You asked whether Zachary (C1) and Terri (C2) are entitled to child survivor’s benefits
as the children of the deceased wage earner (DWE), Terry, based on DNA evidence from
DWE’s sister, where the claimants’ mother claims that DWE was also her biological
The evidence currently before the agency is insufficient to establish a father-child
relationship between DWE and C1 or C2 under Arizona law or under the alternative federal
standard. The children are therefore not entitled to survivor’s benefits on DWE’s
SUMMARY OF EVIDENCE
DWE was born on November. He died on February XX, 2004, in Mesa, Arizona. The information
we received with the opinion request indicated that t DWE had a 2003 disability benefit
application on file but he was not the applicant. This application listed Nichole
his child but did not list C1 or C2 as his children.
Jessica is DWE’s biological daughter, born on July. C1, Zachary, was born on November,
in Phoenix, Arizona, and currently lives in Kansas City, Kansas. His birth certificate
lists Jessica as his mother. The space for the father’s name on his birth certificate
C2, Terri, was born on February, in Mesa, Arizona, and currently lives in Kansas City,
Kansas. Her birth certificate lists Jessica as her mother. The space for the father’s
name on her birth certificate is also blank.
Jessica protectively filed for surviving child benefits for her children, C1 and C2,
on May 8, 2013. She claims that DWE is also her children’s biological father (and
grandfather). Jessica told the agency that she filed a police report and obtained
a restraining order against DWE with the Mesa, Arizona, Police Department in June
2001 to report incest and DWE stalking her; however, she no longer has copies of these
documents. She said that the Mesa authorities did not file criminal charges against
DWE because she made the report after she turned 18 years old. She did not provide
any further personal statement or details. Jessica did not present evidence indicating
that a court ordered DWE to pay child support or decreed him to be the father of either
C1 or C2. She did not submit any written acknowledgements of paternity, and DWE was
not living with the children or contributing to their support at the time of his death.
Jessica submitted DNA test results from DNA Diagnostics Center (DDC) and seeks to
rely on these tests to support the children’s claims. On July 10, 2013, DDC  (who is also the children’s paternal aunt through Jessica), as well as from Jessica,
C1 and C2. On July 22, 2013, Laboratory Director John, Ph.D., verified that the interpretation
of the DNA results was correct as reported. The DNA test results showed that a comparison
of C1’s DNA to Maria’s DNA revealed a probability of relatedness of 92.9%, with a13
to 1 likelihood that Maria is C1’s biological relative. DNA test results for C2 indicated
that the probability of relatedness between C2 and Maria is 95%, with a 19 to 1 likelihood
that Maria is C2’s biological relative. The lab calculated the probability of relatedness
by using a comparison to untested, unrelated, random individuals of the Caucasian
In June 2013, the agency telephoned Maria in an attempt to develop the children’s
claims. According to the Report of Contact, Maria stated she was “not sure about her
brother being the father of the children.” 
On November 22, 2013, OGC telephoned the DDC laboratories and spoke with forensics
department employee Nick. Nick said that in a hypothetical situation such as the one
presented by the current case, DDC would perform an avuncular test (DNA test comparing
DNA with an aunt or uncle) using DNA from the paternal aunt, the children, and the
mother. Nick confirmed that the mother’s relationship as the paternal aunt’s niece
would not interfere with the test results as long as the test included the mother’s
DNA, as the lab could separate her contribution to the child leaving only a comparison
of the paternal aunt’s DNA to the child’s DNA. However, if the alleged father had
any brothers, the DNA test would not specify which brother was the father. Nick also
explained that test results showing the percentage of relatedness to a paternal aunt
from two children who allegedly had the same father may differ because individuals
receive half of their DNA from their mother and half of their DNA from their father.
Since the genetic markers are passed on randomly, one child might have more genetic
markers matching another relative than does a sibling with the same parents.
Following the call to DDC, we asked whether DWE had any brothers. On December 9, 2013,
Jessica told the field office that DWE had two brothers. Jessica said she did not
have their contact information but that her aunt, July, might know where they were.
