TN 52 (11-16)

PR 01105.053 Washington

A. PR 16-133 Evaluation for payment of benefits: Child born after death of NH with full-siblingship DNA evidence supporting parent-child relationship

Date: May 20, 2016

1. Syllabus

The number holder (NH) was domiciled in Washington at the time of his death, therefore, the agency applies Washington State law to determine if the child is the child of the NH. Washington’s Uniform Parentage Act provides for the establishment of a parent-child relationship via adjudication. The Washington state law has various requirements for genetic testing, including: (1) the testing must be performed by an accredited laboratory, (2) the report of genetic testing must be signed under penalty of perjury by a designee of the testing laboratory, and (3) the report of genetic testing must include a reliable chain of custody. In this case, the report of genetic testing and the record as a whole does not contain sufficient evidence to support the reliability of the testing to establish paternity by a preponderance of the evidence using the report.

An applicant can be deemed a child under the Act if his parents went through a marriage ceremony that turned out to be legally invalid. Alternatively, an applicant can be deemed to be a child under the Act where prior to the NH’s death. Based on the facts provided, the claimant cannot be deemed a child of the NH under sections 416(h)(2)(B) and 416 (h)(3)(C) of the Act. The evidence submitted to the agency is insufficient to establish that the NH is the claimant’s father under the Social Security Act (the Act); therefore, the claimant is not entitled to child survivor’s benefits on the NH’s record.

2. Opinion

Question Presented

Is K~ (claimant) entitled to child survivor’s benefits on the record of number holder T~ (NH) based on the DNA evidence submitted? If so, what is the effective filing date of the application?

Short Answer

No. The evidence submitted to the agency is insufficient to establish that the NH is the claimant’s father under the Social Security Act (the Act). As a result, the claimant is not entitled to child survivor’s benefits on the NH’s record.

Background

The opinion below assumes the following facts are accurate. The claimant was born on October XX, 2008. His NUMIDENT shows the father as unknown. His mother J~ began receiving disability insurance benefits in December 2002, and the claimant has received auxiliary child benefits on his mother’s record since his birth.

The NH and J~ had at least one child together, K2~, born in 2002. Paternity for that child was previously established. K2~’s NUMIDENT lists the NH as his father. K2~ received auxiliary child benefits on his mother’s record until the NH’s death on August XX, 2008, when he started to receive benefits as a surviving child on the NH’s record.

J~ first contacted SSA about surviving child benefits for the claimant on August 18, 2015, but did not file an application until January XX, 2016. At the time of application, J~ provided a DNA test report dated December XX, 2015, for herself, the claimant, and K2~ showing a probability of 99.999996% full siblingship between the children.

This opinion assumes there are no other pertinent facts about the relationship between the NH, the claimant, or the claimant’s mother. For instance, the opinion assumes the NH and J~ were never married or never went through a legally invalid marriage ceremony; the NH and J~ did not live together when J~ was pregnant with the claimant; the NH was not contributing to the support of the claimant at the time of his death; the NH never acknowledged paternity of the claimant in writing; the NH was neither decreed to be the claimant’s father nor ordered to contribute to the support of the claimant by a court; and the claimant was not the legally adopted child, stepchild, or equitably adopted child of the NH.

Discussion

Federal Law on Child’s Benefits

The Act provides that the child of an insured individual who dies fully or currently insured is entitled to benefits if he has applied for benefits, is unmarried and under 18, and was dependent on the insured individual at the time his application was filed. See 42 U.S.C. § 402(d); 20 C.F.R. § 404.350. To qualify as the child of an insured individual, the child must be the natural child, legally adopted child, stepchild, grandchild or stepgrandchild, or equitably adopted child of the insured individual. See 20 C.F.R. §§ 404.350(a), 404.355-.359.

In this case, the relevant inquiry is whether the claimant qualifies as the NH’s natural child under the Act. An applicant can qualify as the natural child of an insured individual if the child could inherit the individual’s personal property as his child under the intestacy laws (i.e., the laws that apply when the decedent has no will) of the state in which the individual was domiciled at the time of his death. See 42 U.S.C. §§ 416(e), 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1). If the applicant qualifies as the insured individual’s child, he is deemed dependent upon the individual for purposes of determining eligibility for child’s benefits. See 20 C.F.R. § 404.361(a).

