TN 65 (10-16)

PR 01115.004 Arizona

A. PR 16-153 DNA Testing to Establish Paternity Under Arizona Law

Date: June 23, 2016

1. Syllabus

We apply the Arizona intestacy law because the number holder (NH) was domiciled in Arizona at the time of his death. The Arizona law provides that a man is presumed to be the father of a child if genetic testing affirms at least a 95% probability of paternity. In this case, there is sufficient evidence to establish a presumption of the NH’s paternity of the claimant. An Arizona court previously found the claimant’s sibling to be the NH’s natural child, and the DNA tests show a 99% probability that the claimant’s sibling and the claimant share the same father. In the absence of any indication to the contrary in either statute or case law, we conclude that an Arizona court would determine that the genetic test results between claimant and the claimant’s sibling is sufficient to establish that the NH is the claimant’s father under Arizona law. Accordingly, claimant is deemed dependent on the insured and entitled to child’s insurance benefits on the NH’s account under section 216(h)(2) of the Act.

2. Opinion

QUESTION PRESENTED

You asked whether Claimant, Z~, is entitled to survivor’s insurance benefits as the child of the deceased wage earner (DWE), D~, based on DNA evidence showing a high probability that Claimant and her sister share the same biological father. The agency previously determined that Claimant’s sister is entitled to benefits as the DWE’s child.

SHORT ANSWER

Yes. The DNA evidence establishes that the DWE is Claimant’s father under Arizona law and, therefore, Claimant is entitled to child’s survivor benefits on the DWE’s account.

SUMMARY OF EVIDENCE

The DWE died on December XX, 2014 in Phoenix, Arizona (his place of domicile). Claimant was born on August XX, 2002, in P~, Arizona.[1] Her birth certificate lists S~ as her mother, and it does not list a name for her father.

S~ filed applications for child’s insurance benefits on behalf of her two biological daughters, Claimant and her sister, Z2~. An order of paternity from the Arizona Superior Court of Maricopa County established that the DWE is the natural father of Z2~. Based on this order, the agency determined that Z2~ is the DWE’s child and entitled to child survivor’s insurance benefits on his record.

S~ alleges that the DWE is also Claimant’s father. To support her claim, S~ submitted DNA test results from the DNA Diagnostics Center (DDC). On September XX, 2015, DDC obtained genetic material from S~, Z2~, and Claimant, and compared Claimant’s DNA to Z2~’s DNA. The results of these tests showed a 99% probability that Claimant and Z2~ are full siblings and share a biological father. On February XX, 2016, Laboratory Director, D2~, Ph. D., verified the accuracy of the genetic test results.

ANALYSIS

Federal Law

Under the Social Security Act (Act), every unmarried minor child of an insured individual who dies fully or currently insured shall be entitled to child’s insurance benefits. Social Security Act § 202(d)(1), 42 U.S.C. § 402(d)(1). However, to receive child’s insurance benefits, the applicant must qualify as the insured individual’s “child,” as defined by section 216(e) of the Act, and be dependent on the insured individual at the time of his death. See id.; 20 C.F.R. § 404.350.

In determining whether a claimant qualifies as the child of the insured individual, the Commissioner applies the law governing the devolution of intestate personal property by the courts of the State in which such insured individual was domiciled at the time of his or her death. Social Security Act § 216(h)(2)(A), 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1). 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 upon 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...”).

Here, we apply Arizona intestacy law because the 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).

Arizona Law

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(A); 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”). If the issue of the parent-child relationship is in dispute, the court shall establish the relationship under the statutes applicable to maternity and paternity proceedings. See Ariz. Rev. Stat. § 14-2114; see also Ariz. Rev. Stat. § 25-801, et. seq. The standard of proof is a preponderance of the evidence. See Rivera v. Minnich, 483 U.S. 574, 581 (1987); Allen v. Sullivan, 139 Ariz. 142, 145 (Ariz. Ct. App. 1984) (Myerson, concurring opinion) (Paternity actions are civil proceedings in Arizona, and a complaint must establish parentage by a preponderance of the evidence).

Arizona law provides that a man is presumed to be the father of a child if “[g]enetic testing affirms at least a ninety-five percent probability of paternity.” Ariz. Rev. Stat. § 25-814(A)(2); 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). The presumption may only be rebutted by clear and convincing evidence. Ariz. Rev. Stat. § 25-814(C); see also Aranda v. Cardenas, 215 Ariz. 210, 213 (Ariz. Ct. App. 2007).

In this case, S~ submitted genetic test results from DDC, an American Association of Blood Banks (AABB) accredited laboratory. The United States Department of Health and Human Services recognizes AABB as a reliable accreditation body. 2[2] DDC performed genetic testing to determine whether Claimant is biologically related to Z2~. The test results showed a 99% probability that the claimant and Z2~ share the same biological father.

Based on this evidence, we conclude that an Arizona court would find paternity established by a preponderance of the evidence, such that Claimant could inherit intestate from the DWE as his child under Arizona law. While Arizona statute presumes paternity when “[g]enetic testing affirms at least a ninety-five per cent probability of paternity” and does not specifically identify acceptable methods of genetic testing, the statute does not preclude evidence of paternity through the genetic testing of alleged siblings. Rather, the wording of the law leaves open the possibility of testing between relatives, as does agency policy. See Program Operations Manual System (POMS) GN 00306.065.C (contemplating that paternity may be established through DNA testing of relatives); SSR 06-02p (genetic testing establishing a sibling relationship may be sufficient to establish a parent-child relationship); see also POMS PR 01115.011 (PR 06-349) (relying, in part, on grandparent DNA testing to conclude child eligible for benefits on account of deceased wage earner). In the absence of any indication to the contrary in either statute or case law, we conclude that an Arizona court would determine the results of the genetic testing in this case sufficient to establish a presumption of DWE’s paternity of Claimant: the tests show a 99% probability that Z2~ and Claimant share the same father, and an Arizona court previously found Z2~ to be the DWE’s natural child. Viewing the evidence from the same law and standards as the State court would apply, 20 C.F.R. § 404.355(b)(1)-(2), the agency may conclude that Claimant is the DWE’s natural child under Arizona law.

CONCLUSION

The genetic test results between Claimant and her sister are sufficient to establish that the DWE is Claimant’s father under Arizona law. Accordingly, Claimant is deemed dependent on the insured and entitled to child’s insurance benefits on the DWE’s account under section 216(h)(2) of the Act.

