TN 76 (11-18)

PR 01115.021 Louisiana

A. CPM 18-099 Status of Child for Entitlement to Child's Benefits on Multiple Records

SYLLABUS

Under Louisiana intestate succession law, a deceased individual’s property passes to his or her descendants, e.g., children and grandchildren, by blood or by adoption. The term “children” for purposes of intestate succession includes persons born of the parent’s marriage, persons adopted by the parent, and persons whose filiation to the parent has been established as provided by law. Filiation is the legal relationship between a child to a parent and gives the child the right to inherit intestate property from the parent. Filiation is established by proof of maternity, paternity, or adoption. Louisiana recognizes a child’s filiation to more than one father. Under Louisiana law, once the parent-child relationship is established, it is effective as of the date of the child’s birth regardless of his or her parents’ marital status or of the method or type of evidence used to prove the relationship.

In this case, there is legal support for the agency to find that the child is the NH’s natural child under the Act based on Louisiana intestate succession law and the Louisiana state court’s consent judgment declaring the NH to be the child’s father. The effective date of the parent-child relationship is the date of the child’s birth.

QUESTIONS PRESENTED

You requested an opinion on whether the evidence submitted in this case, particularly a Louisiana state court consent judgment regarding paternity based on a deoxyribonucleic acid (DNA) test report, establishes a parent-child relationship between the number holder M~ (NH) and the claimant R~ (the Child) for purposes of entitlement to child’s insurance benefits on the NH’s record under the Social Security Act (Act) as his child. If so, you inquired as to the effective date of their parent-child relationship. Specifically, you asked whether the Louisiana state court consent judgment operates retroactively or prospectively to establish paternity, and if any documents in the file establish the relationship prior to the consent judgment.

If the Child is the NH’s child, you also asked whether there is a stepparent-child relationship between the Child and the NH’s spouse, J~, for purposes of entitlement to child’s insurance benefits on J~’s record under the Act as her stepchild. You indicated that the NH married J~ in December 2007, after the Child’s birth on February XX, 2007.[1]

ANSWER

We believe that there is legal support for the Social Security Administration (SSA or agency) to find that the Child is the NH’s child under the Act based on application of Louisiana intestate succession law and the Louisiana state court’s consent judgment declaring the NH to be the Child’s father and that the effective date of their parent-child relationship is the date of the Child’s birth, February XX, 2007. We also believe that the agency could reasonably conclude that the Child is J~’s stepchild under the Act, assuming the agency has proof of a valid marriage between the NH and J~.

BACKGROUND

As we understand the facts, the Child was born out of wedlock in New Orleans, Louisiana, on February XX, 2007. His original birth record, filed June XX, 2007, listed C~ (the Child’s mother) as his mother and T~ as his father. In 2009, T~ filed an application with SSA for child’s insurance benefits for the Child on T~’s record, which SSA granted on February XX, 2009. It is our understanding that the Child’s mother and T~ never married. It is also our understanding that the Child lived with the Child’s mother until her death on April XX, 2017, at which time, the Child began living with the NH and his spouse, J~. In February 2017 and again in September 2017, the NH, domiciled in Louisiana, filed an application for child’s insurance benefits on the Child’s behalf on his record stating that the Child was his child.[2] He also filed for child’s insurance benefits on the Child’s behalf on his spouse’s record (J~) as her stepchild. The NH stated that he and J~ married in December 2007, but we were not provided with any evidence regarding their marriage in conjunction with this legal opinion request. In support of his relationship with the Child, the NH provided the following documents, as well as a number of oral statements to the agency recorded in agency reports of contact.

A. Petition for Name Change and Louisiana State Court Name Change Judgment Changing the Child’s Last Name to the NH’s Last Name

On January XX, 2017, the Child’s mother, T~, and the NH jointly petitioned the Twenty-Fourth Judicial District Court for the Parish of Jefferson, State of Louisiana (Court), to change the Child’s last name from T~’s last name to reflect the NH’s last name. The petition stated that the Child’s mother was the Child’s biological mother, and while T~ was named as the Child’s father on the birth certificate, an informal DNA report dated November XX, 2016, evidenced that the NH was the Child’s biological father. The DNA report was not attached to the name change petition.

On February XX, 2017, the Court entered a judgment legally changing the Child’s last name to the NH’s last name and ordering this new name to be the lawful name in the miscellaneous records of Jefferson, State of Louisiana, as the law requires.

