TN 15 (04-13)

PR 01105.045 South Carolina

A. PR 13-060 Use of Grandparent DNA Testing and Family Statements to Establish Paternity – South Carolina Claimant – Dakota Number Holder – Brandon

DATE: March 28, 2013

1. SYLLABUS

Under South Carolina intestacy law, a decedent’s child is entitled to a share of the decedent’s estate. The following evidence may be used to establish the claimant is the number holder’s child.

1. Claimant’s mother submitted Claimant’s birth certificate, which does not include the name of Claimant’s father.

2. Claimant’s mother also submitted the results of DNA testing notarized and signed by the director of the genetic testing facility on October 16, 2012. The DNA testing report indicates the facility analyzed DNA samples from Claimant and (NH’s parents). The DNA test results showed a 99.99% probability that NH’s parents are Claimant’s biological grandparents. The report also states that the results support the assertion that a son of the grandparents could be the biological father of Claimant.

3. Claimant’s mother also provided written statements from herself and NH’s two brothers. Claimant’s mother stated she never had a sexual relationship with either of NH’s two brothers. Claimant’s mother further stated that although NH did not pay child support, he did provide food, clothing, diapers, and anything else Claimant needed. She also claimed NH listed Claimant as a dependent on his tax returns, but she did not provide a copy of any of NH’s tax returns. Both B1 and B2 denied having a sexual relationship with Claimant’s mother, and each brother stated Claimant was not his son. B1 further stated NH and Claimant’s mother dated for several years and, while they were dating, Claimant’s mother became pregnant with Claimant. B1 also stated that to the best of his knowledge, NH is Claimant’s biological father.

4. Claimant’s mother submitted a hospital maternity registration form identifying NH as her spouse.

The effective date of a finding that Claimant is NH’s child would be the date of the piece of evidence that establishes Claimant could inherit from NH under South Carolina intestacy law. See POMS GN 00306.055(A)(3). Although the family members’ statements and other evidence contribute to our conclusion Claimant could inherit from NH through intestacy, the DNA test results were essential to that conclusion. Therefore, the effective date of a finding that Claimant is NH’s child would be October 16, 2012, the date of the DNA test results.

Because the Claimant could inherit from NH as NH’s child under South Carolina intestacy law, an SSA adjudicator determining Claimant’s eligibility for CIB on NH’s earnings record could conclude Claimant is NH’s child under section 216(h)(2)(A) of the Act effective October 16, 2012, the date of the DNA test results

2. OPINION

QUESTION

This case, governed by South Carolina law, involves determining a claimant’s eligibility for child’s insurance benefits (CIB) on a number holder’s earnings record. You asked whether DNA test results showing a high probability the claimant is the grandchild of the number holder’s parents, statements from claimant’s mother and the number holder’s family members, and other evidence are sufficient to establish the claimant as the number holder’s child for CIB purposes. You also asked for the effective date of the claimant’s eligibility if the evidence establishes the claimant is the number holder’s child.

 OPINION

The DNA test results, the statements from claimant’s mother and the number holder’s family members, and the additional evidence discussed below establish the claimant is the number holder’s child under South Carolina intestacy law. Consequently, a Social Security Administration (SSA) adjudicator could find the claimant is the number holder’s child for determining the claimant’s eligibility for CIB on the number holder’s earnings record effective October 16, 2012, the date of the DNA test results.

BACKGROUND

According to the information provided, Tiffany (Claimant’s mother), filed an application on behalf of her son, Dakota (Claimant), for CIB on the earnings record of Brandon, the number holder (NH). With the application, Claimant’s mother submitted Claimant’s birth certificate, which does not include the name of Claimant’s father. Claimant’s mother also submitted the results of DNA testing notarized and signed by the director of the genetic testing facility on October 16, 2012. The DNA testing report indicates the facility analyzed DNA samples from Claimant and Patsy and Mark (NH’s parents). [1] The DNA test results showed a 99.99% probability that NH’s parents are Claimant’s biological grandparents. The report also states that the results support the assertion that a son of the grandparents could be the biological father of Claimant.