The field office contacted July but was not able to confirm her identity, or obtain
her assistance and additional information.
Under the Social Security Act (Act), every unmarried minor child of an insured individual
 However, to receive child insurance benefits, the applicant must qualify as the insured
individual’s “child” and be dependent on the insured individual at the time of his
death. See id.; 20 C.F.R. § 404.350. When the insured individual and the claimant’s mother have
not married, the claimant may show he or she is the child of the deceased individual
under either section 216(h)(2)(A) or section 216(h)(3)(C) of the Act. See Astrue v. Capato, 132 S. Ct. 2021, 2026, 2028-29 (2012).
Child status under section 216(h)(3)(C) of the Social Security Act:
To establish child status under section 216(h)(3)(C) of the Act, the claimant must
show he or she is the natural child of the number holder and one of the following:
1) the number holder acknowledged in writing that the claimant is his child; 2) a
court decreed the number holder to be the claimant’s father; 3) a court ordered the
number holder to contribute to the claimant’s support because the claimant was his
child; or 4) the number holder is the claimant’s father and was living with or contributing
to claimant’s support when he died. See Act § 216(h)(3)(C), 42 U.S.C. § 416(h)(3)(C); 20 C.F.R. § 404.355(a)(3), (4); Program
Operations Manual System (POMS) GN 00306.100. The acknowledgment, court decree, or court order must have been made or issued before
the number holder’s death. See Act § 216(h)(3)(C), 42 U.S.C. § 416(h)(3)(C); 20 C.F.R. § 404.355(a)(3).
Neither C1 nor C2 has satisfied any of the criteria set forth in section 216(h)(3)(C).
Jessica has not submitted any written acknowledgements of paternity, nor has she provided
any evidence that a court decreed DWE to be C1 or C2’s father or ordered him to contribute
to their support. Jessica also has not provided any evidence that DWE was living with
the children or contributing to their support at the time of his death. Accordingly,
there is insufficient evidence to establish C1 and C2 as DWE’s children under section
216(h)(3)(C) of the Act.
Child status under section 216(h)(2)(A) of the Social Security Act:
In determining whether a claimant qualifies as the child of the insured individual
under section 216(h)(2)(A) of the Act, the Commissioner 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 of his death. See Act § 216(h)(2)(A), 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b). An
applicant who satisfies the requirements of section 216(h)(2)(A) of the Act is also
deemed dependent upon the insured individual. 20 C.F.R. § 404.361(a) (“If you are
the insured’s natural child, as defined in § 404.355, you are considered dependent
on him or her”); Social Security Ruling (SSR) 77-2c (“where state intestacy law provides
that a child may take personal property from a father’s estate, it may reasonably
be thought that the child will more likely be dependent during the parent’s life”).
Thus, if a claimant establishes he has inheritance rights under state intestacy laws,
he is deemed the insured’s “child” under the Act.
Here, we apply Arizona intestacy law because DWE was domiciled in Arizona at the time
of his death. See 20 C.F.R. §§ 404.355(b)(1), (4). In applying state law, the agency does not require
a court determination establishing paternity but instead applies the same law and
standards that the state court would use. 20 C.F.R. § 404.355(b)(1)-(2).
Under Arizona intestacy laws, the children of a deceased individual inherit all or
a portion of the deceased individual’s intestate estate depending on whether the deceased
was married at the time of his or her death. See Ariz. Rev. Stat. §§ 14-2102, 14-2103. A “child” is defined as a “person who is entitled
to take as a child under this title [Title 14: Trusts, Estates and Protective Proceedings]
by intestate succession from the parent whose relationship is involved” and excludes
any person who is “only a stepchild, a foster child, a grandchild or a more remote
descendant.” Ariz. Rev. Stat. § 14-1201. For purposes of intestate succession in Arizona,
“a person is the child of that person’s natural parents, regardless of their marital
status.” Ariz. Rev. Stat. § 14-2114; see also Gillett-Netting v. Barnhart, 371 F.3d 593, 598-99 (9th Cir. 2004) (every child in Arizona is the “legitimate
child of her or his natural parents”); POMS GN 00306.420(C) (“a person is the child of that person’s natural parents, regardless of their
marital status, as may be established by a preponderance of the evidence”). If the
issue of the parent-child relationship is in dispute, the court shall establish the
relationship under the statutes on maternity and paternity proceedings. See Ariz. Rev. Stat. § 14-2114; see also Ariz. Rev. Stat. § 25-801, et. seq. 