B. Petition to Establish Paternity, DNA Evidence, and Louisiana State Court Consent Judgment Establishing the NH as the Child’s Father

On May XX, 2017, the Child, represented by his legal father, T~, filed a petition with the Court to establish paternity against the NH. The petition named the NH as the defendant and stated that the Child’s mother died on April XX, 2017. As to the issue of paternity, the petition stated that:

  • the Child was born on February XX, 2007,

  • although T~ was listed as “father” on two of the Child’s birth certificates, the NH was the Child’s biological father per informal DNA testing dated November XX, 2016,

  • the NH had acknowledged the Child as his own through a name change petition previously filed with the Court which contained a statement that the NH was the “the biological father of the minor child,”

  • the Court ordered the Child’s name change from T~’s last name to the NH’s last name on February XX, 2017, and

  • a new Social Security card was issued for the Child showing the NH’s last name.

The petition moved the Court to appoint an expert qualified as an examiner of blood and tissue samples for inherited characteristics, and to order the NH and the Child to submit to the collection of blood and tissue samples for analysis by the Court appointed expert to produce a report regarding the issue of paternity. The petition stated that the NH was not opposed to establishing his paternity and would voluntarily submit to the Court’s appointed expert. T~ submitted the petition in “proper person” and signed a sworn verification on May XX, 2018, affirming that the facts and allegations in the petition were true and correct to the best of his knowledge.

On May XX, 2017, the Court ordered that DNA Diagnostics Center (DDC), an expert qualified as an examiner of blood and tissue samples, be appointed to conduct tests for inherited characteristics, including but not limited to blood and tissue type, and to prepare a written report to be filed in the matter with copies to the parties and their counsel.

A “certified” DNA test report that DDC’s laboratory director signed on June XX, 2017, stated that DDC was accredited and certified, named the NH as the Child’s alleged father, and stated that their samples were collected on May XX, 2017. The report concluded that the NH was not excluded as the Child’s biological father, and based on an analyses of the DNA loci listed, the probability of paternity was 99.99995%, which was calculated by comparing to an untested, unrelated, random individual of the Black population (assuming prior probability equaled 0.50). The laboratory director verified that the interpretation of the results was correct. The test was subscribed and sworn before a notary public on June XX, 2017.

On June XX, 2017, the Court entered a consent judgment establishing the NH as the Child’s biological father. The Court stated that the Child was born out of wedlock on February XX, 2007, and based on a review of the entire record, including the DNA test report from DDC dated June XX, 2017, and the stipulations and consent of the parties, declared the NH to be the Child’s biological father. The Court ordered the Louisiana State Vital Records Office, and all other appropriate agencies for the parishes of and the State of Louisiana and the federal government of the United States of America, to amend their records to reflect the foregoing, including but not limited to, listing the NH as the Child’s “father” on the Child’s birth certificate.

On August XX, 2017, an amended birth certificate was issued listing the NH as the Child’s father, and SSA was provided a copy.

C. The NH’s Statements in Form SSA-795 Regarding his Relationship with and Support for the Child

In the Form SSA-795 Statement of Claimant or Other Person, which the NH provided on November XX, 2017, he stated that the Child’s mother told him years ago he was the Child’s father, but because T~ signed paternity documents and was listed as the Child’s father on the birth certificate, he did not pursue or establish paternity. He provided a written statement, stating that:

  • the Child lived with his mother prior to moving in with him in April 2017;

  • the Child’s mother first mentioned that the NH was the Child’s father years ago, but she did not pursue support, and T~ acknowledged paternity;

  • the Child’s maternal grandmother was in charge of the Child’s benefits (on T~'s record);

  • the NH and J~ did not give the Child’s mother money while the Child was living with his mother in 2016 because they were still in the process of establishing paternity, but that they did buy food, clothing, and other essentials for the Child beginning in November 2016, when the NH and the Child took an over-the-counter paternity test;

  • after the paternity test, he began the process to establish his paternity as to the Child through court; and

  • the NH and J~ started providing full financial support for the Child effective April 2017, the month he moved in with them following his mother’s death that same month.

ANALYSIS

A. Entitlement to Child’s Insurance Benefits under the Act

Under Title II of the Act, a claimant may be entitled to child’s insurance benefits on an insured individual’s account if, among other things, he is the insured number holder’s child.[3] See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350. The Act and regulations define “child” as an insured number holder’s natural child, legally adopted child, stepchild, grandchild, step grandchild, or equitably adopted child. See 42 U.S.C. § 416(e); 20 C.F.R. §§ 404.354 – 404.359. Consistent with the scope of your request, our inquiry focuses on whether the Child is the NH’s natural child and J~’s stepchild.

