PR 01115.021 Louisiana

A. PR 10-044 Louisiana State Law Effective Date of Child Relationship (NH James C. C~; SSN ~) – REPLY

DATE: December 23, 2009

1. SYLLABUS

In Louisiana, scientific testing alone is insufficient to prove paternity without other corroborating evidence.

Such corroborating evidence may typically include informal acknowledgments of paternity by an alleged father

or the testimony of a surviving parent, if that testimony includes details about the couple's relationship.

Accordingly, the effective date in Louisiana is the date of the last piece of evidence that establishes paternity.

2. OPINION

The purpose of this memorandum is to respond to your request for an opinion to determine the effective date of a child relationship based in part on grandparentage deoxyribonucleic acid (DNA) test results. Specifically, you asked whether the effective date of the child relationship was established retroactively to the number holder's death or prospectively from the date of the evidence establishing the child relationship. In our opinion, the effective date of the child relationship was established when the child met all the requirements for entitlement to survivor's benefits, which either occurred at the April 13, 2009, hearing, or, as explained below, at an earlier date.

As we understand the facts, Danielle K~ gave birth to Dylan K~ on December 8, 1997. The purported father, James C~ (number holder), died while domiciled in Louisiana on August 27, 2004. At no time did the number holder live with or support Ms. K~ or Dylan.

In October 2007, Ms. K~ filed for survivor's benefits on Dylan's behalf on the number holder's account. With this application, Ms. K~ submitted a DNA test report dated December 12, 2007, which indicated a 99.997 percent probability that the number holder was Dylan's biological father. This report was based on DNA testing of Ms. K~, Dylan, Kathryn S~ (the number holder's mother), Edward C~, Sr. (the number holder's father), and Edward C~, Jr. (the number holder's only brother). Because Louisiana law required, in addition to DNA testing, additional evidence to prove paternity, the agency denied Ms. K~'s claim due to a lack of evidence to establish a child relationship to the number holder. Ms. K~ requested reconsideration of the denial and stated in her reconsideration request that she spoke with the number holder's brother, Mr. C~, Jr., who stated that the number holder admitted to him that Dylan was his child. After the agency denied the request for reconsideration in March 2008, Ms. K~ requested a hearing, which an administrative law judge (ALJ) held on April 13, 2009.

At the April 13, 2009, hearing, Ms. S~ testified that she now had custody of the number holder's two children, including Dylan. She also testified that the number holder had acknowledged to her that he was the biological father of Dylan. In a June 15, 2009, decision, the ALJ found that Ms. S~'s testimony concerning the number holder's acknowledgment, along with the fact that she had custody of Dylan and the December 2007 DNA test report, constituted clear and convincing evidence that the number holder was Dylan's biological father, that a child relationship had been established, and that Dylan was entitled to survivor's benefits on the number holder's account. While fully favorable, the hearing decision did not indicate the effective date of the relationship.

Louisiana statutes and case law are silent on the issue of whether an act that grants inheritance rights under the state intestacy law operates prospectively from the date of the act or retroactively to the date of death. However, the Social Security regulations provide that a claimant who files an application for benefits before the first month he meets the requirements for entitlement may receive benefits from the first month he meets all the requirements. 20 C.F.R. §§ 404.352(a)(1), 404.620(a)(1). Similarly, agency policy provides that actions that confer inheritance rights operate only from the date of their occurrence. See Social Security Ruling 85-17, 1985 WL 56848.

In Louisiana, scientific testing alone is insufficient to prove paternity without other corroborating evidence. Landrum v. Matthews, 612 So.2d 854, 858 (La. Ct. App. 1992). Such corroborating evidence may typically include informal acknowledgments of paternity by an alleged father or the testimony of a surviving parent, if that testimony includes details about the couple's relationship. La. Civ. Code Ann. art 197, cmt. (c); Chatelain v. Louisiana Dept. of Transportation and Development, 586 So.2d 1373, 1379 (La. 1991); Guidry v. Mouton, 689 So.2d 621, 622-623 (La. Ct. App. 1997). Accordingly, the effective date in Louisiana is the date of the last piece of evidence that establishes paternity.

Here, while the December 2007 DNA test report showed a 99.997 percent probability that the number holder was Dylan's biological father, Dylan apparently did not meet all requirements for entitlement to survivor's benefits until April 13, 2009, when Ms. S~ offered clear and convincing corroborating evidence and testimony that the number holder was Dylan's biological father. The corroborating evidence included the number holder's informal acknowledgment and Ms. S~'s custody of Dylan.

However, the date that Dylan would be entitled to survivor's benefits might be an earlier date if the agency obtained the corroborating evidence presented at the April 2009 hearing. Again, the ALJ relied on essentially three pieces of evidence to find that clear and convincing evidence established that Dylan was the number holder's biological son: 1) Ms. S~'s testimony that the number holder acknowledged to her that Dylan was his son, 2) the fact that she had custody of Dylan, and 3) the December 2007 DNA test report. Of the three, the latest possible date is either the date when Ms. S~ obtained custody of Dylan or the December 12, 2007, DNA test report.

We suggest that the agency determine the date Ms. S~ obtained custody of Dylan and fix the date of entitlement to the later of that date and December 12, 2007. If, however, the agency is not willing or is unable to obtain the custody date, then, as noted, the next logical date that Dylan met all the requirements for entitlement to survivor's benefits is April 13, 2009, when Ms. S~ offered clear and convincing corroborating testimony regarding Dylan's paternity.

Very Truly Yours

Michael M~

Regional Chief Counsel

By: ________________________
Carolyn E. W~
Assistant Regional Counsel

B. PR 08-162 Louisiana State Law - Status of Child and Effective Date of Parent-Child Relationship (NH David T~, SSN ~) - REPLY

DATE: July 31, 2008

1. SYLLABUS

In a Louisiana case in which the number holder first acknowledged the claimant as his child when she was thirty eight years old and did not publicly hold her out as his child, the court would find that the evidence does not constitute a continuous, unequivocal, and habitual recognition. Therefore, the evidence of record does not meet the preponderance of evidence standard and does not prove that she is the number holder's child under Louisiana law.

2. OPINION

This memorandum is in response to your request for an opinion regarding whether a number holder's written acknowledgment of paternity, combined with other evidence in the record, meets the evidentiary standard the Social Security Administration (Agency) requires to establish the parent-child relationship under Louisiana law. If the evidence meets the required standard, then you asked whether the parent-child relationship operates prospectively from the date the number holder signed the acknowledgment or whether it operates retroactively to the date of the child's birth. Specifically, you requested our opinion on whether Lorraine M. S~ (Lorraine) is entitled to benefits as a disabled adult child1 on the account of David T~ (the number holder); if so, whether the number holder's acknowledgment established the parent-child relationship retroactive to Lorraine's date of birth. In our opinion, Lorraine is not entitled to child's benefits on the number holder's account because the evidence of record does not meet the evidentiary standard the Agency requires to establish the parent-child relationship between the number holder and Lorraine. 2

As we understand the facts, Lorraine was born on September 7, 1968. Lorraine's birth certificate names Betty H~ as her mother and Albert S~ as her father. Lorraine's mother and Mr. S~ were married to each other when Lorraine was born. Lorraine filed a Title II application in 1971, and she received Title II child's benefits on her mother's account from May 1971 through February 1980. Her child's benefits ended when the Agency terminated her mother's Title II disability benefits in February 1980. Lorraine filed a Title XVI application in 1975, when she was a minor. The Agency found Lorraine was disabled due to mental retardation and approved her Title XVI application. She continues to receive Title XVI benefits through the present.

On July 31, 2006, the number holder signed a "Statement of Claimant or Other Person" (statement), Form SSA-795, in which he claimed that Lorraine is his biological child. The number holder stated that he was not married to Lorraine's mother when Lorraine was born; that he lived with Lorraine's mother for several years after Lorraine was born; and that prior to signing the statement on July 31, 2006, he had never formally acknowledged Lorraine as his daughter. The number holder, who has been entitled to Title II benefits since January 1989, did not list Lorraine as his child in his application for Title II benefits. The number holder has lived in Louisiana at all times relevant to this legal opinion. On December 12, 2006, the number holder completed a Child Relationship Statement in which he represents that he had never acknowledged Lorraine as his child.

In April 2007, the Agency determined that Lorraine's 1971 Title II application, which she filed under her mother's account, was open for other potential benefits, such as benefits under the number holder's account. The Agency determined that Lorraine was entitled to benefits as a disabled adult child under the number holder's account, using the number holder's July 31, 2006, statement to establish the parent-child relationship. The Agency awarded Lorraine benefits as a disabled adult child effective October 2002.

Under the Social Security Act (Act), a child may be entitled to child's benefits on the earnings record of an insured person who is entitled to old-age or disability benefits. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a) (2008). The term child includes a natural child. 42 U.S.C. § 416(e)(1); 20 C.F.R. § 404.354. To be considered an insured person's child for the purposes of the Act, the child must show one of the following: (1) she would be entitled to inherit property through intestate succession under the laws of the state in which the insured person had his permanent home when the application for Social Security benefits was filed; or (2) her parents went through a marriage ceremony, but the marriage was invalid because of a legal impediment. 42 U.S.C. § 416(h)(2)(A)-(B); 20 C.F.R. § 404.355(b). A child who is not deemed to be the child of the insured person under 42 U.S.C. § 416(h)(2)(A)-(B) shall nevertheless be deemed to be the child of the insured person if: (1) before the insured person's old-age benefits or most recent period of disability began, he acknowledged in writing that the child is his, was decreed by a court to be the child's parent, or was ordered by a court to provide child support because the child is his; or (2) satisfactory evidence shows that the insured person is the child's parent and was living with or contributing to the support of the child when the insured person filed the application for Social Security benefits. 42 U.S.C. § 416(h)(3)(B)(i)-(ii).

The Agency must first determine whether Lorraine is the number holder's child to determine whether she is entitled to child's benefits on his account. The evidence shows that the number holder and Lorraine's mother were never married. Before January 1989, when the number holder's benefits began, he had never acknowledged in writing that Lorraine is his child; no court had decreed that he is her father; and no court had ever ordered the number holder to pay child support for Lorraine. The number holder was not living with or contributing money for Lorraine's support when he filed his application. Thus, to establish that she is the number holder's child for the purposes of the Act, Lorraine must show that she would be entitled to inherit property from him through intestate succession under the laws of the state in which the number holder had his permanent home when she filed for benefits. See 42 U.S.C. § 416(h)(2)(A)-(B); 20 C.F.R. § 404.355. Accordingly, the Agency must use Louisiana law because the number holder had his permanent home in Louisiana when Lorraine filed her application for benefits.

Louisiana intestacy law provides that when a person dies without a valid will, "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." La. Civ. Code Ann. art. 880 (West 2008). Descendants include children. La. Civ. Code Ann. art. 882 (West 2008). The comments following article 880 state that "[o]nce 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, cmt. (c). Thus, if Lorraine can establish that she is the number holder's biological child, Lorraine would be entitled to inherit property from the number holder under Louisiana intestacy law, and the Agency will consider her the number holder's child for purposes of the Act.

To determine whether an applicant is the child of an insured individual, the Agency will not apply any requirement "that an action to establish paternity must be taken within a specified period of time measured from the worker's death or the child's birth . . . ." 20 C.F.R. § 404.355(b)(2). The Agency also does not require the child to obtain a state court determination of paternity, but the Agency will decide the child's paternity based upon the standard of proof that the state court would use in determining paternity. Id. Further, if the insured is living, the Agency will apply the version of state law in effect when the Agency makes its final decision on the claimant's application for benefits; if the claimant does not qualify as a child of the insured under that version of state law, the Agency will look at all versions of state law that were in effect from the first month for which the claimant could be entitled to benefits up until the time that the Agency makes its final decision. See 20 C.F.R. § 404.355(b)(3). The Agency will apply the version of state law that is most beneficial to the claimant. Id. 3

The standard of proof to establish paternity in Louisiana when, as in this case, the alleged parent is alive is by a preponderance of the evidence. Simpson v. Stevenson, 37,164-CA (La. App. 2 Cir. 8/6/03), 852 So.2d 1093, 1096; writ denied, 2003-C-2489 (La. 11/26/03) 860 So.2d 1136. Louisiana courts have stated that "proof by direct or circumstantial evidence is sufficient to constitute a preponderance, [and] when taking the evidence as a whole, such proof shows that the fact or causation sought to be proved is more probable than not." Joseph v. Broussard Rice Mill, Inc., 00-C-0628 (La. 10/30/94), 772 So.2d 94, 100. Proof which establishes only possibility, speculation, or unsupported probability does not suffice to establish a claim. IMC Exploration Co. v. Henderson, 419 So.2d 490, 509 (La. App. 2 Cir. 9/24/82). Mere proof that something is possible is of little probative value as to an ultimate issue of fact, unless the parties establish the evidence with reasonable certainty that all other alternatives are impossible. IMC Exploration, 419 So.2d at 509. In informal acknowledgment of paternity cases, as in this case, Louisiana courts have generally been reluctant to find an acknowledgment to be proof of paternity unless the father continuously, unequivocally, and habitually recognizes the child as his own, in addition to presenting proof that the alleged father was generally reputed to be the father of the child. IMC Exploration Co., 419 So.2d at 508.

To determine whether the record evidence in this case meets the evidentiary standard Louisiana requires to establish paternity, the Agency must determine whether the evidence establishes that the number holder continuously, unequivocally, and habitually recognized Lorraine as his child, and he was generally reputed to be Lorraine's father. In this case, the evidence includes a statement that the number holder signed on July 31, 2006, in which he claims that he is Lorraine's father, and that he lived with Lorraine and her mother until Lorraine was approximately five years old. The number holder, however, states that he was legally married to a person other than Lorraine's mother, and he never formally acknowledged Lorraine as his daughter. On December 12, 2006, the number holder completed and signed a Child Relationship Statement, Form SSA-2519, in which he asserts that other than Lorraine's mother and sister, he had never admitted to anyone that Lorraine is his child. 4 The evidence also includes a "Statement Of Clamant Or Other Person," Form SSA-795, in which Lorraine asserts that she has never lived with the number holder. 5 Lorraine also states that to her knowledge, the number holder never supported her, provided medical care, or was responsible for her while she was in school. Lorraine also stated that the number holder attended her birthday parties, and she has always called him "Dad."

In our opinion, the evidence does not constitute a continuous, unequivocal, and habitual recognition that Lorraine is the number holder's child. The number holder first acknowledged that Lorraine is his child in July 2006, when Lorraine was thirty-eight years of age. The additional evidence also shows that the number holder never represented to anyone, other than to Lorraine's mother and sister, that Lorraine is his daughter. Thus, the number holder has never been generally reputed to be Lorraine's father. Therefore, we believe the evidence of record does not meet the preponderance of evidence standard and does not prove that Lorraine is the number holder's child under Louisiana law. As such, Lorraine does not have the right to inherit property from the number holder under Louisiana law, and she is not entitled to Social Security benefits on his account. 6

Traci B. D~
Regional Chief Counsel

By: ________________________
Ruben M~
Assistant Regional Counsel

C. PR 08-157 Louisiana State Law - Child's Benefits Entitlement Based On DNA Tests Results Of Child And Paternal Grandparents After The Death Of The Father (NH Anthony J. R~, Jr.; SSN ~) - REPLY

DATE: July 24, 2008

1. SYLLABUS

Under Louisiana law, a child may present all relevant evidence to prove paternity, such as blood tests, an informal acknowledgment, and evidence showing cohabitation of the mother and father at the time of conception. In this case, the payee applicant submitted a certified DNA test report showing a 99.99% probability that the number holder's parents are the child's paternal grandparents along with statements showing that Sage's mother had represented the number holder was Sage's father; a Petition To Establish Filiation And For DNA Testing, in which Christy represents that the number holder was Sage's father; and statements showing that Plaintiff was separated from his wife and lived with Christy around the time Sage was conceived, which is evidence of cohabitation. It is sufficient to establish the parent-child relationship by the clear and convincing standard.

The relationship is established as of the date of the DNA test.

2. OPINION

This memorandum is in response to your request for a legal opinion on whether the evidence submitted in this case, consisting of a deoxyribonucleic acid (DNA) test report and written statements, establishes that Sage E. H~ is the child of Anthony J. R~, Jr., the number holder. If so, you asked whether Sage is entitled to child's benefits beginning from the date of the DNA testing or retroactive to the date of the number holder's death. Our opinion is that the evidence establishes that Sage is the number holder's child, and she is entitled to child's benefits on the number holder's account beginning on December 20, 2007, the date the DNA Test Report became available. Accordingly, Sage is not entitled to an award of benefits retroactive to the number holder's death on the number holder's account.

As we understand the facts, the number holder had a sister and no brothers. He married Shannon R~ on February 20, 1999. Christy H~, Sage's mother, lived with the number holder in 2005, when he was separated from Shannon. In December 2005, Christy told the number holder that she was pregnant with his child, but the number holder did not acknowledge he was the father. Christy moved out of the number holder's apartment in December 2005, but they stayed in contact with each other. On July 13, 2006, Christy gave birth to Sage. Sage's birth certificate does not name anybody as her father. Although the number holder did not admit he was the father, he agreed to take a DNA test to find out if he was Sage's biological father. On January 14, 2007, the number holder died before undergoing DNA testing. The number holder and Shannon were temporarily separated, but never divorced, and they were married at the time of the number holder's death. The number holder died while domiciled in Louisiana.

On January 23, 2008, Sandra H~, Sage's maternal grandmother, filed an application on Sage's behalf with the Social Security Administration (Agency) for child's benefits on the number holder's account. The record contains the following documents that provide information pertinent to Sage's application for child's benefits:

A statement from Christy stating that she met the number holder at a rehabilitation center in 2005. The number holder told her that he was separated from his wife and asked her to live with him in his apartment. They lived together in Metairie, Louisiana, for about six months. In December 2005, Christy found out she was pregnant, and she told the number holder about her pregnancy. The number holder was upset and asked her to get an abortion. Christy moved out of the apartment and moved in with her parents. Christy stayed in contact with the number holder. After Sage was born, Christy and the number holder spent Thanksgiving Day and Christmas together in 2006. The number holder died on January 14, 2007.

2) A statement from Herman H~, Christy's father, stating that the number holder and Christy lived together in Metairie, Louisiana, until they found out she was pregnant. Christy then moved in with them (Christy's parents). The number holder and Christy continued to see each other on weekends after Sage was born, and they had a good relationship. The number holder and Christy spent Thanksgiving Day and Christmas in 2006 with Christy's family. On two separate occasions, Herman asked the number holder to take responsibility for Sage's welfare.

