TN 17 (06-13)

PR 01105.048 Texas

A. PR 13-064 Texas State Law – Status of Child Based on Probate Court Order Adjudicating Parentage (NH Damarcus, SSN ~) – REPLY

DATE: April 16, 2013

1. SYLLABUS:

It is our opinion that the Texas court order adjudicating parentage does not bind the agency and that the documentation in support of the child’s claim for surviving child’s benefits does not otherwise meet Texas law requirements for establishing inheritance rights as the number holder’s child. Under the Texas intestacy laws, the child's eligibility for survivor’s benefits on the deceased number holder’s account depends upon whether he could inherit property. In this case, the mother provided DNA test results showing only an 87.709 percent probability that the number holder’s mother was Noah’s paternal grandmother. The probability of the DNA results is below the 99 percent probability threshold under Texas law for creating a rebuttable presumption of paternity and therefore does not establish the number holder’s paternity. The mother also presented that a Texas court order, but the court order is not consistent with the State’s highest court, therefore the Agency does not have to accept the court order. The evidence provided by the mother is insufficient evidence to prove that the child could inherit benefits from the NH. It is our opinion that child is not currently entitled to surviving child’s benefits on the number holder’s account.

2. OPINION

QUESTION PRESENTED

You have asked us to provide a legal opinion on whether Noah is entitled to surviving child’s benefits on the earning records of Damarcus number holder). Specifically, you have asked whether a Texas court order adjudicating the number holder as Noah’s father binds the Social Security Administration (agency) or whether the evidence Noah’s mother submitted otherwise establishes that Noah has inheritance rights as the number holder’s child under Texas law.

ANSWER

It is our opinion that the Texas court order adjudicating parentage does not bind the agency and that the documentation in support of Noah’s claim for surviving child’s benefits does not otherwise meet Texas law requirements for establishing inheritance rights as the number holder’s natural child. Consequently, it is our opinion that Noah is not currently entitled to surviving child’s benefits on the number holder’s account.

BACKGROUND

As we understand the facts, the number holder died on September 25, 2010, in an auto accident. At the time of his death, he was domiciled in Texas and living with Megan at his mother’s residence, Megan indicated that she and the number holder had discussed getting married in the future. But there is no indication that Megan and the number holder had a ceremonial or common law marriage at any point where he and Megan lived since November 2009, along with the number holder’s mother and his two female cousins.

In statements Megan made to the agency, she claims she was pregnant with Noah at the time of the number holder’s death, that they had known about the pregnancy for only two weeks, had only told their parents about the pregnancy, and were planning to get married after the baby was born. She also claims she never split up with the number holder and did not have sexual relations with anyone else. Agency records show that three other children are entitled on the number holder’s record: Shasmin; Damarcus; and Demariany. The three children’s mothers, Catina, Denecia, and Toni, respectively, are their representative payees.

In April 2011, Megan gave birth to Noah. Megan did not submit a copy of Noah’s original birth certificate in support of her application for benefits. However, at the agency’s request in late March or early April 2013, Megan provided an uncertified copy of Noah’s original birth certificate that does not name a father.

In May 2012, claiming he was the number holder’s child, she applied for Title II survivor benefits on Noah’s behalf. In support of the application, Megan submitted a Deoxyribonucleic (DNA) test report dated April 11, 2012, which compared specimens from Noah and the number holder’s mother. The DNA test assessed an 87.709 percent probability that the number holder’s mother was Noah’s paternal grandmother. Megan has represented to the agency that the number holder’s mother had only one other child besides the number holder, his sister who is also deceased.

Since the DNA test report’s parentage probability did not meet Texas law requirements and Megan did not provide any chain of custody documentation, the agency denied the application.

On September 21, 2012, Megan filed a new application for benefits on Noah’s behalf. Megan filed an untimely request for reconsideration of the agency’s initial denial of Noah’s claim and did not establish good cause for the untimely filing. The agency considered the date of the untimely request for reconsideration as the protective filing date of the new application.

In support of the application, she provided a Texas court order dated August 9, 2012, from the Panola County Court adjudicating the number holder to be Noah’s father for all purposes, changing Noah’s last name to the number holder’s last name, and ordering an amendment to his birth certificate reflecting the adjudication and name change. After the agency inquired, in late March or early April 2013, Megan submitted Noah’s October 2012 amended birth certificate, which named the number holder as his father, and asked the agency to change its systems to reflect Noah’s name as D~ rather than S~.