“The place where a man lives is properly taken to be his domicile until facts adduced establish the contrary.” District of Columbia v. Murphy, 314 U.S. 441, 455 (1941) (citations omitted). Lacking any evidence to the contrary, we take Washington to be NH’s domicile at the time of his death. The agency applies the version of State law that is most beneficial to the claimant. 20 C.F.R. § 404.355(b)(4). Although the agency does not require that a state adjudication of parentage have taken place prior to applying the state’s intestacy laws, the agency does require evidence sufficient to meet the “the standard of proof that the State court would use as the basis for a determination of paternity.” Id. § 404.355(b)(2); see Program Operations Manual System (POMS) GN 00306.665.A.

When a claimant cannot establish that he is the wage earner’s child under state intestate succession laws, the Act allows alternative avenues to establish child status for survivorship benefits. See 42 U.S.C. §§ 416(h)(2)(B), 416(h)(3)(C)(i)(I)-(III). To qualify as “the child” of a deceased insured individual under 42 U.S.C. § 416(h)(3)(C), a claimant must be the son or daughter of the insured individual and meet one of several other requirements. See 42 U.S.C. § 416(h)(3)(C); 20 C.F.R. § 404.355(a)(3), (a)(4); POMS GN 00306.100.A, B. To show he or she is the son or daughter of an insured individual, the claimant must show he or she is the biological child of the insured individual. See POMS GN 00306.100.D.1.

Washington State Law

Washington law provides that an intestate estate shall descend to a decedent’s spouse and issue. Wash. Rev. Code § 11.04.015(2)(a) (2015).1 “Issue” means all the lineal descendants of an individual and, therefore, includes children. Wash. Rev. Code § 11.02.005(8). Washington law specifically provides that “[a] child conceived prior to the death of a parent but born after the death of the deceased parent is considered to be the surviving issue of the deceased parent . . . .” Id.; see also id. § 11.04.081 (noting the parent-child relationship does not depend on the parents being married); see Matter of Estate of Sherry, 698 P.2d 94, 99 (Wash. App. 1985) (holding that paternity can be determined within a probate proceeding if the procedure of the Uniform Parentage Act is incorporated into the proceeding); Rabb v. Estate of McDermott, 803 P.2d 819, 822 (Wash. App. 1991) (providing that “it is clear from the language of [Wash. Rev. Code §] 26.26.080(3) that the Legislature intended that a paternity action survives the putative father’s death”). Thus, if the claimant is the NH’s child under Washington law, then the claimant would be entitled to inherit through intestacy and would therefore meet the Act’s definition of “child.”

Washington’s Uniform Parentage Act provides for the establishment of a parent-child relationship via adjudication. Wash. Rev. Code § 26.26.101(2); see also id. § 26.26.505 (authorizing civil proceeding to adjudicate the parentage of a child). Genetic testing is admissible evidence in such adjudications. Id. § 26.26.570. Washington law anticipates that genetic samples may be taken from individuals other than the purported father. See id. §§ 26.26.405(1)(“other designated individuals”), 26.26.435 (providing for testing of “other children of the man and their mothers”). When genetic testing establishes parentage, the man identified as the father of the child is adjudicated to be the father of the child unless the results of another genetic test rebut the results of the first test. Id. § 26.26.600(2); see also id. § 26.26.420 (providing how a person is rebuttably identified as the parent of a child); see also POMS GN 00306.665.C (discussing Washington’s intestacy laws).

In the present case, the agency has not been presented with any evidence of adjudication of parentage. Thus, the agency applies Washington’s standards of proof for such an adjudication. Washington has various requirements for genetic testing, including: (1) the testing must be performed by an accredited laboratory, Wash. Rev. Code § 26.26.410(1); (2) the report of genetic testing must be signed under penalty of perjury by a designee of the testing laboratory, id. § 26.26.415(1); and (3) the report of genetic testing must include a reliable chain of custody, including testimony or documentation showing:

(a) The names and photographs of the individuals whose specimens have been taken;

(b) The names of the individuals who collected the specimens;

(c) The places and dates the specimens were collected;

(d) The names of the individuals who received the specimens in the testing laboratory; and

(e) The dates the specimens were received.