3) An Affidavit of Verification and a Petition to Establish Filiation and for DNA Testing (Petition) filed by Christy in the 32nd Judicial District Court, Parish of Terrebonne, Louisiana. The Petition alleges that the number holder is Sage's father; the number holder died on January 14, 2007; and Anthony R~, Sr., and Lynne R~ are the number holder's biological parents. In the Petition, Christy requests the court to order the number holder's parents (Sage's alleged paternal grandparents) to submit to DNA testing to determine whether Sage is the number holder's biological child.

4) In affidavit regarding the results of DNA grandparentage testing of Christy H~, mother; Sage E. H~, child; Lynn M. R~, alleged paternal grandmother; and Anthony J. R~, alleged paternal grandfather. A DNA test report dated December 20, 2007, showing a 99.99% probability that the alleged paternal grandparents were Sage's biological grandparents.

5) A statement from Shannon R~, the number holder's widow, dated January 30, 2008, stating that the number holder denied he was Sage's father. Shannon also stated that for a period of two months, the number holder lived in an apartment by himself.

6) A statement from Bryant H~, number holder's friend, dated March 15, 2008, stating that the number holder lived with Christy for a short period. Bryant also stated that after Sage was born, Christy told him that Sage was the number holder's child.

7) On January 26, 2008, Christy filed with the Agency a statement stating that she did not want to be the payee, if Sage was entitled to child's benefits; and she requested the Agency to name Sandra H~ as Sage's representative payee.

Your request for a legal opinion asks whether the evidence is sufficient to establish that Sage is the number holder's child. Under the Social Security Act (Act), a child may be entitled to child's benefits on the earnings record of an insured person who has died. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a) (2008). The term "child" includes a natural child. 42 U.S.C. § 416(e)(1); 20 C.F.R. § 404.354. To be considered an insured person's child for purposes of the Act, the child must show one of the following: (1) she would be entitled to inherit property through intestate succession under the laws of the state in which the insured person was domiciled at the time of his death; or (2) her parents went through a marriage ceremony, but the marriage was invalid because of a legal impediment. 42 U.S.C. § 416(h)(2)(A)-(B); 20 C.F.R. § 404.355(b). A child who is not deemed to be the child of the insured person under 42 U.S.C. § 416(h)(2)(A)-(B) shall nevertheless be deemed to be the child of the insured person if: (1) before the insured person died, he acknowledged in writing that the child is his, was decreed by a court to be the child's parent, or was ordered by a court to provide child support because the child is his; or (2) satisfactory evidence shows that the insured person is the child's parent and was living with or contributing to the support of the child when the application for Social Security benefits was filed. 42 U.S.C. § 416(h)(3)(C)(i)-(ii); 20 C.F.R. § 404.355(a).

The evidence shows the number holder and Christy were never married. The number holder died on January 14, 2007, and he never acknowledged in writing that Sage is his child. Prior to his death, no court had decreed that the number holder is Sage's father. The number holder never lived with Sage, and the application does not contain any evidence indicating that he contributed money for Sage's support. Given these facts, to establish that she is the number holder's child for purposes of the Act, Sage must show that she would be entitled to inherit property from him through intestate succession under the laws of the state in which the number holder was domiciled at the time of his death. See 42 U.S.C. § 416(h)(2)(A)-(B); 20 C.F.R. § 404.355. In this case, Louisiana law applies because the number holder died in Jefferson Parish, Louisiana. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b).

Louisiana intestacy law provides that when a person dies without a valid will, "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." La. Civ. Code Ann. art. 880 (West 2008). Descendants include children. See La. Civ. Code Ann. art. 882. The comments following article 880 state that "[o]nce 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, cmt. (c). Thus, if Sage can establish under the Louisiana Civil Code that she is the number holder's biological child, she would be entitled to inherit property from the number holder under Louisiana intestacy law and will be considered the number holder's child for purposes of the Act.

To determine whether an applicant is the child of an insured individual, the Agency will not apply any requirement "that an action to establish paternity must be taken within a specified period of time measured from the worker's death or the child's birth . . . ." 20 C.F.R. § 404.355(b)(2). The Agency also does not require the child to obtain a state court determination of paternity, but the Agency will decide the child's paternity based upon the standard of proof that the state court would use in determining paternity. Id. In Louisiana, if the child institutes the paternity action after the death of the alleged father, the child must prove paternity by clear and convincing evidence. La. Civ. Code Ann. art. 197. To meet the clear and convincing evidence standard of proof under Louisiana law, "the evidence, taken as a whole, must show that the facts sought to be proven are highly probable." Talley v. Stuckey, 560 So.2d 111, 112-113 (La. Ct. App. 1990).

Under Louisiana law, a child may present all relevant evidence to prove paternity, such as blood tests, an informal acknowledgment, and evidence showing cohabitation of the mother and father at the time of conception. La. Civ. Code Ann. art. 197, cmt. (c). A certified report of blood or tissue sampling that indicates by a ninety-nine and nine-tenths percentage point threshold probability that the alleged father is the father of the child creates a rebuttable presumption of paternity. La. Rev. Stat. Ann. § 9:397.3(B)(2)(b) (West 2008). Consistent with the provisions of La. Rev. Stat. Ann. § 9:397.3(B)(2)(b), Louisiana courts have noted that DNA tests performed on a deceased putative father's relatives can determine paternity posthumously. Succession of R~, 94-2229 (La. 5/22/95); 654 So.2d 682, 685; Pace v. State, Through Louisiana Employees Retirement System, 94-1027 (La.1/17/95); 648 So.2d 1302, 1309.

As mentioned above, the number holder never acknowledged that Sage is his child. In Louisiana, if a father does not acknowledge a child, the mother has the right to file a paternity suit to establish paternity, and either party to the paternity suit has the right to request a genetic test to determine if the alleged father is the child's biological father. La. Rev. Stat. Ann. § 9:392(A)(1) and (3) (West 2008). Accordingly, Christy (Sage's mother) filed a Petition to establish paternity, requesting a Louisiana district court to order the number holder's parents (Sage's alleged paternal grandparents) to submit to DNA testing to determine through DNA comparison whether Sage is the number holder's biological child.

"Relying on existing civil discovery rules" and court rulings "across the nation," Louisiana courts have recognized that DNA comparison of the putative paternal grandparents with that of a child may be performed to establish paternity. Pace, 94-1027; 648 So.2d at 1310. Because Louisiana courts have looked at other jurisdictions for guidance, it is noteworthy that New York courts have determined that "DNA comparison of the blood of the putative paternal grandparents with that of the [child] may be performed in an effort to provide 'clear and convincing evidence' [] that is required to establish paternity . . . ." Estate of Sandler, 612 N.Y.S.2d 756, 758 (N.Y. Sur., 1994); see also In re Santos, 768 N.Y.S.2d 272, 274 (N.Y. Sur., 2003) ("The state of technology for DNA testing . . . has advanced to the point that it can determine paternity to a 99-100 percent scientifically acceptable certainty, clearly meeting a 'clear and convincing' standard.").

Consistent with the requirements to establish paternity posthumously, Sandra submitted to the Agency a certified DNA test report showing a 99.99% probability that the number holder's parents are Sage's paternal grandparents. Additionally, Sandra submitted the following evidence, corroborating that Sage is the number holder's child: (1) statements showing that Sage's mother had represented the number holder was Sage's father; (2) a Petition To Establish Filiation And For DNA Testing, in which Christy represents that the number holder was Sage's father; and (3) statements showing that Plaintiff was separated from his wife and lived with Christy around the time Sage was conceived, which is evidence of cohabitation. We believe that under Louisiana law, there is clear and convincing evidence to prove that Sage is the number holder's child. As such, Sage would be entitled to inherit property from the number holder under Louisiana law and is entitled to child's benefits on his account.

Louisiana statutes and case law are silent on the issue of whether an act that grants inheritance rights under the state intestacy law operates prospectively from the date of the act or retroactively to the date of birth. However, the Social Security regulations provide that a claimant may receive benefits from the first month that she meets all the requirements for entitlement. 20 C.F.R. § 404.620(a)(1). Similarly, Agency policy provides that actions that confer inheritance rights operate only from the date of their occurrence. See Social Security Ruling 85-17, 1985 WL 56848 (SSA). Here, Sage met all requirements for entitlement to child's benefits on December 20, 2007, the date the DNA test report became available. Entitlement to child's benefits begins in the first month throughout which the child meets all the requirements of entitlement. See 20 C.F.R. § 404.352(a)(2). As a result, Sage is entitled to child's benefits effective January 1, 2008, the first full month after the DNA test report became available. Because Sage did not meet all the regulations requirements until December 20, 2007, and because actions that confer inheritance rights operate only from the date of their occurrence, she is not entitled to an award of benefits retroactive to the number holder's death on the number holder's account.

Traci B. D~
Regional Chief Counsel

By: ________________________
Ruben M~
Assistant Regional Counsel

D. PR 08-004 Granting Inheritance Rights, Louisiana - NH Brian K. B~ SSN ~

DATE: October 3, 2007

1. SYLLABUS

In this case, the claimant has submitted DNA test results showing a 99.9388% probability that the deceased number holder is the father along with a letter from the number holder's parents confirming that he was told prior to death that he is the claimant's father.

Louisiana law provides the presumption that the husband of the mother is the legal father of her child while it recognizes a biological father's actual paternity. Based on this, the mother's husband being listed on the birth certificate as the father does not preclude the presumption that the number holder is the actual father.

The DNA evidence and the letter from NH's parents indicate a high probability that the claimant was the number holder's child, thereby meeting the meet the clear and convincing evidence standard for proof of paternity.

2. OPINION

QUESTION

You asked whether a child claimant is the child of the deceased number holder for the purposes of determining the child's eligibility to child's benefits on the earnings record of the deceased number holder, based upon DNA test results and a letter from the number holder's parents.

ANSWER

Yes, the child claimant would be considered the child of the deceased number holder. Ms. C~ is entitled to child's benefits on the number holder's account based upon the evidence provided.

BACKGROUND

On May 16, 2007, Christie C~ (Claimant) applied for child's benefits on the earnings record of Brian B~, the deceased number holder (NH). Claimant presented her birth certificate, which listed her father as Charles E. C~. However, she also presented DNA test results dated April 23, 2007, that showed with a probability of 99.9388%, NH was her father. Claimant also provided a letter form NH's parents, Edgar and May B~, wherein they stated Claimant was their granddaughter and that NH was her father. NH's parents further stated that prior to his death NH indicated that Claimant's mother, Julie C~, told NH that he was Claimant's father. NH died on December 31, 2005, while domiciled in Louisiana. The facts as presented do not indicate that NH and Claimant's mother were married.

STATUTORY AUTHORITY

Federal Law

Under section 202(d) of the Social Security Act (the Act), a child is entitled to benefits on the earnings record of an insured individual who died, if the child could inherit the insured's property under the intestacy laws of the state in which the insured was domiciled when he or she died. 42 U.S.C. § 416(h)(2)(A). To determine whether a child is eligible for benefits under section 416(h)(2)(A), the Commissioner will first apply the version of state law that is in effect when the Commissioner makes a final decision on an application for benefits. 20 C.F.R. § 404.355(b)(4)(2007).

To be considered an insured person's child for the purposes of the Act, the child must show one of the following: (1) she would be entitled to inherit property through intestate succession under the laws of the state in which the insured person had his permanent home when the application for Social Security benefits was filed; or (2) her parents went through a marriage ceremony, but the marriage was invalid because of a legal impediment; or (3) the deceased acknowledged in writing that the applicant is his or her son or daughter, had been decreed by a court to be the mother or father of the applicant, or been ordered by a court to contribute to the support of the applicant because the applicant was his or her son or daughter, and such acknowledgment, court decree, or court order was made before the death of such insured individual, or such insured individual is shown by evidence satisfactory to the Commissioner of Social Security to have been the mother or father of the applicant, and such insured individual was living with or contributing to the support of the applicant at the time such insured individual died. See 42 U.S.C. §§ 416(h)(2)(A)-(B), (3)(C).

Louisiana Law

Because NH was domiciled in Louisiana at the time of his death, Louisiana intestacy law applies in this case. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(b)(4). Louisiana intestacy law provides that when a person dies without a valid will, his descendants may inherit property from him. See LA. CIV. CODE ANN. art. 880 (West 2007). Descendants include children. See LA. CIV. CODE ANN. art. 882 (West 2007).

In Louisiana, a certified report of blood or tissue sampling which indicates by a ninety-nine and nine-tenths percentage point threshold probability that the alleged father is the father of the child creates a rebuttable presumption of paternity. LA. REV. STAT. ANN. § 9:397.3(B)(2)(b) (West 2007). Although insufficient to prove paternity alone, scientific testing provides persuasive and objective evidence that can help establish paternity by a preponderance of evidence. LA. CIV. CODE ANN. art. 197, cmt. (c). However, if the child institutes the paternity action after the death of the alleged father, the child must prove paternity by clear and convincing evidence. Id. art. 197, cmt. (d). In Louisiana, to meet the clear and convincing evidence standard of proof, the evidence, taken as a whole, must show that the facts sought to be proven are highly probable. Talley v. Stuckey, 560 So.2d 111, 112-113 (La. Ct. App. 1990).

DISCUSSION

The facts as presented do not indicate that NH and Claimant's mother were married. Further, according to the facts presented, at the time of his death NH had not acknowledged in writing that Claimant was his child, and no court decreed that he was her father. As we understand the facts, no court ever ordered NH to pay child support for Claimant. NH apparently never lived with Claimant or contributed to her support. Given these facts, Claimant cannot establish she is the child of NH under section 216(h)(3). Therefore, to establish that she is NH's child for the purposes of the Act, Claimant must show that she would be entitled to inherit property from him through intestate succession under Louisiana law. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(b)(4).

DNA test results in this case show a 99.9388% probability that NH was Claimant's father. Consequently, he is presumed to be her father under Louisiana law. See LA. REV. STAT. ANN. § 9:397.3(B)(2)(b). We note that Mr. Charles E. C~ was listed as Ms. C~'s father on her birth certificate; however this does not nullify the presumption that NH is Claimant's biological father. Louisiana law provides the presumption that the husband of the mother is the legal father of her child while it recognizes a biological father's actual paternity. Smith v. Cole, 553 So.2d 847, 854-55 (La. 1989).

However, DNA test results, alone, are not sufficient to prove paternity in Louisiana. Simpson v. Stevenson, 852 So.2d 1093, 1096 (La. App. 2003). Scientific testing provides persuasive and objective evidence that can help establish paternity by a preponderance of evidence. LA. CIV. CODE ANN. art. 197, cmt. (c). However, if the child institutes the paternity action after the death of the alleged father, the child must prove paternity by clear and convincing evidence. Id. art. 197, cmt. (d). To meet the clear and convincing evidence standard of proof, the evidence, taken as a whole, must show that the facts sought to be proven are highly probable. Talley, 560 So.2d at 112-113. Here, in addition to the DNA test results, Claimant presented a statement from NH's parents indicating that she was their granddaughter and that NH was her father. NH's parents also stated that prior to NH's death, Claimant's mother told NH that he was Claimant's father. We believe that the DNA evidence and the letter from NH's parents indicate a high probability that Claimant was NH's child, thereby meeting the meet the clear and convincing evidence standard for proof of paternity.

CONCLUSION

As such, Claimant has the right to inherit property from NH under Louisiana intestacy law, and she is entitled to Social Security benefits on NH's account.

Mary A. S~
Regional Chief Counsel

By: ________________________
Natalie K. J~
Assistant Regional Counsel

E. PR 06-148 Effective Date of Act Granting Inheritance Rights in Louisiana (NH William O. J~, Sr., SSN ~) - REPLY

DATE: May 26, 2006

1. SYLLABUS

In Louisiana, in a case where the number holder admitted to a relationship with the claimant's mother, the man who was the mother's husband at the time denied paternity and a DNA test showed a 99.99% probability that the number holder is the child's father, the number holder is found to be the father of the claimant by a preponderance of the evidence.

The effective date of the relationship is July 16, 2002, the date of the DNA test and the first date in which the claimant met all requirements of entitlement.

2. OPINION

You asked us to provide a legal opinion regarding whether an act that grants inheritance rights under Louisiana intestacy law operates prospectively from the date of the act or retroactively to the date of the child's birth. Specifically, you requested our opinion regarding whether Janesha M. T~ (Janesha) is entitled to a retroactive award of child's benefits on the account of William O. J~, Sr. (the disabled number holder). Our opinion is this: (1) Janesha is entitled to child's benefits on the number holder's account; but (2) an act that grants inheritance rights under Louisiana intestacy law operates prospectively from the date of the act. Accordingly, Janesha is not entitled to a retroactive award of benefits on the number holder's account.

The number holder was born on June 13, 1944. In December 1994, he became entitled to Social Security disability benefits. Jonathan D. J~ was the only child listed on the number holder's application for disability insurance benefits. The information that we received indicates that at all times relevant to this legal opinion, the number holder had his permanent home in Louisiana.

Janesha was born on June 28, 1988. In December 1996, Mary T. T~ (Ms. T~) filed an application for child's benefits for Janesha on the number holder's account. Ms. T~ and the number holder were never married. Ms. T~ was married to Charles L~ T~ (Mr. T~) when Janesha was conceived and born. Janesha's birth certificate identified Mr. T~ as her father. In September 1998, because Ms. T~ failed to provide evidence that the number holder was Janesha's biological father, the Agency denied the December 1996 application for child's benefits. Ms. T~ later filed a request for reconsideration. The Agency also denied this request.

In July 2002, Ms. T~ filed a new claim for Janesha. This time, she provided three key pieces of evidence. First, she provided a deoxyribonucleic acid (DNA) test report dated July 16, 2002. The DNA test report showed a 99.999% probability that the number holder is Janesha's biological father. Second, Ms. T~ provided a copy of a 1989 judgment that awarded her a divorce from Mr. T~. This judgment did not list Janesha as a child of the marriage. Third, Ms. T~ provided a note that Mr. T~ allegedly wrote in July 2002. In this note, Mr. T~ reported two things: (1) he was in prison from February 1987 until November 1989 (i.e., during the

In August 2002, the number holder signed a statement for the Agency in which he admitted that he had a sexual relationship with Ms. T~ in 1987. He further admitted that after he reviewed the DNA test results, he became "willing to believe that Janesha . . . is [his] biological child." In December 2002, a Louisiana court decreed that the number holder is Janesha's father.