B. The Child’s Application for Child’s Insurance Benefits as the NH’s Natural Child

1. Natural Child under the Act

In assessing a claimant’s status as a natural child, the agency must determine whether the claimant could inherit the insured number holder’s personal property as his child under the intestate succession laws of the state where the insured number holder was domiciled at the time of the application. See 42 U.S.C. § 416(h)(2)(A);[4] 20 C.F.R. § 404.355(a)(1), (b). Because the NH was domiciled in Louisiana at the time he filed the claim for child’s insurance benefits on the Child’s behalf, we apply Louisiana intestate succession laws to determine whether the Child could inherit from the NH as his child. See id.

2. Paternal Inheritance under Louisiana Intestate Succession Laws

Under Louisiana intestate succession law, a deceased individual’s property passes to his or her descendants (e.g., children and grandchildren) by blood or by adoption. La. Civ. Code Ann. arts. 880, 882, 888. The term “children” for purposes of intestate succession includes: persons born of the parent’s marriage, persons adopted by the parent, and persons whose filiation to the parent has been established as provided by law. La. Civ. Code Ann. art. 3506(8). Here, there is no evidence of adoption or evidence that the NH was married to the Child’s mother at the time of his birth, and thus, we consider whether the Child has established filiation with the NH. Filiation is the legal relationship between a child to a parent and gives the child the right to inherit intestate property from the parent. See La. Civ. Code Ann. arts. 178, 197, Revision Comment (a). Filiation is established by proof of maternity, paternity, or adoption. La. Civ. Code Ann. art. 179. Here, we consider whether filiation has been established by proof of the NH’s paternity as to the Child such that the Child has the right to inherit under Louisiana intestate succession law.

We note that although T~ was named on the Child’s original Louisiana birth certificate, Louisiana recognizes a child’s filiation to more than one father, and a child seeking to establish paternity does so without affecting in any way the child’s filiation to another man. See La. Civ. Code Ann. art. 197, Revision Comments (a), (b). T~, on behalf of the Child, filed a petition to establish the NH’s paternity. A child may at any time initiate a court action to establish paternity even though the child is presumed to be another man’s child. La. Civ. Code Ann. art. 197. If the child establishes paternity, all of the civil effects of filiation apply to both the child and the father, including the right to inherit intestate. See La. Civ. Code Ann. art. 197, Revision Comment (a). Proof of paternity is a factual question, and a trial court’s determination of the issue should not be disturbed, absent manifest error. See Litton v. Litton, 624 So.2d 472, 475 (La. Ct. App. 1993).

Here, in an action the Child initiated to establish paternity, a Louisiana court issued a consent judgment and order declaring the NH as the Child’s biological father and ordering that all agency records be updated to reflect the NH as the Child’s father, including the Child’s Louisiana birth certificate. This consent judgment as to the NH’s paternity would appear to establish the Child’s filiation with the NH and thus, his right to intestate succession under Louisiana law. Consistent with Social Security (SSR) 83-37c, we consider whether this state court consent judgment declaring the NH to be the Child’s biological father binds the agency, and even if it does not, whether it would be reasonable for the agency to defer to this consent judgment to support the Child’s status as the NH’s child.

3. SSR 83-37c: Application of the Four Gray Factors to the Louisiana Consent Judgment Establishing the NH’s Paternity

Generally, a state court decision does not bind the agency if it involves a proceeding to which the agency was not a party. See SSR 83-37c (adopting Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973)); see also POMS GN 00306.001(C)(3) (providing that when determining a child’s relationship under state law, where the evidence includes a state court decision on the issue, SSA is not necessarily bound by the court decision; referring the agency to SSR 83-37c for the applicable criteria of Gray v. Richardson). Pursuant to SSR 83-37c, which adopts the Sixth Circuit’s Gray decision, state court determinations of domestic relations matters are entitled to deference and bind the agency only if the following four factors are satisfied:

  1. 1. 

    an issue in a claim for Social Security benefits was previously adjudicated by a state court of competent jurisdiction;

  2. 2. 

    the issue was genuinely contested before the state court by parties with opposing interests;

  3. 3. 

    the issue falls within the general category of domestic relations law; and

  4. 4. 

    the resolution by the state trial court is consistent with the law enunciated by the highest court in the state.