Claimant’s mother also provided written statements from herself and NH’s two brothers, Anthony (B1) and Colt (B2). Claimant’s mother stated she never had a sexual relationship with either of NH’s two brothers. Claimant’s mother further stated that although NH did not pay child support, he did provide food, clothing, diapers, and anything else Claimant needed. She also claimed NH listed Claimant as a dependent on his tax returns, but she did not provide a copy of any of NH’s tax returns. Both B1 and B2 denied having a sexual relationship with Claimant’s mother, and each brother stated Claimant was not his son. B1 further stated NH and Claimant’s mother dated for several years and, while they were dating, Claimant’s mother became pregnant with Claimant. B1 also stated that to the best of his knowledge, NH is Claimant’s biological father. Additionally, Claimant’s mother submitted a hospital maternity registration form identifying NH as her spouse.

According to the information provided, NH died on March 21, 2012, while domiciled in South Carolina. The information provided does not indicate NH married Claimant’s mother.

DISCUSSION

 

Under section 202(d) of the Social Security Act (Act), a claimant may be eligible for CIB on the earnings record of an individual who dies fully or currently insured if the claimant is the “child” of the deceased individual. See Act § 202(d)(1); 20 C.F.R. § 404.350(a)(1) (2012). [2] “Child” includes “the child” of an insured individual. See Act § 216(e)(1); 20 C.F.R. § 404.354; Astrue v. Capato, --- U.S. ---, 132 S. Ct. 2021, 2027-28 (2012). A claimant may qualify as “the child” of a deceased, insured individual under section 216(e)(1) of the Act if he or she could inherit a child’s share the insured individual’s personal property under “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 . . . .” Act § 216(h)(2)(A); see 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4); C~, 132 S. Ct. at 2028-34; Program Operations Manual System (POMS) GN 00306.001(C)(1)(a), (C)(2)(a). The information provided states NH was domiciled in South Carolina when he died. Therefore, we look to South Carolina intestacy law to determine if Claimant is NH’s child. [3] See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4); POMS GN 00306.001(C)(1)(a), (C)(2)(a).

Under South Carolina intestacy law, a decedent’s children are entitled to a share of the decedent’s estate. See S.C. Code Ann. §§ 62-1-201(21), 62-2-103(1) (2012). [4] South Carolina law defines “child” as any individual entitled to take as a child by intestate succession from the parent whose relationship is involved and excludes any person who is only a stepchild, a foster child, a grandchild, or any more remote descendant. See S.C. Code Ann. § 62-1-201(3). A child born out of wedlock must establish paternity by “clear and convincing proof” to inherit from his father through intestate succession. [5] See S.C. Code Ann. § 62-2-109(2)(ii); POMS GN 00306.625(A)(8).

South Carolina defines “clear and convincing evidence” as that “degree of proof which will produce . . . a firm belief as to the allegations sought to be established.” In re D~, 718 S.E.2d 739, 748 (S.C. 2011) (internal quotations omitted). “Clear and convincing evidence” is an intermediate standard -- more than a preponderance of evidence, but less than proof beyond a reasonable doubt. See id. “Clear and convincing evidence” does not mean “clear and unequivocal.” Id. (internal quotations omitted).