The Agency awarded child's benefits to Janesha effective August 2002, the first full month after the DNA test report became available. See 20 C.F.R. § 404.352(a)(2) (entitlement to child's benefits begins in the first month throughout which the child meets all to be considered an insured person's child for the purposes of the Social Security Act (the Act), the child must show one of the following: (1) she would be entitled to inherit property through intestate succession under the laws of the state in which the insured person had his permanent home when the application for Social Security benefits was filed; or (2) her parents went through a marriage ceremony, but the marriage was invalid because of a legal impediment. See 42 U.S.C. §§ 416(h)(2)(A)-(B). A child who is not deemed to be the child of the insured person under 42 U.S.C. §§ 416(h)(2)(A)-(B) shall nevertheless be deemed to be the child of the insured person if: (1) before the insured person's most recent period of disability began, he acknowledged in writing that the child is his, was decreed by a court to be the child's parent, or was ordered by a court to provide child support because the child is his; or (2) satisfactory evidence shows that the insured person is the child's parent and was living with or contributing to the support of the child when the application for Social Security benefits was filed. 42 U.S.C. §§ 416(h)(3)(B)(i)-(ii).

Here, the number holder and Ms. T~ were never married. Before December 1994, when the number holder's most recent period of disability began, he had not acknowledged in writing that Janesha is his child, and no court had decreed that he is her father. As we understand the facts, no court has ever ordered the number holder to pay child support for Janesha. The number holder apparently has never lived with Janesha or contributed to her support. Given these facts, to establish that she is the number holder's child for the purposes of the Act, Janesha must show that she would be entitled to inherit property from him through intestate succession. See 42 U.S.C. §§ 416(h)(2)(A)-(B); 20 C.F.R. § 404.355.

The number holder had his permanent home in Louisiana when Ms. T~ filed the application for child's benefits on behalf of Janesha. Thus, Louisiana law applies in this case. See id. Louisiana intestacy law provides that when a person dies without a valid will, his descendants may inherit property from him. See La. Civ. Code Ann. art. 880 (West 2006). "Descendants" include children. See La. Civ. Code Ann. art. 882 (West 2006).

In Louisiana, a "certified report of blood or tissue sampling which indicates by a ninety-nine and nine-tenths percentage point threshold probability that the alleged father is the father of the child creates a rebuttable presumption of paternity." La. Rev. Stat. Ann. § 397.3(B)(2)(b) (West 2006). As mentioned above, the DNA test results in this case show a 99.999% probability that the number holder is Janesha's father. Consequently, he is presumed to be her father under Louisiana law. Id. Ms. T~ was married to Mr. T~ when Janesha was conceived and born, but this does not nullify the presumption that the number holder is Janesha's biological father. In Louisiana, a child who enjoys legitimacy as to her legal father may also be the illegitimate child of her biological father. Smith v. Cole, 553 So.2d 847, 854-855 (La. 1989).

DNA test results, alone, are not sufficient to prove paternity in Louisiana. Simpson v. Stevenson, 852 So.2d 1093, 1096 (La. App. 2003). Louisiana courts have repeatedly found, however, that DNA test results, plus other corroborating evidence, are sufficient to establish paternity by a preponderance of the evidence. See, e.g., LeBlanc v. LeBlanc, 497 So.2d 1361, 1363-1364 (La. 1986) (evidence included a blood test, defendant's public acknowledgments that plaintiff was his daughter, and a photograph of plaintiff that defendant had in his car); Simpson, 852 So.2d at 1096-1097 (DNA testing yielded a probability of paternity of 99.9995%; mother testified that defendant was the child's father and that she had sexual relations only with defendant during the period of conception; defendant denied paternity, but admitted that he visited the mother during the time of conception, visited the child in the hospital twice, sent the child a card and gift for his first birthday, and later asked to see him); State Dept. of Social Services, Office of Family Support v. Gibson, 768 So.2d 714, 719-720 (La. App. 2000) (evidence included DNA testing that showed a 99.99997% probability of paternity, defendant's admission that he had sexual intercourse with the mother during the month of conception, and the mother's testimony that she had intercourse only with defendant during that month).

In this case, Ms. T~ filed her most recent application for child's benefits on behalf of Janesha on July 18, 2002. As suggested above, on or after that date, Ms. T~ provided the following evidence: (1) a DNA test report that showed a 99.999% probability that the number holder is Janesha's biological father; (2) a 1989 divorce decree that did not list Janesha as a child of Ms. T~'s marriage to Mr. T~; (3) a note that Mr. T~ purportedly wrote in July 2002, explaining that he was in prison when Janesha was conceived and born; (4) an August 2002 statement in which the number holder admitted that he and Ms. T~ had a sexual relationship in 1987 and that he is Janesha's father; and (5) a 2002 judgment in which a Louisiana court decreed that the number holder is Janesha's father. We believe that this evidence is sufficient to prove that Janesha is the number holder's child by a preponderance of the evidence. As such, she has the right to inherit property from him under Louisiana intestacy law, and she is entitled to Social Security benefits on his account.

Agency regulations provide that a claimant may receive benefits from the first month that she meets all requirements. 20 C.F.R. § 404.620(a)(1). Similarly, Agency policy provides that actions that confer inheritance rights operate only from the date of their occurrence. See Social Security Ruling 85-17. Here, Janesha met all requirements on July 16, 2002, the date of the DNA test report.

We therefore conclude that she became entitled to benefits as of that date. Because Janesha did not meet all requirements until July 16, 2002, and because actions that confer inheritance rights operate only from the date of their occurrence, she is not entitled to a retroactive award of benefits on the number holder's account.

Tina M. W~
Regional Chief Counsel

By: ___________________________
Eric D. P~
Assistant Regional Counsel

F. PR 04-288 Use of Sibling Deoxyribonucleic Acid (DNA) Testing to Establish Paternity in Louisiana. Number Holder Regile J. B~, SSN ~ REPLY.

DATE: July 20, 2004

1. SYLLABUS

A Louisiana court would not find by clear and convincing evidence that the child claimant is the child of the deceased NH for intestacy purposes. Other than the DNA siblingship test report showing a 97% probability that the claimant is the full sibling of another child of the NH, there is a lack of supporting documentation provided by the child's representative payee. Under Louisiana law, scientific testing alone is insufficient to prove the deceased NH's paternity without other corroborating evidence.

2. OPINION

You asked whether a purported biological child can establish paternity and, thus, be entitled to child's benefits on the record of a deceased number holder utilizing DNA test results from the child, the child's mother, and the child's alleged sibling which demonstrate a probability of full-siblingship of 97 percent. For the reasons discussed below, we believe that although Louisiana courts would consider these DNA test results as evidence in determining paternity, a paternity finding would not be established by clear and convincing evidence within the meaning of Louisiana's intestacy statute. Therefore, no child's benefits can be paid.

The documentation provided indicates that the deceased number holder and putative father, Regile J. B~, died domiciled in Louisiana on April 21, 2000. Debra H~, representative payee, filed an application for child's survivor benefits on behalf of Jonathan P. F~. In her claim for child's benefits, Ms. H~ alleged that Mr. B~ was the child's biological father, but she did not have any evidence to support the relationship. Therefore, the child's claim was denied.

On March 19, 2004, Ms. H~ requested that the case be reopened for further consideration. The evidence shows that Jonathan's mother is DaLonna S~. Based upon the Agency's numident, Jonathan's father is listed as William W. F~. In a similar vein, Julie A~ B~ is listed as the child of Mr. B~ and Ms. S~. With her request for further consideration, Ms. H~ submitted the results of a DNA siblingship test that showed a 97 percent probability that Julie A~ B~ and Jonathan P. F~ were full siblings. Ms. H~ is also the representative payee for Julie A~ B~, who is currently receiving child's benefits on the record of the deceased number holder.

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. 42 U.S.C. § 416(h)(2)(A) and (B). However, 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 the death of the insured individual, he 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. 42 U.S.C. §§ 416(h)(3)(C)(i) and (ii).

If the insured is deceased, the Social Security Administration will apply the law on inheritance rights where the insured individual had his permanent home when he died. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. §§ 404.355(b)(1), (b)(3) (2003). In this case, the evidence indicates that the deceased number holder was domiciled in Louisiana; therefore, Louisiana intestacy law applies. Id.

Louisiana jurisprudence generally establishes that children have the right to prove filiation to a deceased putative father. See Sudwisher v. Estate of Hoffpauir, 589 So.2d 474, 476 (La. 1991) (a child has constitutional right to prove filiation to deceased father), appeal after remand 96-1312 (La. App. 3rd Cir. 3/5/97), 692 So.2d 590, aff'd by 97-0785 (La. 12/12/97), 705 So.2d 724 (other citations omitted). Under Louisiana law, children are classified as either legitimate or illegitimate. LA. CIV. CODE ANN art. 178 (hereinafter referred to LA.C.C.). Legitimate children are those who are born or conceived during marriage or who have been legitimated as provided by law. LA.C.C. art. 179. Illegitimate children are those who are conceived and born out of marriage. LA.C.C. art. 180.

There is no evidence that Jonathan was born or conceived during a marriage between Ms. S~ and Mr. B~. Therefore, he is considered to be illegitimate as to that relationship under Louisiana law. Id. Illegitimate children may be legitimated by the subsequent marriage of the parents, by a notarial act, by acknowledgment (e.g., a declaration or registering the birth or baptism of the child), or by proof of filiation.7 LA.C.C. articles 181, 198, 200, 203, and 209. There is no evidence that Mr. B~ at any time sought to legitimate Jonathan through a subsequent valid marriage to Ms. S~, by a notarial act, or by having his name placed on the child's birth certificate.

Under Louisiana law, a child who does not enjoy legitimate filiation (having been born or conceived during a marriage), nor filiated by the initiative of the parent by legitimation or by acknowledgment, 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. LA.C.C. art. 209; see Succession of Barge H. Humphrey, 28-298 (La. App. 2 Cir. 10/25/96), 668 So.2d 567, 568. The Louisiana Court of Appeals has stated that, "[t]o prove a matter by clear and convincing evidence means to 'demonstrate that the existence of a disputed fact is highly probable, that is, much more probable than its nonexistence.'" Billington v. General Motors Corporation, 31-585 (La. App. 2 Cir.

2/24/99), 728 So.2d 966, 968 (citing to Mitchell v. AT&T, 27-290 (La. App. 2 Cir. 8/28/95), 660 So.2d 204).

In Sudwisher v. Estate of Hoffpauir, the Louisiana Supreme Court noted that the comments to Article 209 indicated that, "[p]roof of filiation may include, but is not limited to: 'informal' acknowledgment; scientific test results; acknowledgment in a testament; and proof that the alleged parents lived in a state of concubinage at the time of conception." 705 So.2d at 731. The court went on to add that, "[o]ther conduct which has been considered to constitute informal acknowledgment by the alleged father includes rearing the child in his home, naming the child in his will, giving the child his surname, and holding the child out in the community as his own." Id. Finally, the fact that Jonathan may have legal status as Mr. F~'s legitimated child does not preclude him from proving filiation to Mr. B~. Id.at 727 n.1 (children presumed to be legitimate of one man are not precluded from filing an action under Article 209 seeking to prove filiation to another man, as the children are considered "technically illegitimate" as to that other man thereby providing a cause of action, citing to Griffin v. Succession of Branch, 479 So.2d 324, 328 (La. 1985)).

In this case, the only evidence of filiation is the sibling DNA test results demonstrating a 97 percent probability of full siblingship between Jonathan and Julie A~, Mr. B~'s purported biological daughter. However, Louisiana statute directs that a certified report of blood or tissue sampling with a probability of paternity of 99.9 percent or higher is necessary to create the rebuttable presumption of paternity between the purported father and child. LA. REV. STAT. ANN. § 397.3(B)(2)(b) (hereinafter referred to as LA.R.S.). When the testing does not reach the presumptive threshold, the case is decided based upon all of the evidence. LA.R.S. § 397.3(D). Siblingship testing is neither included nor excluded as evidence by the statute. We have previously concluded that Louisiana courts would not reject a DNA test report simply because it was based on blood testing of individuals other than the purported biological father.8

Furthermore, the Louisiana Supreme Court in Sudwisher reasoned that while the paternity testing statute postulated the existence of a living father, there was no indication that the statutory language expressed a deliberate policy of limitation. 589 So.2d at 474-75 (court specifically allowed for the testing of siblings even though the purported biological father had died prior to the initiation of legal action to establish filiation). Because DNA testing created a 97 percent likelihood or probability of full-sibling relationship, the DNA test results are not sufficient to create a rebuttable statutory presumption of paternity by the deceased number holder under Louisiana law. LA.R.S. § 397.3(B)(2)(b). Because the DNA testing fails to create a rebuttable presumption of paternity, the Louisiana courts would consider all available evidence in deciding whether Mr. B~ was Jonathan's father. LA.R.S. § 397.3(D).

In the fact situation you have presented to us, we believe a Louisiana court would not find by clear and convincing evidence that Jonathan is the child of the deceased number holder for intestacy purposes. Other than the DNA siblingship test report, we note the lack of supporting documentation provided by the representative payee in this case. Scientific testing alone is insufficient to prove paternity in Louisiana without other corroborating evidence in addition to the DNA test result. See State Dept. of Social Services v. Passant, 97-26 (La. App. 3rd Cir. 6/18/97), 698 So.2d 27, 30; Landrum v. Matthews, 612 So.2d 854, 858 (La. App. 1st Cir. 1992). Valid DNA test results combined with other corroborating 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; see also Guidry v. Mouton, 96-948 (La. App. 3rd Cir. 2/5/97) 689 So.2d 621, 622-623 (holding that DNA test results coupled with trial testimony constituted clear and convincing evidence to prove filiation). Other credible evidence can include informal acknowledgment of paternity by the alleged father and relatives prior to death, or the testimony of the surviving parent. See Chatelain v. State, 586 So.2d 1373, 1379 (La. 1991); Guidry, 689 So.2d at 622-623. The record appears to be devoid of such other evidence.

Based upon the facts of this case, we do not believe the representative payee for Jonathan has established paternity to Mr. B~ by clear and convincing evidence.

Tina M. W~
Regional Chief Counsel

By: ___________________________
Thomas C. S~
Assistant Regional Counsel

G. PR 01-127 REPLY - Entitlement To Child's Benefits Under Louisiana State Law Where Paternity Is Established By DNA - Wage Earner Walter W. S~

DATE: September 21, 2000

1. SYLLABUS

DNA tests were performed on the child claimant, his mother, and the deceased NH's parents. Since the DNA test results in this case have been properly certified by sworn affidavits, they are admissible evidence of paternity. Under Louisiana law, there is no accreditation requirement for testing laboratories. The DNA test results, showing a 99.467 percent probability of paternity, are not enough to establish paternity without other corroborating evidence of paternity. The record should be further developed to include detailed statements from the child's mother about her relationship with the NH, or statements from witnesses regarding his conduct toward the child. Under Louisiana law, inheritance rights in an estate vest as of the date the deceased died.

2. OPINION

This memorandum is to respond to your request for our opinion on whether or not a laboratory report is sufficient evidence to establish the relationship of the child, Ryan D. K~, to the number holder, Walter W. S~, under Louisiana State law or under federal law, as described by section 216(h)(2) of the Social Security Act. See 42 U.S.C. § 416(h)(2); 20 C.F.R. §§ 404.354-55 (1999). Specifically, three questions will be addressed in this opinion:

(1) Does Louisiana State law require a testing laboratory to be accredited by a regulatory agency in the industry or in government?

(2) Is a laboratory finding showing a 99.467 percent probability of paternity sufficient to establish filiation of the child?

(3) If inheritance rights are established under state law, when do they vest?

After reviewing the facts and relevant law, it is our opinion that Louisiana State law does not require accreditation for testing laboratories. Even so, to be admissible in court, test results must be certified by sworn affidavit. In this case, an affidavit was provided by the testing agency, the test was properly certified, and the results can be used to establish paternity. However, the Louisiana courts have held that a scientific test, by itself, does not constitute clear and convincing evidence of paternity. The courts require corroboration of test results with evidence such as testimony from the surviving spouse or testimony from unrelated credible witnesses.

The relevant facts in this case include the following. A DNA (deoxyribonucleic acid) paternity evaluation report was submitted as evidence of Ryan's paternity in a request for survivor's benefits based on Mr. S~'s earnings record. Ryan was born to Pamela A~ K~ on May 5, 1989 in Yellowstone County, Montana. Mr. S~ and Ms. K~ never married prior to Mr. S~'s death on March 11, 1995. No father's name was shown on the birth certificate at the time of Ryan's birth. There is no evidence that Mr. S~ ever acknowledged Ryan as his child, lived in the same household as the child, supported Ryan financially, or was declared by a court to be the father of Ryan.

In December, 1999, Ms. K~ filed for survivor's benefits for Ryan, claiming that Mr. S~ was Ryan's biological, or natural, father. Submitted with the application was a DNA paternity evaluation report dated October 5, 1999, which was prepared by Memorial Blood Centers of Minnesota, in Minneapolis, Minnesota. The report based its evaluation upon DNA samples from Ryan, Ms. K~, and Mr. S~'s parents, Dorothy and Jones M. S~. The report stated that the probability is 99.467 percent that Mr. S~ is Ryan's father, as compared to an untested, randomly chosen man of the Caucasian population.

The Social Security Act provides that one must apply State inheritance laws when determining if an applicant is a child for Social Security benefit eligibility purposes. See 42 U.S.C. §416(h)(2)(A). Under the revised regulations, a child's relationship to a number holder can now be established without the need for a court determination of paternity. The regulations provide that an insured's natural child may be eligible if he or she could inherit personal property under State inheritance laws if the insured died without a will. However, any State law which requires that an action be taken to establish paternity within a specified period of time after the insured's death or the child's birth will not be applied. See 20 C.F.R. § 404.355. Thus, in order to evaluate the evidence of paternity, the Agency will use the same standard of proof used by the Louisiana courts, but will not require a court determination of paternity.

As to your first question, Louisiana State 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 expert who conducted or supervised the test. See La. Rev. Stat. Ann. §9:397.3, subd. 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. 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 v. Johnson, 651 So.2d 366, 368 (La. App. 2nd Cir. 1995). Since the Agency must use the same standard of proof required of the court, the DNA test results in this case are admissible only if the required affidavit is available. See 20 C.F.R. § 404.355. In this case, the DNA test results were properly certified by a sworn affidavit attested to by Jed B. G~, M.D., Memorial Blood Centers of Minnesota. Therefore, the DNA test results are admissible as evidence and can be considered in determining if Mr. S~ is Ryan's father.

