s natural father. MCLS § 700.2114(1)(a); MCLS § 700.2114(1)(b)(ii).

The claimant’s relationship to J~, however, would not preclude a paternal relationship with the numberholder. But, to inherit from the numberholder, the record would need to show that there has been some affirmative action in accordance with Michigan’s intestate succession law. MCLS § 700.2114(b). Specifically, the numberholder could have completed an acknowledgment of parentage; requested and obtained a corrected birth certificate with the numberholder’s name listed as the father; established a mutually acknowledged relationship with the claimant that began before the claimant turned 18; requested an order of filiation establishing a determination of paternity; requested a determination that he is the claimant’s father under the Paternity Act; or requested a determination that he is the father in an action under the Revocation of Paternity Act. MLCS § 700.2114(b)(i)-(vi). But, there is no evidence that the numberholder took any of the above steps. In fact, the numberholder had an opportunity to acknowledge his relationship with the claimant by listing him as a child on the application for disability insurance; however, the numberholder did not do this. Additionally, the 1999 order appointing a guardian for the claimant noted that the numberholder was absent from the claimant’s life.

Michigan’s intestacy law also provides for what happens to inheritance rights when parental rights are terminated. MCLS § 700.2114(c)(3). A permanent termination of parental rights of a minor child by an order of a court of competent jurisdiction prohibits a child from inheriting property from the parent via intestate succession. Id. An Order Appointing Guardian/Co-Guardian of A Minor dated April 6, 1999 noted that J~ was excluded as the father and thus he was not obligated to provide support to the appointed guardians. However, the form could have marked that J~ parental rights were terminated, but this box was left unchecked. It is unclear whether “excluded as father” is equivalent to the termination of parental rights. However, In re T.K. does make clear that the appointment of a juvenile guardianship alone is not tantamount to a de facto termination of parental rights. In re T.K., 859 N.W.2d 208, 212 (Mich. Ct. App. 2014).

In any event, while the status of J~’s parental rights is not entirely clear, we can safely conclude, on the evidence before us, that the numberholder had not taken any affirmative action in accordance with Michigan’s intestacy law to demonstrate parentage between himself and the claimant. As a consequence, we do not see any basis on which to conclude that the claimant could inherit from the numberholder.

CONCLUSION

For the reasons discussed above, we conclude that the existing evidence is insufficient to establish that the claimant is the numberholder’s child for purposes of child’s benefits.

Kathryn Caldwell

Acting Regional Chief Counsel, Region V

By: ___________________________

OGC Legal Intern

C. PR 14-045 Acknowledgment of Paternity Child

Date: January 10, 2014

1. Syllabus

In a case in which the NH signed the claimant's birth certificate as the claimant's father and apparently acknowledged parentage according to Michigan law, but subsequent DNA evidence showed zero possibility of a parent-child relationship between the NH and claimant, the NH is time-barred from filing an action to revoke paternity under Michigan's Revocation of Paternity Act. Although time remains for the NH to file a common law action to revoke his paternity, the revocation would not provide a basis to terminate the claimant's benefits or to reopen or revise the initial favorable determination.

2. Opinion

QUESTION PRESENTED

You asked whether a revocation by D1~ of his prior acknowledgement of paternity of M~ pursuant to the Michigan Revocation of Paternity Act would have the effect of terminating M~’s entitlement to Social Security child benefits on M~’s account.

SHORT ANSWER

M~ is time-barred from filing an action for revocation of paternity under Michigan’s Revocation of Paternity Act. However, M~ may still file a common law action, to the extent such action remains available, to revoke his acknowledgment of paternity, on or before June XX, 20XX. But, even were M~ successful in a common law action to revoke his paternity, this revocation of paternity would not provide a basis for termination of M~’s child benefits, or for reopening or revising the initial favorable determination.

SUMMARY OF EVIDENCE

The child beneficiary, M~ (the claimant), was born in Livonia, Michigan on March. D1~ (the numberholder) and D2~ (the claimant’s mother) were not married at the time of M~’s birth, and have never been married.

The numberholder has received disability benefits since 1987, and has six children, including the claimant, who have received child’s insurance benefits on his account.

Prior to the claimant’s birth, the claimant’s mother informed the numberholder that he was the claimant’s father. Accordingly, the numberholder signed the claimant’s birth certificate as the claimant’s father.

It also appears that the numberholder signed an acknowledgment of parentage pursuant to Michigan law.