South Carolina law allows the admission of genetic test results to determine paternity. See POMS GN 00306.625(B)(1); S.C. Code Ann. § 63-17-60(A)(3). [6] Our office previously addressed the evidentiary value of DNA testing involving a relative or relatives of a deceased number holder in determining paternity for the purpose of South Carolina intestate succession. See POMS PR 01115.045 (PR 07-186, PR 02-068). [7] In PR 02-068, we determined a South Carolina court would consider test results based on DNA samples from the claimant’s putative grandparents (i.e., the number holder’s parents), along with other relevant evidence, when deciding the number holder’s paternity. See POMS PR 01115.045 (PR 02-068). We concluded DNA test results indicating a 99.98% probability that the number holder’s parents were the biological grandparents of the claimant and additional corroborating statements qualified as clear and convincing evidence that the claimant was the number holder’s child under South Carolina intestacy law, provided the number holder did not have a brother whom SSA suspected might be the claimant’s father. See id. In PR 07-186, DNA test results indicated a 99.96% probability of paternity of “a brother” of the number holder’s brother. See POMS PR 01115.045 (PR 07-186). Given evidence that the number holder had additional brothers and other evidence contradicting the number holder’s alleged paternity, we concluded the evidence was not clear and convincing that the claimant was the number holder’s child for the purpose of South Carolina intestacy law. See id.

In Claimant’s case, the DNA test results [8] show a high probability that NH’s parents are Claimant’s grandparents, and none of the evidence appears to contradict the DNA test results. In addition, the statements from Claimant’s mother and NH’s brothers denying a sexual relationship between Claimant’s mother and NH’s brothers would be sufficient to rule out NH’s brothers as Claimant’s father. See S.C. Dep’t of Soc. Servs. ex rel. Roseboro v. Burris, 377 S.E.2d 578, 578-79 (S.C. 1989) (finding husband’s and wife’s testimony they never had sexual relations during time period in which child could have been conceived was sufficient to exclude husband as father of child). B1 also stated Claimant’s mother became pregnant with Claimant while she was dating NH and that, to the best of his knowledge, NH is Claimant’s father. The hospital maternity registration form also identified NH as the spouse of Claimant’s mother, and Claimant’s mother stated NH provided food, clothing, and diapers for Claimant. Thus, the DNA test results and the other evidence presented could constitute clear and convincing evidence that Claimant is NH’s child under South Carolina intestacy law. Therefore, an SSA adjudicator could find Claimant is NH’s child for determining Claimant’s eligibility for CIB on NH’s earning record.

Claimant established his inheritance rights under a provision of South Carolina law that does not legitimate him. See POMS GN 00306.055(A)(1); POMS GN 00306.625(A)(8); see also Hucks v. Dolan, 343 S.E.2d 613, 615 (S.C. 1986) (indicating South Carolina law requires a marriage of the parents to legitimate a child). Further, South Carolina intestacy law does not have a retroactivity provision. See POMS PR 01115.045 (PR 06-063). Accordingly, the effective date of a finding that Claimant is NH’s child would be the date of the piece of evidence that establishes Claimant could inherit from NH under South Carolina intestacy law. See POMS GN 00306.055(A)(3). Although the family members’ statements and other evidence contribute to our conclusion Claimant could inherit from NH through intestacy, the DNA test results were essential to that conclusion. Therefore, the effective date of a finding that Claimant is NH’s child would be October 16, 2012, the date of the DNA test results.

CONCLUSION

Because Claimant could inherit from NH as NH’s child under South Carolina intestacy law, an SSA adjudicator determining Claimant’s eligibility for CIB on NH’s earnings record could conclude Claimant is NH’s child under section 216(h)(2)(A) of the Act effective October 16, 2012, the date of the DNA test results.

Sincerely,

Mary Ann Sloan
Regional Chief Counsel

By:_____________

Peter S. Massaro, III

Assistant Regional Counsel

B. PR 13-043 Eligibility of Claimant for Child’s Insurance Benefits after Termination of Number Holder’s Parental Rights—South Carolina

DATE: February 8, 2013

1. SYLLABUS

The Claimant retains inheritance rights from NH under South Carolina law and is considered the NH's child for purposes of intestate succession in South Carolina, therefore the Claimant is the NH's child for determining Claimant's eligibility for child's insurance benefits on the NH's record.

South Carolina law provides that an order terminating the relationship between parent and child divests the parent and child of all legal rights, but the termination does not terminate the child’s right to inherit from the parent. Only a final order of adoption terminates a child’s right of inheritance and in this case, the information provided indicates Claimant has not been adopted.  