You asked whether a 99.467 percent of paternity was sufficient to establish Ryan as Mr. S~'s child. Under Louisiana law, evidence of statistical probability of paternity established at 99.9 percent or more creates a rebuttable presumption of paternity. See La. Rev. Stat. Ann. §9:397.3 (West 2000); State v. Johnson, 753 So.2d 388, 390 (La. App. 1st Cir. 2000). A living putative father has thirty days after the test results are filed with the court to object, or the results will be held to be admissible evidence. See La. Rev. Stat. Ann. §9;397.3 subd. B (West 2000); State v. McCain, 637 So.2d 650, 652 (La. App. 2nd Cir. 1994). The Court has held that blood test results, admitted without objection, are prima facie proof of paternity. See Robinson v. Sims, 721 So.2d 90, 93 (La. App. 2nd Cir. 1998). Yet, if the alleged living parent does object to the test results, the courts have held that the test results alone were insufficient to prove paternity and must be supported by other objective evidence, such as testimony from credible witnesses. See State v. Givens, 616 So.2d 259, 261 (La. App. 2nd Cir. 1993)(affirming that scientific testing alone is not sufficient to prove paternity, but when supported by objective testimony it may establish proof of paternity).

However, when the alleged parent is deceased, the courts require corroboration of the DNA test results, in order to meet the clear and convincing standard of proof. See Guidry v. Mouton, 689 So.2d 621, 623 (La. App. 3rd Cir. 1997)(holding that DNA test results with trial and deposition testimony constituted clear and convincing evidence that plaintiff was the natural child of the deceased alleged father).

Although the laboratory report showing a 99.467 percent probability that Mr. S~ is Ryan's father does not create a presumption of paternity, it is persuasive. When combined with other evidence, it may fulfill the clear and convincing evidence standard. See Guidry v. Mouton, 689 So.2d at 622 - 623 (affirming that DNA test results of 99.44 percent, in combination with surviving parent's testimony regarding opportunity for sexual intimacy, constituted clear and convincing evidence). In fact, regardless of the test results, the courts have held that scientific test results alone do not establish paternity as envisioned under Louisiana law. See State v. Givens, 616 So.2d at 261. "Other corroborating evidence of paternity" in addition to the DNA test results is required. See State v. James, 689 So.2d 27, 29 (La. App. 3rd Cir. 1997); Landrum v. Matthews, 612 So.2d 854, 858 (La. App. 5th Cir. 1993). That corroboration can include an 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 v. Mouton, 689 So.2d at 621.

Under Louisiana law, if the deceased dies without a valid will the undisposed property passes by operation of law to descendants, ascendents, and collaterals, and a current spouse. See La. Civ. Code Ann. art. 880 (West 2000). When a relationship is established by blood or adoption, inheritance rights pass to such a relative regardless of the legitimacy of the relationship.

See La. Civ. Code Ann. art. 880 (West 2000 & Supp. 2000). In cases such as this one, where the alleged father is deceased, Louisiana law requires clear and convincing evidence to establish filiation. See La. Civ. Code Ann. art. 209(B) (West 2000); Chatelain v. State, 586 So.2d 1373, 1378 (La. 1991); Hines v. Williams, 567 So.2d 1139, 1141 (La. App. 2nd Cir. 1990).

In this case, the child's mother, Ms. K~, named Mr. S~ as Ryan's father in the application for survivor's benefits. There is no evidence in the record that Mr. S~ ever lived with Ms. K~, visited Ryan, provided financial support for Ryan, or acknowledged verbally or in writing that Ryan was his child.

On June 16, 1995, Mr. S~'s parents, Dorothy and Jones S~, signed an affidavit stating that they "acknowledge that Ryan D. K~ is the son of Walter W. S~." The S~s statements lack the type of details that the Courts have looked for in similar cases. See Guidry v. Mouton, 689 So.2d 621 at 622. The courts look for the specifics of the couple's relationship because such specificity gave the surviving parent's claims of paternity credibility. See 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). Here, Ms. K~'s and the S~'s statements are too general to give their claims the credibility required by the court. Therefore, an adjudicator would need more specific information regarding the relationship between the couple. For example, testimony from Ms. K~ would be sufficient if she expanded her original statements with details about her relationship with Mr. S~. Also, any potential unrelated witnesses should be contacted because Louisiana courts have considered abundant testimony from credible witnesses to accumulate clear and convincing weight. See Succession of Stevenson, 492 So.2d 100, 102 (La. App. 1st Cir. 1986)(citing corroboration by witnesses assisted in satisfying burden of proving paternity by clear and convincing evidence).

You asked if Ryan's inheritance rights are established, when would they vest in Mr. S~'s estate? Under Louisiana State law, inheritance rights in an estate vest as of the date the deceased died. See La. Civ. Code Ann. art. 935 (West 2000).

In light of the foregoing discussion, it is our opinion that under Louisiana State law there is no accreditation requirement for testing laboratories. Since, the DNA test results in this case have been properly certified, the results are admissible evidence and can be used to establish the Ryan's inheritance rights. Further, even though the laboratory found a 99.467 percent probability that Mr. S~ was Ryan's father, those results alone are not enough to establish paternity. The record should be further developed to include detailed statements from Ms. K~ about her relationship with Mr. S~, or statements from witnesses regarding Mr. S~'s conduct toward Ryan. That additional information in combination with properly certified laboratory results would provide clear and convincing evidence of Ryan's paternity. Thus, establishing Ryan's inheritance rights in Mr. S~'s estate. The inheritance rights would have vested on the date of Mr. S~'s death.

H. PR 01-126 REPLY - Entitlement to Child's Benefits Under Louisiana Law - (NH) Ricky O~, SSN ~

DATE: September 21, 2000

1. SYLLABUS

Under new Social Security regulations, SSA will not require a claimant to obtain a court determination of paternity that is required under State intestacy law, and will not apply any State law requirement that an action to establish paternity be taken within a specified period of time. Under Louisiana case law, informal acknowledgment of paternity must be of a continuous, habitual, and unequivocal nature, and of sufficient frequency that there can be little doubt that the alleged father truly believed himself to be the father of the child. The courts have generally indicated what evidence a claimant would need to introduce in order to prove (by the clear and convincing standard) informal acknowledgment of paternity under Louisiana law. In this case, the evidence supporting informal acknowledgment does not meet the clear and convincing standard.

Under Louisiana law, inheritance rights vest at the moment of death. Regardless of when those rights are later asserted, the acquisition of the inheritance rights relates back to the moment of death.

2. OPINION

This is in response to your legal opinion request asking our office to address the following issues:

(1) Whether the Social Security Administration (the Agency) can disregard Louisiana state time limits to establish paternity of Christian M. L~; (2) Whether the evidence provided by relatives is sufficient to establish that Ricky O~ informally acknowledged Christian as required by Louisiana law; and (3) Whether the inheritance rights, if established, are prospective under Louisiana state law. In our opinion, the Louisiana statutory time limits for establishing paternity can be disregarded. It is also our opinion that there is not enough credible evidence to establish that Ricky O~ informally acknowledged Christian. Finally, it is our opinion that the inheritance rights vest at death.

Ricky O~ died on July 5, 1998, while domiciled in Louisiana. The natural mother of Christian, G. L~, filed an application for child insurance benefits on behalf of Christian on April 26, 2000. Christian was born on July 15, 1998, ten days after Mr. O~'s death. Ms. L~ alleges that Mr. O~ informally acknowledged Christian, and she has submitted statements of his relatives supporting her allegation. This evidence is discussed in depth below.

Under the Social Security Act (the Act), one of the ways of determining that a child is the child of an insured worker is to determine whether the child could inherit intestate property under the laws of the state where the worker was domiciled at the time of his death. Section 216 (h)(2)(A) of the Act, 42 U.S.C.A. § 416 (h)(2)(A). At the time of his death, Mr. O~ was domiciled in the state of Louisiana. Thus, for Christian to establish eligibility for survivor's benefits, Ms. L~ must establish that Christian would be eligible to inherit from Mr. O~'s intestate estate under Louisiana State law. See 20 C.F.R. § 404.355 (a)(1) and (b)(4).

One way to do this is to establish filiation/. There is no evidence that Ms. L~ instituted a civil proceeding on behalf of Christian to establish filiation as required by Louisiana statute. See La. Civ. Code Ann. Art. 209 (West 1999). However, the failure to institute a civil proceeding within the required time frame, as specified under Article 209, does not bar the Agency from considering whether the deceased informally acknowledged his paternity. Social Security regulations state that if an applicable state inheritance law requires a court determination of paternity, the Agency will not require a claimant to obtain such a determination, but rather, will decide paternity based upon the standard of proof the State court would have used. See 20 C.F.R. § 404.355(b)(2). This Social Security regulation also indicates that the Agency will not apply any state law requirement mandating that an action to establish paternity be taken within a specified period of time. Id. This regulation should be applied to any application pending before the Agency on or after its effective date of November 27, 1998. Generally, the law in effect at the time of an administrative determination is controlling, even if it has been amended during the pendency of a proceeding. 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). See also 2 Am. Jur. 2d Administrative Law § 384 (1994).

Louisiana law on intestate succession provides that the undisposed property of the deceased is inherited by his descendants, ascendants, and collaterals, by blood or by adoption, and by his spouse not judicially separated from him. La. Civ. Code Ann. Art. 880 (West 1999). 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 1999). Further, inheritance rights vest immediately upon the death of the deceased. La. Civ. Code Ann. Art. 940 (West 1999). Thus, if Ms. L~ can establish that Christian is Mr. O~'s child under Louisiana filiation law, the child would be entitled to inherit through intestate succession and would be considered Mr. O~'s child for the purpose of the Act.

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.@ See La. Civ. Code Ann. Art. 209 (West 1999).

Because Christian does not enjoy legitimate filiation and was not filiated by the initiative of the parent, we must look to Article 209 to determine if Ms. L~ has established that Christian is Mr. O~'s child. Section B of Article 209 states the following:

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... La. Civ. Code Ann. Art.209 (West 1999).

Here, Ms. L~ seeks to prove Christian's filiation to Mr. O~ by showing that he was informally acknowledged by the deceased. Informal acknowledgment is not specifically defined or authorized by the Louisiana Civil Code. Instead, it is a product of Louisiana case law and is included as proof of filiation in the comment to Article 209. See Succession of Matte, 346 So.2d 1345, 1349 (La. App. 3rd Cir. 1977); La. Civ. Code Ann. Art. 209 cmt. b (West 1999).

Under Louisiana case law, informal acknowledgment of paternity must be of a continuous, habitual, and unequivocal nature, and of sufficient frequency that there can be little doubt that the alleged father truly believed himself to be the father of the child. See Thomas v. Smith, 463 So.2d 971, 975 (La. App. 3rd Cir. 1985) . Moreover, to prove filiation by clear and convincing evidence, the putative father's actions must be of such frequency that the trier of fact is convinced that paternity is >highly probable, i.e., much more probable than its nonexistence. See Sudwisher v. Estate of Hoffpauir, 705 So.2d 724, 732 (La. 1997). The determination of whether there has been informal acknowledgment by, or sufficient proof of filiation to, the alleged parent is a factual determination that must be made by reference to the record as a whole. See Matte, 346 So.2d at 1350.

The courts in Louisiana have generally indicated what evidence a claimant would need to introduce in order to prove (by the clear and convincing standard) informal acknowledgment of paternity under Article 209. Evidence which can be considered could include, but is not limited to: the father rearing the child in his home, giving the child his surname, holding the child out in the community as his own, giving gifts to the child, causing the education of the child, and acknowledging paternity in formal writings or in public and private conversations. See Estate of Hoffpauir, 705 So.2d at 731.

Louisiana courts are reluctant to recognize informal acknowledgment for purposes of filiation unless the father has recognized the child as his own, unequivocally, and on several occasions. Id. For example, in a 1985 Louisiana case, plaintiffs proved informal acknowledgment by clear and convincing evidence after calling twenty-one witnesses for their side at trial, submitting three favorable depositions in support of their case, introducing birth certificates and a marriage certificate all purporting to indicate that the plaintiffs were informally acknowledged by the deceased. See Succession of Henry C~ B~, 472 So.2d 578, 582-84 (La. 1985).

Although this matter concerns informal acknowledgment under Louisiana law, we note that Louisiana statutory law expressly provides other means of proving filiation:

(b) Proof of filiation may include, but is not limited to :

Informal acknowledgment; scientific test results; acknowledgment in a testament; and proof that the alleged parents lived in a state of concubinage at the time of conception . . ."

La. Civ. Code Ann. art. 209 (West 1999). Informal acknowledgment is merely one method of proving filiation. See Matter of Thomas, 450 So.2d 1048 (La. App. 1st Cir. 1984), writ den., 457 So.2d 1192 (La. 1984). If Ms. L~ presents scientific test results, i.e., DNA, demonstrating Christian's filiation to Mr. O~ or proof that she lived with Mr. O~ at the time of her conception, she may be able to prove filiation by these means. However, when the alleged parent is deceased, the courts require corroboration of the DNA test results, in order to meet the clear and convincing standard of proof. See Guidry v. Mouton, 689 So.2d 621, 623 (La. App. 3rd Cir. 1997) (holding that DNA test results with trial and deposition testimony constituted clear and convincing evidence that plaintiff was the natural child of the deceased alleged father).

In this case, we believe the evidence supporting informal acknowledgment does not meet the clear and convincing standard. Statements from the child's paternal grandmother, Cecelia O~, and aunt, Krystal O~, indicate that Mr. O~ told them on one occasion that Gabrielle L~ was pregnant with his child, and that Mr. O~ seemed happy. Although Christian was not born until after Mr. O~'s death, there is no other evidence of an "unequivocal" acknowledgement. Since Christian's birth, Ms. L~ and Christian have apparently moved in with Cecelia O~. However, during the pregnancy, Ms. L~ lived with her parents, while Mr. O~ lived alone.

Based upon our review of Louisiana law and the facts of this case, it is our opinion that Ms. L~ has not shown by clear and convincing evidence that Mr. O~ informally acknowledged Christian as his child. Although Mr. O~ presumably was happy that Ms. L~ was pregnant, this does not meet the clear and convincing standard. Therefore, under Louisiana law, Christain would not be entitled to inherit from Mr. O~'s intestate estate, and would not be entitled to surviving child benefits.

If Ms. L~ is able to produce additional evidence that would meet the clear and convincing burden, you asked if Christian's inheritance rights would be prospective or retroactive. 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. 20 C.F.R. § 404.352. Where, as here, the application was filed after the first month in which the requirements for benefits were met, Christian could be entitled to receive benefits for up to six months immediately before the month in which the application was filed. Benefits would begin with the first month in that six-month period in which all requirements for eligibility were met. 20 C.F.R. § 404.621(a)(ii). The only issue affecting date of entitlement involves the date when Christian would first be considered Mr. O~'s child under the Act.

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. 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. La. Civ. Code Ann. Art. 954, Comment (a) (West 2000). Thus, Christian's right to inherit from Mr. O~'s intestate estate would have vested at the moment of death on July 5, 1998. Because of this, Christian's relationship to Mr. O~ would be proven pursuant to § 216(h)(2)(A) of the Act as of the date of Mr. O~'s death, at the latest. In our opinion, because Christian could fall within the definition of Mr. O~'s child under the Act as of the date of his death, the date of entitlement should be the full six months retroactivity from the filing date of the application. Again, this assumes that Ms. L~ is able to produce additional evidence of Mr. O~'s informal acknowledgment, or demonstrates his paternity through another means such as DNA testing.

Based on the foregoing discussion, it is our conclusion that Ms. L~ has not met her evidentiary burden of proving Christian's relationship to Ricky O~ by informal acknowledgment under Louisiana law.

I. PR 01-113 Use of a Louisiana District Court Paternity Judgment and Disregarding Louisiana State Law Time Limits to Establish Child Relationship (NH James C~, SSN ~) - REPLY

DATE: January 23, 2001

1. SYLLABUS

A Louisiana Judgment of Paternity issued after the NH's death, stating that the he was the father of the two child claimants, establishes inheritance rights for both children as of the date of the NH's death. The court determination was based on DNA test results using a blood sample taken from the NH during his lifetime, showing a 99.9% probability of paternity, and oral testimony.

NOTE: The opinion states that DNA test results showing a 99.9% probability of paternity creates a rebuttable presumption of paternity. This presumption only applies during the alleged father's lifetime.

2. OPINION

This is in response to your request for a legal opinion addressing the following issues:

(1) Can the Louisiana Family Court Judgment of Paternity issued after the putative father's death be used to establish eligibility for surviving child benefits under the Social Security Act (the Act)?

(2) Because the application for surviving child benefits was filed more than one year after the putative father's death, can the Social Security Administration (SSA) disregard Louisiana State law time limits?

(3) What is the date of entitlement, if any?

(4) Whether SSA should reopen the June 1999 application for surviving child benefits.

After reviewing the facts and relevant law, it is our opinion that the Louisiana Judgment of Paternity stating that Mr. C~ was the father of James and Jacqueline C~ established inheritance rights for both children. SSA should accept the paternity findings set out in the Louisiana Judgment of Paternity because it meets the prerequisites established by federal law. The issue of disregarding state law time limits is not relevant to this case, as the state law time limits were met. Regarding the date of entitlement, James and Jacqueline acquired inheritance rights as of the date of Mr. C~'s death. Therefore, their relationship to Mr. C~ was proven as of that date. The June 1999 application should be reopened, and benefits paid to James and Jacqueline from the date of their births. If the prior application is not reopened, the date of entitlement should be six months retroactive from the date of the December 1999 application.

Mr. C~ died on October 18, 1998, while domiciled in Louisiana. James and Jacqueline C~, twins, were born to Claire J~ on May 4, 1999. In June 1999, Ms. J~ filed an application with SSA for surviving child benefits based on Mr. C~'s earnings record on behalf of her children James and Jacqueline C~. This application was denied because of lack of evidence establishing the children's relationship to Mr. C~ under the Act. A new claim was filed in December 1999. New evidence was provided by Ms. J~ that included an October 1999 Judgment of Paternity establishing that Mr. C~ was James' and Jacqueline's father. A November 1999 court decree changed the twins' names to show the last name as C~, and the birth certificates were amended to show the name change and to add Mr. C~ as father.