The agency also inquired with the Panola County court clerk about the documents or exhibits the court used to adjudicate paternity, but the court clerk was unable to locate any documents or exhibits. However, Megan has indicated that the court received into evidence the grandparent DNA test report The grandparent DNA test report is in the file you submitted to us. As well as statements from her parents and the number holder’s parents. While she does not specify the contents of those statements, Megan claims that the couple had told their parents about the pregnancy before the number holder’s death.

ANALYSIS

Under the Social Security Act, a child may be eligible for surviving child’s benefits if he is the child of an individual who has died fully or currently insured. 42 U.S.C. § 402(d)(1). To be entitled to such benefits on the insured number holder’s account, a child must: (1) be the number holder’s child; (2) be dependent upon the number holder; (3) apply for benefits; (4) be unmarried; and (5) be under the age of 18. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a)(1)-(5). Here, it is undisputed that Noah is unmarried and under the age of 18, and that his mother applied for surviving child’s benefits on his behalf. Further, under pertinent regulations, the agency will consider Noah to be the number holder’s dependent child if he is the number holder’s natural child. See 20 C.F.R. § 404.361(a). Thus, the only criterion we need to establish is whether Noah is the number holder’s natural child.

For purposes of surviving child’s benefits, a claimant is a number holder’s natural child if: (1) he could inherit property through intestate succession as the number holder’s natural child; (2) he is the number holder’s natural child, and the number holder and the claimant’s other parent participated in a ceremony that would have resulted in a valid marriage, except for a legal impediment; (3) he is the number holder’s natural child, and before the number holder’s death, the number holder acknowledged him as his child in writing; a court decreed the number holder to be the claimant’s parent; or a court ordered the number holder to contribute to the claimant’s support because the claimant is the number holder’s child; or (4) the number holder is the claimant’s natural parent and was either living with the claimant or contributing to his support at the time the number holder died. See 42 U.S.C. §§ 416(h)(2)(A)-(B), 416(h)(3)(A),(C); 20 C.F.R. § 404.355(a)(1)-(4). Based on the information we received, Megan and the number holder never married or participated in a ceremony that would have resulted in a valid marriage. Also no court decreed the number holder to be Noah’s parent or ordered the number holder to contribute to Noah’s support before the number holder’s death. Further, because Noah was born after the number holder’s death, the number holder never lived with him, contributed to his support, or acknowledged him as his child. Therefore, Noah does not qualify as the number holder’s natural child under tests two, three, or four. To prove that he is eligible for child’s insurance benefits on the number holder’s account, Noah must therefore show under test one that he could inherit property from the number holder through intestate succession.

To determine whether an applicant could inherit a deceased number holder’s property through intestate succession, the agency must apply the intestacy laws of the state in which the deceased number holder had his permanent home at the time of his death. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b). Since the number holder’s permanent home was in Texas when he died, Noah’s eligibility for survivor’s benefits on the deceased number holder’s account depends upon whether he could inherit property under Texas intestacy laws as the number holder’s child. See id.

The Texas intestacy laws are codified in the Texas Probate Code, which provides, in pertinent part, the framework for determining father-child relationships for inheritance purposes. See Tex. Prob. Code § 42(b). The Texas Legislature has repealed the Texas Probate Code and enacted the Texas Estates Code, which will become effective January 1, 2014. See Acts 2009, 81st Leg., ch. 680; Acts 2011, 82nd Leg., ch. 823 (H.B. 2759); and Acts 2011, 82nd Leg., ch. 1338 (S.B. 1198). The new provisions concerning maternal and paternal inheritance found in section 42 of the Texas Probate Code are contained in sections 201.051 and 201.052 of the Texas Estates Code.