B. PR 14-055 Entitlement to Child Survivor’s Benefits: Establishing a Parent-Child relationship Under Arizona Law Using DNA Evidence from the Sister of the Deceased Wage Earner — Deceased Wage Earner: Terry, Child Claimant 1: Zachary and Child Claimant 2: Terri

DATE: February 13, 2014

1. SYLLABUS

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. 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 the DWE was living with the children or contributing to their support at the time of his death. In determining whether a claimant qualifies as the child of the insured individual under section 216(h)(2)(A) of the Act, 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 of his death. Under the 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. For purposes of intestate succession in Arizona, a person is the child of that person’s natural parents, regardless of their marital status. Arizona law provides that a man is presumed to be the father of a child if: (1) 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. (2) Genetic testing affirms at least a ninety-five per cent probability of paternity. (3) A birth certificate is signed by the mother and father of a child born out of wedlock. (4) 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.

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, but it may be rebutted by clear and convincing evidence. In this case, Jessica submitted an avuncular DNA test which is used to establish whether a child is biologically associated to a sibling of the alleged father. The test revealed that the DWE’s sister had a 92.9% probability of relatedness to C1 and a 95% probability of relatedness to C2. C2’s 95% probability of relatedness to DWE’s sister based on the DNA C2 received from her father indicates that C2’s father was the brother of the DWE’s sister, however, the 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. 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. The children are therefore not entitled to survivor’s benefits on DWE’s account.

2. OPINION

QUESTION

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 father.

SHORT ANSWER

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 account.

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 is blank.

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 [3] (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 population.

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.” [4]

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.

ANALYSIS

Under the Social Security Act (Act), every unmarried minor child of an insured individual [5] 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. [6]

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:

  1. 1. 

    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.

  2. 2. 

    Genetic testing affirms at least a ninety-five per cent probability of paternity.

  3. 3. 

    A birth certificate is signed by the mother and father of a child born out of wedlock.

  4. 4. 

    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). [7]

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). [8]

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.[9]

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.[10] 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.

CONCLUSION

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 conclusion.

C. PR 04-324 (Arizona) Entitlement to Survivor's Benefits: Children of Deceased Wage Earner and Effect, Under Arizona Law, of a Nevada Court Order Terminating Deceased Wage Earner's Parental Rights Marc , Decedent Wage Earner, ~ Pamela, Mother Marc a/k/a Marc, II, Child Joshua a/k/a Joshua, Child

DATE: August 31, 2004

1. SYLLABUS

A Nevada court order that terminates the NH's parental rights with respect to the children claiming benefits on his record does not affect their right to inherit from him under the law of Arizona, the State in which he was domiciled at death.

2. OPINION

QUESTION

You have asked whether a Nevada court order which terminates a father's ("wage earner") parental rights affects the eligibility of the wage earner's two minor children ("claimants") for child's insurance benefits under federal or Arizona law.

ANSWER

The claimants qualify as the children of the wage earner for purposes of their claims for child's insurance benefits on the wage earner's record.

SUMMARY OF EVIDENCE

On May XX, 1997, the Second Judicial Court of the State of Nevada, County of Washoe (the "court"), issued an order terminating the wage earner's parental rights. The court found that the claimants were born on March and June; that Pamela ("mother") is the natural mother and legal guardian of the claimants; that the wage earner is the father of the claimants; that the mother and the wage earner were married but in the process of getting divorced; and that the wage earner committed abandonment of the claimants as that term is defined under Nevada Revised Statutes, section 128.105(1) and (7). The wage earner did not appear at the proceedings, either in person or through legal representative. The court ordered that a parent and child relationship existed between the wage earner and the claimants; that the parental rights of the wage earner were terminated; and that the claimants were declared free from the custody and control of the wage earner.

At the hearing, the claimant's mother made an oral request before the court to issue an order changing the surnames of the claimants from the surnames of the wage earner to the surname of their mother. On June XX, 1997, the court issued a supplemental order changing the surnames of the claimants from that of the wage earner to the surname of their mother. The court also ordered that new birth certificates be issued which reflected the name change for each of the claimants. Thereafter, the wage earner died while domiciled in the State of Arizona.

The mother has now applied, on behalf of the claimants, for child's insurance benefits on the account of the wage earner, contending that the claimants should be considered the wage earner's children.

ANALYSIS

In order to receive child's insurance benefits, an individual must be the dependent child of the wage earner. Social Security Act § 202(d), 42 U.S.C. § 402(d). SSA must look to the law of the state where the wage earner was domiciled at the time of his death to determine whether the claimants would be entitled to inherit from the wage earner as his children under that state's law of intestate succession (i.e., as if the decedent left no will). Social Security Act § 216(h)(2)(A), 42 U.S.C. § 416(h)(2)(A). SSA applies the intestacy laws of the domiciliary state, not conflict of laws principles, in making this determination. Campbell ex rel Campbell v. Apfel, 177 F.3d 890, 892 (9th Cir. 1999). If the claimants would be entitled to inherit, then the claimants would be eligible for child's insurance benefits on the account of the wage earner. Id.

The wage earner was domiciled in Arizona when he died; thus Arizona intestacy laws determine whether the claimants are considered children of the wage earner. Arizona intestate succession laws provide that a person is the child of that person's natural parents, regardless of the parent's marital status. Ariz. Rev. Stat. § 14-2114(A). The property of a person dying without a will in Arizona passes to his surviving spouse and his "descendants". Ariz. Rev. Stat. § 14-2103(1). A "descendant" is defined as all of the deceased's descendants of all generations, with the relationship of parent and child at each generation. Ariz. Rev. Stat. § 14-1201(11). A "child" is defined as a person who is entitled to take as a child under this title by intestate succession from the parent whose relationship is involved. Ariz. Rev. Stat. § 14-1201(5). A "parent" is defined as a person entitled to take, or who would be entitled to take if the child died without a will, as a parent under this title by intestate succession from the child whose relationship is in question. Ariz. Rev. Stat. § 14-1201(35).

The claimants were born within the marriage, and this creates a presumption under Arizona law that the claimants are the biological children of the wage earner. Pyeatte v. Pyeatte, 21 Ariz. App. 448, 450, 520 P.2d 542, 544 (1974) citing Anonymous v. Anonymous, 10 Ariz. App. 496, 499, 460 P.2d 32, 35 (1969). Arizona law provides that a judicial termination of a parent-child relationship divests the parent and the child of all legal rights, privileges, duties and obligations with respect to each other except the right of the child to inherit from, and to receive support from, the parent. Ariz. Rev. Stat. § 8-539. See e.g., Schnepp v. State Department of Economic Security, 183 Ariz. 24, 28, 899 P.2d 185, 189 (1995). This contrasts sharply with the effect of termination under Nevada law.