SSR 83-37c.[5] We next apply the four Gray factors to the Louisiana consent judgment declaring the NH to be the Child’s father. As detailed next, although the Louisiana consent judgment does not meet one of the four Gray factors (the genuinely contested factor) and thus, does not bind the agency for this reason, we believe there is legal support for the agency to defer to the consent judgment to find that the Child has established the NH’s paternity, and thus, the Child’s filiation with the NH such that the Child has the right to inherit from the NH under Louisiana intestate succession law.

a. The Consent Judgment Meets the First Gray Factor as it Involves a Court of Competent Jurisdiction and the Issue of the NH’s Paternity as to the Child

We believe that the agency could reasonably conclude that the consent judgment meets the first Gray factor. The Louisiana court that issued the consent judgment establishing paternity – the Twenty-Fourth Judicial District Court for the Parish of Jefferson – is a court of competent jurisdiction having jurisdiction over domestic relations and family law matters. See La. Rev. Stat. Ann. § 13:717(C) (providing that two of the three commissioners of the Twenty-Fourth Judicial District Court will have jurisdiction with civil matters involving domestic relations and family law and will have all the powers of a judge of a district court); La. Const. Ann. art. V, § 16(A) (providing that a district court shall have original jurisdiction of all civil and criminal matters except as provided by law).

b. The Consent Judgment Does Not Meet the Second Gray Factor because the Issue of the NH’s Paternity Was Not Genuinely Contested

We believe the agency could reasonably conclude, however, that the consent judgment does not meet the second Gray factor – that parties with opposing interests genuinely contested the issue before the state court. To be genuinely contested, an issue must be disputed by parties with opposing interests. See Gray, 474 F.2d at 1373. In this case, the NH, though named as a defendant and therefore an adversarial party in the paternity petition, voluntarily submitted to DNA testing and consented to the judgment declaring him as the Child’s biological father. Therefore, the Court’s consent judgment did not involve a genuinely contested issue and does not appear to meet the second Gray factor. See generally Ho v. Martin Marietta Corp., 845 F.2d 545, 547 (5th Cir. 1988) (holding that judicial consent decrees, while final judgments on the merits, are also settlements to which adversarial parties have consented); Kaspar Wire Works, Inc. v. Leco Eng’g & Mach., Inc., 575 F.2d 530, 539 (5th Cir. 1978) (stating that “the purpose of a consent decree is typically to avoid the litigation of any issue” and that “[i]n the case of a judgment entered without contest by confession, consent, or default, none of the issues is actually litigated”)(internal citation omitted); Paradigm Ins. Co. v. Walters Diving & Marine, Inc., 1999 WL 172952, at *3 (E.D. La. Mar. 29, 1999) (relying on Kaspar to state that “consent decrees do not reflect the considered judgment of a judicial officer after an adversarial trial.”).

c. The Consent Judgment Meets the Third Gray Factor because the Issue of Paternity is a Domestic Relations Matter

With respect to the third prong of SSR 83-37c, we believe that the agency could reasonably conclude that the consent judgment declaring the NH as the Child’s biological father involves an issue within the general category of domestic relations law because it involves the issue of paternity. See La. Rev. Stat. Ann. § 13:717(C) (providing the Twenty-Fourth Judicial District Court with jurisdiction over civil matters involving domestic relations and family law). Therefore, we believe that the Louisiana consent judgment meets the third Gray factor as well.

d. The Consent Judgment Meets the Fourth Gray Factor because the Judgment is Consistent with Louisiana Law

Finally, we believe that the agency could reasonably conclude that the consent judgment meets the fourth Gray factor. A court order meets the fourth Gray factor if it is consistent with “the law of the state as declared by the supreme court of the state, or as it would have been decided by that court had the point been considered.” See Garcia, 883 F.2d at 20; Warren, 868 F.2d at 1447. In analyzing the fourth prong of SSR 83-27c, we consider whether the consent judgment adjudicating paternity in this case is consistent with Louisiana law regarding paternity actions initiated by a child.

As noted, T~, on behalf of the Child, filed a petition to establish the NH’s paternity as to the Child. See La. Civ. Code Ann. art. 197. In Louisiana, if a child initiates a court action to establish paternity when the alleged father is alive, the child must prove paternity by a preponderance of evidence. See La. Civ. Code Ann. art. 197; State v. Shaddinger, 702 So.2d 965, 970 (La. Ct. App. 1997). To meet the preponderance of evidence standard of proof, the evidence must show that paternity is more probable than not. See Lasha v. Olin Corp., 625 So.2d 1002, 1005 (La. 1993); Shaddinger, 702 So.2d at 970. A child may present all relevant evidence to prove paternity, such as genetic testing, an informal acknowledgment of paternity, cohabitation of the mother and father at the time of conception, and any other relevant testimony and documents. See La. Civ. Code Ann. art. 179, Revision Comment; art. 197, Revision Comment (c). Here, as noted above, the evidence as to paternity included DNA test results.

