TN 21 (11-13)

PR 01105.031 Nevada

A. PR 13-118 Establishing a Parent-Child Relationship Under Nevada Law Using DNA Evidence of a Grandparent Relationship with the Natural Child of a Deceased Wage Earner Wage Earner: Jon Child Claimant: Coby

DATE: August 30, 2013

1. SYLLABUS

Under Nevada intestacy law, a claimant can demonstrate that a deceased wage earner (DWE) was his or her natural father where DNA evidence indicates that the DWE’s mother is the paternal grandmother of the claimant. Nevada law applies a presumption that a man is the natural father of a child when blood tests or genetic identification testing show a probability of 99 percent or more that he is the father.

2. OPINION

QUESTION

You asked whether the Claimant, Coby (Claimant), is entitled to survivor’s insurance benefits as the child of the deceased wage earner (DWE), Jon, where DNA evidence indicates that the DWE’s natural mother, is the Claimant’s paternal grandmother.

SHORT ANSWER

Yes. Under Nevada intestacy law, the Claimant can demonstrate that the DWE was his natural father where DNA evidence indicates that the DWE’s mother is the paternal grandmother of the Claimant.

SUMMARY OF EVIDENCE

The DWE was born on October in the Philippines. He was a U.S. citizen at the time of his death on September 26, 2002 from multiple gunshot wounds.  The death certificate states that the DWE was never married and was a resident of Henderson, Nevada. The death certificate lists the DWE’s parents as Julian and Irene. Irene lived in Guam.  

Claimant was born on August in Fairfield, California to Jeanine (mother). The birth certificate does not include a name for Claimant’s father; however, his father’s date of birth is listed as October. 

Coby filed a child support case in September 1999 with the Solano County, California, Department of Child Support Services (DCSS) alleging that the DWE was the noncustodial parent.  Because he moved to Guam and Nevada, DCSS did not succeed in serving the DWE with legal papers before his death, and therefore did not obtain a court order for child support. DCSS closed the case in March 2003 due to the DWE’s death.

Coby applied for survivor insurance benefits for the Claimant on the DWE’s earnings record on four separate occasions. In a prior application, Coby stated that the Nevada Coroner’s Office recognized Claimant as the DWE’s next of kin and that she signed on Claimant’s behalf to release the DWE’s remains to his parents. In a “Child Relationship Statement,” Form SSA-2519, dated October 22, 2007, Coby stated that a court had not decreed the DWE as the Claimant’s parent, nor was the DWE ever ordered to contribute to Claimant’s support. In addition, Coby answered “no” to all questions about whether the DWE acknowledged Claimant in writing or provided financial support.

Coby answered “yes” to only Question (m), indicating that the DWE orally admitted that he was the Claimant’s father. On page 2 of Form SSA-2519, Coby stated that the DWE’s parents, Irene and Julian, “could be contacted to vouch and acknowledge [the Claimant] as [the DWE’s] son.” In support, Coby attached a signed and notarized letter from the DWE’s parents stating that they acknowledged the Claimant as their biological grandson and that the Claimant was the only child of the DWE and Coby.

In support of her most recent application for child survivor benefits in December 2010, Coby obtained DNA testing from Genetica DNA Laboratories, Inc. The laboratory took samples from Coby and the Claimant on November 11, 2010 and from Irene (the DWE’s mother) on November 10, 2010. In a report dated November 17, 2010, Dr. P~, the Laboratory Director, stated under oath that results showed a 99.98% probability that Irene was the Claimant’s paternal grandmother as compared to untested, unrelated persons. Further, he stated that Irene could not be eliminated as the Claimant’s biological paternal grandmother.

Genetica DNA Laboratories, Inc. is an American Association of Blood Banks (AABB) Accredited Relationship (DNA) Testing Facility.  See AABB Accredited Relationship (DNA) Testing Facilities, available at http://www.aabb.org/sa/facilities/Pages/RTestAccrFac.aspx (last visited Aug. 22, 2013).

