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