Although alone insufficient to prove paternity, genetic scientific testing provides persuasive and objective evidence that can help establish paternity by a preponderance of evidence. See LeBlanc v. LeBlanc, 497 So.2d 1361, 1364 (La. 1986); State v. Gibson, 768 So.2d 714, 719 (La. Ct. App. 2000). “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). A certified report consists of the written report of the test results, certified by a sworn affidavit of the expert who supervised the tests, which states in substance: (a) that the affiant is qualified as an examiner of blood and tissue samples for inherited characteristics and gives the affiant’s name, address, telephone number, qualifications, education and experience; (b) how the tested individuals were identified when the samples were obtained; (c) how, when, and where the samples were obtained and by whom; (d) the chain of custody of the samples from the time obtained until the tests were completed; (e) the results of the test and the probability of paternity as calculated by an expert based on the test results; and (f) the procedures performed to obtain the results. La. Stat. Ann. § 9:397.3(A). If there is no timely challenge to the testing procedure or if the court finds there has been no procedural error in the testing procedure, the certified report must be admitted at trial as prima facie proof of its contents, provided that the party against whom the report is sought to be used has the opportunity to summon and cross-examine the report makers as witnesses. La. Stat. Ann. § 9:397.3(B)(2)(a).

Here, pursuant to the Child’s request in the petition for DNA testing, in an order, the Court appointed “DNA Diagnostics Center, an expert qualified as an examiner of blood and tissue samples” to conduct blood and tissue testing and to prepare a written report to be filed with the court. In reaching the consent judgment, the Louisiana court considered the certified DNA test report, signed and verified by the DDC’s laboratory director Joy Johnson, Ph.D., on June XX, 2007. The report shows the DDC’s address and phone number. This report was not contested by either the alleged father (the NH) or the acknowledged/legal father (T~), identified the Child as the Child and the alleged father as the NH, stated that their samples were collected on May XX, 2017, and noted a 99.999995% probability of the NH’s paternity. The report provided that the probability of paternity was calculated by comparing to an untested, unrelated, random individual of the Black population (assumes prior probability equals 0.50), and contained a verification from the laboratory director made before a notary public that the interpretation of the results was correct. Although the single-page DNA test report does not appear to meet some statutory requirements (such as explaining how the DNA samples were obtained and identified and the chain of custody of the samples), it still served as persuasive evidence to meet the preponderance of the evidence standard. The Court’s consent judgment specifically states that the DNA test report was part of the evidence supporting the NH’s paternity. Notably, the report was prepared by an accredited laboratory of the Court’s choosing, the Court found no procedural error in the testing procedure, and there was no challenge from the parties to the testing procedure. See State in Interest of Robinson v. Sims, 721 So. 2d 90, 92 (La. Ct. App. 1998) (“Where, as here, the scientific testing procedure is not timely challenged, the report shall be admitted into evidence and will constitute prima facie proof as to its contents.”). Therefore, it appears that the Court properly relied on the DNA test report in issuing the consent judgment establishing the NH’s paternity as to the Child.[6]

In addition to the DNA test report, the Court considered other evidence in reaching its judgment. The Court stated in the consent judgment that it considered “the entire record, the DNA test report of DNA Diagnostics Center concerning the probability of paternity. . . and the stipulations and consent of the parties” to the paternity action. The Child’s petition stated in substance that: the Child was born on February XX, 2007; that his mother C~ died on April XX, 2017; that while T~ was listed as the “father” on two of the Child’s birth certificates, the NH was the Child’s biological child per informal DNA testing dated November XX, 2016; that the NH had acknowledged the Child as his own through the name change petition, which had been filed jointly by the Child’s mother, T~, and the NH with the same Court;[7] that on February XX, 2017, the Court ordered the Child’s name changed to the NH’s last name; and that a new Social Security card was issued for the Child under the NH’s last name. The petition also stated that the NH did not oppose the petition and would voluntarily submit to the Court’s appointed expert for DNA testing. The petition was accompanied by T~’s sworn verification dated May XX, 2018, affirming that the facts and allegations in the petition were true and correct to the best of his knowledge.