There are no provisions under the Arizona laws of intestate succession which abrogate a child's right to inherit from a natural parent. To the contrary, under Arizona laws governing termination of parental rights, an exception is provided which retains a child's inheritance rights from both biological parents despite a judicial order terminating the parent-child relationship. We have found no indication that the state of Arizona would apply the laws of a different state, where a parental termination order was entered, in determining a child's right to inherit intestate in the state of Arizona. Since the wage earner was domiciled in Arizona at the time of his death, and Arizona law provides that a child does not lose inheritance rights despite termination of parental rights, then the claimants in this case would qualify as intestate heirs of the wage earner under Arizona law.

CONCLUSION

Accordingly, because the claimants could inherit from the wage earner under the laws governing intestate succession in Arizona, the claimants would be considered dependant children of the wage earner for purposes of their claim for child's insurance benefits under federal or Arizona law.

D. PR 04-052 Eligibility for Child's Insurance Benefits Claimant: Jerrial Deceased Wage Earner: Jerrial, SSN: ~

DATE: December 23, 2003

1. SYLLABUS

Based on the evidence provided, an Arizona court would not find that the child claimant is the NH's child. There is no legal presumption that the NH is the father of the child. The only evidence presented consists of statements which are not based on any direct evidence of paternity. Therefore, the preponderance of the evidence standard is not met.

2. OPINION

You requested a legal opinion as to whether the evidence presented in support of the claimant's application for child's insurance benefits and the lump-sum death benefit is sufficient to support a finding that the claimant is the child of the deceased wage earner (DWE). Based on information provided by the Chattanooga field office (FO), the wage earner was domiciled in Arizona at the time of his death. Based on the limited evidence provided, we do not believe that an Arizona state court would find that the claimant is the child of the deceased wage earner.

The claimant's mother, Cheryl, applied for child's insurance benefits and the lump-sum death benefit on behalf of the claimant, Jerrial. Based on the information that has been provided, Jerrial and the DWE were never married. According to a statement provided by the DWE's brother, the DWE lived in Tennessee in 1986 and 1987. The claimant was born on November XX, 1987. Cheryl filed a petition to establish paternity in the Hamilton (TN) County Juvenile Court, but the DWE was no longer living in Tennessee, and the petition was dismissed without prejudice on September 22, 1992. Cheryl was advised to file a petition under the Uniform Reciprocal Enforcement of Support Act (URESA), but there is no indication that any such claim was pursued. [11] In addition to the statement from the DWE's brother and the 1992 court order, the record also contains a statement from the DWE's mother in which she states her belief that the DWE is the father of the claimant, and a statement from the mother of another child of the DWE, also stating that the claimant is the child of the DWE. [12] There are also letters from the DWE's employer indicating that the claimant will be receiving proceeds from the DWE's life insurance policy. According to the FO, this payment is being made based on the "statements of [the DWE's] longtime girlfriend," rather than on any documentation of paternity in their possession. [13]

Because the wage earner was domiciled in Arizona at the time of his death, Arizona intestacy law applies to determine whether the claimant is the "child" of the DWE. See Sec. 216(h)(2)(A) of the Act. See also 20 C.F.R. § 404.355(b)(4); POMS GN 00306.001. Under Arizona intestacy law, a person is the child of his natural parents, regardless of their marital status. If the issue of the parent-child relationship is in dispute, the court [14] shall establish the relationship under the statutes on maternity and paternity proceedings. Ariz. Rev. Stat. § 14-2114(A), § 25-801, et. seq. (2003). The standard of proof is a preponderance of evidence, which is "[e]vidence which is ... more convincing than the evidence ... offered in opposition to it ...."

Metropolitan Stevedore Co. v. Rambo, 521 U.S. 121, 137 n.9 (1997), quoting Greenwich Collieries v. Director, OWCP, 990 F.2d 730, 736 (3d Cir. 1993), aff'd, 512 U.S. 267 (1994). See also City of Tucson v. Mills, 559 P.2d 663 (Ariz. App. 1976) ("Touchstone of preponderance of the evidence … is the capacity of the submitted testimony to enforce belief on the arbiter to whom it is submitted.").

Under Arizona law, a rebuttable presumption of paternity is created where (1) the putative father 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; (2) genetic testing affirms at least a ninety-five per cent probability of paternity; [15] (3) a birth certificate is signed by the mother and father of a child born out of wedlock; or (4) 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 (2003). None of these factors is present here, so there is no legal presumption that the DWE is the father of the claimant. All of the evidence presented consists of statements provided for the express purpose of supporting the claim for benefits. None of these statements is based on any direct evidence of paternity. They are all mere opinion evidence given to support the claim. [16] No contemporaneous materials, such as birthday or holiday cards, birth announcements or similar documents from the DWE to the claimant have been provided. The claimant's birth certificate was not provided, so we do not know if the DWE, or some other individual, was listed as the claimant's father. Although the DWE and the claimant's mother were not married at the time of the claimant's birth, we do not know if the claimant's mother was married to another individual at that time, which would create a presumption that the DWE is not the claimant's father.

In the absence of any direct evidence of paternity, we do not believe that the claimant has established, by a preponderance of the evidence, that he is the child of the DWE. As noted above, however, there are many evidentiary gaps which, if filled, may lead to a different result.

Mary A. Sloan
Regional Chief Counsel

By: Michael S. Feinstein

Assistant Regional Counsel

E. PR 00-482 Claim for Survivor's Benefits Based on Arizona Intestacy Law; Wage Earner Eddie , A/N ~

DATE: July 19, 1999

1. SYLLABUS

Effective 1/1/95, the Arizona legislature repealed the provision that, for purposes of intestate succession, "paternity must be established by an adjudication before the death of the father, or established thereafter by clear and convincing proof." The legislature adopted the standard of proof used in a paternity proceeding which is preponderance of the evidence.

A presumption of paternity is established when the results of blood or genetic tests indicate that the likelihood of the alleged father's paternity is 95% or greater, absent an unresolved accusation that a blood relative of the deceased is the child's father.

2. OPINION

INTRODUCTION

Pursuant to GN 00306.080u submitted for our review a claim filed in September 1997 for child's insurance benefits on the Social Security account of the wage earner named above. The claim was denied initially and is pending reconsideration. In the initial determination, SSA concluded that the evidence presented by the claimant's mother, which included DNA test results, did not constitute "clear and convincing" evidence that the claimant was the child of the wage earner.

The primary issue you presented is whether the DNA test results would be accepted as establishing paternity for inheritance purposes in Arizona.