Ms. J~ stated that she had been married but was divorced in 1993 or 1994. Both she and Mr. C~ were divorced at the time of the children's conception. She also stated that Mr. C~ had no brothers. Additionally, the blood sample used for the DNA testing was actually from Mr. C~. When he died, the police department had custody of a blood sample. Pursuant to a court order, that sample was delivered to the physical possession of DNA Diagnostic Center of Fairfield, Ohio and retained in a frozen state for use in the anticipated paternity test. Appropriate documentation regarding the chain of custody of Mr. C~'s blood sample is included in the claim file.

The DNA test results for James showed a 99.96% probability that Mr. C~ was his biological father. Test results for Jacqueline showed a 99.99% probability that Mr. C~ was her biological father. Records from the testing facility, DNA Diagnostic Center, include verifications from the technician collecting the samples regarding identification of the tested individuals, collection and packaging procedures, and chain of custody. Moreover, the "DNA Parentage Test Report" for each child included a sworn verification that the testing procedures and interpretation were done in accordance with the American Association of Blood Banks' guidelines.

In addition, SSA contacted David M~, attorney for Kathy R. C~, Mr. C~'s ex-wife. Kathy R. C~ was the succession representative for Mr. C~'s estate and is the mother of William and John C~, Mr. C~'s natural, legitimate children. Mr. M~ was present at the state court hearing on this matter and represented the interests of Mr. C~'s estate. Mr. M~ stated that paternity was established based on DNA evidence indicating a 99.9% probability that Mr. C~ was the biological father of James and Jacqueline. Mr. M~ further observed that Kathy R. C~ was aware of the evidence in the case and had expressed no interest in opposing the decision, as there was overwhelming evidence in support of it.

Here, Ms. J~ seeks to prove James and Jacqueline's relationship to Mr. C~ by using the state court judgment of paternity. In order to determine whether an applicant is the child of an insured individual, the Commissioner will apply the law of the state of the insured's domicile at the time of his death. Applicants who according to such law would have inherited intestate property as a child of the insured will be deemed the child of the insured for the purposes of this section. 42 U.S.C. § 216 (h)(2)(A). At the time of his death, Mr. C~ was domiciled in the state of Louisiana. Thus, for James and Jacqueline to establish eligibility for survivor's benefits, they must establish that they would be eligible to inherit from Mr. C~'s intestate estate under Louisiana law. 20 C.F.R. § 404.355 (a)(1) and (b)(4).

Moreover, 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. 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 20 C.F.R. § 404.355(b)(2).

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. La. Civ. Code Ann. art. 880 (West 2000). 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). Further, inheritance rights vest immediately upon the death of the deceased. La. Civ. Code Ann. art. 940 (West 2000).

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). Because James and Jacqueline do not enjoy legitimate filiation and were not filiated by the initiative of the parent, we must look to Article 209 to determine if they have established their relationship to Mr. C~. The pertinent part of Article 209 states the following:

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 recover damages.

La. Civ. Code Ann. art. 209 (West 2000).

Here, in compliance with Articles 203 and 209 of the Louisiana Civil Code, Ms. J~ instituted a proceeding in Louisiana state court to establish James and Jacqueline's relationship to Mr. C~.

On October 12, 1999, less than one year after Mr. C~'s death, a Louisiana family court issued a Judgment of Paternity. That judgment named Mr. C~ as the father of James and Jacqueline. The paternity judgment was based on oral testimony and DNA evidence that established a 99.9% likelihood that Mr. C~ was James and Jacqueline's biological father. Ms. J~ was present at the hearing and represented by an attorney, Marcus T. F~. Mr. M~ was also present on behalf of Mr. C~'s estate.

You asked whether this court judgment could be used to establish eligibility for surviving child benefits for James and Jacqueline. To determine if SSA is bound by a state court paternity judgment, we consider the criteria required by Social Security Ruling (SSR) 83-37c, which adopted the holding in 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 when the following prerequisites are met: 1) an issue in a claim for Social Security benefits has been previously 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.

Here, all four prerequisites have been met. The state court determined that Mr. C~ is James' and Jacqueline's biological father, and that is the sole issue in their claim for surviving child benefits. The Family Court of Baton Rouge Parish is a court of competent jurisdiction, and the issues involved are domestic relations matters. See La. Const. Art. 5, §16. Moreover, this matter was genuinely contested before the state court. Mr. M~, the attorney for Kathy R. C~, as succession representative of Mr. C~ and natural tutrix of William and John C~, was present at the hearing and represented the interests of Mr. C~'s estate. The estate representative would clearly have an opposing interest to potential additional claims on the estate. Further, when Mr. M~ was contacted, he indicated that Kathy R. C~ was aware of the evidence in the case and did not oppose the paternity determination due to the overwhelming evidence.

Finally, the holding of the state trial court appears to be consistent with the law as enunciated by the highest court of the State of Louisiana. The Louisiana Supreme Court has held that a clear and convincing evidence standard applies when an individual is attempting to prove filiation after the death of the putative parent. 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) (holding that a higher standard of proof is required when the alleged parent is deceased because of the danger of fraud); Hines v. Williams, 567 So. 2d 1139, 1141 (La. App. 2d Cir. 1990)(requiring illegitimate children to prove filiation to a deceased parent by clear and convincing evidence to protect families from spurious claims).

Scientific testing alone is insufficient to prove filiation in Louisiana without "other corroborating evidence of paternity." State Dept. of Social Services v. Passant, 698 So. 2d 27, 30 (La. App. 3d 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 standard.

See Sudwisher, 705 So. 2d at 732. See also Guidry v. Mouton, 689 So. 2d 621, 622-623 (La. App. 3d 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 parent prior to death or the testimony of a surviving parent. See Chatelain, 586 So. 2d at 1379; Guidry, 689 So. 2d at 622-623.

Here, the DNA test results established by 99.9% probability that Mr. C~ was James and Jacqueline's biological father. Louisiana statutory law provides that a certified report of blood or tissue samples that indicates a 99.9% or higher probability of paternity creates a rebuttable presumption of paternity. La. Rev. Stat. Ann. § 9:397.3(B)(2)(b) (West 2000). The DNA test results were properly certified by the testing facility and were correctly admitted into evidence by the trial court. See La. Rev. Stat. Ann. §9:397.3, subd. 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 the samples were obtained until the tests were completed; results and probability of paternity; and the procedures performed to obtain the test results); See also State v. C. Simien, 677 So. 2d 1138, 1141 (La. App. 3rd Cir. 1996). In addition to the DNA testing, the state court heard oral testimony. Thus, it is our opinion that the state trial court's Judgment of Paternity was consistent with the law as enunciated by the Louisiana Supreme Court. Thus, the fourth prerequisite of SSR 83-37c was met, and SSA can accept the state court determination of paternity.

Next, you asked whether SSA could disregard state law time limits because the application for surviving child benefits was filed more than one year after Mr. C~'s death. Mr. C~ died on October 18, 1998. The Judgment of Paternity was issued on October 12, 1999, less than one year after Mr. C~'s death. Thus, the state law time limits were met. The date relevant for the statute of limitations is the date on which the action was filed, not the date it was adjudicated. See La. Civ. Code Ann. art. 203 and art. 209 (West 2000). Because the final order was issued less than one year after Mr. C~'s death, it is apparent that Ms. J~ filed an action under Article 203 of the Louisiana Civil Code within one year of Mr. C~'s death.

You also asked about James and Jacqueline's date of entitlement if filiation is established under Louisiana law. 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. 20 C.F.R. § 404.352. Where, as here, the application was filed after the first month in which the requirements for benefits were met, James and Jacqueline may receive benefits for up to six months immediately before the month in which the application was filed. Benefits will begin with the first month in that six-month period in which all requirements for eligibility were met. 20 C.F.R. § 404.621(a)(ii). Because James and Jacqueline met all other requirements on the date of the application and for the previous six months, the only issue affecting date of entitlement involves the date when they were first considered C~'s "children" under the Act. In other words, on what date was James and Jacqueline's relationship to Mr. C~ proven pursuant to § 216(h)(2)(A) of the Act?

Generally, in a claim for surviving child benefits, the earliest point at which the applicant would be eligible for benefits was the date of insured's death. However, because James and Jacqueline were born after Mr. C~'s death, their earliest date of entitlement would be their dates of birth. As earlier discussed, a child who establishes filiation to a decedent by clear and convincing evidence is entitled to inheritance rights. James and Jacqueline have established the right to inherit from Mr. C~'s intestate estate. Under Louisiana law, inheritance rights vest at the moment of death. 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. La. Civ. Code Ann. art. 954, Comment (a) (West 2000). Moreover, an unborn child is considered a natural person for whatever relates to its interests from the moment of conception. La. Civ. Code Ann. art. 26 (West 2000). James and Jacqueline acquired the same rights of any natural person upon their conception, and their right to inherit from Mr. C~'s intestate estate vested at the moment of Mr. C~'s death. However, James and Jacqueline's inheritance rights could not be asserted unless and until they were born alive. See Id. Because of this, James and Jacqueline's relationship to C~ was established pursuant to §216(h)(2)(A) of the Act on the date of C~'s death. In our opinion, because James and Jacqueline could have fallen within the definition of "child" under the Act as of the date of C~'s death, their date of entitlement should be the full six months retroactivity from the December 1999 filing date of the application unless SSA determines it is proper to reopen the prior application.

Ms. J~ previously filed an application for benefits in June 1999.

That application was denied on July 19, 1999. The Commissioner's regulations provide that a determination may be reopened (1) within twelve months of the date of the notice of the initial determination for any reason and (2) within four years of the date of the notice of the initial determination for good cause. See 20 C.F.R. § 404.988 (2000). The term "initial determination" is defined as the determination SSA makes about a claimant's entitlement or continuing entitlement to benefits or about any other matter. See 20 C.F.R. § 404.900. Thus, the denial notice issued on the June 1999 application would be considered the initial determination for that claim.

It is our opinion that the prior application should be reopened.

Simple fairness indicates that SSA should reopen the prior application. First, SSA did not fully and fairly develop the record before denying Ms. J~'s first application. When Ms. J~'s first application was denied for insufficient evidence on July 19, 1999, she had already informed SSA that she was in the process of obtaining DNA test results and would be seeking a court order. The record shows that the DNA testing was performed on June 23, 1999. However, instead of waiting on further and sufficient development of the evidence, SSA denied her application. SSA regulations require that a claimant be given additional time to obtain evidence where the delay is due to the failure to timely receive evidence from another source. See 20 C.F.R. § 404.705 (2000).

Moreover, the DNA testing report was issued on July 6, 1999. This evidence was, therefore, in existence prior to the initial denial. The DNA testing, even without the subsequent court order, would likely have changed the outcome of the claim. This fact alone provides "good cause" for reopening the prior application. SSA will find good cause to reopen a determination if new and material evidence is furnished. See 20 C.F.R. § 404.988. Evidence is new and material if it shows facts that would result in a conclusion different from that originally reached had the new evidence been introduced or available at the time of the original determination. See POMS GN 04010.030(A). Under Louisiana law, scientific testing, when coupled with other testimony, can be used to prove paternity by clear and convincing evidence. See La. Civil Code Ann. art. 209, Comment c (West 2000). Clearly, good cause exists for SSA to reopen the prior application. If the prior application is reopened, James and Jacqueline would be entitled to retroactive benefits for up to six months from the date of the first application. However, in this case, the retroactive benefits are limited to the children's dates of birth.

Based on the foregoing discussion, it is our conclusion that Mr. C~'s relationship to James and Jacqueline was established by the Louisiana court order. Further, the state law time limits were met in this case. Unless the June 1999 application is reopened, the date of entitlement for James and Jacqueline should be six months prior to the protective filing date of the application.

J. PR 01-101 REPLY - Entitlement to Child's Benefits Under Louisiana State Law — Wage Earner Robert A. A~, SSN ~

DATE: January 17, 2001

1. SYLLABUS

Under recently amended regulations, SSA will not apply the Louisiana time limit 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.

The burden of proving filiation or paternity in Louisiana is by clear and convincing evidence. The evidence in this case fails to prove clearly and convincingly that the NH continuously, habitually, and unequivocally acknowledged the children informally. When the NH filed for DIB, he did not list the children on his application. Moreover, at the time of their birth, their mother listed her husband, rather than the deceased, as their father. An adjudicator would require more specificity concerning acknowledgment, including such evidence as whether the deceased paid bills on behalf of the children or bought them necessary items, other than birthday and holiday gifts. In addition, the mother should obtain additional statements from those persons who witnessed acknowledgement of the children by the deceased, as Louisiana courts have considered abundant testimony from credible sources to accumulate clear and convincing weight.

2. OPINION

This memorandum is in response to your request for an opinion regarding whether there is sufficient evidence to establish that Robert A. A~ informally acknowledged Jonathan S. A~ and Kerry N. A~ as his children, as required by Louisiana State law, so that Jonathan and Kerry may qualify for Social Security benefits on Mr. A~'s record. After reviewing the facts and relevant law, it is our opinion that there is not enough credible evidence to establish that Robert A~ informally acknowledged either Jonathan or Kerry as his own children.

Robert A. A~ (hereafter referred to as "the deceased"), the purported biological father of Jonathan and Kerry, died on November 6, 1993, while domiciled in Louisiana. In September 1999, the childrens' mother, Barbara R~ A~, applied for benefits for the children on the deceased's account.

Jonathan was born on August 13, 1988 and Kerry was born on September 12, 1991. Their mother was married to Marshall A~ (no relation to the deceased) at the time of the conception and birth of each child. Marshall A~ is listed on the children's birth certificates as the father of the children. In addition, the children are currently drawing benefits on the disability record of Marshall A~.

The deceased was married to Carla S~ A~ until the time of his death, but had been separated from her since 1988. In 1990, the deceased filed for disability benefits but did not list Jonathan as his child. (Kerry had not been born at the time of the deceased's application for benefits.) When the deceased died, his wife, Carla, filed for survivor benefits, but did not list Jonathan or Kerry as the deceased's children. The children were also not listed as the deceased's children in his obituary notice. However, on May 25, 2000, at the urging of the deceased's legitimate daughter, Letitia A~, Carla A~ signed a statement indicating that Jonathan and Kerry were the biological children of the deceased and that the deceased had openly acknowledged them as his children on numerous occasions. Letitia also signed a statement indicating that Jonathan and Kerry were her father's children and that her father had openly acknowledged them as such since their birth.

To be considered the insured person's natural child for purposes of entitlement to Social Security benefits under § 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 42 U.S.C. § 416(h)(2)(A) and (B). An applicant who is not deemed to be the child of the insured under § 216(h)(2) of the Act shall nevertheless be deemed to be the child of the insured under § 216(h)(3) 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 42 U.S.C. § 416(h)(3)(C)(i) and (ii).

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 the children do not enjoy legitimate filiation and were 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 their mother can establish that Jonathan and Kerry are the deceased's children 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 recover damages.

La. Civ. Code Ann. art. 209 (West 2000).

However, under recently amended regulations, the Social Security Administration 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. Louisiana's 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 the mother can establish that Jonathan and Kerry are the deceased's children under Louisiana law, the children would be entitled to inherit through intestate succession in Louisiana and would be considered the deceased's child for purposes of the Act.

There is no indication in the record that the deceased and the children's mother ever attempted marriage. Marshall A~, not the deceased, was shown as the father of both children on their birth certificates. Their mother has not furnished any evidence that the deceased acknowledged the children in writing, had been decreed by a court to be the children's father, or had been ordered to contribute to the children's support. Although letters from Carla A~ and Letitia indicate that the deceased often spent time with the children and bought the children gifts on their birthdays and at holidays, there is no evidence that the deceased ever lived with the children or contributed to their support. Thus, the only possible avenue to establish Jonathan and Kerry as the children of the deceased for purposes of the Act is by showing that the children would be entitled to inherit through intestate succession under the laws of Louisiana, the state in which the deceased was domiciled at the time of his death. See 42 U.S.C § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1) and (b)(4) (1999).

Here, Barbara A~ seeks to prove Jonathan's and Kerry's filiation to the deceased by showing that the children were informally acknowledged by the deceased. According to the comments following Article 209, proof of filiation may include "informal" acknowledgment. See La. Civ. Code Ann. art 209 comment b (West 2000). Although informal acknowledgment is not specifically defined by the Louisiana Civil Code, it has been declared by Louisiana case law to be as effective as a formal acknowledgment under Article 203 of the Code regarding inheritance from the father. See Chatelain v. State, 586 So.2d 1373, 1379 (La. 1991);

Succession of Matte, 346 So.2d 1345, 1349 (La. App. 3rd Cir. 1977).

You have requested guidance concerning whether the statements from Carla A~ and Letitia are sufficient to establish that the deceased orally and by his actions informally acknowledged Jonathan and Kerry as his children. 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 La. Civ. Code Ann. art. 209(B)(West 2000); 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, 586 So.2d at 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).

Informal acknowledgment must consist of statements or actions of a continuous, habitual and unequivocal nature and of sufficient frequency that there can be little doubt that the alleged father truly believes himself to be the father of the child. See Thomas v. Smith, 463 So.2d 971, 975 (La. App. 3rd Cir. 1985). In our opinion, the statements of Carla A~ and Letitia, in their current form, fail to prove clearly and convincingly that the deceased continuously, habitually and unequivocally acknowledged Jonathan and Kerry as his children.

The Supreme Court of Louisiana has been reluctant to recognize informal acknowledgment for purposes of filiation unless the father has recognized the child as his own unequivocally and on several occasions. See Chatelain, 586 So.2d at 1379 (citing Succession of Vance, 34 So. 767 (La. 1903))(one statement is insufficient). Here, evidence indicates that when the deceased filed for disability benefits in 1990, he did not list Jonathan or Kerry as his children. Moreover, at the time of their birth, their mother listed her husband, Marshall A~, rather then the deceased, as the father of the children. Thus, it appears that the deceased did not acknowledge the children in a continuous, habitual and unequivocal nature, as is required by relevant case law. See Thomas, 463 So. 2d 971, 975 (La. App. 3rd Cir. 1985).

It is true that Carla A~ and Letitia have reported that the deceased "often" spent time with the children. However, both parties have failed to specify any significant acts of acknowledgment by the deceased toward the children during these visits. See Hines, 567 So.2d at 1140 (actions by a putative father, such as paying medical bills, going to the doctor's office or hospital with the mother during her pregnancy, or purchasing necessaries for the child, should reasonably be considered in regard to acknowledgment of paternity). Although both Carla A~ and Letitia indicate that the deceased openly acknowledged Jonathan and Kerry as his children, they have not elaborated or shared any details of incidents in which he acted as a father toward the children. See id. (twenty-two affidavits from witnesses which failed to specify any facts regarding acknowledgment insufficient to establish paternity by clear and convincing evidence).