Thus, it appears that the consent judgment was based on a preponderance of the evidence establishing that the NH’s paternity of the Child was more probable than not and was therefore consistent with Louisiana law on adjudication of paternity. See Simpson v. Stevenson, 852 So.2d 1093, 1096-97 (La. Ct. App. 2003) (testimony of the child’s mother accompanied by DNA test results showing a 99.9995% probability of paternity proved paternity by a preponderance of the evidence); In re Thomas v. Thomas, 768 So.2d 81, 84 (La. Ct. App. 2000) (finding that the objective evidence of DNA test results which showed a 99.99% probability of paternity, coupled with testimony and the child’s birth certificate, proved paternity by a preponderance of the evidence); State in Interest of Robinson v. Sims, 721 So.2d 90, 93-94 (La. Ct. App. 1998) (DNA test results showing a 99.98% probability of paternity coupled with the alleged father’s admission that he had sexual intercourse with the child’s mother during the time of conception established his paternity by a preponderance of the evidence); State v. Frisard, 694 So.2d 1032, 1034-36 (La. Ct. App. 1997) (testimony of the child’s mother coupled with blood testing showing a 99.9994% probability of paternity proved the child’s paternity by a preponderance of the evidence); State v. Shaddinger, 702 So.2d 965, 970-71 (La. Ct. App. 1997) (sworn statements of the mother and the alleged father’s failure to submit to blood testing was sufficient to prove paternity beyond a preponderance of the evidence). As such, the agency can reasonably conclude that the consent judgment met the fourth Gray criteria as being consistent with Louisiana law.

e. Summary of Gray Factors: Although the Consent Judgment Does Not Bind the Agency, the Consent Judgment is Entitled to Deference in Establishing the NH’s Paternity, and thus, Filiation with the Child under Louisiana Law for Inheritance Purposes

In summary, the consent judgment does not appear to bind the agency because it fails to meet the second criteria of Gray of being genuinely contested. See Gray, 474 F.2d at 1373; SSR 83-37c, 1983 WL 31272 at *3. However, the agency should only disregard a state court’s decision when the agency is convinced that the decision is in conflict with what the state supreme court has held or would hold were it presented with the issue. See Garcia, 883 F.2d at 20. As discussed above, the consent judgment declaring the NH as the Child’s biological father appears to be valid under Louisiana law. Thus, notwithstanding the fact that the consent judgment does not meet the second Gray criteria, we believe there is legal support for the agency to defer to the consent judgment to find that the Child has established paternity, and thus, filiation with the NH such that the Child has the right to inherit from the NH under Louisiana intestate succession law. As stated, if the child establishes paternity, all of the civil effects of filiation apply to both the child and the father, including the right to inherit intestate. See La. Civ. Code Ann. art. 197, Revision Comment (a). Thus, we believe that there is legal support for the agency to conclude that the Child is the NH’s natural child under the Act upon application of Louisiana intestate succession law.

4. The Effective Date of the Parent-Child Relationship

You also asked the effective date of the NH’s parent-child relationship with the Child as it is relevant to determining the extent of any retroactive benefits. Specifically, you asked whether the Louisiana state court consent judgment operates retroactively or prospectively to establish paternity, and if any documents in file establish the relationship prior to the consent judgment . We believe there is legal support for the agency to conclude that the effective date of the parent-child relationship is the Child’s date of birth, February XX, 2007.[8]

Although the POMS distinguishes among legitimate children, illegitimate children, and legitimated children, and provides for different effective dates of the parent-child relationship based upon this distinction, Louisiana intestacy law, as it currently stands, does not make such distinctions. See POMS GN 00306.050 (“Under current State laws, a child legitimated after birth is considered to be legitimate from birth.”), GN 00306.055 (as to illegitimate children, an “act/event conferring inheritance rights generally has effect only from the date of such act/event.”). Louisiana intestacy law does not distinguish among legitimate and illegitimate children, does not provide a mechanism for legitimating an illegitimate child, and provides for equal inheritance rights for children without regard to legitimacy.[9] Thus, we believe that the agency may reasonably conclude that all children are given the same legal status under Louisiana inheritance law. Therefore, under Louisiana law, once the parent-child relationship is established, it is effective as of the date of the child’s birth regardless of his parents’ marital status or of the method or type of evidence used to prove the relationship.

Accordingly, in determining the Child’s entitlement to child’s insurance benefits on the NH’s record, we believe the agency could reasonably conclude that the effective date of the parent-child relationship between the NH and the Child is the date of the Child’s birth – February XX, 2007.

C. The Child’s Application for Child’s Insurance Benefits as J~’s Stepchild

You also asked whether the Child is J~’s stepchild. Under the Act, a child may be eligible for child’s insurance benefits as an insured individual’s stepchild if after the child’s birth, his natural parent married the insured. See 42 U.S.C. § 416(e)(2); 20 C.F.R. § 404.357. Where, as here, the insured number holder is alive, the child must also have been the insured’s stepchild for at least one year immediately preceding the day on which the application for child’s insurance benefits is filed. See 42 U.S.C. § 416(e)(2); 20 C.F.R. § 404.357; POMS GN 00306.230(A)(2) (the marriage between the child’s parent and the alleged stepparent NH must have taken place at least one year before the child’s application is filed; the one-year duration of relationship requirement may be met based on an application filed before the first anniversary of the NH’s marriage to the child’s parent, as long as the anniversary occurs prior to adjudication).

