TN 58 (09-17)

PR 01105.049 Utah

A. PR 17-134 Surviving Child Benefits – Number Holder Deceased After CL's Birth

Date: August 7, 2017

1. Syllabus

In this case, neither the state court order nor the amended birth certificate establishes paternity. The agency is not required to honor the Utah state court order establishing paternity because it fails at least two of the four prerequisites of Social Security Ruling 83-27c (adopting Gray v. Richardson). The issue was not genuinely contested before the state court by parties with opposing interests, and the order is not consistent with the law enunciated by the Utah Supreme Court because it does not appear to be supported by clear and convincing evidence.

A man’s name on a child’s birth certificate creates a presumption of paternity, but only if he consented to be named as the child’s father on the child’s birth certificate. The NH was deceased when the birth certificate was amended, and there is no evidence that the NH consented to be declared the child’s father before his death.

2. Opinion

Question Presented

You asked whether E~ (E~) would be considered the child of number holder J~ (NH), where E~’s mother submitted a Utah court order decreeing that the NH was E~’s father and an amended birth certificate designating the NH as E~’s father. You also asked, if E~’s mother establishes paternity, whether that finding is retroactive.

Short Answer

No, neither the court’s order nor the amended birth certificate establishes paternity. The NH was decreed E~’s father only after his death in an uncontested proceeding that was inconsistent with the law enumerated by Utah’s highest court, and there is no evidence that the NH ever consented to be named as the father on the amended birth certificate. However, if E~ could establish paternity, she would be considered the NH’s daughter from birth.

Background

E~ was born in August 2003. The NH died in May 2009. At the time, he was domiciled in Utah. There is no evidence the NH ever acknowledged E~ as his child: when the NH himself applied for disability benefits, he did not claim to have any children, and two of his applications were filed after E~ was born. In addition, the NH’s mother filed a claim for deceased beneficiary benefits, and indicated that the NH did not have any children.

E~’s original birth certificate did not list the NH as her father. The NH and E~’s mother were never married, and E~’s mother was not married to anyone else when E~ was born. In an effort to establish paternity and amend E~’s birth certificate, E~’s mother petitioned a Utah state court to decree E~ as the NH’s daughter. In February 2016, almost seven years after the NH’s death, a Utah state court entered an order declaring the NH to be E~’s father. In June 2016, Utah’s Office of Vital Records issued an amended birth certificate, listing the NH as E~’s father.

Discussion

  1. 1. 

    The Utah Court order and amended birth certificate do not establish paternity for purposes of social security benefits

Court order

Because the NH was domiciled in Utah at the time of his death, the agency looks to Utah state intestacy law to determine whether E~ was his child such that she could be eligible for survivor’s benefits. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a).[1] Under the Utah probate code, a parent-child relationship is defined by the Utah Uniform Parentage Act. Utah Code Ann. § 75-2-114, see id. §§ 78B-15-101 to -902.

As relevant here,[2] under the Utah Uniform Parentage Act, a father-child relationship can be established by “an adjudication of the man’s paternity.” Utah Code Ann. § 78B-15-201(2)(c). The standard of proof for paternity is “clear and convincing evidence.” Utah Code Ann. § 78B-15-112. Genetic testing may serve as clear and convincing evidence under certain circumstances. See Utah Code Ann. § 78B-15-505, -617(2); POMS GN 00306.645. Genetic testing is the only specific method identified by the Utah Uniform Parentage Act for establishing paternity outside of marriage or an actual admission of paternity. See Utah Code Ann. § 78B-15-617; see also id. §§ 78B-15-601 to -623 (discussing adjudication of parentage).

Here, a Utah court has declared the NH to be E~’s father, which is facially sufficient under Utah law to establish paternity. Utah Code Ann. § 78B-15-201(2)(c). However, the agency should not honor the court’s order. The agency is required to accept a state court’s determination only if it meets four prerequisites:

  1. 1. 

    The issue has previously been determined by a state court of competent jurisdiction;

  2. 2. 

    The issue was genuinely contested before the state court by parties with opposing interests;

  3. 3. 