For purposes of inheritance, a child is his biological Texas courts have held that proof of a biological link to the father was not required for child to be considered a “child of his biological father” and to inherit from testator under section 42(b) of the Probate Code. See Wilson v. Estate of Williams, 99 S.W.3d 640, 649-50 (Tex. App. – Waco 2003) (noting that a biological father also includes a man who has an adopted a child without a biological link); see also Spiers v. Maples, 970 S.W.2d 166 (Tex. App.—Fort Worth 1998) (non-biological child that testator adopted by estoppel was entitled to inherit from her). Thus, to be a number holder’s natural child pursuant to section 416(h)(2)(A), Texas law does not require the child to be the number holder’s biological child.

father’s child if: (1) he was born under circumstances described in section 160.201 Under section 160.201 of the Texas Family Code, a father-child relationship exists if: (1) an unrebutted presumption of paternity arises in a marriage; (2) the man acknowledges his paternity; (3) a court adjudicates the man’s paternity; (4) the man adopts the child; or (5) the man consents to assisted reproduction and his wife gives birth. See Tex. Fam. Code Ann. § 160.201(b)(1)-(5). Noah does not meet the methods described in (1), (2), (4), or (5) because he was not born under any of those circumstances. See id. of the Texas Family Code; (2) he was adjudicated to be the child of the father by court decree as provided by chapter 160 of the Texas Family Code; (3) the father adopted him; (4) the father executed an acknowledgement or like statement of paternity as provided by subchapter D of chapter 160 of the Texas Family Code; or (5) clear and convincing evidence establishes that the purported father was the biological father of the child. Id. The third and fourth methods set forth in the Texas Probate Code are not applicable in this case, as the number holder neither adopted Noah nor executed an acknowledgment of paternity. Thus, for Noah to establish he had a right to paternal inheritance from the number holder, it must be under the first, second, or fifth methods of section 42(b).

A. First and Second Method under Tex. Prob. Code § 42(b) – Adjudication of Paternity

The first and second methods of section 42(b) for determining father-child relationships under the Texas Probate Code recognize a child as an individual’s biological child if a court adjudicated the child’s paternity. See Tex. Prob. Code §§ 42(b); see also Tex. Fam. Code Ann. § 160.201(b)(3). Here, a Texas court issued an order that purports to adjudicate Noah’s parentage for all purposes. However, the order is not binding on the agency unless certain conditions are met.

Pursuant to Social Security Ruling (SSR) 83-37c, which adopts the Sixth Circuit Court of Appeals decision in Gray v. Richardson, 474 F.2d 1370, 1373 (6th Cir. 1973), the agency is bound by state court decisions if (1) an issue in a claim for Social Security benefits was previously adjudicated by a state court of competent jurisdiction; (2) the issue was genuinely contested before the state court by parties with opposing interests; (3) the issue falls within the general category of domestic relations law; and (4) the resolution by the state trial court is consistent with the law enunciated by the highest court in the state. Here, the Texas order adjudicating parentage does not bind the agency. As detailed below, while the order meets the first and third prongs of SSR 83-37c, we do not have enough information to determine whether it meets the second or fourth prongs.

1. First and Third Prongs of SSR 83-37c

Regarding the first prong of SSR 83-37c, the Texas court that issued the order (the Panola County Court at Law) is a court of competent jurisdiction having concurrent jurisdiction with the district courts on paternity issues. See Tex. Gov’t Code §§ 24.007, 24.008, 25.0003, 25.1851, 25.1852; Tex. Const. Art. 5, § 8. With respect to the third prong of SSR 83-37c, the order adjudicating parentage involves an issue within the general category of domestic relations law because it involves the issue of paternity. See Memorandum from Regional Chief Counsel, San Francisco, to Ass’t Reg. Comm. – MOS, San Francisco, Claim for Child’s Insurance Benefits on Account of Wage Earner Michael (Aug. 22, 2005) (“the issue of paternity falls within the general category of domestic relations law”). Thus, the order meets the first and third prongs of SSR 83-37c.

2. Second Prong of SSR 83-37c

We next look at whether the Texas court order adjudicating parentage meets the second prong of SSR 83-37c — that parties with opposing interests genuinely contested the issue before the state court. Under the Texas Family Code, the child’s mother and the man Texas courts considering the question of whether an alleged father’s paternity may be contested after his death have arrived at different conclusions. Compare In the Interest of A.S.L., 923 S.W. 2d 814 (Tex. App. – Amarillo 1996), Tipps v. Metropolitan Life Ins. Co. 768 F. Supp 577, 579 (S.D. Tex. 1991); Leal v. Moreno, 723 SW. 2d 322 (Tex. App. – Corpus Christi 1987), Manuel v. Spector, 712 S.W.2d 219, 220 (Tex. App. – San Antonio 1986) (parentage proceedings may be brought after an alleged father’s death) with In the Interest of G~, 794 S.W. 2d 875, 877, 879 (Tex. App. – Tyler 1990) (court held that a suit to determine paternity does not survive putative father’s death, noting that the notice provisions of the Family Code do not provide adequate notice to those persons most affected by the designation of the decedent as the child’s father).

whose paternity is to be adjudicated are necessary parties to a proceeding to adjudicate parentage. See Tex. Fam. Code Ann. §§ 160.602, 160.603; Frazier v. Hall, 2012 WL 2159271 at *2 (Tex. App. – Hous. 2012).