On April 26, 2007, an application for child’s insurance benefits was filed on behalf of the claimant, which application was subsequently approved on June 5, 2007. The numberholder was named the representative payee for the claimant’s benefits.

While the precise facts are disputed, sometime between May 2007 and January 2008, the numberholder learned that he was not the claimant’s father. The claimant’s mother and the numberholder ended their relationship on or before January 2008.

On June 10 and 11, 2008, the numberholder underwent DNA testing that concluded that his probability of being the claimant’s father was 0.00%. The conclusion of the DNA report was that “the alleged father, D1~, cannot be the biological father of M~, since he and the child do not share the necessary paternal markers in multiple genetic systems” (emphasis in original).

On February 2, 2010, based on the DNA evidence, the numberholder requested reopening of the agency’s June 5, 2007 initial determination awarding benefits to the claimant on the wage earner’s account.

On August 25, 2010 the agency denied the numberholder’s request, because none of the criteria were met for a “termination of benefits” pursuant to 20 C.F.R. § 404.352(b).

On September 30, 2010, the numberholder made a written request for a hearing before an ALJ.

On October 15, 2010, an ALJ held a hearing pursuant to the numberholder’s request.

In a May 24, 2012 opinion, the ALJ issued a partially favorable decision, wherein, among other actions, the ALJ remanded the matter to the agency for consideration of whether, pursuant to 20 C.F.R. § 404.987 through § 404.989, there existed “new and material evidence” sufficient to satisfy the “good cause” requirement for reopening and revising the initial award of benefits to the claimant.

The ALJ specifically made “no finding on the issue of whether the determination that M~ was eligible for child’s insurance benefits should be reopened or revised, but the merits of [the numberholder’s] request must be considered.”

There is no indication that the numberholder has filed an action to revoke paternity under either the Michigan Revocation of Paternity Act or common law.

DISCUSSION

The Michigan Revocation of Paternity Act (the Act), (effective June 12, 2012), requires that actions for revocation of a prior acknowledgment of paternity be filed within three years of the execution of the acknowledgment of paternity, or within one year of the effective date of the Act. Mich. Comp. Laws § 722.1437(1). A court may extend the limitations period under limited circumstances where the putative father lacked information about his nonpaternity until after the expiration of the limitations period. Mich. Comp. Laws § 722.1443(12).    This exception is inapplicable here, because the numberholder knew by August 2008, at the latest, that he was not the claimant’s father, leaving him until June 12, 2013 within which to file an action challenging paternity. Mich. Comp. Laws 722.1443 § 7(1) (“The requirement that an action be filed within 3 years after the child’s birth or within 1 year after the date the acknowledgment is signed does not apply to an action filed on or before 1 year after the effective date of this act”).

To date, the wage earner apparently has not filed an action for revocation of paternity, and thus it would appear that he is now time-barred from doing so.

However, the Act also provides that “[a] common law action that was available before the effective date of this act to set aside a paternity determination … remains available until 2 years after the effective date of this act … Mich. Comp. Laws § 722.1443(10). Accordingly, although the statute of limitations for revocation of paternity under the Michigan Revocation of Paternity Act has run, the numberholder has until June 12, 2014 to file a common law action for revocation of paternity, to the extent such action is available. Accordingly, if otherwise available, the numberholder may still file a common law action to revoke paternity on or before June 12, 2014. However, as discussed below, even if the numberholder revoked his acknowledgement of paternity of the claimant, this would be insufficient to allow the agency to terminate M~’s benefits or to reopen and revise the prior initial determination awarding child benefits to the claimant.

The Wage Earner’s Challenge to Paternity

In 2010, and within four years of the agency’s initial determination awarding benefits to the claimant, the numberholder submitted DNA test results to the agency, along with a written request to reopen and revise the prior award of benefits. The DNA test results show a 0.00% chance that the numberholder is the claimant’s biological father.

On August 25, 2010, the agency denied the numberholder’s request for reopening and revision of the agency’s June 5, 2007 award of benefits to the claimant. In its decision denying the wage earner’s request for reopening, the agency relied upon 42 U.S.C. § 202(d)(1)(D-H) related to the “termination” of child benefits. The agency indicated that because there was no evidence of an event sufficient to terminate a child’s benefits under that section (i.e., death of the child, the child reaching the age of eighteen, marriage of the child, or termination of the disabled wage earner’s entitlement to benefits), there was no basis for reopening the initial determination or terminating the claimant’s benefits.