    The issue falls within the general category of domestic relations law; and

  4. 4. 

    The resolution by the State trial court is consistent with the law enunciated by the highest court in the state.

Social Security Ruling (SSR) 83-27c (adopting Gray v. Richardson, 474 F.2d 1370, 1373 (6th Cir. 1973)).

With respect to the first factor, it is unclear whether a Utah court would have proper jurisdiction to adjudicate whether the NH was E~’s parent. Under Utah law, “[a] individual may not be adjudicated to be a parent unless the tribunal has personal jurisdiction over the individual,” and here the NH was deceased at the time of the adjudication. Utah Code Ann. § 78-15-604. Nevertheless, we need not fully resolve this issue since we otherwise conclude that the court order does not meet the second and fourth Gray factors.

The second Gray factor has not been met because the issue was not genuinely contested before the state court by parties with opposing interests. Id. The NH had been deceased for nearly seven years when the order was issued, and there is no evidence that his interests were otherwise represented in the state court proceeding.

The fourth Gray factor also has not been met. The trial court’s order is not consistent with the law enunciated by the Utah Supreme Court because it does not appear to be supported by clear and convincing evidence. The Utah Supreme Court has defined clear and convincing evidence as such evidence that “there remains no serious or substantial doubt as to the correctness of the conclusion.” Kirchgestner v. Denver & R.G.W.R. Co., 233 P.2d 699, 700 (Utah 1951). As noted, the only specific method set forth in state law for establishing paternity is genetic testing. It does not appear that E~’s mother submitted genetic testing or any other evidence, let alone “clear and convincing” evidence, to the Utah state court to prove that the NH was E~’s father. The court’s findings of fact and conclusions of law state simply that the NH is E~’s biological and legal father, with no reference to any exhibits or other evidence it may have relied upon for this factual finding. Similarly, in a statement to the agency, the NH’s mother indicated that she merely completed a form from the Office of Vital Records in petitioning the court for a paternity determination. Moreover, there is at least some evidence suggesting the NH was not E~’s father: in multiple applications for benefits, the NH indicated that he had no children; and in his mother’s claim for deceased beneficiary benefits, she likewise indicated that the NH had no children.

Amended Birth Certificate

Along with the February 2016 court order, E~’s mother has provided an amended birth certificate, issued by the state of Utah in June 2016 and designating the NH as E~’s father. We conclude that the amended birth certificate is not sufficient to establish paternity. A man’s name on a child’s birth certificate creates a presumption of paternity, but only if “he agreed to be and is named as the child’s father on the child’s birth certificate.” Utah Code Ann. § 78-15-204(1)(d); see also, POMS GN 00306.120(B) (information cannot be inferred from a birth certificate if it was issued from a state requiring proof of consent from father to be named on birth certificate or court determination of paternity). Since the NH and E~’s mother were never married, to have properly consented to be on E~’s birth certificate, the NH would have had to sign a voluntary declaration of paternity. Utah Code Ann. § 26-2-5(7). There is no evidence that the NH ever signed any such declaration before his death in 2009.

2. If paternity is established by clear and convincing evidence, E~ would be considered the NH’s child from the date of her birth

Assuming E~ could establish paternity, you asked whether there is “retroactive[ity]” under state law. Under POMS GN 00306.055(A)(3), which addresses illegitimate children, an act conferring inheritance rights generally has effect only from the date of such event. However, Utah does not distinguish between legitimate and illegitimate children. Once paternity is established by clear and convincing evidence, the child has the same rights as a child born to married parents, including the right to inherit through intestate succession. Utah Code Ann. § 78B-15-202. This means an adjudication of paternity relates back to birth.

Conclusion

Because the Utah state court order establishing paternity fails at least two of the four prerequisites that would require the agency to honor it, the agency is not bound by it. In addition, there is no evidence the NH ever agreed to be named on amended birth certificate. As the court’s order and the amended birth certificate are the only evidence of paternity, E~ has not proved by clear and convincing evidence that she is the surviving child of the NH.