While it is unclear who Megan or the court noticed, the court referred to the number holder as “respondent.” The Texas Family Code states that the following are entitled to service of citation in an original paternity suit: managing and possessory conservators, a person having possession of or access to the child, a person required by law or order to provide for the child’s support, a guardian of the child or the child’s estate, each parent as to whom the parent-child relationship has not been terminated or process waived, an alleged father, a man who has filed a notice of intent to claim paternity, certain governmental agencies, and a prospective adoptive parent. Tex. Fam. Code section 102.009(a). The party seeking the paternity action or the court has the discretion to serve “any other person who has or who may assert an interest in the child.” Tex. Fam. Code section 102.009(b).

Tex. Fam. Code § 102.009(b) (party seeking the paternity action or the court has the discretion to serve “any other person who has or who may assert an interest in the child”). The court order indicated “[A]ll parties entitled to citation were properly cited” and that “no administration of the Estate of D~’has been filed, no personal representative of the estate has been appointed, and neither is necessary.” Agency records indicate that the court considered the number holder’s and Noah’s parents’ statements before issuing the Order Adjudicating Paternity. Megan did not submit these statements in support of her application for child’s benefits on Noah’s behalf on the number holder’s account. The Court’s finding that it did not need to appoint a representative for the deceased has support in Texas law. See Manuel v. Spector, 712 S.W.2d 219 (Tex. App. – San Antonio 1986) (court indicated that illegitimate child’s mother was real party in interest, but joined child’s deceased putative father’s mother as a party inasmuch as the court ordered her to undergo genetic testing); In the Interest of A.S.L., 923 S.W. 2d 814 (Tex. App. – Amarillo 1996) (indicating illegitimate child’s mother may bring action to establish paternity by alleged deceased father without naming or noticing additional parties); cf Tex. Fam. Code § 160.604 (an individual may not be adjudicated a parent unless the court has personal jurisdiction over the individual, but lack of jurisdiction over one individual does not preclude the court from making an adjudication of parentage binding on another). Therefore, we believe that the court order satisfied the second prong of SSR 87-37c.

3. Fourth Prong of SSR 83-37c

We do not have enough information to determine whether the Texas court order adjudicating parentage meets the fourth prong of SSR 83-37c — that the order is consistent with the law that the highest court in the state enunciated. A court order meets the fourth prong of SSR 83-37c if it is consistent with “the law of the state as declared by the supreme court of the state, or as it would have been decided by that court had the point been considered.” See Garcia v. Sullivan, 883 F.2d 18, 20 (5th Cir. 1989); Warren v. Secretary of Health & Human Servs., 868 F.2d 1444, 1447 (5th Cir. 1989). In analyzing the fourth prong of SSR 83-27c, we look to relevant portions of Texas law relating to genetic testing.

Texas Family Code Section 160.631(c)

Section 160.631(c) of the Texas Family Code states that a court may adjudicate a man as the child’s father where unrebutted genetic testing complying with section 160.505 Section 160.505 provides, in pertinent part: (a) a man is rebuttably identified as the father of a child under this chapter if the genetic testing complies with this subchapter and the results disclose: (1) that the man has at least a 99 percent probability of paternity, using a prior probability of 0.5, as calculated by using the combined paternity index obtained in the testing; and (2) a combined paternity index of at least 100 to 1. See Tex. Fam. Code Ann. § 160.505.

shows the man to be the child’s father. See Tex. Fam. Code Ann. § 160.631(c). Under Texas law, if the DNA testing and DNA test report satisfy the reliability and authenticity requirements, and the testing reveals at least a 99 percent probability of paternity with a combined paternity index of at least 100 to 1, a man is rebuttably identified as the child’s father. See Tex. Fam. Code § 160.505(a).