ANALYSIS

Federal Law

Under the Social Security Act (Act), every unmarried minor child of an insured individual 1

who dies fully or currently insured shall be entitled to child insurance benefits. Social Security Act § 202(d)(1), 42 U.S.C. § 402(d)(1). However, to receive child insurance benefits, the applicant must qualify as the insured individual’s “child,” as defined by section 216(e) of the Act, and be dependent on the insured individual at the time of his death. Id.; 20 C.F.R. § 404.350 (2012). These requirements support the Act’s goal of protecting dependents from the loss of the insured’s earnings and support. See Astrue v. Capato, 566 U.S. ___, 132 S. Ct. 2021, 2032 (2012) (quoting Califano v. Jobst, 434 U.S. 47, 52 (1997)) (recognizing that “the Act’s driving objective” was to “‘provide … dependent members of [a wage earner’s] family with protection against the hardship occasioned by [the] loss of [the insured’s] earnings.’”).

Section 216(e)(1) of the Act defines a “child” as “the child or legally adopted child of an individual.” Act § 216(e)(1), 42 U.S.C. § 416(e)(1). Section 216(h) of the Act further elaborates that “[i]n determining whether an applicant is the child … of a fully or currently insured individual…, the Commissioner of Social Security shall apply such law as would be applied in determining the devolution of intestate 2 personal property … by the courts of the State in which [the insured individual] was domiciled at the time of his death.” Act § 216(h)(2)(A), 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1); Capato, 132 S. Ct. at 2033 (explaining that section 416(h)(2)(A) “completes the definition of ‘child’ [in] § 416(e)(1)”). 

A claimant who satisfies the requirements of section 216(h)(2)(A) of the Act—i.e., the claimant is considered a child of the insured individual under state intestacy law—is also deemed dependent on the insured individual. 20 C.F.R. § 404.361(a)( “If you are the insured’s natural child, as defined in § 404.355, you are considered dependent on him or her”); Social Security Ruling (SSR) 77-2c (“where state intestacy law provides that a child may take personal property from a father’s estate, it may reasonably be thought that the child will more likely be dependent during the parent’s life”); Capato, 132 S. Ct. at 2032-33 (explaining that Congress substituted “state intestacy law as a workable solution for burdensome case-by-base determinations of whether the child was, in fact, dependent on her father’s earnings”).

In this case, we apply Nevada intestacy law because the DWE was domiciled in Nevada at the time of his death. See 20 C.F.R. §§ 404.355(b)(1), (4). In applying state law, the agency does not require a court determination establishing paternity but applies the same law and standards that the state court would use. 20 C.F.R. § 404.355(b)(1)-(2).

Nevada Law

Under Nevada intestacy laws, if a deceased individual leaves children but no spouse, the estate is shared equally among the children. Nev. Rev. Stat. § 134.090. A child is defined as “a person entitled to take as a child by intestate succession from the parent whose relationship is involved.” Nev. Rev. Stat. § 132.055. A parent-child relationship is defined in Chapter 126 of the Nevada Revised Statutes; the relationship is not dependent on the marital status of the parents. Nev. Rev. Stat. § 126.031(1).

Nevada law provides that paternity may be established by either a statutory presumption or a preponderance of the evidence.  While it is likely that a presumption would apply in this case, paternity is established by at least a preponderance of evidence given the results of the DNA testing. 

Presumptions of Paternity

Nevada law applies a presumption that a man is the natural father of a child in the following circumstances:

  1. The child was born during the father’s marriage to the natural mother, or within 285 days after the marriage is terminated;

  2. The father was cohabitating with the natural mother for at least 6 months before the period of conception and through the period of conception;

  3. The father receives the child into his home while the child is under age 18 and openly holds out the child as his natural child; or

  1. Blood tests or genetic identification testing pursuant to Nev. Rev. Stat. § 126.121 show a probability of 99 percent or more that he is the father. 3

Nev. Rev. Stat. § 126.051 (emphasis added); see Program Operations Manual Support (POMS) GN 00306.555(A)(1)(a),(b), (e) & (g) (program guidance on Nevada intestacy laws). 4 .