The DNA test results submitted by the claimant's mother would establish paternity under Arizona intestacy law for the reasons explained below. In addition, the DNA test results constitute "new and material evidence" for purposes of reopening the determination denying the claimant's prior claim filed on December XX, 1995

PROCEDURAL HISTORY AND EVIDENCE

The wage earner died in Arizona on August XX, 1995. The claimant was born on August XX, 1995. His birth certificate does not indicate the name of his father.

On December XX, 1995, the claimant's mother, filed a claim for child's insurance benefits on the wage earner's account on behalf of the claimant ("prior claim"). The evidence submitted with this prior claim consisted of a signed, handwritten statement by the wage earner's eldest sister. She stated that her brother believed the claimant was his child. [17] SSA denied the prior claim in an initial determination (which is not included in the file we received). The claimant's mother requested reconsideration on February 9, 1996. On September 12, 1996, SSA denied the claim on reconsideration because the evidence did not establish a relationship under § 216(h)(3) of the Social Security Act (the federal methods), or under § 216(h)(2) (the applicable Arizona state intestacy law). In the denial letter, SSA explained that, in order to establish intestate succession rights under Arizona law, a child had to establish paternity in an adjudication before the father's death, or establish paternity thereafter by clear and convincing evidence.

In September 1997, the claimant's mother submitted to SSA a report from Blood Systems Laboratories dated August XX, 1997. The laboratory's medical director reported that the laboratory had performed DNA Print identification tests on samples from the wage earner, the claimant, and the claimant's mother. He opined that, assuming that the claimant's mother had not alleged that another blood relative of the wage earner was the father, the probability of the wage earner's paternity was 99.57%. On September 8, 1997, the claimant's mother filed a second claim for child's insurance benefits, relying on this laboratory report ("current claim"). [18]

In April 1998, the Southeastern Program Service Center of SSA wrote a letter to the claimant's mother explaining that it would not reopen the September 1996 denial determination because it was correct based on the evidence available at that time. The program center informed her that the current claim filed in September 1997 would be sent back to the district office for an initial determination.

In June 1998, SSA apparently issued an initial denial determination (which is not in the folder the Regional Counsel received) on the current claim. On July XX, 1998, claimant's mother requested reconsideration, which is pending.

ANALYSIS

A. Presumption of Paternity

Under Arizona intestacy law, a person is the child of his natural parents, regardless of their marital status. 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 (Arizona Revised Statute § 14-2114A, § 25-801, et.seq.). The standard of proof is a preponderance of evidence, which is less demanding than the clear and convincing standard previously applied. [19]

Under the Arizona statutes addressing maternity and paternity proceedings, a presumption of paternity is established when the results of blood or genetic tests indicate that the likelihood of the alleged father's paternity is ninety-five percent or greater (Arizona Revised Statute § 25- 807D ; §§ 25-814A(2), 25-814C). Accordingly, the genetic test results submitted by the claimant's mother establish a presumption under Arizona law that the claimant is the natural child of the wage earner. [20] There is nothing in the record to indicate that the claimant's mother has "accused a blood relative" of the wage earner of being the father of the claimant. In the event that you are aware of, or suspect the existence of, any such information, you may want to contact the claimant's mother or any other source of such evidence. Otherwise, the test results should be accepted as proof of the wage earner's paternity under Arizona law.

B. Reopening the Denial of the Prior Claim

We recommend that SSA reopen the reconsideration determination denying the claimant's prior claim filed on December 28, 1995. The January 2, 1996 initial determination was issued within four years of the current claim filed on September 8, 1997. 20 C.F.R. § § 404.988(b) and 404.989(a)(1) (1998).

There is good cause to reopen the reconsidered determination, based on the new, material evidence of the DNA test results. Furthermore, SSA applied the wrong standard of proof - the clear and convincing standard - when it adjudicated the prior December 1995 claim. If SSA reopens the 1996 determination, it may re-adjudicate the 1995 claim based on the new and material evidence of the DNA test results, and apply the "preponderance of the evidence" standard of proof.

CONCLUSION

The DNA test results should be accepted as proof that the wage earner is the father of the claimant (absent evidence that the claimant's mother has accused a blood relative of the wage earner of the claimant's paternity). The prior claim - the December 1995 application - should be reconsidered applying the correct standard of proof to the evidence of the DNA test results. [21]

To establish a fact by a preponderance of evidence means to prove that something is more probably true than not true. It means such evidence as, when considered and compared with that opposed to it, has more convincing force, and produces in one's mind 'a belief that what is sought to be proven is more likely true than not true. The probability of truth must be greater than fifty percent. Federal Jury Practice and Instructions, Part IV, § 72.01; 30 Ariz. L. Rev. 119 (1988).

F. PR 00-040 Claim for Survivor's Benefits Based on Arizona Intestacy Law Wage Earner Eddie , A/N ~

DATE: July 19, 1999

1. SYLLABUS

Under Arizona intestacy law, a person is the child of his natural parents, regardless of their marital status. A presumption of paternity is established when the results of blood or genetic tests indicate that the likelihood of the alleged father's paternity is ninety-five percent or greater.

2. OPINION

INTRODUCTION

Pursuant to GN 00306.080 you submitted for our review a claim filed in September 1997 for child's insurance benefits on the Social Security account of the wage earner named above. The claim was denied initially and is pending reconsideration. In the initial determination, SSA concluded that the evidence presented by the claimant's mother, which included DNA test results, did not constitute "clear and convincing" evidence that the claimant was' the child of the wage earner.

The primary issue you presented is whether the DNA test results would be accepted as establishing paternity for inheritance purposes in Arizona.

The DNA test results submitted by the claimant's mother would establish paternity under Arizona intestacy law for the reasons explained below. In addition, the DNA test results constitute "new and material evidence" for purposes of reopening the determination denying the claimant's prior claim filed on December 28, 1995.

PROCEDURAL HISTORY AND EVIDENCE

The wage earner died in Arizona on August XX, 1995. The claimant was born on August XX, 1995. His birth certificate does not indicate the name of his father.

On December XX, 1995, the claimant's mother, filed a claim for child's insurance benefits on the wage earner's account on behalf of the claimant ("prior claim"). The evidence submitted with this prior claim consisted of a signed, handwritten statement by the wage earner's eldest sister. She stated that her brother believed the claimant was his child. [22] SSA denied the prior claim in an initial determination (which is not included in the file we received). The claimant's mother requested reconsideration on February 9, 1996. On September 12, 1996, SSA denied the claim on reconsideration because the evidence did not establish a relationship under § 216(h)(3) of the Social Security Act (the federal methods), or under § 216(h)(2) (the applicable Arizona state intestacy law). In the denial letter, SSA explained that, in order to establish intestate succession fights under Arizona law, a child had to establish paternity in an adjudication before the father's death, or establish paternity thereafter by clear and convincing evidence.

