The purpose of this memorandum is to respond to your request for our opinion on whether
a Louisiana District Court Judgment of Paternity issued more than one year after the
death of the purported father and based on Deoxyribonucleic Acid (DNA) testing is
acceptable to establish a presumption of paternity. Specifically, you asked the following
(1) Is the Social Security Administration (SSA) bound by the September 1999 Louisiana
District Court Judgement of Paternity?
(2) If SSA is bound by the Judgment issued more than one year after the alleged father's
death, can SSA disregard Louisiana State law time limits?
(3) Does a DNA test report based on blood testing of other than the wage earner establish
a presumption of paternity?
(4) Does the laboratory that performed the DNA analysis meet the accreditation requirements
of state law?
(5) What is the date of entitlement, if any?
After reviewing the facts and relevant law, it is our opinion that SSA can disregard
the Louisiana state law time limits, but SSA is not bound by the September 1999 District
Court Judgment. Even so, the District Court Judgment combined with properly certified
DNA test results and Felicia S~' statements satisfy the clear and convincing evidence
standard necessary to establish paternity. The date of entitlement for Kadijah S~
would be retroactive a full six months before the October 1999 filing date.
Garland W. C~, the wage earner and Kadijah S~' purported father, died on October 22,
1997, while domiciled in Louisiana. Mr. C~ was legally married to Ursula C~ at the
time of his death. Mr. C~ had filed a disability claim in October 1996 listing his
three natural legitimate children born during his marriage to Ursula C~ as his children.
He also included Demetrius S~, a child born to Felicia S~ on July 30, 1991, as his
Following Mr. C~'s death in October 1997, Ms. S~ alleged Mr. C~ is Kadijah's biological
father and filed an application for survivor's benefits on behalf of Kadijah, who
was born on October 22, 1994. Ms. S~ was not married at the time of Kadijah's conception
or birth. The October 1997 claim was denied because Ms. S~ was unable to furnish evidence
of paternity. Ms. S~ filed another application for Kadijah in October 1999, and submitted
a September 1999 Louisiana District Court Judgement of Paternity declaring Mr. C~
as Kadijah's father. Ms. S~' attorney, Melissa A. C~, reported that the paternity
judgement was based on a July 1999 DNA testing report showing a 99.99 percent probability
that the parties sampled were first degree relatives. The samples used were from Ms.
S~, Kadijah, and Demetrius S~, who was born to Felicia S~ on July 30, 1991, and approved
for benefits as a surviving child of Mr. C~ using a September 1995 child support order
to establish his relationship to Mr. C~.
To be considered the insured person's natural child for purposes of entitlement to
Social Security benefits under section 216(h)(2) of the Social Security Act (the Act)
one of the following conditions must be met: (1) The child would be entitled to inherit
through intestate succession under the laws of the state in which the insured person
was domiciled when he died; or (2) the parents of the child went through a marriage
ceremony which did not create a valid marriage because of a legal impediment. See Social Security Act § 216(h)(2); 42 U.S.C. § 416(h)(2)(A) and (B). An applicant who
is not deemed to be the child of the insured under section 216(h)(2) of the Act shall
nevertheless be deemed to be the child of the insured under section 216(h)(3) of the
Act if: (1) Prior to his death, the insured person acknowledged the child in writing,
had been decreed by a court to be the father of the child, or had been ordered to
contribute to the support of the child because of paternity; or (2) the insured person
is shown by satisfactory evidence to be the father of the child and was living with
the child or contributing to the child's support at the time such insured individual
died. See Social Security Act § 216(h)(3); 42 U.S.C. § 416(h)(3)(C)(i) and (ii).
It is undisputed that Mr. C~ and Ms. S~ never attempted marriage.