While several of the presumptions of paternity are rebuttable, since October 1, 2007 the presumption created by genetic testing is conclusive unless it is shown that the presumed father had an identical sibling who may be the father. Nev. Rev. Stat. § 126.051; cf. Love v. Love, 114 Nev. 572, 578 (Nev. 1998) (relying on prior version of § 126.051 to conclude that legislature had intended “to allow non-biological factors to become critical in a paternity determination”). 

In this case, genetic testing was performed on samples from the Claimant, his mother, and the DWE’s mother.  We have no information suggesting that the DWE had an identical twin. 5

The conclusive presumption of paternity in Nev. Rev. Stat. § 126.051(2) applies to “tests [that] show a probability of 99 percent or more that [the man tested] is the father.”  Nev. Rev. Stat. § 126.051(2). Nevada law provides for genetic testing on the “mother, child, alleged father or any other person so involved” in a civil paternity action. Nev. Rev. Stat. § 126.121(1).  However, we have found no authority to indicate whether a Nevada court would accept DNA tests performed on the mother and paternal grandparent of the Claimant as establishing a conclusive presumption of paternity. 

Nonetheless, a Nevada court would likely conclude that the DNA test here supports a presumption of paternity because section 126.051(2) expressly incorporates genetic tests pursuant section 126.121. See Nev. Rev. Stat. § 126.051(2).  As testing pursuant to section 126.121 includes tests of the mother and “any other person so involved,” such as the grandparent here, Nevada would rely on the genetic tests in this case to establish a presumption that the DWE is Claimant’s father.

Paternity Shown By a Preponderance of Evidence

In addition to the statutory presumptions, paternity may be shown by a preponderance of evidence in a civil paternity action. Nev. Rev. Stat. §§ 126.071–126.223; POMS GN 00306.555(B); see Rivera v. Minnich, 483 U.S. 574, 579-582 (1987) (holding that due process is satisfied by the preponderance of evidence standard in paternity proceedings); Mack v. Ashlock, 112 Nev. 1062, 1066 (1996) (standard of proof in a civil matter is a preponderance of evidence). 

Relevant evidence in a paternity action includes:

  1. Evidence of sexual intercourse between the mother and alleged father at any possible time of conception;

  2. An expert’s opinion concerning the statistical probability of the alleged father’s paternity based on the duration of the mother’s pregnancy;

  3. The results of test for the typing of blood or genetic identification that is of a type that is acknowledged as reliable by an organization approved by the Secretary of Health and Human Services and performed by a laboratory which is accredited by such an organization;

  4. Medical or anthropological evidence;

  5. Bills or receipts for the costs of medical care during pregnancy or the birth of the child; and

  6. All other evidence relevant to the issue of paternity.

Nev. Rev. Stat. § 126.131 (emphasis added); POMS GN 00306.555(C)(1)–(5). 

Even if the genetic testing of a grandparent does not create a conclusive presumption of paternity, at least a preponderance of evidence indicates here that the DWE was the Claimant’s father under Nevada law.  DNA tests showed a 99.98% probability that the DWE’s mother was the Claimant’s paternal grandmother. In the absence of evidence of any relationship between Coby and male siblings of the DWE, 6 the test results are evidence that the DWE was the Claimant’s father. Other evidence supports this conclusion. For example, the DWE’s parents acknowledged that the Claimant was their biological grandson. In addition, although the DWE’s name is not listed on the Claimant’s birth certificate, the DWE’s birthdate is listed. Further, Coby sought child support from him shortly after the child’s birth in 1999, and the Nevada Corner’s office recognized Claimant as the DWE’s next of kin. Although not conclusive individually, these factors support the conclusion indicated by DNA testing, which is that the Claimant is the natural son of the DWE and that Nevada would recognize that relationship.