In September 1997, the claimant's mother submitted to SSA a report from Blood Systems Laboratories dated August 22, 1997. The laboratory's medical director reported that the laboratory had performed DNA Print identification tests on samples from the wage earner, the claimant, and the claimant's mother. He opined that, assuming that the claimant's mother had not alleged that another blood relative of the wage earner was the father, the probability of the wage earner's paternity was 99.57%. On September 8, 1997, the claimant's mother filed a second claim for child's insurance benefits, relying on this laboratory report ("current claim"). [23]

In April 1998, the Southeastern Program Service Center of SSA wrote a letter to the claimant's mother explaining that it would not reopen the September 1996 denial determination because it was correct based on the evidence available at that time. The program center informed her that the current claim filed in September 1997 would be sent back to the district office for an initial determination.

In June 1998, SSA apparently issued an initial denial determination (which is not in the folder the Regional Counsel received) on the current claim. On July 1, 1998, claimant's mother requested reconsideration, which is pending.

ANALYSIS

A. Presumption of Paternity

Under Arizona intestacy law, a person is the child of his natural parents, regardless of their marital status. 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 (Arizona Revised Statute § 14-2114A, § 25-801, et.seq.). The standard of proof is a preponderance of evidence, which is less demanding than the clear and convincing standard previously applied. [24]

Under the Arizona statutes addressing maternity and paternity proceedings, a presumption of paternity is established when the results of blood or genetic tests indicate that the likelihood of the alleged father's paternity is ninety-five, percent or greater (Arizona Revised Statute § 25807D; § § 25-814A(2), 25-814C). Accordingly, the genetic test results submitted by the claimant's mother establish a presumption under Arizona law that the claimant is the natural child of the wage earner. [25] There is nothing in the record to indicate that the claimant's mother has "accused a blood relative" of the wage earner of being the father of the claimant. In the event that you are aware of, or suspect the existence of, any such information, you may want to contact the claimant's mother or any other source of such evidence. Otherwise, the test results should be accepted as proof of the wage earner's paternity under Arizona law.

B. Reopening the Denial of the Prior Claim

We recommend that SSA reopen the reconsideration determination denying the claimant's prior claim filed on December 28, 1995. The January 2, 1996 initial determination was issued within four years of the current claim filed on September 8, 1997. 20 C.F.R. §§ 404.988(o) and 404.989(a)(1) (1998).

There is good cause to reopen the reconsidered determination, based on the new, material evidence of the DNA test results. Furthermore, SSA applied the wrong standard of proof - the clear and convincing standard - when it adjudicated the prior December 1995 claim. If SSA reopens the 1996 determination, it may re-adjudicate the 1995 claim based on the new and material evidence' of the DNA test results, and apply the "preponderance of the evidence" standard of proof.

CONCLUSION

The DNA test results should be accepted as proof that the wage earner is the father of the claimant (absent evidence that the claimant's mother has accused a blood relative of the wage earner of the claimant's paternity). The prior claim - the December 1995 application - should be reconsidered applying the correct standard of proof to the evidence of the DNA test results. [26]

G. PR 88-009 Acceptability Of Arizona Decree Of Parentage For Inheritance Rights Under North Carolina Succession Statutes - Jerry - DNH ~

DATE: April 27, 1988

1. SYLLABUS

Under North Carolina law, a dismissal pursuant to North Carolina Rules of Civil Procedure, General Statute (G.S.) §1A-1, Rule 4(b), generally operates as an adjudication upon the merits provided the issue was before the court unless the court in its dismissal order specifies otherwise, or states that the action was being dismissed for lack of jurisdiction, for improper venue, or for the failure to enjoin a necessary party.

(Jerry - DNH ~ - RAIV [Jarrett] - to ARC, Progs., Atl., 04/27/88)

PARENT AND CHILD — Fed. Def. of "Child" — Court Order of Support — North Carolina — ILLEGITIMACY AS AFFECTING INHERITANCE RIGHTS. — North Carolina

A paternity support order contested pursuant to G.S. §52A-8.2 and dismissed pursuant to G.S. §1A-1, Rule 4(b) because the plaintiff failed to timely present any evidence to establish paternity is res judicata as to the paternity issue.

(Jerry- DNH ~- RAIV [J~] - to ARC, Progs., Atl., 04/27/88)

2. OPINION

In your memorandum, you requested this office to render a legal opinion regarding the legal effect the North Carolina courts would give the September 25, 1986, Arizona court decree wherein the child applicant was declared the son of the insured. You specifically wanted to know whether North Carolina would grant inheritance rights to the illegitimate child claimant in light of this order.

After reviewing the claim file, your office was advised on August 21, 1987, that we were unable to render a determination because the file contained too little information, We requested the pleadings and all related information in the North Carolina dismissal action and the California support action.

The present file reflects that your office obtained the following additional documentation:

(1) An order from the Halifax County Court dated December 13, 1978, wherein the court directed the Superior Court of California, County of Los Angeles, within 60 days, to submit evidence to support the assertion that the insured was the father of the child claimant.

(2) An affidavit dated January 29, 1988, by Geraldine, the child claimant's mother, wherein she stated that she had never filed an action in any jurisdiction except the County of Pima County, Arizona.

(3) A memorandum from the claimant's attorney, Clinton dated February 9, 1988, wherein the attorney requested the Administration to expedite the claim.

(4) A copy of a letter written to attorney Clinton by the Administration advising him that his memorandum had been forwarded to the Southeastern Programs Service Center.

After reviewing the December 13, 1978, continuance order, in light of North Carolina Rules of Civil Procedure, General Statute (G.S.) §1A-1, Rule 4(b) and G.S. §52A-8.2 of the Uniform Reciprocal Enforcement of Support Act, it is our legal opinion that the North Carolina court would not give any judicial recognition to the September 25, 1986, Arizona order, but would treat its February 28, 1979, dismissal order as the final judgment in the issue of paternity in North Carolina.

As noted in our August 21, 1987, memorandum, paternity must be judicially determined before support can be required of the putative father. G.S. §52A-8.2 provides as follows:

If the obligor asserts as a defense that he is not the father of the child for whom support is sought and it appears to the court that the defense is not frivolous, and if both of the parties are present at the hearing or the proof required in the case indicates that the presence of either or both of the parties is not necessary, the court may adjudicate the paternity issue. Otherwise the court may adjourn the hearing until the paternity issue has been adjudicated. Nothing in this section shall be construed to deprive, amend or alter the right of the obligor defendant upon motion, to have ordered a blood-grouping test as provided by G.S. §$-50.1. (1975, c.556, s.1.)