2. OPINION

QUESTION

You have asked whether the claimant is the child of the number holder for determining the claimant’s eligibility for child’s insurance benefits (CIB) on the number holder’s earnings record where a North Carolina court terminated the number holder’s parental rights. 

 OPINION

We believe Claimant is NH’s child for purposes of determining Claimant's entitlement to CIB on NH’s earnings record.

BACKGROUND

According to the information provided, Melinda and Rodney, the number holder (NH), married in North Carolina on October 27, 2000.  Six months later, on or about April 2001, Haley (Claimant) was born to Claimant’s mother and NH.  Claimant’s mother and NH divorced in North Carolina on September 27, 2004. After Claimant’s mother petitioned a North Carolina court to terminate the NH’s parental rights to Claimant, the court issued an order and judgment on November 17, 2006, terminating NH’s parental rights. NH protectively filed an application for disability insurance benefits (DIB) on June 22, 2008 and the Social Security Administration (SSA) granted NH’s DIB application on November 25, 2008. On October 30, 2012, Claimant’s mother filed an application on Claimant’s behalf for CIB on NH’s earnings record. According to the information provided, the Agency last updated NH’s address in 2004 to South Carolina. NH listed a South Carolina residence on his 2008 DIB application. NH’s November 2012 statement to the Agency contesting Claimant’s status as his child also includes a South Carolina address. 

DISCUSSION

A claimant may be eligible for CIB on the earnings record of an individual entitled to DIB if the claimant is the insured individual’s “child.” See Social Security Act (Act) § 202(d)(1); 20 C.F.R. § 404.350(a)(1) (2013). “Child” includes “the child” of an insured individual. See Act § 216(e)(1); 20 C.F.R. § 404.354 (2013). To determine if a claimant is “the child” of the insured individual, SSA considers whether the claimant could inherit the insured individual’s intestate personal property under State law. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(3) (2013).  If, as here, the NH is living, we look to the State law where the insured has his or her permanent home when the claimant applied for benefits. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(b)(1), (b)(3) (2013).

The information provided indicates that NH had his permanent home in South Carolina when Claimant’s mother filed the CIB application on Claimant’s behalf.  Because NH is alive; we thus look to South Carolina law to determine whether Claimant is NH’s child for the purposes of intestate succession under section 216(h)(2)(A) of the Act. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (4).

South Carolina law provides that an order terminating the relationship between parent and child divests the parent and child of all legal rights, powers, privileges, immunities, duties, and obligations with respect to each other, except the termination does not terminate the child’s right to inherit from the parent. See S.C. Code Ann. §§ 63-7-2590(A); 62-2-109(3) (2013).  Only a final order of adoption terminates a child’s right of inheritance. See S.C. Code Ann. § 63-7-2590(A); Cox v. Cox, 202 S.E. 2d 6, 9 (1974). In this case, the information provided indicates Claimant has not been adopted.   Claimant thus retains inheritance rights from NH under South Carolina law.  

A South Carolina court would be required to accept the North Carolina court’s parental-rights-termination order under the full faith and credit clause if North Carolina had jurisdiction to issue the order and if the order is entitled to receive credit. See U.S. Const. art. IV, § 1; 28 U.S.C. § 1738 (2013). Pursuant to S.C. Code Ann § 63-15-354 (2013), a South Carolina court must recognize and enforce a child custody determination of North Carolina if:  1) North Carolina exercised jurisdiction in “substantial conformity” with the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA); or 2) the determination was made under factual circumstances meeting the jurisdictional standards of the UCCJEA and the determination has not been modified in accordance with the UCCJEA. Id. Here, the North Carolina court analyzed its jurisdiction under N.C. Gen. Stat. § 7B-1101 and the court determined it had proper jurisdiction to terminate NH’s parental rights to Claimant. N.C. Gen. Stat. § 7B–1101 requires that before the court can exercise jurisdiction to terminate a parent’s rights, the court shall find that it has jurisdiction to make a child-custody determination under the provisions of the UCCJEA. See id.; In re H.L.A.D., 646 S.E.2d 425, 429 (N.C. Ct. App. July 3, 2007)(citing In re N.R.M., T.F.M., 598 S.E.2d 147, 149 (2004) and N.C. Gen. Stat. § 50A–101 et seq.).  Additionally, NH does not appear to contest that the North Carolina court had jurisdiction to terminate his parental rights.  None of the information presented to us appear to provide an avenue then for a South Carolina court to modify the North Carolina order. 