Id. § 26.26.415(2). In other words, a testing report that satisfies the above criteria and establishes paternity constitutes a preponderance of evidence establishing paternity. State on Behalf of McMichael v. Fox, 937 P.2d 1075, 1078 (Wash. 1997) (explaining that “[t]he appropriate burden of proof in paternity actions under [Wash. Rev. Code §] 26.26 is preponderance of evidence”).

Here, it appears that DDC/DNA Diagnostics Center is accredited by AABB, which meets the accreditation requirements for the State of Washington.2 Wash. Rev. Code § 26.26.410(1). The report of genetic testing, however, fails to satisfy the declaration and chain of custody provisions. The declaration states, “I, the undersigned Laboratory Director, verify that the interpretation of the results is correct as reported on 12/XX/2015.” Although signed and notarized, this statement was not made under penalty of perjury and is not an equivalent “oath” under Washington law. See Wash. Rev. Code §§ 9A.72.010(2), 9A.72.085. Further, besides the dates that the specimens were collected, there is no documentation or testimony supporting a reliable chain of custody. Consequently, there is insufficient evidence to meet “the standard of proof that [a Washington] State court would use as the basis for a determination of paternity.” 20 C.F.R. § 404.355(b)(2); see POMS GN 00306.665.A.

To be clear, the fact that a report of genetic testing itself does not satisfy the criteria set forth above may not be fatal to a claim for benefits in all cases. It is well-recognized that chain of custody and foundation go to the weight of the evidence, not the ability to use the evidence. See, e.g., State v. Lui, 315 P.3d 493, 504 (Wash. 2014), cert. denied, 134 S. Ct. 2842 (2014) (stating, “gaps in the chain of custody go to the weight of the evidence and not the admissibility”); Johnston-Forbes v. Matsunaga, 311 P.3d 1260, 1265 (Wash. App. 2013), aff'd, 333 P.3d 388 (Wash. 2014) (stating the challenge to “testimony for lack of foundation go to the weight of the evidence, not its admissibility”). Indeed, United States Courts of Appeal have applied genetic testing in cases in which the chain of custody is imperfect. See, e.g., United States v. Brooks, 727 F.3d 1291, 1299 (10th Cir. 2013); United States v. Vallie, 284 F.3d 917, 920 (8th Cir. 2002). Nevertheless, the problem here is that the report of genetic testing (and the record as a whole) does not contain sufficient evidence to support the reliability of the testing much less to establish paternity by a preponderance of the evidence using the report.

Had the report been reliable, it appears the results would have established a parent-child relationship between the claimant and NH. Washington law recognizes that parentage has been established if genetic testing shows (a) “at least a ninety-nine percent probability of parentage, using a prior probability of 0.50, as calculated by using the combined parentage index obtained in the testing” and (b) “a combined parentage index of at least one hundred to one.” Wash. Rev. Code § 26.26.420(1). Although the report of genetic testing here does not yield a “combined parentage index” per se, we believe a Washington court would likely accept a calculation of “full-siblingship”—meaning both siblings share the same parents—as functionally equivalent. Here, the probability of full-siblingship is 99.999996% and the likelihood of sharing the same biological father is 26,410,494 to 1. The probability of full siblingship was calculated using a prior probability of 0.50. Thus, because there is no dispute that NH is K2~’s father, a reliable report of genetic testing establishing that the claimant has full siblingship with K2~ would be sufficient to establish NH is the claimant’s father. See State ex rel. Wise v. Taylor, 828 P.2d 1143, 1144 (Wash. App. 1992) (stating that “obviously, a 99.55 percent probability of paternity, when not contraindicated by other evidence . . . , far exceeds the applicable standard of proof by a preponderance of the evidence”).