Based on our review of Louisiana law, an adjudicator would require more specificity concerning acknowledgment, including such evidence as whether the deceased paid bills on behalf of the children, or bought the children necessary items, other then birthday and holiday gifts, in order to determine whether the facts demonstrate by clear and convincing evidence that the deceased was Jonathan's and Kerry's father. In addition, their mother should obtain additional statements from those persons who witnessed acknowledgement of Jonathan and Kerry by the deceased as Louisiana courts have considered abundant testimony from credible sources to accumulate clear and convincing weight. See Succession of Bartie, 472 So.2d 578, 582 (La. 1985)(testimony of several witnesses proved illegitimate children's filiation by informal acknowledgment by clear and convincing evidence); Succession of Stevenson, 492 So.2d 100, 102 (La. App. 1st Cir. 1986)(corroboration by five witnesses assisted in satisfying burden of proving paternity by clear and convincing evidence); Thomas, 463 So.2d at 976 (several witnesses testified that the decedent explicitly told them that the plaintiffs were his children).

In light of the foregoing discussion, it is our opinion that existing evidence does not prove by clear and convincing evidence that the deceased acknowledged Jonathan and Kerry as his children.

K. PR 01-096 Use of a Louisiana District Court Paternity Judgment Issued More Than One Year After the Death of the Purported Father and Based on DNA Testing to Establish Child Relationship — Wage Earner Garland W. C~, SSN ~

DATE: January 9, 2001

1. SYLLABUS

SSA can disregard the Louisiana State law time limits in this case. The District Court judgment issued after the NH's death, combined with properly certified DNA test results on the child's mother, the child, and another child entitled on the NH's record, and the child's mother's statements about her relationship with the NH, satisfy the clear and convincing evidence standard necessary to establish paternity under Louisiana law. Under Louisiana law, inheritance rights vest at the moment of death, regardless of when those rights are later asserted.

2. OPINION

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 questions:

(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 child.

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 Act.

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 recover damages.

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 proceeding).

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 deceased.

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.

L. PR 01-071 Louisiana State Law Evidence Requirements to Establish Inheritance Rights to Biological Father (NH Lones D~, SSN ~)

DATE: September 20, 2000

1. SYLLABUS

The evidence in this case does not meet the clear and convincing standard for informal acknowledgment under Louisiana intestacy law. Instead, the evidence strongly suggests that the NH did not informally acknowledge the child. Moreover, the statements of relatives alone are equivocal and insufficient to establish informal acknowledgment.

2. OPINION

This memorandum responds to your request for a legal opinion on Louisiana State law evidence requirements to establish inheritance rights to a biological father. Specifically, you asked the following questions:

1) Whether the Social Security Administration (SSA) can disregard Louisiana state time limits to establish inheritance rights for Arhonda B~.

2) Whether the purported biological father, Lones D~, informally acknowledged Arhonda B~ as his daughter thereby establishing inheritance rights under Louisiana law.

3) Whether inheritance rights are prospective only under State law.

In our opinion, Louisiana statutory time limits for establishing inheritance rights can be disregarded. It is also our opinion that there is insufficient evidence to establish that Lones D~ informally acknowledged Arhonda B~. Therefore, Arhonda B~ would not be entitled to child survivor's benefits. Because we believe Arhonda B~ would not be entitled to benefits, we will not address the issue of retroactivity of benefits.

Mr. D~ died in 1989 while domiciled in Louisiana. Margie B~ is the mother of Arhonda B~ and has alleged that Mr. D~ was the father of Arhonda. Ms. B~ alleged that at the time of Arhonda's conception, she and Mr. D~ were living together. Ms. B~ and Mr. D~ were never married. Arhonda B~ was born in 1983. On January 11, 2000, Ms. B~ filed an application for survivor benefits on behalf of Arhonda. According to your legal opinion request, the application was denied by the Agency because contrary to state law, it was filed more than a year after Mr. D~ died, and no other provisions of the Social Security Act ("the Act") referencing paternity had been met.

In order to determine whether an applicant is the child of an insured individual, the Commissioner will apply the law of the state of the insured's domicile at the time of his death. Under the Act, applicants who would have inherited intestate property as a child of the insured under state law will be deemed the child of the insured. 42 U.S.C.A. § 416 (h)(2)(A). At the time of his death, Mr. D~ was domiciled in the state of Louisiana. Therefore, if Ms. B~ can show that Arhonda would be eligible to inherit from Mr. D~'s intestate estate under Louisiana law, Arhonda would be entitled to child's survivor benefits. See 20 C.F.R. § 404.355 (a)(1).

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. La. Civ. Code Ann. Art. 880 (West 1999). The comment following this article states that, "[O]nce 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 1999). Further, inheritance rights vest immediately after the death of the deceased. La. Civ. Code Ann. Art. 940 (West 1999). Thus, if Claimant can establish that Arhonda B~ is Mr. D~'s child under Louisiana filiation law, she would be entitled to inherit through intestate succession and would be considered Mr. D~'s child for purposes of the Act.

Louisiana law provides that in order to establish filiation, " 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 with in the time limit provided in this article." See La. Civ. Code Ann. Art. 209(B) (West 1999). Article 209(C) provides that proceedings 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, which first occurs. See La. Civ. Code Ann. Art. 209C (West 1999).

Because Arhonda B~ does not enjoy legitimate filiation and was not filiated by the initiative of the parent, we must therefore, look to Article 209B to determine if Claimant has established that Arhonda B~ is Mr. D~'s child.

There is no evidence that Claimant instituted a civil proceeding on behalf of Arhonda B~ to establish filiation within a year of the death of the alleged parent as required by Louisiana law. See La. Civ. Code Ann. Art. 209(B) (West 1999). Even though Ms. B~ did not file her claim within one year of the death of the alleged parent, the Agency can still consider whether the deceased informally acknowledged his paternity. Social Security regulations state that if an applicable state inheritance law requires a court determination of paternity, the Agency will not require a claimant to obtain such a determination, but rather, will decide paternity based upon the standard of proof the State court would have used. See 20 C.F.R. § 404.355(b)(2). This recently amended Social Security regulation also indicates that the Agency will not apply any state law requirement mandating that an action to establish paternity be taken within a specified period of time limits. Id. This regulation should be applied to any application pending before the Agency on or after its effective date of November 27, 1998. Generally, the law in effect at the time of an administrative determination is controlling, even if it has been amended during the pendency of a proceeding. 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). See also 2 Am. Jur. 2d Administrative Law § 384

(1994). Therefore, in response to your first question, we believe that in this instance state law time limits can be disregarded.

Your second question asks whether the claimant has shown that Mr. D~ informally acknowledged Arhonda as his daughter. Claimant seeks to prove the filiation to Mr. D~ by showing that Arhonda was informally acknowledged by the deceased. Informal acknowledgment is not specifically defined or authorized by the Louisiana Civil Code. Instead, it is a product of Louisiana jurisprudence and is included as "proof of filiation" in the comment to Article 209. See Succession of Matte, 346 So.2d 1345, 1349 (La. App. 3rd Cir. 1977); La. Civ. Code Ann. Art. 209 cmt. b (West 1999).

Under Louisiana case law, informal acknowledgment of paternity must be of a continuous, habitual, and unequivocal nature, and of sufficient frequency that there can be little doubt that the alleged father truly believed himself to be the father of the child. Thomas v. Smith, 463 So.2d 971, 975 (La. App. 3rd Cir. 1985). Moreover, to prove filiation by clear and convincing evidence, the putative father's actions "must be of such frequency that the trier of fact is convinced that paternity is 'highly probable', i.e., much more probable than its nonexistence." Sudwisher v. Estate of Hoffpauir, 705 So.2d 724, 732 (La. 1997). The determination of whether there has been informal acknowledgment by, or sufficient proof of filiation to, the alleged parent is a factual determination that must be made by reference to the record as a whole. Matte, 346 So.2d at 1350.

The courts in Louisiana have generally indicated what evidence a claimant would need to introduce in order to prove (by the clear and convincing standard) informal acknowledgment of paternity under Article 209. Competent evidence includes, but is not limited to: the father rearing the child in his home, giving the child his surname, holding the child out in the community as his own, giving gifts to the child, causing the education of the child, and acknowledging paternity in formal writings or in public and private conversations. See Estate of Hoffpauir, 705 So.2d at 731.

Louisiana courts are reluctant to recognize informal acknowledgment for purposes of filiation unless the father has recognized the child as his own, unequivocally, and on several occasions. Id. For example, in Succession of Henry C. B~, plaintiffs proved informal acknowledgment by clear and convincing evidence after calling twenty-one witnesses for their side at trial, submitting three favorable depositions in support of their case, introducing birth certificates and a marriage certificate all purporting to indicate that the plaintiffs were informally acknowledged by the deceased. 472 So.2d 578, 582-84 (La. 1985).

In this case, we believe the evidence submitted is insufficient to meet the clear and convincing standard. The evidence Ms. B~ provided to show informal acknowledgment is scant and consists of statements of relatives which claim that Mr. D~ orally admitted he was the parent of the child. Mr. D~'s sister made a statement that Arhonda was Mr. D~'s child. Mr. D~'s sister stated that Mr. D~ told other friends and relatives in front of her that Ms. B~ was pregnant with his baby. She further stated that Mr. D~ never asked her not to tell other people that he was Arhonda's father before or after Arhonda was born and that Mr. D~ never denied to her or other people that he was Arhonda's father. She also stated that Arhonda lived with Mr. D~ and Ms. B~ until Arhonda was three years old. She additionally stated that she never had any doubt that her brother, Mr. D~ was Arhonda's father.

Two of Mr. D~'s stepdaughters and his niece stated that Mr. D~ told people that Ms. B~ was pregnant with his child, and that Mr. D~ treated Arhonda as his daughter. A family relative stated that Mr. D~ always tried to visit Arhonda when he could and that he would bring her fruit and cookies. Arhonda was listed as one of Mr. D~'s children in a funeral announcement, although her name was misspelled. While several relatives made statements that Mr. D~ told people Ms. B~ was carrying his child and that it was common knowledge in the community that Ms. B~ was pregnant with Mr. D~'s baby, this evidence is insufficient to show acknowledgment of paternity. In Hines v. Williams, the court found that a mere statement by an alleged father that his paramour was pregnant is not sufficient to show acknowledgment of paternity of child. 567 So.2d 1139, 1142 (La. App. 2nd Cir. 1990). The fact that Mr. D~'s sister never doubted that Mr. D~ was Arhonda's father or that Mr. D~ never asked other relatives not to tell other people that was Arhonda's father before or after Arhonda's birth is equivocal evidence and cannot support an informal acknowledgment claim. When an applicant must prove filiation by clear and convincing evidence, the actions by the alleged father must be of such frequency that the trier of fact is convinced that "paternity is highly probable, i.e. much more probable than its nonexistence." See Estate of Hoffpauir 705 So.2d at 731. The fact that Mr. D~ never denied that Arhonda was his child does not make Mr. D~'s paternity much more probable than not.

Rather than showing informal acknowledgment, in this case the evidence strongly suggests that Mr. D~ did not informally acknowledge Arhonda. Mr. D~ never acknowledged Arhonda as his child in writing. Mr. D~ is not listed as the father on Arhonda's birth certificate. Nor is Mr. D~ listed as the father of Arhonda on Arhonda's school records or on food stamp records. In a statement, Arhonda's mother, Margie B~, stated that she did not list Mr. D~ as Arhonda's father because she feared she would lose benefits. There is no evidence that Mr. D~ provided financial support to Arhonda. The file indicates that Arhonda lived with Ms. B~ and Mr. D~ until she was three years old. At that time, the state removed Arhonda from Ms. B~'s custody. Although Mr. D~ continued to live with Ms. B~ until 1989, from the time Arhonda was three years old (about 1986) until October 1999, she either lived with relatives or in foster homes.

By Ms. B~'s own admission on the child relationship statement, Mr. D~ never filed an application to any government agency in which he stated the child was his, he never referred to the child as his daughter in any letters, he did not list the child in a family Bible or other record, he did not list the child as a dependent on a tax return, he did not take out any insurance policies on the child, he did not make a will listing the child as a beneficiary, he did not make an allotment for the child while in the military, he did not list the child on applications for employment, he did not take the child to the doctor and list himself as the parent, he did not accept responsibility or pay for the child's hospital expenses at birth or give information for the child's birth certificate, and he did not make regular and substantial contributions to the child's support while alive.

Ms. B~ attempts to show informal acknowledgment by statements from relatives. However, as noted above, these statements alone are equivocal and insufficient to establish informal acknowledgment. Because the evidence in this case is insufficient to establish informal acknowledgment by clear and convincing evidence, we believe Arhonda would not be entitled to surviving child benefits. Thus, we will not address your third question regarding retroactivity of benefits.

Based upon our review of Louisiana law and the facts of this case, it is our opinion that Ms. B~ has not shown by clear and convincing evidence that Mr. D~ informally acknowledged Arhonda B~ as his child. Therefore, under Louisiana law, Arhonda would not be entitled to inherit from Mr. D~'s intestate estate, and consequently would not be entitled to surviving child benefits under 42 U.S.C. §402(d)(1).

M. PR 01-069 REPLY — Entitlement to Child's Benefits Under Louisiana Law Where State Time Limits Have Not Been Met - NH James W. B~, SSN ~

DATE: September 18, 2000

1. SYLLABUS

Because of the recently revised Social Security regulations, Louisiana State time limits on establishing paternity may be disregarded in this case. However, the evidence in this case does not prove by clear and convincing evidence that the NH informally acknowledged paternity of the child. While the NH exhibited some behavior indicating his paternity of the child, he was not listed as the child's father on the BC, did not make any written acknowledgment of paternity, and provided no financial support. Under Louisiana case law, informal acknowledgment must be of a continuous, habitual, and unequivocal nature and be of sufficient frequency that there can be little doubt that the alleged father truly believed himself to be the child's father.

Under Louisiana law, inheritance rights vest at the moment of death regardless of when those rights are later asserted.

2. OPINION

This is in response to your request for a legal opinion addressing the following issues:

1) Whether the Social Security Administration (SSA) can disregard Louisiana state time limits to establish the paternity of Taylor J. M~ (Taylor) if the requirements for informal acknowledgment under Louisiana law were met.

2) Whether statements provided by relatives and friends are sufficient under Louisiana law to establish that James W. B~ informally acknowledged Taylor as his child through oral statements and by his actions.

3) If the requirements of informal acknowledgment are met, what would be Taylor's date of entitlement?

You have requested this opinion for the purpose of determining Taylor's eligibility for surviving child's benefits on Mr. B~'s earnings record. Louisiana state time limits can be disregarded.

However, in our opinion, the evidence does not show by clear and convincing proof that Mr. B~ informally acknowledged paternity of Taylor as required by Louisiana law.

Constance C~ filed an application with a protective filing date of June 1999, on behalf of her son, Taylor, alleging that Mr. B~ was Taylor's biological father. Taylor was born on July 11, 1993, in Louisiana. Mr. B~ died on August 8, 1997 while domiciled in Louisiana. At the time of Taylor's conception, Ms. C~ and Mr. B~ were living together. Ms. C~ and Mr. B~ were never married, and there were no court orders of paternity or child support against Mr. B~. Ms. C~ has furnished no written acknowledgment of Taylor's paternity from Mr. B~. Ms. C~ stated Mr. B~ was not contributing to Taylor's support at the time of his death, but alleged, without providing documentation, that Mr. B~ had taken financial responsibility for the hospital bills at the time of birth. Ms. C~ indicated that she was unmarried at the time of Taylor's birth. The space for father's name is blank on Taylor's birth certificate.

As evidence of Mr. B~'s informal acknowledgment of Taylor, Ms. C~ submitted statements from Mr. B~'s family members. These individuals explained the context within which Mr. B~ described his relationship with Taylor. Those statements include information from Mr. B~'s grandmother, Dorothy F~, his mother, Linda B~, and his aunt, Bonnie K~. Both Ms. B~ and Ms. K~ stated that Mr. B~ and Ms. C~ were living together at the time Taylor was conceived and that Mr. B~ acknowledged that Taylor was his child. However, there was no specific information provided about the nature of that acknowledgment. Ms. F~ stated that Mr. B~ and Ms. C~ lived together in an apartment on her property during pregnancy and shortly after Taylor was born. She further stated that Mr. B~ had offered financial support to Ms. C~, but she refused. Mr. B~ never pursued custody or visitation. After separating from Mr. B~, Ms. C~ changed Taylor's name to Taylor J. M~ from Adam J. B~.

Based on this evidence, the Field Office determined that Mr. B~ had informally acknowledged Taylor as his child. In evaluating this claim, SSA applied Louisiana law regarding the establishment of inheritance rights for out-of-wedlock children through proof of informal acknowledgment of paternity by the decedent. However, our review of the evidence in this claim indicates that the standards for informal acknowledgement were not met here, and Taylor has not proven his relationship to Mr. B~.

In order to determine whether an applicant is the child of an insured individual, the Commissioner will apply the law of the state of the insured's domicile at the time of his death. Applicants who according to such law would have inherited intestate property as a child of the insured will be deemed the child of the insured for purposes of the section. See 42 U.S.C. § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1). At the time of his death, Mr. B~ was domiciled in Louisiana. Thus, for Taylor to establish eligibility for survivor's benefits, he must prove that he would be eligible to inherit from B~'s intestate estate under Louisiana law. See 20 C.F.R. § 404.355 (a)(1) and (b)(4).

Moreover, 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. 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 20 C.F.R. § 404.355(b)(2).

Louisiana law on intestate succession provides that the undisposed property of the deceased is inherited by his descendants, ascendants, and collaterals, by blood or by adoption, and in favor of his spouse not judicially separated from him. La. Civ. Code Ann. Art. 880 (West 2000). A 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). Further, inheritance rights vest immediately upon the death of the deceased. La. Civ. Code Ann. Art. 940 (West 2000). Thus, if Taylor can establish that he is Mr. B~'s child under Louisiana filiation law, he would be entitled to inherit through intestate succession and would be considered Mr. B~'s child for the purpose of the Act.

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). Because Taylor does not enjoy legitimate filiation and was not filiated by the initiative of the parent, we must look to Article 209 to determine if Taylor has established that he is Mr. B~'s child. The pertinent part of Article 209 states the following:

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 recover damages.

La. Civ. Code Ann. Art. 209 (West 2000).