The file reflects that the putative father denied paternity and, thus, the Halifax County Court gave the responding State, California, sixty (60) days to submit evidence of paternity. The action was dismissed on February 28, 1979, because the California court failed to submit the requested information.

G.S. §1A-1, Rule 41(b) provides as follows:

(b) Involuntary dismissal; effect thereof. — For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim therein against him. After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a). Unless the court in its order for dismissal otherwise specifies, a dismissal under this section arid any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a necessary party, operates as an adjudication upon the merits. If the court specifies that the dismissal of an action commenced within the time prescribed therefor, or any claim therein, is without prejudice, it may also specify in its order that a new action based on the same claim may be commenced within one year or less after such dismissal. (Emphasis added.)

Inasmuch as the issue of paternity was before the court, and the court order did not specify that the case was dismissed without prejudice, or that it was being dismissed for a lack of jurisdiction, or for improper venue, or for failure to join a necessary party, the order operated as an adjudication upon the merits. The dismissal had the same effect as though the court had rendered a decision of non-paternity. Contrary to plaintiff's affidavit of January 29, 1988, wherein she stated that she had never filed anything for her son or on his behalf outside of Arizona, the file reflects that the plaintiff was the named petitioner in both the California and North Carolina proceedings and that she signed the petition for support. Accordingly, the February 28, 1979, decree is res judicata as to the paternity issue. Blake v. Blake, 237 S.E.2d 311 (1977); Brondum v. Cox, 232 S.E.2d 687 (1977). Since plaintiff was a party to the North Carolina proceedings, and res judicata applies, the North Carolinas courts would treat the September 25, 1986, Arizona decree as a collateral attack upon the North Carolina judgment. Consequently, the September 25, 1986, Arizona decree could not be used as the basis for granting the child inheritance rights.

H. PR 85-017 Clear and Convincing Evidence of Paternity - Arizona ,~

DATE: August 12, 1985

1. SYLLABUS

LEGITIMACY AND LEGITIMATION —PRESUMPTION AND EVIDENCE

Pursuant to section 14-2109(2) of the Arizona Revised Statutes (A.R.S.), where a child's natural mother and putative father did not participate in a marriage ceremony and where paternity was not adjudicated prior to the father's death, paternity may still be established by "clear and convincing" evidence. It is not possible to precisely define the proof necessary to satisfy this evidentiary standard. In general, clear and convincing evidence is that quantum of proof capable of supporting a firm belief or conviction. It need not be unequivocal, but it must be more than a mere preponderance. (Mario: RA IX:8/20/85)

2. OPINION

You have requested our assistance in deciding whether or not four children allegedly born out of wedlock to the deceased wage earner, Mario qualify for survivor's benefits pursuant to section 216(h)(2)(A) of the Social Security Act, 42 U.S.C. section 416(h)(2)(A). Because Mario was domiciled in Arizona at the time of his death on September XX, 1984, it is necessary to resolve this question by determining if the children would be entitled to share in Mario estate under the succession laws of Arizona.

The facts of the case are summarized in the April 23, 1985 Reconsideration Determination contained in the claims file. In brief, Mario was married to Maria from October XX, 1964 through the date he died. One daughter of this marriage, Ofelia , applied for child's insurance benefits on Mario account and her application was granted.

Applications have also been filed on Mario account by Ofelia on behalf of her four children. Ofelia contends that Mario was the natural father of all these children. Evidence tending to support these claims includes certified copies of the birth certificate for each child and copies of the baptismal certificates for the two younger children, Ofelia and Mario. In addition, affidavits were submitted by Mario brother, Henry and Ofelia’s uncle, Max , attesting that Mario was the children's natural father. Maria contends that her husband was not the father of Ofelia’s children and that only she and her daughter are entitled to survivor's benefits on Mario’s account.

The means by which a child born out of wedlock may acquire rights of intestate succession under Arizona law are set out in Section 14-2109(2) of the Arizona Revised Statutes (A.R.S.).1 [27] Since Mario and Ofelia never participated in a marriage ceremony, and since paternity was not adjudicated prior to Mario death, a father and child relationship in this case must be shown by "clear and convincing" proof. Consequently, the narrow issue to be addressed is whether or not the evidence presently on file constitutes clear and convincing proof that Mario fathered Ofelia four children.

A.

As we have commented previously, "most evidentiary standards are impossible to define precisely." GC opinion re G~.

O~, May 6, 1983. Reluctant to impose overly restrictive or inflexible criteria upon factfinders, legislatures typically refrain from specifically quantifying the proof necessary to meet an evidentiary standard. For the same reasons, courts tend merely to restate the abstract standards using alternative, but no more concrete, terminology. Thus, a California appellate court recently explained that

"Clear and convincing" evidence requires a finding of high probability. The evidence must be so clear as to leave no substantial doubt. It must be sufficiently strong to command the unhesitating assent of every reasonable mind.

In Re David C., 152 Cal. App. 3d 1189, 1208, 200 Cal. Rptr. 115 (1984). Variations have been composed by numerous courts over the years. See, e.g., Matter of D~, 98 N.M. 198, 647 P.2d 400 (1982); Welton v. Gallagher, 2 Hawaii App. 242, 630 P.2d 1077, 1081 (1981); see generally 30 Am. Jur. 2d, Evidence §1167. Another definition of "clear and convincing" is set forth in the O~ opinion, cited above: "Generally, clear and convincing evidence is that quantum of evidence capable of supporting a firm belief or conviction. It need not be unequivocal, but it must be more than a mere preponderance."

We realize that rules like this are difficult to work with. The standard, however, cannot be stated with more precision. Standards of proof are designed to give the factfinder a broad and adaptable framework within which to sort and weigh the facts of a given case. It is neither possible nor desirable to crystallize a standard into a formula to be applied by rote, because it undoubtedly would prove unworkable in some of the myriad fact patterns which may arise.

B.

Turning to the case at hand, in our judgment the evidence of paternity currently in the file as to the two elder children, Marcia and Amalia, is clear and convincing. The birth certificate of each child lists Mario as the father. This evidence is highly probative, because Arizona law prohibits entry of the father's name on the birth certificate of a child born to an unmarried woman "unless [as pertinent here] sworn statements acknowledging such paternity are voluntarily presented by both the alleged father and the mother." A.R.S. §36-322(F) (emphasis added). [28] Thus, in the absence of any evidence to the contrary, it is to be assumed that Mario acknowledged paternity in writing as a predicate to the inclusion of his name on the two birth certificates.