Here, the record indicates that:

  • the Child was born on February XX, 2007,

  • the Child’s natural parent, the NH, married J~ nine months later in December 2007, and

  • the NH filed the Child’s claim for child insurance benefits on J~’s record as her stepchild on September XX, 2017, with a protective filing date of May XX, 2017.

To establish the stepchild relationship, the agency is to obtain evidence as to the child’s relationship to the parent (which we have analyzed above), and as to the marriage of the parent to the alleged stepparent NH. POMS GN 00306.230(B). We were not provided with any evidence of the NH’s marriage to J~. Assuming the agency has proof of a valid marriage as to the NH and J~, we believe that the agency could reasonably conclude, based on this information, that the Child was J~’s stepchild for at least one year immediately preceding the date on which the application for child’s insurance benefits on J~’s record was filed. Thus, in determining the Child’s entitlement to child’s insurance benefits on J~’s record, there is legal support for the agency to find the Child to be J~’s stepchild under the Act.

CONCLUSION

For purposes of determining the Child’s entitlement to child’s insurance benefits on the NH’s record, we believe that there is legal support for the agency to find that the Child is the NH’s natural child under the Act based on application of Louisiana intestate succession law and the Louisiana state court’s consent judgment declaring him to be the Child’s father. We believe that the effective date of their parent-child relationship is the date of the Child’s birth, February XX, 2007. For purposes of determining the Child’s entitlement to child’s insurance benefits on J~’s record, we also believe that the agency could reasonably conclude that the Child is J~’s stepchild under the Act, assuming the agency has proof of a valid marriage between the NH and J~.

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

DATE: December 23, 2009

This opinion has been superseded and removed due to changes in Louisiana State Law.

DATE: November 7, 2018

C. 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 child[10] 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. [11]

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. [12]

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. [13] 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. [14] 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. [15]

D. 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

This opinion has been superseded and removed due to changes in Louisiana State Law.

DATE: November 7, 2018

E. 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.

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

DATE: May 26, 2006

This opinion has been superseded and removed due to changes in Louisiana State Law.

DATE: November 7, 2018

G. 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

This opinion has been superseded and removed due to changes in Louisiana State Law.

DATE: November 7, 2018

H. 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

This opinion has been superseded and removed due to changes in Louisiana State Law.

DATE: November 7, 2018

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

DATE: September 21, 2000

This opinion has been superseded and removed due to changes in Louisiana State Law.

DATE: November 7, 2018

J. 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

This opinion has been superseded and removed due to changes in Louisiana State Law.

DATE: November 7, 2018

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

DATE: January 17, 2001

This opinion has been superseded and removed due to changes in Louisiana State Law.

DATE: November 7, 2018

L. 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

This opinion has been superseded and removed due to changes in Louisiana State Law.

DATE: November 7, 2018

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

DATE: September 20, 2000

This opinion has been superseded and removed due to changes in Louisiana State Law.

DATE: November 7, 2018

N. 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

This opinion has been superseded and removed due to changes in Louisiana State Law.

DATE: November 7, 2018

O. 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

This opinion has been superseded and removed due to changes in Louisiana State Law.

DATE: November 7, 2018

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

DATE: May 26, 1999

This opinion has been superseded and removed due to changes in Louisiana State Law.

DATE: November 7, 2018


Footnotes:

[1]

You also ask us to determine the relationship, following the consent judgment establishing the NH’s paternity as to the Child, between the Child and T~. SSA records indicate that on January XX, 2009, T~ filed an application for child’s benefits on the Child’s behalf on his own record. A report of contact from that day showed that T~ stated he was the Child’s biological father and that he had acknowledged him since birth. On February XX, 2009, SSA issued a notice of award finding the Child to be T~’s child under 42 U.S.C. § 416(h)(3) and awarding child’s benefits effective January 2008. You note that it is too late to reopen the 2009 final agency determination, but ask for an opinion on their relationship for future applications the Child might file on T~’s record. However, we are unable to issue an advisory opinion. Should the Child file a new application for benefits on T~’s record, we advise submitting a legal opinion request for that particular claim for benefits so that we can analyze the specific facts and circumstances of such claim.

[2]

On February XX, 2017, P~, the Child’s maternal grandmother and representative payee (the Child’s grandmother), filed an application with SSA for child’s insurance benefits on the NH’s record. But she later withdrew this application because SSA advised her that the Child would be due less money on the NH’s record (than what the Child was receiving on T~’s record) due to the NH’s entitlement to worker’s compensation benefits.