When the man has died and cannot provide a specimen for genetic testing, the court may consider the results of genetic testing of the man’s parents. See Tex. Fam. Code § 160.508(a)(1); see also Tipps v. Metropolitan Life Ins. Co., 768 F.Supp. 577, 579-80 (S.D. Tex. 1991) (after death of purported father, Texas court may draw inferences from grandparentage DNA testing to determine paternity). In the past, our office has opined that DNA tests of only one purported grandparent may be sufficient to establish a parent-child relationship with a deceased. See Memorandum from Regional Chief Counsel, Dallas, to Ass’t Reg. Comm., Dallas, Texas State Law Status of Child Based on Grandparent DNA Test, at 4 (July 28, 2009). However, grandparentage DNA testing and results must comply with Texas law requirements for genetic testing. Research revealed no Texas jurisprudence indicating that the required percentage of probability of paternity is less for single grandparentage testing. See Tex. Fam. Code § 160.505(a); accord Memorandum from Regional Chief Counsel, Dallas, to Ass’t Reg. Comm., Dallas - Texas State Law Status of Child Based on Grandparent DNA Test (July 28, 2009) (grandparentage DNA testing did not comply with Texas law where required certification was absent, report did not include relevant photographs, report did not identify each individual who collected the specimens, the places and dates the specimens were collected, the names of individuals who received the specimens in the testing laboratory, or the dates the laboratory received the specimens, and report showed a 97.67 percent probability that one of grandmother’s sons was child’s biological father, which is below the statutory probability threshold). In this case, the DNA test report assessing an 87.709 percent probability that the number holder’s mother was Noah’s paternal grandmother neither satisfied the reliability and authenticity requirements nor the probability provisions of the Texas Family Code.

In order to be reliable and authentic: (1) the genetic testing must take place in a laboratory accredited by the American Association of Blood Banks, the American Society for Histocompatibility and Immunogenetics, or another accrediting body the Secretary of the United States Department of Health and Human Services designates. See Tex. Fam. Code Ann. § 160.503(a); (2) a laboratory designee must sign the DNA report under penalty of perjury. See Tex. Fam. Code Ann. § 160.504(a); (3) testimony or documentation must establish a reliable chain of custody by: (a) the names and photographs of the persons whose specimens have been taken; (b) the names of the persons who collected the specimens; (c) the places and dates the specimens were collected; (d) the names of the persons who received the specimens in the testing laboratory; and (e) the dates the specimens were received. See Tex. Fam. Code Ann.§ 160.504(b). For the following reasons, the DNA report that Noah presented fails to meet Texas law requirements for establishing reliability and authenticity.

While the genetic testing took place at an accredited facility and the Assistant Paternity Laboratory Director certified the DNA analysis report, there is no evidence showing that the report complies with the chain of custody requirements. See Tex. Fam. Code Ann. §§ 160.503, 160.504. Specifically, there are no photographs of the individuals who supplied specimens for testing. See Tex. Fam. Code Ann. § 160.504(b)(1). Moreover, while the report provides the date the specimens were collected, it does not identify the date the laboratory received the specimens, the person(s) who collected or received the specimens, or the place(s) where the specimens were collected. See Tex. Fam. Code Ann. § 160.504(b)(2)-(5). Therefore, the testing does not satisfy Texas law requirements for establishing reliability and authenticity.

In addition, the probability of the DNA test results in this case is insufficient to establish paternity under Texas law. As noted, DNA test results establish paternity if they show at least a 99 percent of probability of paternity with a combined paternity index of at least 100 to 1. See Tex. Fam. Code Ann. §§ 160.503(a); 160.504; 160.505(a). Here, the DNA test results show only an 87.709 percent probability that the number holder’s mother was Noah’s paternal grandmother. Such probability is below the 99 percent probability threshold under Texas law for creating a rebuttable presumption of paternity and thus does not establish the number holder’s paternity. See Tex. Fam. Code Ann. § 160.505(a); accord Memorandum from Regional Chief Counsel, Dallas, to Ass’t Reg. Comm., Dallas - Texas Law – Status of Child Relationship Based on Deoxyribonucleic Acid Y Chromosome Test (March 8, 2011) (85.29 percent probability that one of grandmother’s sons was child’s biological father below the probability threshold that Texas requires to create rebuttable presumption of paternity); See Memorandum from Regional Chief Counsel, Dallas, to Ass’t Reg. Comm., Dallas - Texas Law – Status of Child Relationship (October 26, 2010) (96.88 percent probability that one of grandfather’s sons was child’s biological father below the probability threshold that Texas requires in order to create a rebuttable presumption of paternity); Memorandum from Regional Chief Counsel, Dallas, to Ass’t Reg. Comm., Dallas - Texas State Law Status of Child Based on Grandparent DNA Test (July 28, 2009) (grandparentage DNA testing did not comply with Texas law where report showed a 97.67 percent probability that one of grandmother’s sons was child’s biological father below the statutory probability threshold).