In sum, Claimant retains inheritance rights from NH in spite of the North Carolina parental-rights-termination order.  Claimant is therefore considered NH’s child for purposes of intestate succession in South Carolina. Thus, Claimant is NH’s child under section 216(h)(2)(A) of the Act.

CONCLUSION

For the foregoing reasons, Claimant is NH’s child for determining Claimant’s eligibility for CIB on NH’s earnings record.    

Very truly yours, 

Mary Ann Sloan
Regional Chief Counsel

By:_____________

Arthurice T. Brundidge

Assistant Regional Counsel


Footnotes:

[1]

SSA records indicate Patsy and Mark are NH’s parents.

[2]

All subsequent references to 20 C.F.R. are to the 2012 edition unless otherwise noted.

[3]

If a claimant is the child of an insured individual but cannot show he is “the child” under section 216(h)(2)(A) of the Act, SSA may deem the claimant “the child” of the insured individual if the claimant satisfies the requirements of § 216(h)(2)(B) or § 216(h)(3) of the Act (evidence of a flawed marriage ceremony between the insured and the other parent, certain types of court order, or written acknowledgement). None of the evidence needed to establish deemed child status under these provisions are included in the information presented.

[4]

All subsequent references to the Code of Laws of South Carolina Annotated are to the 2012 edition unless otherwise noted.

[5]

A child born out of wedlock also could inherit from his father under South Carolina intestacy law by showing that his parents participated in a marriage ceremony even though the attempted marriage is void. See S.C. Code Ann. § 62-2-109(2)(i). However, as noted previously, the evidence in this case does not indicate NH and Claimant’s mother participated in a marriage ceremony.

[6]

While state law creates a presumption of paternity based on genetic test results that show a statistical probability of paternity of 95% or higher, it does not specify the weight due genetic tests that address the likelihood of some relationship other than paternity, such as the grand-paternity relationship at issue here. See POMS GN 00306.625(B)(1); S.C. Code Ann. § 63-17-60(A)(3).

[7]

The request indicated POMS PR 01115.045 (PR 05-162) addressed the present issue to some extent. However, upon reviewing POMS PR 01115.045 (PR 05-162), we find this opinion addressed a different issue – the sufficiency of siblingship testing of a number holder’s known child to establish a claimant is also the number holder’s child. Because evidence of full siblingship with a known child of the number holder presents unique issues not applicable to other types of family relationship, see SSR 06-02p, POMS PR 01115.045 (PR 05-162) does not provide much guidance in the present case.

[8]

The facility that performed the test confirmed their accreditation with the American Association of Blood Banks (AABB), which the Department of Health and Human Services recognizes as a reliable accreditation body. See Accreditation of Genetic Testing Labs, U.S. Department of Health and Human Services, http://www.acf.hhs.gov/programs/cse/pol/IM/1997/im-9703.htm (last visited Mar. 11, 2013). Accordingly, absent evidence to the contrary, the facility is a “qualified” testing facility under section 63-17-60(A)(1) of the Code of Laws of South Carolina, and a South Carolina court would consider the facility’s genetic test results when deciding paternity. See POMS PR 01115.045 (PR 06-063).


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1501105045
PR 01105.045 - South Carolina - 04/26/2013
Batch run: 08/09/2016
Rev:04/26/2013