Ms. S~ has not furnished any evidence that Mr. C~ acknowledged Kadijah in writing,
had been decreed by a court to be Kadijah's father, or had been ordered to contribute
to Kadijah's support prior to his death in October 1997. In addition, it is undisputed
that Mr. C~ did not live with Kadijah or contribute to her support. Thus, the only
possible avenue to establish Kadijah as Mr. C~'s child for purposes of the Act is
by showing that Kadijah would be entitled to inherit through intestate succession
under the laws of Louisiana, the state in which Mr. C~ was domiciled at the time of
his death. See Social Security Act § 216(h)(2); 20 C.F.R. § 404.355(a)(1) and (b)(4) (2000).
Under recently amended regulations, SSA will not apply any state law requirement that
an action to establish paternity must be taken within a specified period of time from
the worker's death or the child's birth, or that an action to establish paternity
must have been started or completed before the worker's death. See 20 C.F.R. § 404.355(b)(2). Also, if applicable state law requires a court determination
of paternity, SSA will not require an applicant to obtain such a determination but
will decide paternity using the standard of proof that the state court would have
used. See id.
The Louisiana law on intestate succession provides that the undisposed property of
the deceased devolves by operation of law in favor of his descendants, ascendants,
and collaterals, by blood or by adoption, and in favor of his spouse not judicially
separated from him. See La. Civ. Code Ann. art. 880 (West 2000).
In addition, the comment following this article states that, "once a relationship
is proven by blood or adoption, the succession rights of such a relative are established
without reference to the legitimacy of that relationship." La. Civ. Code Ann. art.
880 comment c (West 2000). Thus, if Ms. S~ can establish that Kadijah is Mr. C~'s
child under Louisiana law, Kadijah would be entitled to inherit through intestate
succession in Louisiana and would be considered Mr. C~'s child for purposes of the
Under Louisiana law, "in order to establish filiation/, a child who does not enjoy
legitimate filiation or who has not been filiated by the initiative of the parent
by legitimation or by acknowledgment under Article 203 must institute a proceeding
under Article 209." La. Civ. Code Ann. art. 208 (West 2000). Since Kadijah does not
enjoy legitimate filiation and was not filiated by the initiative of the parent by
legitimation or by acknowledgment under Article 203, we must look to Article 209 of
the Louisiana Civil Code to determine if Ms. S~ properly established that Kadijah
is Mr. C~'s child under Louisiana law. The pertinent part of Article 209 states,
B. A child not entitled to legitimate filiation nor filiated by the initiative of
the parent by legitimation or by acknowledgment under Article 203 must prove filiation
as to an alleged deceased parent by clear and convincing evidence in a civil proceeding
instituted by the child or on his behalf within the time limit provided in this article.
C. The proceeding required by this article must be brought within one year of the
death of the alleged parent or within nineteen years of the child's birth, whichever
first occurs. This time limitation shall run against all persons, including minors
and interdicts. If the proceeding is not timely instituted, the child may not thereafter
establish his filiation, except for the sole purpose of establishing the right to
recover damages under Article 2315. A proceeding for that purpose may be brought within
one year of the death of the alleged parent and may be cumulated with the action to
La. Civ. Code Ann. art. 209 (West 2000).
Here, Ms. S~ seeks to prove Kadijah's filiation to Mr. C~ with a September 1999 District
Court Judgment, which was issued almost 2 years after Mr. C~'s death. You asked if
this judgment is binding on SSA and if SSA can disregard the Louisiana State law time
limits discussed in Article 209.
Review of the Judgement of Paternity reveals this action initially came before the
26th Judicial District Court, Webster Parish, Louisiana on September 22, 1998, which
complied with Article 209 because it was instituted within one year of Mr. C~'s death
in October 1997./ Article 209 requires initiation of the action within one year of
the alleged parent's death, but does not require that the Court issue a decision within
one year of the alleged parent's death. As a result, the September 1999 District Court
Judgment in an action originally initiated in September 1998 satisfied the time limits
in Article 209.