B. PR 11-073 Relationship of Child to the NH Based on DNA Testing in the State of Utah, NH – Robert M~ – Reply

DATE: March 14, 2011

1. SYLLABUS

A child was allegedly born to the NH, a resident of Logan, Utah, and the mother, on May XX, 2010. The birth certificate listed the mother’s information, but provided no information about the child’s father. No information was provided about the time of conception, and it was understood or assumed that the child was carried to full term. At the time of conception, and at all times afterward, the mother and the NH were not married. On August XX, 2009, less than a month after the child was presumably conceived, the NH died due to liver damage.

During the August 2009 autopsy, a specimen of the NH’s biological material was preserved. On August 3, 2010, biological material was collected from the child and her mother as part of a DNA test intended to establish the NH as Capri’s father. On August 7, 2010, DD DNA Diagnostics Center issued a report describing the paternity test performed on all three parties’ biological material. The DNA test reported a combined paternity index of 1,512,220 and a Probability of Paternity of 99.9999%.

Under Utah state law, a presumption of paternity is established by a reliably administered genetic test which concludes that the presumed father has a combined paternity index of greater than 100 to 1, and a probability of paternity of at least 99%. Here, the test results exceed these requirements, and the NH is the presumed father of the child. We have no information to suggest the presumption could be rebutted, and based on this information, a Utah court would conclude the NH is the child’s father under the Utah Uniform Parentage Act.

2. OPINION

QUESTIONS PRESENTED

You asked whether Utah will accept a paternity probability or if there is an interpretation of the combined paternity index which could be used to establish the paternity of Capri A. O~ (hereinafter “the child”), the alleged child of Robert M. M~ (hereinafter “NH”) and Meghan I. O~ (hereinafter “the mother”). Additionally, you asked whether the child would be a child of the NH based on the results of the genetic testing and Utah state law.

SHORT ANSWER

Under Utah state law, the NH would be presumed to be the father of Capri A. O~, unless that presumption of paternity could be rebutted by a different genetic test. Because we have no information indicating the presumption can be rebutted, a Utah court would likely conclude that the NH is the child’s father.

BACKGROUND

According to the information you provided, the child was allegedly born to the NH, a resident of Logan, Utah, and the mother, on May XX, 2010. The birth certificate listed the mother’s information, but provided no information about the child’s father. You provided no information about the time of conception, and you stated that you understood or assumed that the child was carried to full term. At the time of conception, and at all times afterward, the mother and the NH were not married. On August XX, 2009, less than a month after the child was presumably conceived, the NH died due to liver damage.

During the August 2009 autopsy, a specimen of the NH’s biological material was preserved. On August 3, 2010, biological material was collected from the child and her mother as part of a DNA test intended to establish the NH as Capri’s father. On August 7, 2010, DD DNA Diagnostics Center issued a report describing the paternity test performed on all three parties’ biological material. The DNA test reported a combined paternity index of 1,512,220 and a Probability of Paternity of 99.9999%.

DISCUSSION

Because the NH was domiciled in Utah at the time of his death, the agency applies Utah state intestacy law to determine the relationship between the NH and the child. 42 U.S.C. § 416(h)(2)(A) (2010); 20 C.F.R. § 404.355(b)(4) (2010); Program Operations Manual System (POMS) GN 00306.001(C)(2)(a). Under the Utah statute concerning intestate succession, an individual is the child of the individual’s natural parents, regardless of marital status, and the parent and child relationship may be established for inheritance purposes as provided in the Utah Uniform Parentage Act. Utah Code Ann. 75-2-114(1).

Under the Utah Uniform Parentage Act, the father-child relationship can be established in a number of ways; as applicable here, the relationship can be established by an adjudication of paternity. Utah Code Ann. § 78B-15-201(2)(c) (2010).[3] Even though Utah law requires an actual adjudication of paternity, an adjudication is not require for Social Security purposes if paternity can be established using the standard of proof that a Utah court would apply. 20 C.F.R. § 404.355(b)(2). Under Utah law, the standard of proof in an adjudication of paternity is “by clear and convincing evidence.” Utah Code. Ann. § 78B-15-112.