[3]

The Child must satisfy other criteria for his application for child’s insurance benefits that are outside the scope of this legal opinion request. See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350. We focus only on the requirement of a parent-child relationship between a claimant and the number holder. See 20 C.F.R. § 404.350(a)(1).

[4]

Although your legal opinion request indicates that the parent-child relationship might be appropriately analyzed under 42 U.S.C. § 416(h)(3), we have determined that 42 U.S.C. § 416(h) (2)(A) provides more appropriate avenue for considering this parent-child relationship.

[5]

The Fifth Circuit’s test for determining when a state court order binds the agency is generally consistent with SSR 83-37c, but it places an emphasis upon the fourth Gray factor. See Warren v. Sec’y of Health & Human Servs., 868 F.2d 1444, 1446-47 (5th Cir. 1989); Garcia v. Sullivan, 883 F.2d 18, 19-20 (5th Cir. 1989). In Garcia , the Commissioner declined to accept a state court determination regarding paternity because parties with opposing interests did not genuinely contest the issue. Garcia , 883 F.2d at 20. Thus, the agency relied upon the second Gray criteria to find that the state court order did not bind the agency. The Fifth Circuit stated in Garcia that because the agency is required to determine how the state courts would decide the matter, “where a state trial court has adjudicated the issue in an adversarial setting the [agency’s] inquiry is manifestly simplified: the [agency] should follow the decision of the state court, absent extraordinary reasons.” Id. (citing Warren , 868 F.2d at 1444). The Fifth Circuit further noted that the agency should only disregard a state court’s decision when the agency is convinced that the decision is in conflict with what the state supreme court has held or would hold were it presented with the issue. Id. In reversing the Commissioner’s decision to disregard the state court order, the Fifth Circuit thus emphasized that the agency should disregard a state court order when the order does not meet the fourth Gray criteria.

[6]

While we were provided with the single-page DNA test report, we do not know if this represents the entirety of the DNA reporting provided to the court.

[7]

Louisiana law allows a name change petition filed on a minor child’s behalf, but the petition must be signed by the minor’s father and mother or by the survivor if one is dead. See La. Rev. Stat. Ann. § 13:4751(C)(1). The record indicates that the legal father, the alleged biological father, and the mother, who was still living at the time, all jointly filed the petition for name change on the Child’s behalf. Further, it appears that the parish’s district attorney was served with the petition, as required by law, and indicated that he was unopposed to the name change. SeeLa. Rev. Stat. Ann. § 13:4752. After the Court granted the name change, the name change would have been recorded in the parish’s records and a certified copy of the name change judgment could then be used to alter the original birth record to reflect the name change. See La. Rev. Stat. Ann. §§ 13:4753, 13:4754.

[8]

We recognize that this legal position is in conflict with current POMS GN 00306.505 as to Louisiana’s intestacy laws, which provides that because Louisiana law does not legitimate a child and is silent on the inheritance rights’ effective date, an action that gives inheritance rights operates prospectively from the date of the act or occurrence (every provision/act for establishing the parent-child relationship in this section is preceded by an (I)). See POMS GN 00306.505; but see POMS GN 00306.050(A)(3) (“Also see the NOTE at the beginning of the Louisiana entry in GN 00306.505, indicating that under current Louisiana law, legitimacy is irrelevant to a determination of inheritance rights, and a child’s inheritance rights operate retroactively.”). However, we have proposed updates to this POMS GN 00306.505, including revising this specific statement. It is our understanding that the agency is continuing to work on updating various child benefit POMS provisions, including the POMS intestacy law provisions such as this one.

[9]

We examined the legislative history of Louisiana’s intestacy laws and found that changes to Louisiana law rendered legitimacy irrelevant to the determination of a child’s intestate inheritance rights. Instead, Louisiana law relies upon proof of filiation to establish a child’s right to inherit and provides for the same inheritance rights. See La. Civ. Code Ann. art. 880, revision comment (c) – 1981 (“[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”). In addition, in 2004, the Legislature removed all references to legitimate and illegitimate and removed the method for legitimating children. See 2004 La. Acts 26 (Enactment of New Terminology Relative to the Status of Children, which amended and reenacted numerous codes and statutes to reflect the change in terminology from “legitimate child” to “child born of marriage” and from “illegitimate child” to “child born outside of marriage,” and to remove the method for legitimation of children).

 

[10]

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).

[11]

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.

[12]

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.

[13]

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.

[14]

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.

[15]

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.


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1501115021
PR 01115.021 - Louisiana - 11/16/2018
Batch run: 11/16/2018
Rev:11/16/2018