Since the DNA test report that the Panola County Court reportedly relied on meets neither Texas’ requirements for reliability and authenticity nor the threshold probability for creating a presumption of paternity, the court’s order does not satisfy section 160.301(c). Consequently, the order is not consistent with the law enunciated by the highest court in the state and the agency does not have to accept it under G~. In this case, the agency initially denied Megan’s application for child’s benefits on Noah’s behalf because the DNA report did not comply with Texas law. Megan then obtained a court order based, according to the evidence submitted, primarily on the DNA report that does not comply with Texas law. If the agency accepts a state court order determining a number holder’s paternity that is based on a deficient DNA report, individual’s seeking child’s benefits can circumvent agency policy and state requirements. See SSR 83-37c.

Texas Family Code Section 160.631(e)

The court’s order could still comply with SSR 83-37c’s fourth prong if the genetic testing report and other evidence submitted were consistent with section 160.631(e) of the Texas Family Code. Under section 160.631(e) of the Texas Family Code, if a Texas court finds that genetic testing does not identify or exclude the man as a child’s father, the results of the genetic testing along with other evidence are nonetheless admissible to adjudicate the issue of paternity. See Tex. Fam. Code Ann. § 160.631(e). While the statute does not speak to the standard of proof, our research reveals that it is clear and convincing evidence. See In Interest of A.S.L. 923 S.W.2d 814, 818 (Tex.App.–Amarillo,1996) (quantum of evidence by which a minor must prove paternity of a deceased individual is clear and convincing) citing Garza v. Maverick Market, Inc., 768 S.W.2d 273, 276 (Tex.1989) (actions brought under the Texas Wrongful Death Act, an illegitimate child must establish his paternity by the clear and convincing evidence standard) and Tex.Prob.Code Ann. § 42(b) (section 42 of the Probate Code also accords a child claiming to be the biological child of a decedent, who is not otherwise presumed to be a child of the decedent, the opportunity to establish paternity by the clear and convincing evidence standard). “The clear and convincing standard is the degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be proved.” Villery v. Solomon, 16 S.W.3d 106, 107 (Tex.App.–Houston, 2000), quoting In the Interest of G.M., 596 S.W.2d 846, 847 (Tex.1980); In the Interest of J.N.R., 982 S.W.2d 137, 141 (Tex.App.—Houston, 1998).

In this case, other than the DNA report and the Panola County Court Order Adjudicating Parentage, the evidence Megan submitted to the agency include her remarks that she lived with the number holder, his mother, and his two adult cousins from November 2009 until his death in September 2010; that she did not have sexual relations with anyone else during that time; that she was pregnant with Noah at the time of the number holder’s death; that she and the number holder had known about the pregnancy for two weeks prior to his death; that they had only told their parents about the pregnancy; and that they were planning to get married after the baby was born. Agency records also show that Megan stated that she had requested that the number holder’s mother and the two cousins give a statement, but that they had not committed to giving a statement and we note that Megan did not submit any statements in support of her application on Noah’s behalf. In addition, an uncertified copy of Noah’s original birth certificate shows that no father is named.

In a case where an individual brought suit under the Texas Probate Code to establish that she was a deceased’s heir, a Texas court found that although a DNA report did not establish paternity, the court considered the following evidence and found that clear and convincing evidence showed that individual was deceased’s biological child: adult child’s testimony that she had known that the deceased was her father from the time she was born and that she knew the deceased’s sisters as her aunts and was introduced as the deceased’s daughter; deceased’s aunt testimony by deposition that deceased told her that individual was his child; deceased’s sisters testimony by deposition that deceased told them that individual was his daughter; witnesses testimony that the deceased had not informed them that the individual was his daughter. (Cite as: 16 S.W.3d 106, *109)

V~, 16 S.W.3d at 108-109. Megan indicated that she requested that family members provide supporting statements, but she did not submit them to the agency. Contrary to the evidence presented in V~, we conclude that Megan has not produced evidence in this case to establish by clear and convincing evidence under section 160.631(e) of the Texas Family Code that Noah is the number holder’s child.