The probative value of official birth records, such as these, is specifically recognized by statute in Arizona. A.R.S. section 36-341(c) provides that information contained in the certified copy of a birth certificate duly issued by the state "shall be prima facie evidence of the facts therein stated. [29] Since there is no substantial evidence to indicate that Mario was not the children's father, the certificates, standing alone, are enough to establish the parent and child relationship with respect to Marcia and Amalia with the requisite certitude.

The affidavits obtained from Messrs., and A~ further support a finding of paternity as to Marcia and Amalia; however, these statements are neither essential nor sufficient (in and of themselves) to prove paternity.

C.

Inasmuch as the birth certificates of the two younger children, Ofelia and Mario, do not identify a father, their relationship to Mario must be established by other evidence. The only other significant documents currently on file are baptismal certificates for each child naming Mario as the father. Although these church records lend credence to the paternity claims, they do not carry the same weight as official birth certificates. Unlike birth records, baptismal certificates do not constitute prima facie evidence under Arizona law, nor are they as inherently trustworthy. There is no indication that the church records are verified. The baptismal certificates do not identify the informant(s) who supplied Mario’s name, and there is nothing to indicate that Mario was aware of or agreed to being listed as the father.

Nor do the aforementioned affidavits tip the scales in favor of paternity. Each affidavit merely asserts that Mario was the father of the four children, neither Messrs nor Mr. A~ stated the grounds for his belief. For all that appears on the face of the affidavits, the affiants' opinions may derive from unquestioning acceptance of Ofelia statements, or simply a perceived family resemblance or some other equally dubious reason. Therefore, in our opinion, the evidence obtained so far does not show clearly and convincingly that Mario was the father of Ofelia and Mario. [30]

D.

It is possible that the status of the two younger children can be established with further factual development. For instance, Messrs., and A~ may be asked to submit additional statements explaining the basis for their belief that Mario is the father of Ofelia and Mario. If either man indicates that he witnessed acknowledgments of paternity by Mario, or has other reliable reasons for believing that Mario is the children's father, you may find such statement(s), in conjunction with the other evidence on file, to be sufficient.

We recommend that you follow up on other evidentiary leads as well, especially in view of the challenge to all four claims raised by Ofelia. A December 6, 1984 contact report notes that Ofelia expressed her willingness to obtain a statement from Mario mother. Certainly, a signed statement by Mario’s mother indicating that her son had acknowledged paternity in her presence would bolster the children's position. [31] In addition, Ofelia volunteered that she has photographs showing Mario at the children's baptismal ceremonies. These pictures would also help to verify Mario open acceptance of paternity. It would be useful as well to ask the priests who officiated at the baptisms (preferably) or other knowledgeable church officials whether the putative father of a child born out of wedlock must consent to have his name placed on a baptismal certificate. If the father's agreement is always required, these certificates may reasonably be accorded additional weight.

In summary, the status of Marcia and Amalia is established, as required, by clear and convincing evidence. Adjudication of the claims by Ofelia and Mario must await further investigation. Feel free to contact this office again should you have questions about this or any related matter. The claims file is enclosed herewith.


Footnotes:

[1]

. While there have been discrepancies with respect the names and spellings of both daughters, the agency has collected evidence that resolves these discrepancies.

[2]

. See AABB Accredited Relationship (DNA) Testing Facilities, DDC/DNA Diagnostics Center, F~, Ohio, http://www.aabb.org/sa/facilities/Pages/RTestAccrFac.aspx (last visited Jun. 6, 2016). The United States Department of Health and Human Services has approved the AABB as an accreditation body for genetic testing in paternity actions. See Information Memorandum: Accreditation of Genetic Testing Labs, U.S. Department of Health & Human Services, Office of Child Support Enforcement, available at http://www.acf.hhs.gov/programs/css/resource/accreditation-of-genetic-testing-labs (last visited June 23, 2016).

[3]

. DWE’s sister is noted to be “Maria” on the DNA test results but as “Maria ” in other agency documents.

[4]

. Maria did not deny that her brother could be C1 and C2’s father. Her uncertainty and willingness to participate in the DNA test suggests that she believed he could be their father.

[5]

. Here, the term “insured individual” refers to an individual entitled to old-age or disability insurance benefits. See Social Security Act § 202(d)(1), 42 U.S.C. § 402(d)(1).

[6]

. The standard of proof in intestacy proceedings is also a preponderance of the evidence unless otherwise provided. See Ariz. Rev. Stat. § 14-1311.

[7]

. A parent of a child born out of wedlock may also establish paternity through a voluntary acknowledgment of paternity by filing certain documentation with the clerk of the superior court, the Department of Economic Security, or the Department of Health Services. See Ariz. Rev. Stat. § 25-812. This provision is inapplicable here.

[8]

. See AABB Accredited Relationship (DNA) Testing Facilities, DDC/DNA Diagnostics Center, Fairfield, Ohio, http://www.aabb.org/sa/facilities/Pages/RTestAccrFac.aspx (last visited Nov. 18, 2013). The United States Department of Health and Human Services has approved the AABB as an accreditation body for genetic testing in paternity actions. See Information Memorandum: Accreditation of Genetic Testing Labs, U.S. Department of Health & Human Services, Office of Child Support Enforcement, available at http://www.acf.hhs.gov/programs/css/resource/accreditation-of-genetic-testing-labs (last visited Nov. 18, 2013).

[9]

. Arizona’s case law and statutes on maternity and paternity proceedings do not appear to address the use of DNA from individuals other than the alleged father to establish a presumption of paternity. See Ariz. Rev. Stat. § 25-801, et. seq. Section 25-814 states that a man is presumed to be the father of a child if “[g]enetic testing affirms at least a ninety-five per cent probability of paternity” but does not limit the genetic testing to particular individuals or specify that the genetic testing must include the alleged father’s DNA. Ariz. Rev. Stat. § 25814; compare, e.g., Ind. Code. Ann. § 31-14-7-1(3) (a man is presumed to be a child’s biological father if “the man undergoes a genetic test that indicates with at least a ninety-nine percent (99%) probability that the man is the child’s biological father”). Section 25-807 specifies that the Court shall order the mother, her child, and the alleged father to submit to genetic testing, and that the alleged father is presumed to be the child’s parent if the test results indicate a ninety-five percent or greater likelihood of the alleged father’s paternity. Ariz. Rev. Stat. § 25-807(C), (D). However, it also states that the Court may order that experts perform “alternative or additional tests including medical, scientific and genetic tests” on motion of a party to the proceedings, indicating that the Court would also consider other genetic tests. Ariz. Rev. Stat. § 25-807(H). Thus, while an Arizona court would likely consider avuncular tests in a paternity determination, it is unclear whether the court would rely on these tests to presume paternity in the absence of any other evidence.