See Allen v. Sullivan, 139 Ariz. 142 (1984) (M~, concurring opinion) (Paternity actions are civil proceedings in Arizona, and a complaint
must establish parentage by a preponderance of the evidence); Moreno v. Superior Court of Pima County, 3 Ariz. App. 361, 362 (Ariz. Ct. App. 1966) (paternity established by a preponderance
of the evidence in civil actions).
Arizona law provides that a man is presumed to be the father of a child if:
He and the mother of the child were married at any time in the ten months immediately
preceding the birth or the child is born within ten months after the marriage is terminated
by death, annulment, declaration of invalidity or dissolution of marriage or after
the court enters a decree of legal separation.
Genetic testing affirms at least a ninety-five per cent probability of paternity.
A birth certificate is signed by the mother and father of a child born out of wedlock.
A notarized or witnessed statement is signed by both parents acknowledging paternity
or separate substantially similar notarized or witnessed statements are signed by
both parents acknowledging paternity.
Ariz. Rev. Stat. § 25-814; see also Ariz. Rev. Stat. § 25-807(D) (genetic tests indicating the likelihood of the alleged
father’s paternity is ninety-five percent or greater establishes a presumption of
paternity and may be rebutted by clear and convincing evidence); POMS GN 00306.420 (agency guidance on Arizona Intestacy Laws). 
If two or more presumptions apply, the presumption based on “weightier considerations
of policy and logic will control.” Ariz. Rev. Stat. § 25-814; see also POMS GN 00306.420(C). Any paternity presumption under this section may be rebutted by clear and convincing
evidence. Ariz. Rev. Stat. § 25-814; see also Aranda v. Cardenas, 215 Ariz. 210, 213 (Ariz. Ct. App. 2007); POMS GN 00306.420(D). A court decree establishing paternity by another man also rebuts the paternity
presumption. Ariz. Rev. Stat. § 25-814.
Individuals, including the mother of a child, may initiate proceedings to establish
the paternity of the child. Ariz. Rev. Stat. § 25-803(A). The court, on its own motion
or on motion of any party to the paternity proceedings, shall order the mother, her
child or children, and the alleged father to submit to genetic testing using an accredited
laboratory. Ariz. Rev. Stat. § 25-807(C).
In this case, Jessica submitted DNA test results from DDC, a laboratory that is accredited
or certified by the American Association of Blood Banks (AABB) and the College of
American Pathologists (CAP). 
See id. Since DDC did not have DNA from DWE to use, the lab performed an avuncular test which
is used to establish whether a child is biologically associated to a sibling of the
alleged father. See POMS GN 00306.065(C)(1) (contemplating that paternity may be established through DNA testing of relatives);
see also DDC, Aunt/Uncle DNA Avuncular Test, available at http://www.ddc-southafrica.com/aunt-uncle-dna-test.php (last visited Nov. 18, 2013). Avuncular tests that include the DNA from the biological
mother produce a more exact test result, as the mother’s DNA markers are removed from
the child’s profile, thus identifying and separating the father’s genes which are
compared to the alleged paternal aunt or uncle. See DDC, Aunt/Uncle DNA Test, available at http://www.ddc-southafrica.com/aunt-uncle-dna-test.php#<http://www.ddc-southafrica.com/aunt-uncle-dna-test.php> (last visited Nov. 18, 2013); Paternity USA, available at https://www.paternityusa.com/Aunt-Uncle-DNA-Testing.htm (last visited Nov. 18, 2013). Significantly, unlike paternity tests, which provide
a conclusive 99.99% result, avuncular tests determine an index number that indicates
the genetic odds that the individuals being tested are biologically related. See AAA DNA Testing, available at http://aaadnatesting.com/avuncular-dna-test.htm (last visited Nov. 18, 2013); Biogene DNA available at http://dna-paternity-testing.com/avuncular-dna-test/ (last visited Nov. 18, 2013).