B. Fifth Method under Tex. Prob. Code § 42(b) – Clear and Convincing Evidence

Finally, we look under section 42(b)(5) of the Texas Probate Code to whether the documentation in support of Noah’s claim for surviving child’s benefits establishes by clear and convincing evidence that the number holder was Noah’s biological father. See Tex. Prob. Code § 42(b)(5). As stated above, “[t]he clear and convincing standard is the degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be proved.” V~, 16 S.W.3d at 107; see also Tex. Fam. Code Ann. § 101.007. Here, other than statements she made to the agency, Megan initially submitted only the DNA report and the Panola County Court Order Adjudicating Parentage. After the agency inquired whether Megan had requested that the Bureau of Vital Statistics amend Noah’s amended birth certificate based on the Panola Court Order naming the number holder as Noah’s father, Megan submitted the amended document to support Noah’s application for child benefits.

Agency records show that Megan stated that she had been living with the number holder, his mother, and two adult cousins from November 2009 until his death in September 2010; that she did not have sexual relations with anyone else during that time; that she was pregnant with Noah at the time of the number holder’s death; that she and the number holder had known about the pregnancy for only two weeks prior to his death; that they had only told their parents about the pregnancy; and that they were planning to get married after the baby was born. As discussed above, the DNA report does not comply with Texas law and the agency is not bound by the state court order. Agency records show that three other children are entitled to child’s benefits on the number holder’s record, but that Megan is not listed as the mother or representative payee for any of the other children. Megan submitted Noah’s October 2012 amended birth certificate to the agency and asked the agency to change Noah’s Numident record in late March or early April 2013. However, the amended birth certificate and Numident change were based on the Panola County Court order which, as explained above, does not comply with Texas law. See Tex. Fam. Code Ann. §§ 160.503, 160.504, 160.505. When a court renders an order adjudicating parentage, it may order that a child’s name be changed “[o]n request of a party and for good cause shown” and if the court determines that the name change is “in the child’s best interest.” Tex. Fam. Code section 160.636. Section 160.636 does not define good cause, but courts have referenced Black’s Law Dictionary’s definition that “good cause” is a “legally sufficient reason.” In re A.W.G., 2011 WL 3795237 at *2-3 (Tex. App. – Fort Worth, 2011); In re S.M.V., 287 S.W.3d 435, 448 (Tex. App. – Dallas, 2009). In addition, courts have considered a nonexclusive list of factors to consider whether a name change is in a child’s best interest, including whether: the changed name or the original name would best avoid embarrassment, inconvenience, or confusion for the custodial parent; whether the changed name or original name would best help identify the child with the family unit; the length of time that the child has carried the original name; the degree of community respect associated with the original and changed names; whether the change would positively or adversely affect the bond between the child and either parent or the parents’ families; the preference, maturity, and age of the child; parental misconduct; any delay in requesting the name change, whether the parent seeking the name change is motivated by an attempt to alienate the child from the other parent; and, assurances by the parent whose surname the child will bear that the parent will not change his or her surname at a later time. Id.; In re S.M.V., 287 S.W.3d at 449-50; In re M.C.F., 121 S.W.3d 891, 897-98 (Tex. App. – Fort Worth, 2003). The court relied, in part, on the deficient DNA report to determine that the number holder was Noah’s father and that the Bureau of Vital Statistics could change his birth certificate to reflect the number holder’s name. Because the DNA report did not comply with Texas law, the change in the birth certificate is not determinative. Moreover, an uncertified copy of Noah’s original birth certificate shows that no father is named. As such, we do not believe that the totality of the evidence shows by clear and convincing evidence that the number holder was Noah’s biological father, as section 42(b)(5) requires. See Tex. Prob. Code § 42(b); see e.g., Slaton v. Slaton, 987 S.W.2d 180, 183 (Tex. App.—Houston [14th Dist.] 1980) (finding in the context of Texas property law that a self-serving statement did not amount to clear and convincing evidence).