Alternatives to State Law Under the Act

When a claimant cannot establish that he is the wage earner’s child under state intestate succession laws, the Act allows alternative avenues to establish child status for survivorship benefits. An applicant can be deemed a child under the Act if his parents went through a marriage ceremony that turned out to be legally invalid. 42 U.S.C. § 416(h)(2)(B). Alternatively, an applicant can be deemed to be a child under the Act where prior to the NH’s death (1) the NH acknowledged paternity in writing, (2) the NH was decreed a parent by a court, or (3) the NH was ordered by a court to contribute to the support of the applicant. 42 U.S.C. § 416(h)(3)(C)(i)(I)-(III). Finally, an applicant can be deemed a child under the Act if the NH was living with or contributing to the support of the child at the time the NH died. 42 U.S.C. § 416(h)(3)(C)(ii). The agency construes this provision to apply even if the NH was living with or contributing to the support to a child still in the womb. Based on the facts provided, none of these alternative avenues apply. Therefore, we find that the claimant cannot be deemed a child of the NH under sections 416(h)(2)(B) and 416 (h)(3)(C) of the Act.

Effective Date of the Claim

It is evident that J~ obtained child benefits for the claimant based on her disability insurance benefits shortly after the claimant was born in 2008. Generally, an application “cover[s] all classes of benefits for which the claimant is eligible on all SSNs regardless of the title of the application unless it is specifically limited by the claimant.” POMS GN 00204.020.A. Nevertheless, there does not appear to be a basis to reopen this earlier determination. See 20 C.F.R. § 404.988. Although NH was deceased when the claimant was born, it is not clear whether the claimant’s entitlement to child benefits based on the father’s insured status was explored at this time. See POMS GN 00204.022. Absent evidence that the claimant failed to seek benefits based on the father’s insured status as a result of misinformation provided by the agency, there is no basis to treat this 2008 application as the effective date for the present claim. See POMS GN 00204.008 (discussing 42 U.S.C. § 402(j)).

Thus, we look to J~’s contact with the agency in August 2015. There is no indication that a written statement was submitted in August 2015 to make this the protective filing date. See POMS GN 00204.010.A.1. Absent evidence that the claimant failed to seek benefits based on the father’s insured status as a result of misinformation provided by the agency at this time, August 2015, cannot be the effective filing date. See POMS GN 00204.008.G.1.

Thus, had paternity been established in this matter, we would treat J~’s application, dated January XX, 2016, as the effective filing date.

Conclusion

As set forth above, the claimant is not entitled to child survivor’s benefits on the record of the NH because paternity has not been established by a preponderance of evidence.

B. PR 16-121 Relationship of a child to a number holder in the State of Washington

Date: May 3, 2016

1. Syllabus

The evidence suggests that the number holder’s (NH) domicile is Washington; therefore, we look to the Washington intestacy laws to determine the parent-child relationship between the NH and claimant. Under the Washington law, a person is presumed to be the parent of a child if the child is born while the person is married to the child’s mother or father, if the child is born within 300 days of the dissolution of marriage between the person and the child’s mother or father, or if the marriage between the person and the child’s mother or father is subsequently declared invalid.

Alternatively, if a person marries the child’s mother or father after the birth of the child, a presumption of parentage arises only if the purported parent voluntarily asserted parentage of the child and one of the following three conditions is satisfied: the assertion of parentage is filed with the state registrar of vital statistics; the purported parent agreed to be and is named as the child’s parent on the child’s birth certificate; or the purported parent promised in a record to support the child as his or her own. These provisions on parentage, including the presumption of parentage, are gender-neutral and apply to same-sex couples who have children together to the same extent they apply to opposite sex couples who have children together.

In this case, at least two of these conditions are met. The NH has voluntarily assented to be the parent of the child and agreed to be listed as a parent on the claimant’s birth certificate, and the NH promised in the petition to support the claimant as her own. Because the NH has satisfied the requirements of the statutory presumption of parentage, the claimant is legally the child of the NH. The claimant meets the definition of child for the purposes of child insurance benefits under Title II of the Act and is entitled to benefits on the NH’s record.

2. Opinion

QUESTION PRESENTED

Is the claimant the child of the insured number holder (NH) for the purposes of child’s insurance benefits when applying Washington State law?