Here, the avuncular test revealed that DWE’s sister had a 92.9% probability of relatedness
to C1 and a 95% probability of relatedness to C2. The likelihood that Maria was the
biological relative of the children was 13 to 1 for C1, and 19 to 1 for C2. Although
Jessica shared the same DNA as DWE and his sister, Nick from DDC advised that this
would not interfere with the validity of the test results because the lab would separate
the mother’s DNA from the children’s DNA, leaving only a comparison of the DNA the
children received from their father with his sister’s DNA. See, e.g., Ariz. Rev. Stat. § 25-807(C) (an expert “duly qualified as an examiner of genetic
markers” shall be agreed on by the parties or appointed by the court to analyze and
interpret the results and report to the court).
Under Arizona law, a man is presumed to be the father of a child if genetic testing
affirms at least a ninety-five percent probability of paternity. See Ariz. Rev. Stat. § 25-814; see also Hall v. Lalli, 194 Ariz. 54, 61 (1999) (en banc) (“Blood tests carry great weight in paternity
determinations because ‘the results do not depend upon a party’s testimony and because
the tests are verifiable.’”) (citing Carl , Independent Evidence: A New Tool for Paternity Cases, 86 ILL.B.JJ. 476, 480 (1998)). This provision of Arizona law appears to be based
on testing of the alleged father, not a relative of the father, even though the wording
of the statute is not explicit. Thus, it is unclear what weight an Arizona court would
put on these DNA tests in the absence of any other evidence except the mother’s statement.
See A~, 215 Ariz. at 213-15 (declining to apply the requirements of the paternity statutes
in a wrongful death proceeding where the “legislature has not explicitly done so”
and thus narrowly construing the paternity statutes).
After excluding the mother’s DNA, DDC’s test results revealed that C2 had a 95% probability
of relatedness to Maria based on the DNA C2 received from her father, indicating that
C2’s father was Maria’s brother. However, DWE was one of three brothers and the test
results do not specify which brother was the father; only that C1 and C2 had a 92%
and 95% probability of relatedness to DWE’s sister based on the father’s DNA. Accordingly, using the preponderance of the evidence standard, we cannot conclude
that Arizona would find DWE to be the children’s father based on the DNA evidence.
In addition, Jessica has not provided any other evidence to support her claim that
DWE was C1 and C2’s father or give context to the DNA test results. For example, she
did not provide copies of her 2001 police report or petition for a restraining order;
these documents, written closer in time to the events at issue, may provide additional
support for the claim.
Finally, we recognize that Arizona’s policy of protecting children’s financial interests
is an equitable factor weighing in favor of establishing a parent-child relationship
and intestacy rights. Ariz. Rev. Stat. § 25-814; Ariz. Rev. Stat. § 25-501 (every
person has a duty to provide “all reasonable support” for that person’s natural and
adopted minor, unemanicipated children); H~, 194 Ariz. at 781-83 (discussing familial, legal and equitable interests in determining
paternity); A~, 215 Ariz. at 214 (the “purpose of the paternity statutes ‘appear[ed] to be to provide
financial support for the child from the natural parent’”) (citing Hurt v. Superior
Court, 124 Ariz. 45, 48 (1979)). Nonetheless, the evidence in this case is still not
sufficient for us to conclude that an Arizona court would find paternity established
by a preponderance of the evidence such that C1 and C2 could inherit intestate from
DWE as his children under Arizona law.
The genetic evidence based on DNA testing of DWE’s sister, is insufficient to establish
paternity, and thus intestate inheritance rights, under Arizona law. The evidence
also fails to establish paternity under the alternate federal standard. Accordingly,
the children are not entitled to child survivor benefits under the Act. Should the
mother submit additional evidence, we will be happy to review and reconsider this