While it does not change the result, in its first refusal to reopen, the agency appears to have applied the wrong law. The agency should have applied regulations 20 C.F.R. §§ 404.987 (reopening and revising determinations and decisions) and 404.988(b) (conditions for reopening). Pursuant to 20 C.F.R. §§ 404.987 through 404.989, the agency may reopen and revise an initial determination where new and material evidence is submitted that is sufficient to satisfy the “good cause” requirement for reopening and revision. 20 C.F.R. § 404.988(b). “A determination … may be reopened … (b) within four years of the date of the notice of the initial determination if we find good cause, as defined in § 404.989, to reopen the case …” Id. “We will find that there is good cause to reopen a determination … if (1) new and material evidence is furnished …” 20 C.F.R. § 404.989 (a)(1); see also POMS §§ GN 04010.001, GN 04001.030, and GN 04001.050 (detailing agency procedures and policies regarding reopening and revision of prior determinations). Aside from certain exceptions that are inapplicable here, any request for reopening and revision under these sections must be made (1) in writing by “the party” to the determination, or (2) the agency must take some “affirmative action in writing questioning the correctness of the determination or decision” within four years of the date of notice of the initial determination. POMS GN 04001.050.

Here, while the numberholder made a request for reopening within four years of the initial determination, his request was insufficient to constitute a request for reopening by a “party” to the determination. This is because the numberholder was not “the party” to the initial determination, but rather “the party” to the initial determination was the claimant (“An affirmative action in writing is a written statement made either by the claimant or SSA . . .”) POMS GN 04001.050(B).    Under certain limited circumstances, a representative payee may be considered a “party” to an initial determination and may have standing to make a written request for reopening or revision. POMS GN 03102.100(C)(1). However, those circumstances are not present here. Here, the numberholder was not acting as the claimant’s representative when he made his request for reopening. To the contrary, the numberholder was acting in his individual capacity and against the interests of the claimant. Accordingly, the numberholder’s request for reopening was insufficient to satisfy the requirements of POMS GN 04001.050.

Here, there is no writing from the claimant requesting reopening or revision. Moreover, the initial determination may not be reopened on the basis of an “affirmative action by the agency,” because the agency did not take any affirmative action in writing that “question[ed] the correctness of the [initial] determination” within the four-year time limit. POMS GN 04001.050(A). The agency’s denial of the numberholder’s request for reopening occurred within the four year time frame, but in no way “question[ed] the correctness of the determination.” POMS GN 04001.050(A). In fact, the agency’s denial supported the continued validity of the agency’s decision. Accordingly, the agency cannot reopen and revise the prior initial determination awarding child benefits to the claimant.  There is no time bar to reopening where “fraud or similar fault” is proven. POMS GN 04020.010. Accordingly, should the numberholder prove that the initial determination was procured by “fraud or similar fault,” the agency may consider whether the initial determination can be reopened and revised. POMS GN 04020.010. However, the agency may only reopen an initial determination when it can prove fraud or similar fault (“we should not think, suppose, suspect or speculate that fraud or similar fault exists; we should be able to prove it.” POMS GN 04020.010(D)(1). Here, fraud has not been alleged, nor is there any evidence of fraud in procuring the initial determination.

We further note that the numberholder’s DNA results and any action he might take to revoke his acknowledgement of parentage would not be a basis for terminating M~’s benefits pursuant to 20 C.F.R. § 404.352(b). The enumerated grounds for termination are exclusive, and do not include new and material evidence.

CONCLUSION

The agency may not reopen and revise the initial determination awarding benefits to the claimant, even in the event that the numberholder is successful in a common law action to revoke his prior acknowledgement of paternity. Also, neither the DNA evidence nor any action the numberholder might take to revoke his acknowledgement of parentage would provide a basis for terminating M~ benefits.

Donna L. Calvert
Regional Chief Counsel, Region V

By:______________
Sarah G. Malia
Assistant Regional Counsel

D. PR 12-073 MOS-State: Michigan- Child Relationship- Genetic Testing of Paternal Grandmother

DATE: March 12, 2012

1. SYLLABUS

We believe that a Michigan court would find that Natalie’s DNA results provide sufficient evidence of paternity to satisfy the preponderance of evidence test. We also believe that a Michigan Court would find by a preponderance of the evidence that Philden Jr. is Philden Sr.’s child and, therefore, had inheritance rights with respect to Philden Sr.’s estate. As such, you could reasonably conclude that Philden Jr. is Philden Sr.’s child for purposes of establishing eligibility to child’s insurance benefits.