BRIEF ANSWER

Yes. Because the NH has satisfied the requirements of the statutory presumption of parentage, the claimant is legally the child of the number holder. Accordingly, the claimant can inherit as the NH’s child and is therefore her child under Title II of the Social Security Act (the Act).

SUMMARY OF FACTS

On November XX, 2001, the claimant, H~, was born in Denver, Colorado. Her birth certificate lists W~ as her mother and the NH, B~, as her co-parent. Prior to the claimant’s birth, W~ and the NH filed a petition in the District Court of Boulder County, Colorado to recognize the NH as the parent of the claimant. The petition explained that the claimant was conceived through assisted reproduction and carried by W~. On December XX, 2013, W~ and the NH were married in Seattle, Washington, where they shared a residence.

ANALYSIS

Federal Law on Child’s Benefits Under Title II

Under the Act, an individual may be eligible for child survivor’s insurance benefits if: (1) she is the “child” of the insured, as defined in the Act; and (2) she was “dependent upon” the insured at the time of application. 42 U.S.C. § 402(d); 20 C.F.R. § 404.350. For the purposes of child’s insurance benefits, “child” is defined as the natural child, legally adopted child, stepchild, or grandchild or stepgrandchild of the insured individual. See 42 U.S.C. §§ 402(d)(1), 416(e); see also 20 C.F.R. §§ 404.350, 404.354-59.

Under one method for determining whether the claimant qualifies as the “child” of an insured worker, the agency applies the law governing “the devolution of intestate personal property by the courts of the State in which such insured individual is domiciled at the time such applicant files” the application. 42 U.S.C. § 416(h)(2)(A); see also 20 C.F.R. § 404.355(a)(1), (b) (if the insured is living, apply state law where insured had permanent home at the time of the application); Program Operations Manual System (POMS) GN 00306.001(C) (determining what state law applies). Here, the evidence suggests that the NH’s domicile is Washington. Though earlier documents show the NH living in Colorado, the latest document—her marriage certificate—lists her residence as Seattle, Washington. Therefore, lacking any evidence that could establish otherwise, this opinion will consider Washington as the NH’s domicile.

State Law on Intestacy and the Parent–Child Relationship

Washington State law provides that an intestate estate shall distribute to the decedent’s spouse or domestic partner and to the decedent’s issue. Rev. Code Wash. § 11.04.015 (2014). “Issue” is defined as all the lineal descendants of an individual. Rev. Code Wash. § 11.02.005 (8). A child is considered issue. In re Roberts’s Estate, 146 P. 398, 399 (Wash. 1915).

In order for an individual to be the child of another individual, there must be a parent–child relationship, defined as a the legal relationship between a child and the parent of the child. Rev. Code Wash. § 26.26.011. Parentage is established if the person gives birth to the child, adopts the child, or is adjudicated as the child’s parent. Rev. Code Wash. § 26.26.101. Furthermore, a rebuttable presumption of parentage can arise when the child is born in the context of a marriage.3 A person is presumed to be the parent of a child if the child is born while the person is married to the child’s mother or father, if the child is born within 300 days of the dissolution of marriage between the person and the child’s mother or father, or if the marriage between the person and the child’s mother or father is subsequently declared invalid. Rev. Code Wash. § 26.26.116(1)(a)–(c).

Alternatively, if a person marries the child’s mother or father after the birth of the child, a presumption of parentage arises only if the purported parent voluntarily asserted parentage of the child and one of the following three conditions is satisfied: the assertion of parentage is filed with the state registrar of vital statistics; the purported parent agreed to be and is named as the child’s parent on the child’s birth certificate; or the purported parent promised in a record to support the child as his or her own. Rev. Code Wash. § 26.26.116(1)(d). Finally, a person is presumed to be the parent of a child without marrying the child’s mother or father, if, for the first two years of the child’s life, the person resided in the same household with the child and openly held out the child as his or her own. Rev. Code Wash. § 26.26.116(2).