Moreover, the lab that performed the tests was accredited by the AABB, which is approved by the Department of Health and Human Services as an accreditation body for genetic testing in paternity actions.  See Information Memorandum: Accreditation of Genetic Testing Labs, U.S. DHHS, Office of Child Support Enforcement, available at http://www.acf.hhs.gov/programs/cse/pol/IM/1997/im-9703.htm (last visited Aug. 22, 2013).  This satisfies the reliability requirement in the Nevada Revised Statutes for genetic testing. See Nev. Rev. Stat. § 126.131(c).\

Further, in considering the evidence as a whole, Nevada courts would likely conclude that the state’s policy objective of protecting children’s financial interests is met by establishing a parent-child relationship and intestacy rights.  See Love, 114 Nev. at 578 (recognizing the legislature’s primary intent in creating presumptions of paternity in section 126.051 was to ensure that children were supported by their parents); Weaks v. Mounter, 88 Nev. 118, 123 (Nev. 1972) (removing requirement that father acknowledge paternity in a formal writing in order for illegitimate child to bring wrongful death suit and recognizing that “[t]he illegitimate child suffers serious pecuniary loss because the right of support from the deceased father is denied” in such a way “that would punish the child and inflict problems upon the community”). Under Nevada law, a parent’s duty to support a child exists at birth, even if the duty is not enforced, and continues until “lifted, excused, or extinguished by a court of law.” Love, 104 Nev. at 707-08. 

In short, the DNA evidence supports a determination of paternity in support of Claimant’s application for survivor’s benefits that is consistent with Nevada law.  See Chambers v. Sanderson, 107 Nev. 846 (1991) (finding paternity where blood tests indicated 98% chance of paternity and mother provided affidavit stating she and alleged father had sexual intercourse during the probable period of conception); Lara v. County of Yolo on Behalf of Constancio, 104 Nev. 705, 708 (1988) (“Modern medical tests [such as blood tests] are quite accurate…[and] can readily provide the court with sufficient evidence to determine paternity.”). 

CONCLUSION

Genetic testing established a 99.98% probability that the DWE’s mother was the Claimant’s paternal grandmother. This evidence likely establishes a conclusive presumption of the DWE’s paternity under Nevada law, assuming the DWE does not have an identical twin. Even if genetic testing of a grandparent does not establish a presumption of paternity, the test establishes at least a preponderance of evidence of paternity in combination with the other available evidence. Thus, Nevada would consider the Claimant the natural child of the DWE and Claimant is deemed dependent for benefit purposes. See 20 C.F.R. Neva§ 404.361(a). Accordingly, the Claimant is eligible for survivor’s benefits on the DWE’s earnings record.


Footnotes:

[1]

Here, the term “insured individual” refers to an individual entitled to old-age or disability insurance benefits. See Social Security Act § 202(d)(1), 42 U.S.C. § 402(d)(1).

[2]

Intestate (or intestacy law) refers to the succession of property owned by a person who died without a valid will; intestacy law is governed by state statutes. Black’s Law Dictionary 840 (8th ed. 2004).

[3]

As discussed in the text, below, Nev. Rev. Stat. § 126.121 provides for genetic testing for the purpose of actions to determine paternity. Unless a party files written objections to the blood test results, they are admissible as evidence of paternity without further proof of authenticity or accuracy.  Nev. Rev. Stat. § 126.121; POMS GN 00306.555(A)(1)(g).

[4]

Alternatively, a paternal relationship may be established in Nevada through: (1) voluntary acknowledgement of paternity under Nev. Rev. Stat. § 440.283 (declaration to the State Board of Health); (2) in a court action to determine paternity in which the child, natural mother, and alleged father are parties (Nev. Rev. Stat. §§ 126.053, 126.071, 126.101, 440.283); (3) in an action for child support (Nev. Rev. Stat. §§ 125B.150, 425.382–425.3852); (4) or under the Uniform Interstate Family Support Act (or similar law) (Nev. Rev. Stat. § 130.701).  Nev. Rev. Stat. § 126.041(2). These provisions are inapplicable here

[5]

You may wish to confirm that the the DWE did not have an identical twin with whom Coby may have had a relationship.

[6]

You may wish to obtain verification from Coby and Irene as to whether the DWE had a male sibling and whether Coby had a relationship with that sibling.


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PR 01105.031 - Nevada - 11/14/2013
Batch run: 11/14/2013
Rev:11/14/2013