This Memorandum is in response to your inquiry regarding whether Chrisopher A. M~
can establish that he is entitled to Child's Insurance Benefits ("CIB") on the account
of Joseph B~, based on genetic testing of Joseph B~'s relatives. Specifically, you
asked whether paternity can be established, under Massachusetts law, based on the
DNA test results from Peter and John B~, Joseph's brothers. For the reasons discussed
below, we advise that additional development is needed before entitlement can be established.
On January 9, 1994, Jan M~ (hereinafter "the mother") gave birth to Christopher M~
(hereinafter "the child") in Beverly, Massachusetts. The child's birth certificate
lists no father's name. On November 18, 2004, Joseph B~ (hereinafter "the wage earner")
died in Beverly, Massachusetts.
On December 16, 2004, the mother filed, on behalf of the child, an application for
CIB as the child of the wage earner Joseph B~, SSN ~. According to the mother, she
first met the wage earner in 1970 and began an intimate relationship with him in 1991,
which lasted until his death. The mother claims that the wage earner knew that he
had a son with her, and supported the child with weekly payments of five hundred dollars,
in addition to money for extra expenses and health insurance.
According to the mother, the wage earner agreed to sign an acknowledgment of paternity
but did not have the opportunity to do so before he was hospitalized. She claims that
once the wage earner entered the hospital, his family did not want her to see him
and he then refused to sign the acknowledgment. On March 28, 2005, the claim for benefits
was disallowed due to failure to establish paternity.
On September 9, 2005, the mother submitted genetic test results as evidence of paternity.
The test was performed in July 2006, by Identigene of Houston, Texas, which is a company
accredited by the American Association of Blood Banks. The blood samples were taken
from the child, and from Peter B~ and John B~, who, according to the test report,
are the wage earner's brothers. The test results indicated that the probability of
the wage earner being the father of the child was 98.487% as compared to an untested
randomly chosen man from the Caucasian population. As further evidence of paternity,
the mother submitted a judgment from the Massachusetts Probate and Family Court, dated
April 24, 2006, incorporating a stipulation of paternity which stated that Joseph
B~ was the biological father of Christopher M~.
The Social Security Act ("the Act") provides for the payment of insurance benefits
to a child of an individual who dies when fully or currently insured if the child
has filed an application for CIB, is unmarried, under the age of 18, and was dependent
upon such individual at the time of death. 42 U.S.C. §402(d)(1); 20 C.F.R. § 404.350
(2006); POMS RS 00203.001. The Act provides that in determining whether a claimant is the child of an insured
person, the Commissioner of Social Security ("Commissioner") shall apply such law
as would be applied in determining the devolution of intestate personal property by
the courts of the state where the insured individual is domiciled at the time of application
or death. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(4); POMS GN 00306.001(C).
If the claimant is unable to prove that he is the child of the wage earner under state
intestacy law, he can still prove that he is a child of the wage earner in several
ways. A claimant can be deemed to be the deceased wage earner's child upon proof that,
prior to the wage earner's death, one of the following conditions was met: (1) the
wage earner and claimant's mother went through a ceremony, which would have resulted
in a valid marriage between them except for a legal impediment; (2) the claimant is
the wage earner's natural child and wage earner acknowledged in writing that the child
was his natural child, was decreed by a court to be the child's parent, or was ordered
by a court to contribute to the child's support; or (3) the wage earner is shown by
evidence satisfactory to the Commissioner to have been the child's father, and he
was living with or contributing to the child's support at the time of his death. 42
U.S.C. 416(h)(2)-(3); 20 C.F.R. 404.355(a)(2)-(4).
According to the record, the wage earner was a resident of Massachusetts at the time
of his death, and there is no evidence suggesting that the wage earner's domicile
was other than Massachusetts. We conclude that the wage earner was domiciled in Massachusetts
at the time of his death and that Massachusetts' law of intestate succession is applicable
in determining the child's status as the descendant of the wage earner for purposes
of the Act. See 42 U.S.C. 416(h)(2)(A); 20 C.F.R. § 404.355; POMS GN 00306.001(C)(1)(a).