Even if the action had not been brought within one year of Mr. C~'s death in October
1997, the amended Social Security regulations effective November 27, 1998, state that
the agency will not apply a state's inheritance law requirement that an action to
establish paternity must be taken within a specified period of time measured from
the wage earner's death or the child's birth. See 20 C.F.R. § 404.355(b)(2). Since Ms. S~ filed an application for Kadijah in October
1999 after the new regulations became effective in November 1998, the time limits
can be disregarded for purposes of the October 1999 application. See Hampton v. Bowen, 785 F.2d 1308, 1310 (5th Cir. 1986)(citing Central Freight Lines v. U.S., 669 F.2d 1063, 1069 (5th Cir. 1982))(the law in effect at the time of an administrative
determination is controlling, even if it has been amended during the pendency of the
To determine if SSA is bound by the court's holding in September 1999 that Mr. C~
is Kadijah's natural and biological father, we consider the criteria required by Social
Security Ruling (SSR) 83-37c, which adopted the holding in a Sixth Circuit case. See Gray v. Richardson, 474 F.2d 1370, 1373 (6th Cir. 1973). Although the Commissioner is not bound by the
decision of a state trial court, the Commissioner will follow the order of a state
tribunal when the following prerequisites are met: 1) an issue in a claim for Social
Security benefits previously has been determined by a state court of competent jurisdiction;
2) the issue was genuinely contested before the state court by parties with opposing
interests; 3) the issue falls within the general category of domestic relations law;
and 4) the resolution by the state trial court is consistent with the law enunciated
by the highest court in the state. See SSR 83-37c.
The first and third prerequisites were satisfied. The state court determined that
Mr. C~ is Kadijah's natural and biological father and that is the sole issue in Ms.
S~' claim for survivor's benefits on behalf of Kadijah. The 26th Judicial District
Court, Webster Parish, Louisiana is a court of competent jurisdiction. See La. Const. Art. 5, § 16.
The second prerequisite, i.e., that the issue was genuinely contested, was not satisfied.
The District Court order of September 27, 1999, indicates that the Court made its
decision without a hearing. For obvious reasons, Mr. C~, who was listed as the defendant,
was not present to contest the issue. Although information in the file indicates Mr.
C~'s family did not believe Kadijah was Mr. C~'s child, the file does not show that
any member of Mr. C~'s family, such as his parents or widow, was aware of the paternity
action or contested it. Because there were no apparent opposing parties to Ms. S~'
petition, the issue was not genuinely contested.
We do not have enough information to determine if the holding of the District Court
is consistent with the law as enunciated by the highest court of the State of Louisiana.
The Louisiana Supreme Court has noted that the burden of proving filiation or paternity
in Louisiana is by clear and convincing evidence when the alleged parent of an illegitimate
child is deceased. See Sudwisher v. Estate of Hoffpauir, 705 So.2d 724, 730 (La. 1997). Simply stated, this standard requires that the evidence,
taken as a whole, must show that the facts sought to be proven are highly probable."
See Chatelain v. State, 586 So.2d 1373, 1378 (La. 1991)(logical that a higher standard of proof required
for filiation and legitimation when not presented until after the death of the alleged
parent because replete with danger of fraud); Hines v. Williams, 567 So.2d 1139, 1141 (La. App. 2nd Cir. 1990)(illegitimates required to prove filiation
to an alleged deceased parent by clear and convincing evidence to protect individuals
and families from potentially spurious claims brought at a time when the putative
father cannot defend himself against paternity allegations).
The District Court did not identify the evidence used to make its determination in
the one page copy of the Judgment of Paternity in the SSA file. Since we do not have
a complete copy of the court file from the Webster Parish Courthouse, we do not know
what evidence was used by the Court to make the Judgment of Paternity. Melissa A.