These provisions on parentage, including the presumption of parentage, are gender-neutral and apply to same-sex couples who have children together to the same extent they apply to opposite sex couples who have children together. Rev. Code Wash. § 26.26.051. The presumption of parentage may only be rebutted by an adjudication in accordance with Washington law. Rev. Code Wash. § 26.26.116(3). In general, genetic testing excluding a person as a parent of the child is sufficient to rebut the presumption. Rev. Code Wash. § 26.26.600(1)–(4). However, a rebuttal with genetic evidence does not apply if the child was conceived through assisted reproduction. Rev. Code Wash. § 26.26.600(5). In such circumstances, parentage can only be disproven by admissible evidence showing the intent of the presumed, acknowledged, or adjudicated parent and the other parent. Id.

Finally, parentage can also be established between a person and a child if the person has consented to assisted reproduction with the child’s biological parent and the assisted reproduction resulted in the birth of the child. Rev. Code Wash. § 26.26.720 (“A person who provides gametes for, or consents in a signed record to assisted reproduction with another person, with the intent to be the parent of the child born, is the parent of the resulting child.”).4 The consent must be in a record signed by both persons (not including the donor), and the person must intend to be the parent of the child. Rev. Code Wash. §§ 26.26.710, 26.26.715(1). Lacking a signed record, a person may still establish parentage in a case of assisted reproduction if both persons resided in the same household with the child and openly held the child out as their own. Rev. Code Wash. § 26.26.715(2).

ANALYSIS

Here, the NH is not the biological parent of the claimant, and there is no evidence that the NH has either adopted or been adjudicated as the claimant’s parent. However, the NH meets the criteria of Rev. Code Wash. § 26.26.116(d)(1), thereby triggering the presumption of parentage. As that provision states, when the purported parent has married the child’s mother or father after the birth of the child (as is the case here), the presumption applies to the purported parent where he or she has “voluntarily asserted parentage of the child” and any one of three scenarios applies: (1) “[t]he assertion is in a record filed with the state registrar of vital statistics,” (2) the purported parent “agreed to be and is named as the child’s parent on the child’s birth certificate,” or (3) the purported parent “promised in a record to support the child as his or her own.” Rev. Code Wash. § 26.26.116(1)(d)(ii).

At least two of these scenarios apply in this case. The petition to the District Court of Boulder County, Colorado, indicated that the NH has voluntarily assented to be the parent of the child and agreed to be listed as a parent on the claimant’s birth certificate. NH is listed as a co-parent on the claimant’s birth certificate, as well. Therefore, scenario (2) is met. Scenario (3) is satisfied, too, because the NH promised in the petition to support the claimant as her own. Under Rev. Code Wash. § 26.26.116(1)(d), the presumption of parentage applies.5

Though this presumption can be rebutted, Washington law requires an adjudication to do so. Rev. Code Wash. § 26.26.116(2). And, since the NH’s petition indicated that the claimant was conceived through assisted reproduction, the genetic impossibility of the NH being the claimant’s biological parent is insufficient to rebut the presumption. Rev. Code Wash. § 26.26.600(5).

Because the claimant has a parent–child relationship with the NH, the claimant qualifies as the NH’s child. Thus, the claimant may inherit as the NH’s issue. Accordingly, the claimant meets the definition of child for the purposes of child insurance benefits under Title II of the Act. 42 U.S.C. § 416(h)(2)(A).

CONCLUSION

Based on the foregoing analysis, the claimant is able to inherit as the NH’s child and therefore meets the Act’s definition of child for the purposes of child’s insurance benefits.

C. PR 16-063 Evaluation for Benefits-Child Conceived and Born after Marriage-not NH's Natural/Biological Child

DATE: January 13, 2016

1. SYLLABUS

The NH’s marriage began in 1992 and continues to this day. The Claimant was born in 2004, during the marriage. The NH lived in Washington when the child filed her application, therefore, we look to the Washington Intestacy Law to determine the parent-child relationship. The Washington law provides that an intestate estate shall descend to a decedent’s spouse and issue. “Issue” means all the lineal descendants of an individual, including children. Because A~ was born during a lawful marriage between her mother and the NH, the NH is the Claimant’s presumed father unless there is an adjudication to the contrary. The claimant is the NH’s child under the Washington law and is entitled to benefits on the NH’s record.

2. Opinion

QUESTION PRESENTED

Is A~ the legal child of number holder F~ (NH) under Washington law for the purposes of auxiliary child benefits?