A genetic test may be used as evidence of paternity when a reliable report is issued with results meeting the statute’s presumption of paternity. UTAH CODE ANN. §§ 78B-15-503, 78B-15-505. A reliable genetic test must be “of a type reasonably relied upon by experts in the field of genetic testing and performed in a testing laboratory accredited by . . . the American Association of Blood Banks” or another accrediting body listed in the statute, and may use a specimen consisting of a variety of bodily tissues or fluids. UTAH CODE ANN. § 78B-15-503(1)(a), (2).

Under section 78B-15 of the Utah Code, “a man is presumed to be identified as the father of a child” if the test results disclose that the man has a probability of paternity of 99% or higher, and a combined paternity index of at least 100. See UTAH CODE ANN. § 78B-15-505(1). Results meeting these two thresholds may be rebutted only by other genetic testing, which either excludes the man as the father of the child, or identifies another man as a possible father of the child (by also meeting the above requirements). UTAH CODE ANN. § 78B-15-505(b); see also POMS GN 00306.645 (presumption of paternity created by genetic test yielding paternity index of at least 100). [4]

Here, the DNA test results meet the statutory requirements for reliability. DD DNA Diagnostics Center is a member of the American Association of Blood Banks, and it used tissue samples from the NH, the mother, and the child , as required by Utah Code Ann. § 78B-15-503. The test report reflects that the NH is not excluded as the father, that the NH’s combined paternity index is 1,512,220 (well in excess of the statutory requirement of 100 or greater) and that the NH has a probability of paternity of 99.9999% (well in excess of the statutory requirement of 99% or greater). Thus, the genetic test results are sufficient to establish that the NH is the presumed father of the child under Utah Code Ann. § 78B-15-505(1)(a)-(b). Further, this presumption can be rebutted only by other genetic tests that either exclude the NH as the father, or identify another man as the possible father. We have no information suggesting that there are any other genetic test results that could rebut the presumption of paternity here. And if a presumption of paternity is not rebutted, “the tribunal shall issue an order establishing paternity.” Utah Code Ann. § 75-15-505(4). Based on this information, a Utah court would conclude the NH is the child’s father under the Utah Parentage Act.

CONCLUSION

Under Utah state law, a presumption of paternity is established by a reliably administered genetic test which concludes that the presumed father has a combined paternity index of greater than 100 to 1, and a probability of paternity of at least 99%. Here, the test results exceed these requirements, and the NH is the presumed father of the child. We have no information to suggest the presumption could be rebutted, and based on this information, a Utah court would conclude the NH is the child’s father under the Utah Uniform Parentage Act.

John J. L~
Acting Regional Chief Counsel Region VIII

By: Thayne W~

Assistant Regional Counsel


Footnotes:

[1]

. Paternity could also be established under the Act alone if the NH acknowledged paternity or was decreed by a court as the father prior to his death, 42 U.S.C. § 416(h)(3)(C), but there is no evidence this provision applies in this case.

[2]

. Utah’s Uniform Parentage Act also establishes rebuttable presumptions of paternity when a child is conceived during or shortly before or after a valid or invalid marriage, the man declared he was the child’s father, the man adopts the child, or the child was born as part of an assisted reproduction or gestational agreement. See Utah Code Ann. §§ 78B-15-201 & -204. These other avenues to establish paternity are not at issue here.

[3]

All Statute references are to the 2010 statutes.

[4]

We note that this POMS provision does not accurately reflect current Utah law, which requires both a combined paternity index of at least 100 and at least a 99% probability of paternity. See Utah Code Ann. § 78B-15-505(1)(a)-(b). The POMS refers only to the paternity index requirement. See POMS GN 00306.645. We recommend that the POMS be updated to reflect the current statutory requirements for a presumption based on genetic testing. Further, we note that Utah statutes refer to the requirement for a “combined paternity index,” while the POMS only references a “paternity index.” We recommend that the POMS language track the statutory language.


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http://policy.ssa.gov/poms.nsf/lnx/1501105049
PR 01105.049 - Utah - 09/14/2017
Batch run: 09/15/2017
Rev:09/14/2017