Taylor seeks to prove his filiation to Mr. B~ by showing that Mr. B~ informally acknowledged him. Informal acknowledgment is not specifically defined or authorized by the Louisiana Civil Code. Instead, it is a product of Louisiana case law and is included as "proof of filiation" in the comment to Article 209. See Succession of Matte, 346 So.2d 1345, 1349 (La. App. 3rd Cir. 1977); La. Civ. Code Ann. Art. 209 cmt. b (West 2000).

First, because Taylor's application was filed more than one year after Mr. B~'s death, you asked whether the Louisiana statutory time limits set out in Article 209(C) above can be disregarded in establishing Taylor's entitlement to Social Security benefits. The time limits can be disregarded to establish Taylor's eligibility for benefits if the requirements for informal acknowledgment are met. Additionally, the state law requiring the institution of a court proceeding can be disregarded. Recently amended Social Security regulations state that SSA will not apply any state law requirement that an action to establish paternity must be taken within a specified period of time or that a court proceeding must be instituted. 20 C.F.R. § 404.355(b)(2). This amended regulation should be applied to any application pending before the agency on or after its effective date of November 27, 1998. Generally, the law in effect at the time of a final administrative determination is controlling, even if it has been amended during the pendency of a proceeding. 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). See also 2 Am. Jur. 2d Administrative Law § 384 (1994). Accordingly, the Louisiana state time limits and court proceeding requirement can be disregarded.

Next, we will provide guidance on whether the statements provided by relatives and friends were sufficient to establish that Mr. B~ informally acknowledged his paternity of Taylor as required by Louisiana law. Under Louisiana case law, informal acknowledgment of paternity must be of a continuous, habitual, and unequivocal nature and be of sufficient frequency that there can be little doubt that the alleged father truly believed himself to be the father of the child. See Thomas v. Smith, 463 So.2d 971, 975 (La. App. 3rd Cir. 1985). Moreover, to prove filiation by clear and convincing evidence, the putative father's actions "must be of such frequency that the trier of fact is convinced that paternity is 'highly probable,' i.e., much more probable than its nonexistence." See Sudwisher v. Estate of Hoffpauir, 705 So.2d 724, 732 (La. 1997). The determination of whether there has been informal acknowledgment by or sufficient proof of filiation to the alleged parent is a factual determination that must be made by reference to the record as a whole. See Matte, 346 So.2d at 1350.

Courts in Louisiana have generally indicated what evidence a claimant would need to introduce in order to prove informal acknowledgment of paternity by clear and convincing evidence as required by Article 209. Relevant evidence of informal acknowledgment includes but is not limited to the following: the father rearing the child in his home, living with the mother in his home at the time the child was conceived, giving the child his surname, holding the child out in the community as his own, giving gifts to the child, causing the education of the child, naming the child in his will, and acknowledging paternity in formal writings or in public and private conversations. See Sudwisher, 705 So.2d at 731; Jenkins v. Long Term Care Managers, 758 So.2d 863, 865 (La. App. 2000) citing Chatelain v. State Dept. of Transportation, 586 So.2d 1373, 1379 (La. 1991).

Louisiana courts are reluctant to recognize an informal acknowledgment for purposes of filiation unless the father has recognized the child as his own unequivocally and on several occasions. Id. For example, in a 1985 Louisiana Supreme Court case, the plaintiffs proved informal acknowledgment by clear and convincing evidence after calling twenty-one witnesses for their side at trial, submitting three favorable depositions in support of their case, introducing birth certificates and a marriage certificate all purporting to indicate that the plaintiffs were informally acknowledged by the deceased. See Succession of Henry C. Bartie, 472 So.2d 578, 582-584 (La. 1985). Similarly, in another case, the court held that informal acknowledgment was established by clear and convincing evidence with the following proof: 1) the father repeatedly and readily acknowledged to the children that he was their father; 2) he repeatedly and readily acknowledged the same to other members of the community; 3) he arranged for them to purchase school supplies and have their shoes repaired at his expense; 4) he supplied other of their needs and sent cards and messages on holidays and special occasions; 5) he consulted an attorney with a view to providing for them in event of his death; 6) the mother testified that she and the alleged father had an exclusive sexual relationship at the time of the children's conceptions; and 7) the children were named as surviving children of the alleged father in his obituary. See Thomas v. Smith, 463 So.2d 971, 975 (La. App. 1985)

In this case, the evidence provided does not meet the standard of clear and convincing proof. Mr. B~ was not listed as Taylor's father on his birth certificate. Mr. B~ did not make any written acknowledgment of Taylor's paternity either formally or informally. Despite the fact that Mr. B~ and Ms. C~ lived together until shortly after Taylor was born, there is no proof that Mr. B~ provided financial support for Taylor. Although there is an allegation that Mr. B~ paid a portion of the hospital bills, no proof has been provided to substantiate that allegation. Mr. B~ did not provide financial support for Taylor after he and Ms. C~ separated.

The statements contained in the record show that Mr. B~ exhibited some behavior indicating his paternity of Taylor. Mr. B~'s grandmother stated that he kept the pictures of Taylor sent to him by Ms. C~. Also, Mr. B~'s mother and aunt believed that Taylor was his child. However, those actions and beliefs do not show continuous and habitual acknowledgment as required by Louisiana law. Based on the evidence provided, it is our opinion that Taylor has not shown by clear and convincing proof that he was informally acknowledged by Mr. B~.

Third, you asked about Taylor's date of entitlement if filiation were established under Louisiana law. 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. 20 C.F.R. § 404.352 (1999); 20 C.F.R. § 404.621(a)(ii)(1999). Assuming Taylor met all other requirements on the date of his application and for the previous six months, the only issue affecting date of entitlement would be the date when Taylor could have first been considered Mr. B~'s "child" under the Act. Under Louisiana law, inheritance rights vest at the moment of death regardless of when those rights are later asserted. La. Civ. Code Ann. Art. 935 & Art. 954 (West 2000). Thus, if Taylor established his right to inherit from Mr. B~ under Louisiana law, those rights would vest at the moment of Mr. B~'s death.

Based on our review of Louisiana law and the facts of this case, it is our conclusion that Taylor has not shown by clear and convincing evidence that Mr. B~ informally acknowledged Taylor as his child. Therefore, Taylor would not be entitled to surviving child benefits.

N. PR 01-044 REPLY — Entitlement to Child's Benefits Under Louisiana Law Where State Time Limits Have Not Been Met and Change in Number Holder's (NH's) Domicile Prior to Death- NH Ernest P~ C~, SSN ~

DATE: August 11, 2000

1. SYLLABUS

Due to recently amended Social Security regulations, the Louisiana statutory time limits set out in Article 209(c), as well as the State law requiring the institution of a court proceeding, can be disregarded in determining this child's entitlement to Social Security benefits.

However, the evidence in this case does not show by clear and convincing proof that the NH informally acknowledged paternity of the child as required by Louisiana law. Under Louisiana case law, informal acknowledgment of paternity must be of a continuous, habitual, and unequivocal nature and of sufficient frequency that there can be little doubt that the alleged father truly believed himself to be the father of the child. Moreover, to prove filiation by clear and convincing evidence, the putative father's actions "must be of such frequency that the trier of fact is convinced that paternity is 'highly probably', i.e., much more probably than its nonexistence."

2. OPINION

This is in response to your request for a legal opinion addressing the following issues:

1) Whether the Social Security Administration (SSA) can disregard Louisiana state time limits to establish the paternity of Derrick P~ (Derrick) if the requirements for informal acknowledgment under Louisiana law were met.

2) Whether statements provided by relatives and friends are sufficient to establish that Ernest P. C~ informally acknowledged through oral statements and by his actions this child as required by Louisiana law.

3) If the requirements of informal acknowledgment are met, what is the date of entitlement?

You have requested this opinion for the purpose of determining Derrick's eligibility for surviving child's benefits on Mr. C~'s earnings record. In our opinion, Louisiana state time limits can be disregarded. However, the evidence does not show by clear and convincing proof that Mr. C~ informally acknowledged paternity of Derrick as required by Louisiana law.

Mr. C~ was entitled to disability benefits from April 1980 until his death in September 1989. At the time of his death, he was domiciled in the state of Louisiana. Six of his children were entitled to benefits during his lifetime, and one of the children remained entitled after his death. The first five children were born out-of-wedlock, but were acknowledged by Mr. C~ on his application filed on November 21, 1979. The sixth child was legitimated by the subsequent marriage of the mother, Shelia B~, and Mr. C~. Mr. C~ also signed a statement acknowledging paternity of the child. They divorced in 1980.

Connie P~ filed an application with a protective filing date of October 17, 1997, on behalf of her son, Derrick, alleging that Mr. C~ was Derrick's biological father. Derrick was born on February 15, 1982, in Illinois. At the time of Derrick's conception, Ms. P~ and Mr. C~ were living together. Ms. P~ and Mr. C~ were never married, and there were no court orders of paternity or child support against Mr. C~. Ms. P~ has furnished no written acknowledgment of Derrick's paternity from Mr. C~. Ms. P~ stated Mr. C~ was not contributing to Derrick's support at the time of his death.

Ms. P~ alleged that she was unmarried at the time of Derrick's birth. SSA contacted Ms. P~'s former husband, Donald P~. Mr. P~ stated that he was not Derrick's father. The space for father's name is blank on Derrick's birth certificate. The initial 1982 SSA numident record is also blank for father's name, but in 1986 a new request was made and Donald P~ was listed as the child's father. Ms. P~ stated that she did not remember doing this, but if she did, it had been because she wanted Derrick to have her last name.

Records from the Illinois Department of Public Aid from 1988 show that Ms. P~ named Mr. C~ as Derrick's father. She stated that she knew that Mr. C~ was receiving Social Security benefits at the time of Derrick's birth. She alleged that she did not file at that time because she was told by the Illinois Department of Public Aid that Mr. C~ would then be able to take Derrick from her whenever he wanted. For the same reason, she did not pursue a claim for child support. Ms. P~ did not learn of Mr. C~'s death until 1995.

As evidence of Mr. C~'s informal acknowledgment of Derrick, Ms. P~ submitted several pictures of one of Mr. C~'s visits with Derrick and a copy of a gift card sent to Derrick by Mr. C~'s mother as well as statements from family members and friends. These individuals explained the context within which Mr. C~ described his relationship with Derrick. Those statements include the following relevant information:

1) Rodney H~, Mr. C~'s stepson, recalled that he had gone with Mr. C~ to visit Derrick on "many" occasions. The last of those visits occurred when Derrick was just beginning to walk. During those visits, Mr. C~ referred to Derrick as his son.

2) Ms. H~, an employee of the Illinois Department of Public Aid, reported that Ms. P~ has listed Mr. C~ as Derrick's father, but paternity had never been established.

3) Ms. P~'s brother, R. C~ stated that he was informed of her pregnancy while he was in prison. At that time, Ms. P~ and Mr. C~ were living together. After his release from prison in 1984, Mr. C~ had a conversation with Mr. C~ in which they discussed Derrick. Mr. C~ referred to Derrick as his son and stated that since they had not met, he did not want to disrupt Derrick's life because he already had a "father figure" in his life.

4) Dawn B~, Ms. P~'s daughter, stated that Mr. C~ lived with her mother and her in 1980 and 1981, and, during that time, her mother became pregnant with Derrick. She further stated that she had seen Mr. C~ with Derrick "a few times," and Mr. C~ referred to Derrick as his son.

5) Diana J~, a friend of Mr. C~'s, alleged that on "numerous occasions" Mr. C~ talked about his son Derrick and about his desire for Derrick to know that he was his father and that he had brothers and sisters. Ms. J~ further stated that she had seen Mr. C~ and Derrick together, and Mr. C~ referred to Derrick as his son.

6) Richard A~, a friend of Ms. P~, asserted that Mr. C~ had told him that he was Derrick's father. Mr. A~ had seen Mr. C~ and Derrick together a few times, and Mr. C~ referred to Derrick as his son.

7) Michael A. H~, Mr. C~'s son, stated that he did not see his father very often, and Mr. C~ had never mentioned Derrick to him.

8) Jannie C~, Ms. P~'s mother, stated that Mr. C~ had lived with her daughter at the time Derrick was conceived and that Ms. P~ was not seeing anyone else. Further, Ms. P~ showed her a present given to Derrick by Mr. C~ for his first Christmas.

Based in part on these statements, SSA determined that Derrick was not entitled to benefits because there was not sufficient proof that he was Mr. C~'s child. In evaluating this claim, SSA applied Louisiana law regarding the establishment of inheritance rights for out-of-wedlock children through proof of informal acknowledgment of paternity by the decedent. The agency's determination stated that the statements provided by Ms. P~ did not indicate that Mr. C~ had displayed "continuous, habitual, and unequivocal" behavior acknowledging Derrick's paternity.

In order to determine whether an applicant is the child of an insured individual, the Commissioner will apply the law of the state of the insured's domicile at the time of his death. Applicants who according to such law would have inherited intestate property as a child of the insured will be deemed the child of the insured for purposes of the section. See 42 U.S.C. § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1). At the time of his death, Mr. C~ was domiciled in the state of Louisiana. Thus, for Derrick to establish eligibility for survivor's benefits, he must prove that he would be eligible to inherit from C~'s intestate estate under Louisiana law. See 20 C.F.R. § 404.355 (a)(1) and (b)(4).

Moreover, 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. 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 20 C.F.R. § 404.355(b)(2).

Louisiana law on intestate succession provides that the undisposed property of the deceased is inherited by his descendants, ascendants, and collaterals, by blood or by adoption, and in favor of his spouse not judicially separated from him. La. Civ. Code Ann. Art. 880 (West 2000). 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). Further, inheritance rights vest immediately upon the death of the deceased. La. Civ. Code Ann. Art. 940 (West 2000). Thus, if Derrick can establish that he is Mr. C~'s child under Louisiana filiation law, he would be entitled to inherit through intestate succession and would be considered Mr. C~'s child for the purpose of the Act.

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). Because Derrick does not enjoy legitimate filiation and was not filiated by the initiative of the parent, we must look to Article 209 to determine if Derrick has established that he is Mr. C~'s child. The pertinent part of Article 209 states the following:

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 recover damages.

La. Civ. Code Ann. Art. 209 (West 2000).

Derrick P~ seeks to prove his filiation to Mr. C~ by showing that Mr. C~ informally acknowledged him. Informal acknowledgment is not specifically defined or authorized by the Louisiana Civil Code. Instead, it is a product of Louisiana case law and is included as "proof of filiation" in the comment to Article 209. See Succession of Matte, 346 So.2d 1345, 1349 (La. App. 3rd Cir. 1977); La. Civ. Code Ann. Art. 209 cmt. b (West 2000).

First, because Derrick's application was filed more than one year after Mr. C~'s death, you asked whether the Louisiana statutory time limits set out in Article 209(C) above can be disregarded in establishing Derrick's entitlement to Social Security benefits. The time limits can be disregarded to establish Derrick's eligibility for benefits if the requirements for informal acknowledgment are met. Additionally, the state law requiring the institution of a court proceeding can be disregarded. Recently amended Social Security regulations state that SSA will not apply any state law requirement that an action to establish paternity must be taken within a specified period of time or that a court proceeding must be instituted. 20 C.F.R. § 404.355(b)(2). This amended regulation should be applied to any application pending before the agency on or after its effective date of November 27, 1998. Generally, the law in effect at the time of a final administrative determination is controlling, even if it has been amended during the pendency of a proceeding. 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). See also 2 Am. Jur. 2d Administrative Law § 384 (1994). Accordingly, the Louisiana state time limits and court proceeding requirement can be disregarded.

Second, you requested further guidance on whether the statements provided by relatives and friends were sufficient to establish that Mr. C~ informally acknowledged his paternity of Derrick as required by Louisiana law. Under Louisiana case law, informal acknowledgment of paternity must be of a continuous, habitual, and unequivocal nature and of sufficient frequency that there can be little doubt that the alleged father truly believed himself to be the father of the child. See Thomas v. Smith, 463 So.2d 971, 975 (La. App. 3rd Cir. 1985). Moreover, to prove filiation by clear and convincing evidence, the putative father's actions "must be of such frequency that the trier of fact is convinced that paternity is 'highly probable', i.e., much more probable than its nonexistence." See Sudwisher v. Estate of Hoffpauir, 705 So.2d 724, 732 (La. 1997). The determination of whether there has been informal acknowledgment by or sufficient proof of filiation to the alleged parent is a factual determination that must be made by reference to the record as a whole. See Matte, 346 So.2d at 1350.

Courts in Louisiana have generally indicated what evidence a claimant would need to introduce in order to prove informal acknowledgment of paternity by clear and convincing evidence as required by Article 209. Relevant evidence of informal acknowledgment includes, but is not limited to the following: the father rearing the child in his home, living with the mother in his home at the time the child was conceived, giving the child his surname, holding the child out in the community as his own, giving gifts to the child, causing the education of the child, naming the child in his will, and acknowledging paternity in formal writings or in public and private conversations. See Sudwisher, 705 So.2d at 731; Jenkins v. Long Term Care Managers, 758 So.2d 863, 865 (La. App. 2000) citing Chatelain v. State Dept. of Transportation, 586 So.2d 1373, 1379 (La. 1991).

Louisiana courts are reluctant to recognize an informal acknowledgment for purposes of filiation unless the father has recognized the child as his own unequivocally and on several occasions. Id. For example, in a 1985 Louisiana Supreme Court case, the plaintiffs proved informal acknowledgment by clear and convincing evidence after calling twenty-one witnesses for their side at trial, submitting three favorable depositions in support of their case, introducing birth certificates and a marriage certificate all purporting to indicate that the plaintiffs were informally acknowledged by the deceased. See Succession of Henry C. B~, 472 So.2d 578, 582-584 (La. 1985). Similarly, in another case, the court held that informal acknowledgment was established by clear and convincing evidence with the following proof: 1) the father repeatedly and readily acknowledged to the children that he was their father; 2) he repeatedly and readily acknowledged the same to other members of the community; 3) he arranged for them to purchase school supplies and have their shoes repaired at his expense; 4) he supplied other of their needs and sent cards and messages on holidays and special occasions; 5) he consulted an attorney with a view to providing for them in event of his death; 6) the mother testified that she and the alleged father had an exclusive sexual relationship at the time of the children's conceptions; and 7) the children were named as surviving children of the alleged father in his obituary. See Thomas v. Smith, 463 So.2d 971, 975 (La. App. 1985)

In this case, the evidence provided does not meet the standard of clear and convincing proof. Mr. C~ was not listed as Derrick's father on his birth certificate. Mr. C~ did not make any written acknowledgment of Derrick's paternity either formally or informally. Mr. C~ did not name Derrick as his child to SSA, or any other governmental agency. This fact is especially important in light of Mr. C~'s acknowledgment of his five other illegitimate children on his application for benefits and his formal legitimation of his sixth child. Clearly, Mr. C~ knew the appropriate procedure for recognizing illegitimate children both under state law and for the purposes of their receiving Social Security dependent benefits.