BRIEF ANSWER

Yes, A~ has a legal parent–child relationship with the NH under Washington law because the NH is her presumed father and there has been no adjudication to the contrary.

SUMMARY OF FACTS

The below opinion assumes the following facts are accurate. A~ was born in the Philippines in May 2004 to D~. The birth certificate lists D~ as unmarried and names A~’s father as F~. At the time of birth, F~ also completed an affidavit of acknowledgment of paternity, co-signed by D~. Although A~’s birth certificate lists D~ as unmarried, she was actually married to the NH at the time. D~ married the NH in February 1992 in the Philippines, and remarried him in August 1992 in California. The NH admits in his application that A~ was not his natural child, noting that he and D~ were physically separated at the time, but he also acknowledges that he was married to D~ at the time of A~s birth. Documents submitted with A~’s application show that the NH supports her and D~ with his pension and his Social Security benefits.

ANALYSIS

a. Federal Law on Child’s Benefits

Title II of the Social Security Act provides benefits for the child of an insured individual who is entitled to retirement benefits. 42 U.S.C. § 402(d) (2012). At the time of the application for child’s benefits, the child must be unmarried, dependent upon the insured individual, and either under the age of 18 (or the age of 19 if a secondary school student) or under a disability that arose before the age of 22. 42 U.S.C. § 402(d)(1).

In determining whether the claimant is the child of the insured individual, the agency looks to the intestacy law of the domicile state of the insured individual at the time of the application. 42 U.S.C. § 416(h)(2)(A). Alternatively, if the child is the son or daughter of the insured individual but not the child under § 416(h)(2)(A) because of a defect in the marriage, he or she will be deemed the child if the insured individual and the child’s father or mother went through a purported marriage that, but for a legal impediment, would have been a valid marriage. 42 U.S.C. § 416(h)(2)(B).

If neither of the above provisions is availing, the applicant can still be deemed to be the insured individual’s child if the insured individual has acknowledged the applicant as her child in writing, if a court has decreed the insured individual to be the applicant’s parent, or if the insured individual has been ordered to pay child support for the applicant. 42 U.S.C. § 416(h)(3). In the case of old-age benefits, the acknowledgement must occur not less than one year before the insured individual became entitled to old-age benefits or attained retirement age, whichever is earlier. 42 U.S.C. § 416(h)(3)(A)(i). Finally, the applicant may be deemed the insured individual’s child if the insured individual is shown by satisfactory evidence to be the parent of the applicant and to be living with or contributing to the support of the applicant when the application for benefits was filed. 42 U.S.C. § 416(h)(3)(A)(ii).

b. Washington State Law

The first provision for determining family status directs the agency to consider the intestacy law of the domiciliary state. 42 U.S.C. § 416(h)(2)(A). “The place where a man lives is properly taken to be his domicile until facts adduced establish the contrary.” District of Columbia v. Murphy, 314 U.S. 441, 455 (1941) (citations omitted). Here, the evidence indicates that the NH lived in Washington when the child filed her application. Lacking anything showing the contrary, we take Washington to be NH’s domicile.

Washington law provides that an intestate estate shall descend to a decedent’s spouse and issue. Wash. Rev. Code § 11.04.015(2)(a) (2015). “Issue” means all the lineal descendants of an individual and, therefore, includes children. Wash. Rev. Code § 11.02.005(8). Thus, if the claimant is the NH’s child under Washington law, she would be entitled to inherit through intestacy and would therefore meet the Social Security Act’s definition of “child.”

Washington law provides several means for establishing a parent–child relationship, two of which are relevant here. Wash. Rev. Code 26.26.101. First, the birth of a child during a marriage or domestic partnership establishes a rebuttable presumption that the parties to the marriage are the child’s parents. Wash. Rev. Code § 26.26.116(1)(a). This presumption of parentage may be rebutted only by an adjudication under Washington law. Wash. Rev. Code § 26.26.116(3) (2015). Second, a man may establish his parentage by signing an acknowledgment of paternity. Wash. Rev. Code § 26.26.101(6). A valid acknowledgment of paternity filed with the state registrar of vital statistics equates to an adjudication of parentage. Wash. Rev. Code § 26.26.320(1).