For a person born out of wedlock to establish child status, Massachusetts law provides
that, in the absence of the father's acknowledgment of paternity or marriage to the
mother, the child must obtain a judicial determination that he is the child's father.
M.G.L. 190 § 7; POMS GN 00306.520. Under Social Security Regulations, however, a claimant is not required to obtain
an adjudication of paternity, but rather, the Agency may decide paternity using the
standard of proof that the state court would use as the basis for a paternity determination.
20 C.F.R. § 404.355(b)(2); POMS 00306.520.
Here, the record contains evidence of a paternity judgment, however, SSA is not bound
by this decision because the issue of paternity was not contested before the Court.
On April 24, 2006, the Probate and Family Court of Massachusetts decreed that the
wage earner was the biological father of the child, based on a stipulation by the
mother and the wage earner's family and estate. The Commissioner must accept a state
court determination in a proceeding in which she was not a party, only when, among
other things, the issue of paternity has been genuinely contested before the court
by parties with opposing interests. SSR 83-37c (adopting the holding in Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973)). Here, the wage earner was deceased at the time of
the Probate and Family Court decision and it does not appear that any party contested
the issue on behalf of the estate of the wage earner. Thus, the issue of paternity
was not genuinely contested before the state court by parties with opposing interests.
Furthermore, Massachusetts requires that a voluntary acknowledgment of paternity must
be signed by both parents, M.G.L. 209C § 11, and an administrator of an estate is
not statutorily granted powers to sign such acknowledgement, M.G.L 195 § 5A. See also Woodward v Commissioner, 760 N.E.2d 257, 272 (Mass. 2002). Accordingly, SSA is not bound by this paternity
judgment and paternity must, therefore, be decided under the standard of proof imposed
by Massachusetts courts in a paternity determination.
To be adjudicated as a lineal descendant under Massachusetts law, a child born out
of wedlock must prove paternity by clear and convincing evidence. M.G.L 209C § 7;
Dep't. of Revenue v. Roe, 577 N.E. 2d 323, 325 (Mass. App. Ct. 1991); POMS GN 00306.520. A paternity determination is made on a case-by-case basis weighing the probative
value of evidence against the likelihood of fraud. See M.G.L. 209C § 16; POMS 00306.520. The evidence can include blood or genetic marker
tests, testimony, and "all other evidence relevant to the issue of paternity." M.G.L.
209C §§ 16, 17. When there is evidence of sexual intercourse between a child's mother
and a putative father, the report of the results of a DNA test of the putative father,
"including a statistical probability of the putative father's paternity based upon
such test, shall be admissible in evidence." M.G.L. 209C § 17. If the genetic test
indicates a statistical probability of paternity of 97% or greater, there shall be
a rebuttable presumption that the putative father is the father of the child. M.G.L.
209C § 17. In this case, the mother stated that she had an intimate relationship with
the wage earner during the relevant time period, thus, the wage earner's DNA results
can be admissible. However, since the wage earner's relatives were tested in his stead,
it appears the child cannot take advantage of the presumption.
We have found no Massachusetts case law specifically addressing the probative value
of genetic testing of the putative father's relatives for purposes of establishing
paternity. The Supreme Judicial Court of Massachusetts has recognized, however, that
"sophisticated modern testing techniques now make the determination of genetic paternity
accurate and reliable." Woodward v Commissioner, 760 N.E.2d 257, 272 (Mass. 2002). The DNA tests would likely be considered as "other
evidence" relevant to a determination of paternity. See M.G.L. 209C § 16. Additionally, courts in other states have found that the genetic
test results of the putative father's relatives are admissible and even reliable evidence
in paternity proceedings. See e.g., In the Matter of the Estate of Robert N~, 748 N.Y.S.2d 654 (N.Y. 2002) (finding that DNA testing on the putative father's
twin, along with other evidence, constituted clear and convincing evidence of paternity);
Pace v. Louisiana State Employees Retirement System, 648 So.2d 1302, (La. 1995) (stating, "courts have found that DNA tests performed
on the deceased putative father's relatives can determine paternity posthumously").