Ms. P~ stated that Mr. C~ moved from her home in August 1981, several months before Derrick's birth. Thus, Mr. C~ did not rear Derrick in his home. Neither did he provide financial support for Derrick at any time. The evidence provided does indicate that Mr. C~ visited Derrick occasionally, and, in those visits, he referred to Derrick as his son. However, it does not appear that those visits and verbal acknowledgments were continuous and habitual as required by Louisiana law. The record shows that Mr. C~ had no contact with Derrick or Ms. P~ following his move to Louisiana in 1985.

Ms. P~'s failure to file for Social Security benefits on behalf of Derrick or to seek child support during Mr. C~'s life calls into question her statements regarding Derrick's paternity. She knew that Mr. C~ was receiving benefits when Derrick was born and that Derrick might be entitled to receive benefits as well. However, she did not pursue benefits for Derrick at that time when Mr. C~ could have provided evidence regarding Derrick's paternity. Ms. P~ stated that she did not apply for benefits during Mr. C~'s lifetime because she did not want to risk Mr. C~ receiving custody or visitation rights. But, this statement does not explain why Ms. P~ did not file an application for benefits until October 1997, two years after she became aware of Mr. C~'s death. Additionally, the fact that Ms. P~ listed Donald P~ as Derrick's father on a 1986 numident record further weakens her credibility.

The statements contained in the record show that Mr. C~ exhibited some behavior indicating his paternity of Derrick. However, those actions were not continuous and habitual as required by Louisiana law. Mr. C~'s visits with Derrick were sporadic, and he had no contact with Derrick after 1985. Moreover, five of the six statements provided as evidence in favor of Derrick's claim were made by Ms. P~'s family members and friends. Based on the evidence provided, it is our opinion that Derrick has not shown by clear and convincing proof that he was informally acknowledged by Mr. C~.

Third, you asked about Derrick's date of entitlement if filiation were established under Louisiana law. 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. 20 C.F.R. § 404.352 (1999); 20 C.F.R. § 404.621(a)(ii)(1999). Assuming Derrick met the age, relationship, and dependency requirements on the date of his application and for the previous six months, the only issue affecting date of entitlement would be the date when Derrick could have first been considered Mr. C~'s "child" under the Act. Under Louisiana law, inheritance rights vest at the moment of death regardless of when those rights are later asserted. La. Civ. Code Ann. Art. 935 & Art. 954 (West 2000). Thus, if Derrick established his right to inherit from Mr. C~ under Louisiana law, those rights would vest at the moment of Mr. C~'s death.

Based on our review of Louisiana law and the facts of this case, it is our conclusion that Derrick has not shown by clear and convincing evidence that Mr. C~ informally acknowledged him as his child. Therefore, Derrick would not be entitled to surviving child benefits.

O. PR 00-459 Whether Devis H~ is the Child of Albert S~ for Purposes of Receiving Survivor's Benefits

DATE: May 26, 1999

1. SYLLABUS

The deceased NH's recognition of the claimant as his child was not so unequivocal and frequent as to constitute informal acknowledgment of paternity. The evidence does not meet the clear and convincing standard under Louisiana law.

2. OPINION

You have requested our opinion as to whether Devis H~ is the child of Albert S~ for purposes of receiving survivor's benefits.

Under the circumstances of this case, we believe no.

Section 202(d)(1) of the Social Security Act (the Act), 42 U.S.C. § 203(d)(1). Regulations promulgated pursuant to the Act, codified at 20 C.F.R. § 404.350 (1998), establish the criteria for entitlement to child's insurance benefits. This section provides that every child of an individual who dies insured under the Act is entitled to benefits if the child applies for benefits, is unmarried, under 18, and was dependent on the deceased at the time of death. Id. Section 216(h) of the Act, 42 U.S.C. § 416(h), sets forth various means by which an applicant can be entitled to benefits as the child of an insured.

Id. A child can be entitled to benefits if his or her parents went through a marriage ceremony resulting in a purported marriage which, but for a legal impediment, would have been a valid marriage. § 216(h)(2)(B). In addition, a child whose parents never married can be entitled to benefits if the insured acknowledge in writing that child was his, the insured was decreed by a court to be the child's parent, the insured was ordered by a court to contribute to the support of the child, or the insured was living with or contributing to the support of the child at the time of his death. § 216(h)(2)(C); 20 C.F.R. § 404.355(c) & (d) (1998).

FACTS

The facts of the case are as follows: Albert S~, the deceased wage earner, died on December 23, 1998, domiciled in Louisiana. Linda H~ filed for surviving child benefits on behalf of her son, Devis H~, on February 1, 1999. In her application, she stated that Devis was born on July 7, 1987, and was the child of Albert S~. In a signed statement submitted in conjunction with her application, she stated that when Devis was born, she believed him to be the child of Alvin A~. She had dated Mr. A~ immediately after dating the deceased wage earner. Mr. A~ was listed as Devis' father on his social security card application, food stamp records, and Aid to Families with Children records. A blood test later proved that Mr. A~ was not Devis' father. At that time, Ms. H~ informed the decedent that Mr. A~ was not Devis' father. She stated that the decedent then acknowledged to his family that Devis was his child. He came to visit Devis approximately once a year. He did not contribute to the support of the child or live with the child. The decedent never acknowledged paternity in writing. Ms. H~ stated that she never attempted to obtain child support from the decedent.

Ms. H~ completed a Child Relationship Statement on February 1, 1999. She indicated that the decedent was never decreed by a court to be Devis' father or ordered by a court to contribute to Devis' support. The decedent never listed Devis as a dependent on his tax returns, or made an allotment for the child while in military service. He did not register the child in school or sign a report card as his parent. He did not take Devis to a doctor or dentist and list himself as the parent. He never took responsibility for any of the child's hospital expenses at birth.

The decedent was not making substantial contributions to the child's support at the time of his death. Ms. H~ indicated that the decedent admitted orally that he was Devis' father. She stated that the decedent had told his brothers and sisters that Devis was his son.

With her application for benefits, Ms. H~ also submitted a copy of Devis H~'s birth certificate, and a copy of the bulletin printed for the decedent's funeral. Devis H~'s birth certificate indicates that he was born on July 7, 1987, to Linda H~. No father is listed on the birth certificate. The bulletin from decedent's funeral lists Devis H~ as a surviving child.

In a statement signed March 15, 1999, Albert H~, son of the decedent stated that the decedent had told him that Devis H~ was his son. He stated that he had run into Devis while in the company of the decedent. The decedent spoke to Devis on these occasions. Albert H~ indicated that he visited Devis occasionally, but had never visited Devis with the decedent. He did not recall that Devis H~ had attended family functions, but stated that Devis had never lived with the decedent. He further stated that the decedent was in a "common law" relationship with a woman named Carolyn at the time of his death. Albert H~ has the same last name as Devis and Linda H~, and stated that he and Linda H~ were "probably" third cousins.

Dennis R~, decedent's brother, signed a statement which indicated that the decedent had never told him that Devis H~ was his child.

Mr. R~ stated that the decedent had not brought Devis to family functions. He was unaware of whether the decedent visited Devis.

Mr. R~ indicated that although he was listed as a beneficiary of the decedent's insurance policies, the decedent had never instructed him to distribute the money to Devis or his other children. Mr. R~ had no knowledge of the decedent acknowledging orally or in writing that Devis H~ was his child, or that he provided any support for Devis.

In a statement signed February 20, 1999, Emma S. J~, the decedent's sister, stated that the decedent had told her that Devis H~ was his child when Devis was approximately one month old. She stated that the decedent occasionally bought gifts for Devis, but she was unaware of whether he provided support for the child. Ms. J~ stated that she took the decedent to see Devis at Devis' mother's home approximately two times a month for two hours at a time.

Carolyn H~ indicated in a statement dated March 3, 1999, that she had known the decedent for two and one-half years. She and the decedent had spent "a lot" of time together as a couple. She knew that the decedent had two sons, Albert and Darrell H~, but had not heard of Devis H~ until she saw his name in the bulletin for the funeral.

LEGAL ANALYSIS

Devis cannot be entitled to child benefits under § 216(h)(2)(B) of the Act because there was no marriage ceremony between Linda H~ and Albert S~. Likewise, he does not meet any of the requirements of § 216(h)(3)(C) since Albert S~ did not acknowledge paternity in writing, there was no court decree of paternity, he was not ordered by a court to support Devis, and he was not living with or contributing to Devis' support at the time of his death. See 20 C.F.R. § 404.355 (1998).

Based on the facts of this case, the only possible provision under which Devis could be entitled to surviving child benefits on the record of Albert S~ is if he meets the requirements set forth in § 216(h)(2)(A), 42 U.S.C. § 416(h)(2)(A), codified at 20 C.F.R. § 404.355(a) (1998). This section provides that in order to determine whether an applicant is the child of an insured individual, the Commissioner shall apply the law which would be applied in determining the devolution of intestate personal property by the courts of the state in which the insured was domiciled at the time of his death. Id. An applicant who would be eligible to take personal property as a child under the state's intestacy statutes will be deemed to be the child of the insured, and will be deemed to be dependent upon the insured. Some state laws require a child to establish a relationship with the putative parent within a specific time period. Based on recent changes in the regulations, however, such time periods will no longer be enforced by the Commissioner so that the best interests of the child are protected. See Application of State Law in Determining Child Relationship, 63 Fed. Reg. 57,590 (1998) (to be codified at 20 C.F.R. § 404.355).

Because Albert S~ was domiciled in the state of Louisiana at the time of his death, the law of that state must be applied to determine whether Devis H~ would be entitled to the intestate personal property of Albert S~. Louisiana jurisprudence generally establishes that children have the right to prove filiation to a deceased putative father. See Sudwisher v. Estate of Hoffpauir, 705 So.2d 724 (La. S. Ct. 1997) (child has constitutional right to prove filiation to deceased father). Under Louisiana law, children are either legitimate or illegitimate. LA. CIV. CODE ANN. art. 178 (West, WESTLAW through all 1998 1st Ex. Sess. and Reg. Sess. Acts). Legitimate children are those who are born or conceived during marriage or who have been legitimated. LA. CIV. CODE ANN. art. 179 (West, WESTLAW through all 1998 1st Ex. Sess. and Reg. Sess. Acts). Illegitimate children are those who are conceived and born out of marriage. LA. CIV. CODE ANN. art. 180 (West, WESTLAW through all 1998 1st Ex. Sess. and Reg. Sess. Acts). Devis H~ was not born or conceived during marriage according to the facts of this case, and is, therefore, considered to be illegitimate under Louisiana law. Illegitimate children may be legitimated by notarial act or by proof of filiation. LA. CIV. CODE ANN. articles 181, 200, 203, 209 (West, WESTLAW through all 1998 1st Ex. Sess. and Reg. Sess. Acts). There is no evidence that Albert S~ at any time sought to legitimate Devis H~ by notarial act, or by having his name placed on Devis' birth certificate. The Louisiana statute also provides that:

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.

LA. CIV. CODE ANN. art. 209 (West, WESTLAW through all 1998 1st Ex. Sess. and Reg. Sess. Acts).

The Louisiana Court of Appeals has stated that "[t]o prove a matter by clear and convincing evidence means to 'demonstrate that the existence of a disputed fact is highly probable, that is, much more probable than its nonexistence.'" Billington v. General Motors Corporation, 728 So.2d 966, 968 (La. App. 1999) (citing Mitchell v. AT & T, 660 So.2d 204 (La. App. 1995)). See also Hines v. Williams, 567 So.2d 1139 (La. App. 1990).

The next question to consider is whether, based on the facts of this case, Devis H~ could prevail under Louisiana state law if he were to bring a suit to prove his filiation to Albert S~. In Sudwisher v. Estate of Hoffpauir, 705 So.2d 724 (La. S. Ct. 1997), the Louisiana Supreme Court noted that the Comments to Article 209 indicated that "[p]roof of filiation may include, but is not limited to: 'Informal' acknowledgment; scientific test results; acknowledgment in a testament; and proof that the alleged parents lived in a state of concubinage at the time of conception." Id. at 731. In this case, there is no evidence of this type. "Other conduct which has been considered to constitute informal acknowledgment by the alleged father includes rearing the child in his home, naming the child in his will, giving the child his surname, and holding the child out in the community as his own." Sudwisher, 705 So.2d at 731. In this case, Albert S~ did not rear Devis H~ in his home. In fact, according to the statements of all of the witnesses, there is no indication the Devis H~ ever visited Albert S~'s home. According to the decedent's brother, Dennis R~, the decedent did not instruct that proceeds from a life insurance policy be distributed to Devis, and the decedent never acknowledged to his brother that Devis was his son. In addition, Devis H~ does not have his alleged father's surname of S~. There is some evidence, however, that Albert S~ held Devis H~ out to be his son. In a signed statement dated March 15, 1999, Albert S~'s son Albert H~ stated that the decedent had told him that Devis was his son. Emma S. J~, sister of the decedent, stated that the decedent had acknowledged that Devis was his son. She stated that she took the decedent to visit Devis approximately twice a month, and the decedent occasionally purchased gifts for the child. Louisiana courts have held:

[I]n the absence of other evidence, acts by the father recognizing the child as his own must be unequivocal and frequent to constitute informal acknowledgment. This is particularly so when the illegitimate must prove filiation by clear and convincing evidence such that the trier of fact is convinced that paternity is "highly probable, i.e. much more probable than its non-existence."

Sudwisher, 705 so.2d at 731 (citing Chatelain v. State, 586 So.2d 1373, 1379 (La. 1991)). See also Jordan v. Taylor, 568 So.2d 1097, 1098 (La. App. 1990) (informal acknowledgment of filiation must be continuous, habitual, unequivocal, and leave little doubt that the alleged father considered himself to be the father of the child). Although there is evidence in this case that Albert S~ could be Devis H~'s father, it is our opinion that the decedent's recognition of Devis as his child was not so unequivocal and frequent as to constitute informal acknowledgment of paternity. In addition, there are multiple inconsistencies noted in the facts which further weaken the claimant's position. Linda H~ stated that Alvin A~, not the wage-earner in question, was named as Devis' father on food stamp records, Aid to Families with Dependent Children records, Devis' initial school records, and doctors records. School records from the school Devis currently attends were obtained for purposes of deciding this claim. Those records listed Albert S~ as Devis' father and were dated August 21, 1998. In a Report of Contact, the validity the school records listing Mr. S~ as Devis' father was questioned as Ms. H~ was aware at the time the records were obtained that the claim was pending. In addition, decedent's sister, Emma J~ stated that the decedent told her that Devis was his son when Devis was about one month old. This is inconsistent with Linda H~'s assertion that she did not tell the decedent he was Devis' father until Devis was four or five years old. Ms. J~ also stated that she took the decedent to visit Devis approximately two times a month for two hours each time. Ms. H~ stated that the decedent visited Devis once a year. Based on Louisiana state law, we do not believe the evidence is sufficient to rise to the level of clear and convincing.

In summary, it is our opinion that under Louisiana law Devis H~ would not be in the line of succession from Albert S~ because we believe that a court there would not find clear and convincing proof the Devis H~ is the child of Albert S~. Further, for the reasons shown herein, we do not believe that he can qualify for surviving child's benefits under any of the alternative provisions of the Social Security Act.


Footnotes:

[1]

A claimant is entitled to child's benefits on the earnings record of an insured person who is entitled to old-age or disability benefits if the claimant is under eighteen years of age or if the claimant is eighteen years of age or older and has a disability that began before he or she became twenty-two years of age. 20 C.F.R. § 404.350(a)(5).

[2]

We do not express an opinion on whether the parent-child relationship is established retroactive to Lorraine's date of birth because, as noted above, our opinion is that the evidence does not meet the evidentiary standard the Agency requires to establish the parent-child relationship.

[3]

The Louisiana legislature has revised the Louisiana Civil Code numerous times since its inception. The latest Civil Code revision, effective June 29, 2005, included significant changes affecting the intestacy succession and parent-child statutes. 2005 La. Sess. Law Serv. Act 192 (West). The 2005 statutory changes, however, are irrelevant to the facts of this case (e.g., informal acknowledgment of paternity to establish parent-child relationship), and the Agency's evaluation is the same under any relevant version of Louisiana law.

[4]

In a Child Relationship Statement (Form SSA-2519), dated December 12, 2006, the number holder asserted the following:

He has never listed Lorraine as his child in any government agency application;

A court has never decreed that he is Lorraine's father;

A court has never ordered him to pay child support for Lorraine;

He has not written any letters to anyone in which he referred to Lorraine as his daughter or referred to himself as Lorraine's father;

He has never listed Lorraine in a family record;

He has never listed Lorraine as a dependent on a tax return;

He has never taken out any insurance policy on Lorraine or made her a beneficiary of his insurance policy;

He has never made a will listing Lorraine as a beneficiary;

He has never listed Lorraine as his child in any application for employment;

He has never registered Lorraine in school or place of worship or signed a report card as her father;

He has never taken Lorraine to the doctor's or dentist's office or to a hospital and listed himself as her father;

He never accepted responsibility for or paid the child's hospital expenses at birth or given information for Lorraine's birth certificate;

He does not know of any written evidence of any kind which would show that Lorraine is his daughter;

He is not making regular and substantial contributions to support Lorraine; and

He admitted, orally, to Lorraine's mother and sister that he was Lorraine's father.

[5]

Lorraine also states that the number holder and her mother separated when she was approximately two-to-three years of age. This statement is inconsistent with her representation that she had never lived with the number holder.

[6]

Because the Agency improperly determined in April 2007 that Lorraine was entitled to benefits as a disabled adult child under the number holder's account, effective October 2002, the Agency has created an overpayment issue to the detriment of Lorraine that the Agency should now rectify.

[7]

Filiation is the act or condition of being a son or daughter, the relationship of the child to a parent, or a judicial determination of paternity. See Black's Law Dictionary at 643 (7th ed. 1999).

[8]

See OGC Region VI legal opinion No. 00-237 (January 2001), Use of Louisiana District Court Paternity Judgment Issued More Than One Year After Death of Purported Biological Father and Sibling DNA Testing, NH Garland W. C~.


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PR 01115.021 - Louisiana - 07/13/2010
Batch run: 07/13/2010
Rev:07/13/2010