Here, the NH’s marriage began in 1992 and continues to this day. A~ was born in 2004, during the marriage. Thus, Washington law presumes that the NH was A~’s parent unless the presumption is rebutted with an adjudication. The evidence shows that, at the time of A~’s birth, F~ attested that he was A~’s father. While this may be an acknowledgment of paternity, it is insufficient under Washington law to rebut the presumption of paternity established by the NH’s marriage to A~’s mother.

First, the Filipino acknowledgment fails to include the basic information required under Washington law for a valid acknowledgment. Preliminarily, Washington law requires an acknowledgment to be both in a record and signed under penalty of perjury by the mother and the man seeking to establish his paternity. Wash. Rev. Code § 26.26.305(1)(a), (b). However, the acknowledgment must also either name the child’s presumed father or state that the child has no presumed father. Wash. Rev. Code § 26.26.305(1)(c). The acknowledgment must also state that there is no acknowledged or adjudicated father and that there has been no genetic testing. Wash. Rev. Code § 26.26.305(1)(c), (d). The acknowledgment must indicate that the signatories understand that the acknowledgment equates to a judicial adjudication of paternity. Wash. Rev. Code § 26.26.305(1)(e). The Filipino acknowledgment contains none of these criteria.

Second, Washington law requires that, if there is a presumed father, an acknowledgment of paternity filed by another man must be accompanied by a denial of paternity from the presumed father. Wash. Rev. Code §§ 26.26.305(2)(a), 26.26.310. Thus, even if the acknowledgment met the criteria identified above, the lack of a denial from the NH as the presumed father would render it void.

Finally, we note that the analysis accompanying the question presented included discussion of Lord Mansfield’s Rule, a common-law rule that prevents a child’s mother and her legal husband at the time of conception or birth from offering testimony that the child is illegitimate. It is true that Washington does not follow Lord Mansfield’s Rule and allows the statements from the NH and the child’s mother to be considered in a paternity determination. Nevertheless, in light of the invalid Filipino affidavit of paternity and the absence of an adjudication of paternity that satisfies Washington law, Washington’s presumption of paternity applies regardless of the NH’s statements.

CONCLUSION

Because A~ was born during a lawful marriage between her mother and the NH, the NH is A~’s presumed father unless and until there is an adjudication to the contrary.

Mary Lisa Lewandowski

Assistant Regional Commissioner, Management and Operations Support, Region X

By: David Morado

Regional Chief Counsel, Region X


Footnotes:

[1]

. The amendments to the Washington Revised Code following the NH’s death do not affect the analysis here.

[2]

. The AABB certificate of accreditation for DDC/DNA Diagnostics Center is available at http://www.dnacenter.com/images/AABB-cert.jpg.

[3]

. Though this opinion only refers to marriage, these provisions also apply in the context of a domestic partnership.

[4]

. In 2011, the Washington State legislature amended this provision to render it gender neutral and remove any terms referring to marriage. Wash. HB 1267 (2011).

[5]

. Alternative paths to establishing parentage are also available to the NH, though the evidence as it stands is insufficient to support conclusions. Using any of these paths would require re-contacting the NH to obtain the required evidence. First, the presumption of parentage described above is available to the NH if she lived in the same household as the claimant and held the claimant out as her child. Rev. Code Wash. § Rev. Code Wash. § 26.26.116(2). Though the petition she filed in Colorado District Court presents an intent to do so, evidence that she actually met these requirements was not provided with the request for legal opinion. If such evidence exists, it would provide an alternative means to meet this presumption. Secondly, the NH’s petition indicated that she and W~ both agreed to the assisted reproduction that led to the conception of the claimant. Evidence of the consent to the assisted reproduction in a writing signed by W~ and the NH might establish parentage. Rev. Code Wash. § 26.26.720. Finally, if the petition for parental rights filed in Colorado resulted in a court order of parentage, such order might serve as an adjudication of parental rights and establish a parent–child relationship. Rev. Code Wash. § 26.26.011.


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PR 01105.053 - Washington - 11/15/2016
Batch run: 11/15/2016
Rev:11/15/2016