Considering the above information, it is our opinion that Massachusetts courts would
admit genetic testing of the wage earner's relatives to establish paternity.
Here, according to the testing laboratory, the genetic test was performed on the wage
earner's siblings, Peter and John B~, and showed a 98.487% probability that wage earner
was the biological father of the child. However, upon further examination of the record,
there appears to be some evidence that Peter and John B~ are, in fact, the wage earner's
adult sons, and thus, possible half-siblings of the child. The Agency should attempt
to obtain additional information in order to clarify the relationship between the
wage earner and Peter and John B~. If, after investigation, it is determined that
Peter and John B~ are the wage earner's adult sons, the DNA test results should not
be considered because the results were based on the assumption that Peter and John
B~ were the full biological siblings of the wage earner. Thus, the mother would need
to submit additional evidence obtained from the laboratory to reflect any change in
the results, based on the fact that Peter and John B~ are the adult sons of the wage
earner. Importantly, the results should still indicate the probability that the wage
earner was the father of the child.
If the DNA results are correct as they stand, or if the laboratory findings maintain
a 97% or greater probability of paternity even if Peter and John are the children
of the wage earner, the Agency must still obtain additional information. First, you
must eliminate any possibility that a paternal relative fathered the child. The DNA
test results conclude that the probability is 98.487% that the wage earner is the
father of the child in comparison to an untested, randomly chosen man from the population,
apparently leaving the possibility that a related man is as statistically likely as
wage earner to be the child's father. See Armstead v. Md. 673 A.2d 221, 228 n.8 (Md. 1993) (noting that twins will have identical DNA, and
siblings or other close relatives will have "substantial similarities" in their DNA.).
You should obtain statements from knowledgeable persons (the mother, Peter and John
B~, or other family members) about whether the mother had sexual intercourse with
the wage earner's male relatives during the relevant time period. Second, the mother
has stated that the wage earner supported the child with at least five hundred dollars
per week, health insurance, and extra expenses; therefore, you should obtain evidence
substantiating this claim. After the additional evidence is secured, and if it appears
to establish that no other relative is likely to be the father, then, it is our opinion,
that the child would be considered the wage earner's child under Massachusetts law.
Even if the above information fails to satisfy the clear and convincing evidence standard
under Massachusetts law, the child will still be able to establish the wage earner's
paternity under the alternative Federal standards. As discussed above, under Federal
standards a claimant may be eligible for benefits as the child of a wage earner if
evidence satisfactory to the Commissioner shows the wage earner to have been the child's
father, and he was living with or contributing to the child's support at the time
of his death. 42 U.S.C. 416(h)(3); 20 C.F.R. 404.355(a)(4); POMS GN 306.100. Evidence
of the wage earner's support, along with the additional information in the record
including the DNA test results showing 98.487% probability of paternity, provide sufficient
evidence to show that the wage earner was the child's father and contributing to his
support at the time of his death.
Based on the above discussion, we recommend further development to determine if Christopher
M~ is eligible for child's benefits. Specifically, we recommend that you clarify the
relationship between the wage earner and John and Peter B~, for purposes of the DNA
test results. Once the test results are confirmed to be based on accurate information
and remain at a 97% or greater probability of paternity, we recommend that you take
the following steps. Given the clear and convincing standard for paternity under Massachusetts
law, you should attempt to obtain additional evidence to eliminate any likelihood
that a paternal relative of the wage earner fathered the child. Additionally, you
should request evidence from the mother showing the wage earner's support of the child.
If the evidence establishes that no other male relative fathered the child, then this
evidence, along with the DNA test results and evidence of support, could constitute
clear and convincing evidence to establish paternity under Massachusetts law for purposes
of intestate succession. Moreover, this evidence can also establish sufficient evidence
of paternity under the Act, thus entitling the child to benefits.