C~, the staff attorney for the Louisiana Department of Social Services who represented
Ms. S~ before the Court, stated from memory that the Judgment was based on DNA evidence
and statements from two persons. Although the SSA file contains DNA tests results,
the file lacks statements from the two persons Ms. C~ indicated assisted the Court
in its decision, including a statement from Mr. C~'s brother-in-law (name not provided)
and another individual whose name Ms. C~ could not remember. Apparently, Ms. S~ has
not provided a copy of the court file, although Ms. C~ indicated a copy was available
at the Webster Parish Courthouse. Thus, we are unable to determine if the District
Court's holding was consistent with the clear and convincing evidence standard enunciated
by the Louisiana Supreme Court.
Based on the foregoing discussion, we believe that the District Court's determination
that Mr. C~ is Kadijah's father is not binding on the Commissioner because the issue
was not genuinely contested before the District Court by parties with opposing interests.
In addition, the SSA file does not contain enough evidence to determine if the District
Court's decision was based on clear and convincing evidence, the burden of proof recognized
by the Louisiana Supreme Court when the alleged parent of an illegitimate child is
Next, you asked if the July 1999 DNA test report based on blood testing of other than
the wage earner establishes a presumption of paternity. The SSA file contains a July
8, 1999, Sibling Study from Fairfax Identity Laboratories showing that DNA was extracted
from Ms. S~, Kadijah, and Demetrius S~. Ms. S~ is the mother of both Kadijah and Demetrius.
Demetrius was approved for benefits as Mr. C~'s surviving child based on Mr. C~'s
acknowledgment that Demetrius was his child and a September 1995 child support order.
No scientific testing was done to establish that Demetrius was Mr. C~'s child. Even
so, the Sibling Study establishes a 99.99 percent probability that Demetrius and Kadijah
are related as first degree relatives, or it is very probable that Demetrius and Kadijah
have the same biological father.
Louisiana statutory law provides that a certified report of blood or tissue samples
that indicates a 99.9 percent or higher probability of paternity creates a rebuttable
presumption of paternity. See La. Rev. Stat. Ann. § 9:397.3(B)(2)(b) (West 2000). This statute does not preclude
testing of individuals other than the wager earner, or siblings, but this statute
contemplates that the putative father is alive and present to rebut the presumption.
See La. Rev. Stat. Ann. § 9:397.3. Even so, the Louisiana Supreme Court allowed DNA testing
of collateral parties and considered whether such tests results met the clear and
convincing evidence standard in a case where an individual sought to establish her
relationship to a decedent during a succession proceeding. See Sudwisher, 705 So.2d at 729, 732./ Thus, we conclude that Louisiana courts would not reject
the July 1999 DNA test report simply because it was based on blood testing of other
than the wage earner.
Scientific tests alone are insufficient to prove paternity in Louisiana without other
corroborating evidence of paternity in addition to the DNA test result. See State Dept. of Social Services v. Passant, 698 So.2d 27, 30 (La. App. 3rd Cir. 1997); Landrum v. Matthews, 612 So.2d 854, 858 (La. App. 1st Cir. 1992).
Valid DNA test results combined with other credible evidence may satisfy the clear
and convincing evidence standard necessary to establish paternity when the alleged
father is deceased. See Sudwisher, 705 So.2d at 732; Guidry v. Mouton, 689 So. 621, 622-623 (La. App. 3rd Cir. 1997)(holding that DNA test results with
trial and deposition testimony constituted clear and convincing evidence). Other credible
evidence can include informal acknowledgment of paternity by the alleged father prior
to death, or the testimony of the surviving parent. See Chatelain, 586 So.2d at 1379; Guidry, 689 So.2d at 622-623.
Ms. S~ named Mr. C~ as Kadijah's father in the application for survivor's benefits.
Ms. S~ stated that she dated Mr. C~ for nine years until about a year before he died.
Ms. S~ acknowledged that Mr. C~ was married to Ursula C~ the entire time Ms. S~ dated
Mr. C~, but indicated that Mr. C~ would visit her before he went home from work. Ms.
S~ reported that Mr. C~ spent nights at the home he shared with this wife. Ms. S~
related that Mr. C~'s parents never acknowledged that Mr. C~ was Kadijah's father.