2. OPINION

ISSUE

Tianne filed an application for child’s benefits on behalf of her son, Philden Jr. claiming that he was the surviving child of Philden Sr. You asked us whether DNA results that showed a 99.34% probability of relationship between Natalie, Philden Sr.’s mother and Philden Jr. would meet the clear-and-convincing standard to establish paternity under Michigan law. As we explained previously, paternity actions in Michigan need only be established by a preponderance of the evidence. Since the evidence shows that Philden Sr. lived in Michigan when he died and did not have any brothers (a fact noted but not verified), we conclude that a Michigan court would find that Natalie’s DNA results would be sufficient to establish paternity.

BACKGROUND

Philden Sr. passed away on May 8, 2009. At the time of his death, he was a resident of Michigan. According to his death certificate, Natalie is his mother. Philden Jr. was born in May, three weeks after Philden Sr. died.

On July 2, 2009, Tianne filed an application for child’s insurance benefits on behalf of her son, Philden Jr. Tianne claimed that Philden Jr. was entitled to benefits on Philden Sr.’s account. The application was denied because there was not sufficient evidence that Philden Jr. was Philden Sr.’s child. Two years later, Natalie, Philden Sr.’s mother, took a DNA test. Tianne filed another application for child’s benefits in September 2011. This time Tianne submitted the results of Natalie’s DNA analysis from Genetic Testing Laboratories. The statistical results of Natalie’s DNA test showed a 99.34% percent probability that Natalie was biologically related to Philden Jr.

DISCUSSION

An applicant for child’s insurance benefits must be the wage earner’s “child” as that term is defined by the Social Security Act. 42 U.S.C. §§ 416(e), 416(h)(2)-(3). According to the Social Security Act, a child applicant can obtain benefits on the account of a wage earner if the child is entitled to a child’s share of the wage earner’s intestate personal property under the relevant State law. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1); POMS GN 00306.055(A). If the wage earner is deceased, SSA applies the intestacy laws of the state in which the wage earner had a permanent home at the time of his death. 20 C.F.R. § 404.355(b)(1). According to Philden Sr.’s death certificate, he was a resident of Michigan when he died. We assume, for purposes of this memo, that Philden Sr. had a permanent home in Michigan at the time of his death. Therefore, Michigan intestacy laws would apply to decide whether Philden Jr. is Philden Sr.’s child.

Michigan’s intestacy law lists several ways a child born out of wedlock can be considered a man’s natural child for purposes of intestate succession including: an acknowledgment of parentage by the man and the mother; a written request to correct a birth certificate that results in a substituted certificate; a mutually acknowledged relationship between the man and child that began before the child became 18; a court ordered filiation establishing paternity as provided in the Paternity Act; or a determination by a probate court that a man is the child’s father using the standards and procedures established under the Paternity Act. See Mich. Comp. Laws Ann. § 700.2114 (West 2012). The evidence contained in the file does not indicate that any of the above statutory criteria for establishing a parent-child relationship for purposes of intestate succession have been met.

Even though Philden Jr. has not established paternity under any of the above statutory criteria, SSA may still permit him to establish paternity. SSA regulations provides that“[i]f applicable State inheritance law requires a court determination of paternity, we will not require that you obtain such a determination but will decide your 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); See also POMS GN 00306.525(B). As we explained previously, Michigan law provides that, in paternity actions the less stringent preponderance-of-the-evidence standard applies. See Bowerman v. MacDonald, 427 N.W.2d 477, 484 (Mich. Jul. 13, 1988) (“[T]he standard of proof in a paternity trial is not proof beyond a reasonable doubt, but rather the lesser burden of proof by a preponderance of the evidence.”); POMS PR 01115.025 (PR 07-165). The Michigan Supreme Court has defined a preponderance of the evidence as “that evidence which outweighs that which is offered to oppose it.” Martucci v. Ballenger, 33 N.W. 2d 789, 791 (Mich. 1948); See also POMS GN 00306.525 (H) (noting that a preponderance of the evidence is more than 50%).