[10]

. If C2 is determined to be DWE’s natural child, DNA testing between C2 and C1 could establish C1’s status as DWE’s child. Under SSR 06-02p, if an individual is determined to be the insured’s natural child under section 216(h)(3) of the Act (C2 in this case), the agency will apply the law of intestate succession of the appropriate state to determine whether the results of DNA testing between the natural child and the claimant (C1 in this case) establish his or her status as the insured’s child. See SSR 06-2p.

[11]

. For purposes not relevant to this matter, the URESA was superceded by the Uniform Interstate Family Support Act (UIFSA), which was part of the Personal Responsibility and Job Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193.

[12]

. According to FO, this other child, Jeremy R~, is currently receiving benefits on the DWE's account.

[13]

. It is unclear whether they are referring to Cheryl, Denise (the mother of Jeremy ), or some other individual.

[14]

. SSA determines paternity by using the standard of proof that the State court would use as the basis for a determination of paternity. See 20 C.F.R. § 404.355(b)(2); POMS GN 00306.075(B)(4).

[15]

. Because another child, Jeremy , is currently receiving benefits as the child of the DWE, if DNA testing is performed, the results of that test might present evidence which would yield a different result.

[16]

. We recognize that the statement of Denise could actually be considered a statement against her interest, because if the claimant is found eligible for benefits as the child of the DWE, it would reduce the benefits of her child, Jeremy .

[17]

. The claimant's mother also applied for child's insurance benefits on the wage earner's account for her daughter, but you requested an opinion only as to claimant's relationship to the wage earner.

[18]

. According to a letter dated September 9, 1997 by her attorney, the claimant's mother had requested a hearing after the reconsideration denial of the December 1995 claim. The attorney requested that his letter be considered a request for hearing on that claim. The issue of the prior December 1995 claim is addressed below.

[19]

. Arizona Revised Statute § 14-2109 was repealed, effective January 1, 1995. That section had provided in relevant part, for purposes of intestate succession, "paternity must be established by an adjudication before the death of the father, or established thereafter by clear and convincing proof." The Arizona Legislature replaced this section with § 14-2114, which refers to the statutes on paternity and maternity proceedings. A paternity proceeding is a civil action, in which the standard of proof is a preponderance of the evidence. Allen v. Sullivan, 139 Ariz. 142 (1984) (Brooks, concurring opinion).

[20]

. Arizona law indicates that genetic test result should be "of a type generally acknowledged as reliable by accreditation bodies" (A.R.S. § 25-816A), and by an "expert duly qualified as an examiner of genetic markers" (A.R.S. § 25-807). The test results here appear to satisfy these criteria.

[21]

. If SSA finds the claimant entitled to survivor's benefits based on the December 28, 1995 claim, then the claimant would be entitled to retroactive benefits beginning with the wage earner's death on August 14, 1995 (a period which is less than the standard six-month period of retroactivity on a survivor's claim).

[22]

. The claimant's mother also applied for child's insurance benefits on the wage earner's account for her daughter, but you requested an opinion only as to claimant's relationship to the wage earner.

[23]

. According to a letter dated September 9, 1997 by her attorney, the claimant's mother had requested a hearing after the reconsideration denial of the December 1995 claim. The attorney requested that his letter be considered a request for hearing on that claim. The issue of the prior December 1995 claim is addressed below.

[24]

. Arizona Revised Statute § 14-2109 was repealed, effective January 1, 1995. That section had provided in relevant part, for purposes of intestate succession, "paternity must be established by an adjudication before the death of the father, or established thereafter by clear and convincing proof." The Arizona Legislature replaced this section with § 14-2114, which refers to the statutes on paternity and maternity proceedings. A paternity proceeding is a civil action, in which the standard of proof is a preponderance of the evidence. Allen v. Sullivan, 139 Ariz. 142 (1984) (Brooks, concurring opinion).

To establish a fact by a preponderance of evidence means to prove that something is more probably true than not true. It means such evidence as, when considered and compared with that opposed to it, has more convincing force, and produces in one's mind a belief that what is sought to be proven is more likely true than not true. The probability of truth must be greater than percent. Federal Jury Practice and Instructions, Part IV, § 72.01; 30 Ariz. L. Rev. 119 (1988).

[25]

. Arizona law indicates that genetic test result should be "of a type generally acknowledged as reliable by accreditation bodies" (A.R.S. § 25-816A), and by an "expert duly qualified as an examiner of genetic markers" (A.R.S. § 25-807). The test results here appear to satisfy these criteria.

[26]

. If SSA finds the claimant entitled to survivor's benefits based on the December 28, 1995 claim, then the claimant would be entitled to retroactive benefits beginning with the wage earner's death on August XX, 1995 (a period which is less than the standard six-month period of retroactivity on a survivor's claim).

[27]

. The statute, which became effective on January 1, 1974 (and, therefore, applies to all four claimants), reads as follows:

If, for purposes of intestate succession, a relationship of parent and child must be established to determine succession by, through or from a person:

1. An adopted person is the child of an adopting parent and not of the natural parents except that adoption of a child by the spouse of a natural parent has no effect on the relationship between the child and that natural parent.

2. In cases not covered by paragraph 1, a person born out of wedlock is a child of the mother. That person is also a child of the father, if either:

(a) The natural parents participated in a marriage ceremony before or after the birth of the child, even though the attempted marriage is void.

(b) The paternity is established by an adjudication before the death of the father or is established thereafter by clear and convincing proof, except that the paternity established under this subdivision is ineffective to qualify the father or his kindred to inherit from or through the child unless the father has openly treated the child as his, and has not refused to support the child.

[28]

. Since the putative father's consent is mandatory, it is inconsequential that Mario is shown as the informant on Amalia's certificate, while Ofila was the informant for Marcia.

[29]

. "Prima Facie evidence is evidence which, if unexplained or uncontradicted, is sufficient to sustain a judgment in favor of the issue which it supports, but which may be contradicted by other evidence." Black's Law Dictionary, 5th Edition, p. 1071.

[30]

. Our judgment that paternity has been demonstrated with respect to Marcia and Amalia is not a factor in the assessment of the claims of the other two children. Each claim must be considered on its our merits.

[31]

. Any such statement should specify which children Mario actually acknowledged and, if possible, the date or dates of acknowledgment.


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1501115004
PR 01115.004 - Arizona - 10/12/2016
Batch run: 10/12/2016
Rev:10/12/2016