Ms. S~' comments provide the type of details that Louisiana courts have looked for
in similar cases. See Guidry, 689 So.2d at 623 (affirming that DNA test results combined with surviving parent's
testimony regarding opportunity for sexual intimacy constituted clear and convincing
evidence); Landrum v. Matthews, 612 So.2d 854 at 856 (holding that testimony of mother regarding time of conception
and frequency of intercourse in combination with DNA test results was sufficient to
establish paternity). The courts have looked for the specifics of the couple's relationship,
including the frequency of sexual relations, to give credibility to the surviving
parent's claim of paternity. See Guidry, 689 So.2d at 623; Suire v. Robison, 511 So.2d 35, 36-37 (La. App. 3rd Cir. 1987)(medical evidence showed child was conceived
prior to mother's sexual encounter with alleged father). Here, Ms. S~ supplied sufficient
testimony concerning the specifics of the couple's relationship, including the frequency
of contact and opportunity for sexual intimacy, to give her claim the credibility
required by Louisiana courts.
With respect to your question regarding accreditation of the laboratory that performed
the DNA analysis, Louisiana law does not require testing laboratories to be accredited.
Instead, to verify the chain of custody, the DNA test results must be certified by
a sworn affidavit from the laboratory expert who conducted or supervised the test.
See La. Rev. Stat. Ann. §9:397.3(A) (West 2000) (affidavit shall include affiant's name
and qualifications; how test samples were obtained; who, how, when, and where samples
were obtained; chain of custody from the time samples were obtained until the tests
were completed; results and probability of paternity; and the procedures performed
to obtain the test results); State v. C. Simien, 677 So.2d 1138, 1141 (La. App. 3rd Cir. 1996). Otherwise, the DNA test results are
not admissible evidence and may be excluded by the court. See State Dept. of Social Services v. White, 651 So.2d 366, 368-369 (La. App. 2nd Cir. 1995). Since the Agency is acting as the
state court would in this case, we believe that DNA test results should only be considered
if the required affidavits are provided by the testing laboratory. See 20 C.F.R. § 404.355.
The affidavits in file from Amanda C. S~, Sherrie L. C~, and Sumera K~ of Fairfax
Identity Laboratories satisfy Louisiana's requirements.
You also inquired about the effective date of entitlement to any benefits. Social
Security regulations state that when the insured is deceased, child's benefits begin
with the first month covered by the application in which all other requirements for
entitlement are met. See 20 C.F.R. § 404.352(a)(1). As discussed earlier, a child who establishes filiation
to a decedent by clear and convincing evidence is entitled to inheritance rights.
Under Louisiana law, inheritance rights vest at the moment of death. See La. Civ. Code Ann. art. 935 & art. 954 (West 2000). Regardless of when those rights
are later asserted, the acquisition of the inheritance rights relates back to the
moment of death. See La. Civ. Code Ann. art. 954 comment a (West 2000). Thus, Kadijah's right to inherit
from Mr. C~'s intestate estate vested at the moment of Mr. C~'s death. Because of
this, Kadijah's relationship to Mr. C~ was proven pursuant to section 216(h)(2)(A)
of the Act as of the date of Mr. C~'s death, at the latest. Kadijah satisfied the
definition of Mr. C~'s "child" under the Act as of the date of Mr. C~'s death in October
1997. As a result, the date of entitlement for Kadijah would be the full retroactive
life of the October 1999 application, or retroactive a full six months before the
October 1999 filing date. See 20 C.F.R. § 404.621.
In light of the foregoing discussion, it is our opinion that SSA can disregard the
Louisiana state law time limits, but SSA is not bound by the September 1999 District
Court Judgment. Nonetheless, the District Court Judgment combined with properly certified
DNA test results and Felicia S~' statements satisfy the clear and convincing evidence
standard necessary to establish paternity. The date of entitlement would be retroactive
a full six months before the October 1999 filing date.