Under the Michigan Paternity Act, paternity is presumed when the DNA results of the mother, child, and alleged father, conducted by a person accredited for paternity determinations, show a 99% or higher probability of paternity. See Mich. Comp. Laws Ann. § 722.716 (West 2012). The Michigan statute does not address whether there is a presumption when DNA testing establishes the likelihood of a grandparent relationship. Id. As we advised previously, we believe that a Michigan court would consider a grandparent’s DNA test as probative of the issue of paternity. POMS PR 01115.025 (PR 07-165; PR 11-096). In In Re Estate of J~, 525 N.W.2d 493, 497 (Mich. Ct. App. 1994), the court stated that “one method of proving paternity in this case is to utilize a DNA profile by using the child’s tissue and the tissue of either decedent or decedent’s mother.” Here, Natalie’s DNA results Natalie’s DNA testing was conducted at Genetic Testing Laboratories, an American Association of Blood Banks (AABB) testing Facility. Under Michigan law, blood testing, tissue typing, and DNA testing performed for purposes of determining paternity must be “conducted by a person accredited for paternity determinations by a nationally recognized scientific organization, including, but not limited to, the American association of blood banks.” Mich. Comp. Stat. Ann. § 711.716(b)(2) (West 2012). The DNA test report does not state that the testing procedure was conducted by a person who was accredited for paternity determinations by the AABB, but does state that the center is accredited by the AABB. Absent any evidence in the file that would call into question the qualifications of the testing staff or the authenticity of the report, we believe it would be reasonable to conclude that the testing satisfied the requirements of Michigan law. show a 99.34% likelihood that she is biologically related to Philden Jr. Because Philden Sr.’s death certificate confirms that Natalie is his mother, Natalie’s DNA results indicate a high probability that she is Philden Jr.’s grandmother. If Tianne’s statement, that Philden Sr. did not have any brothers, is taken as true, we can assume that Philden Sr. did not have any brothers that could be Philden Jr.’s natural father. Therefore, you could conclude that Natalie’s DNA results would be sufficient to establish that Philden Sr. is Philden Jr.’s father. 

Assuming that all information provided is true and accurate, we believe that a Michigan Court would find by a preponderance of the evidence that Philden Jr. is Philden Sr.’s child and, therefore, had inheritance rights with respect to Philden Sr.’s estate. As such, you could reasonably conclude that Philden Jr. is Philden Sr.’s child for purposes of establishing eligibility to child’s insurance benefits.

CONCLUSION

In summary, we believe that a Michigan court would find that Natalie’s DNA results provide sufficient evidence of paternity to satisfy the preponderance of evidence test. Assuming that Philden Sr., had a permanent home in Michigan at the time of his death, and did not have any brothers, you could reasonably conclude that Philden Sr. fathered Philden Jr. and thus that Philden Jr. had the right to inherit from Philden Sr.

Grace M. Kim
Acting Regional Chief Counsel V

By:______________
Kiywhanna Kellup
Assistant Regional Counsel


Footnotes:

[1]

The DNA testing was conducted by AAA DNA/Paternity Express. Under Michigan law, blood testing, tissue typing, and DNA testing performed for purposes of determining paternity must be “conducted by a person accredited for paternity determinations by a nationally recognized scientific organization, including, but not limited to, the American association of blood banks.” Mich. Comp. Stat. Ann. § 711.716(b)(2) (West). The DNA test report does not state that the testing procedure was conducted by a person who was accredited for paternity determinations by the AABB, but does state that the center is accredited by the AABB. Absent any evidence in the file that would call into question the qualifications of the testing staff or the authenticity of the report, we believe it would be reasonable to conclude that the testing satisfied the requirements of Michigan law. 

[2]

. We also considered whether the claimant could be entitled under section 216(h)(3) of the Act. As you know, this section provides that a child relationship will be established where a court decreed the numberholder to be the child’s biological parent; where the numberholder was ordered by a court to contribute to the child’s support; where the numberholder acknowledged in writing that the claimant was his son; and where there is other satisfactory evidence of a biological relationship and the child is either living with the numberholder or the numberholder is contributing to the child’s support. POMS GN 00306.100. However, based on the facts we have been provided with, the requirements of section 216(h)(3) do not appear to be satisfied.


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http://policy.ssa.gov/poms.nsf/lnx/1501105025
PR 01105.025 - Michigan - 05/31/2016
Batch run: 05/31/2016
Rev:05/31/2016