TN 12 (05-12)

PR 01115.034 New Mexico

A. PR 12-097 New Mexico Law – New Mexico State Law Clarification of Legitimating Acts for Child Relationship (NH Reynel, SSN ~) – REPLY

DATE: May 4, 2012

1. SYLLABUS:

New Mexico state law provides no basis for the agency to establish retroactively the parent-child relationship between Claimant and the number holder. Claimant is not entitled to retroactive benefits under 42 U.S.C. § 416(h)(2)(A).

In this case, the effective date of the parent-child relationship is the date that first met all of the requirements for entitlement to child’s insurance benefits. See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.352(a)(2). 

Following an adjudication of paternity, New Mexico law only confers inheritance rights upon a child born out of wedlock.

Therefore, when adjudicating claimant's relationship to the number holder, the court did not legitimize the claimant, rather the actions of the court only conferred inheritance rights upon the claimant.  Claimant is entitled to child’s benefits beginning March 22, 2011, the date of the DNA test report, but is not entitled to retroactive child’s benefits

The New Mexico state law confers only inheritance rights on children born out of wedlock. Given that inheritance rights operate prospectively, a child born out of wedlock would be entitled to benefits as of the date the child met all the requirements for entitlement to benefits.

2. OPINION

This memorandum is in response to your request for a legal opinion requesting clarification of the recent update to the Social Security Administration’s (SSA or agency) Program Operations Manual System (POMS) GN 00306.570. You asked whether New Mexico state law would legitimize, or only confer inheritance rights upon, a child born out of wedlock. You also asked whether New Mexico state law would operate either prospectively or retroactively to confer either legitimacy or inheritance rights. 

It is our opinion that, under New Mexico state law, New Mexico makes no distinction between legitimate and illegitimate children. Thus, New Mexico state law contains no provision that would legitimize a child born out of wedlock.  Accordingly, New Mexico state law confers only inheritance rights on children born out of wedlock. Given that inheritance rights operate prospectively, a child born out of wedlock would be entitled to benefits as of the date the child met all the requirements for entitlement to benefits. 1

In the past, our office has issued opinions consistent with the principles adopted by Regions III and V. See Louisiana Filiation with Deceased NH (D~ – Dec. 15, 2011) (concluding that, where Louisiana law provided no basis for the agency to establish a parent-child relationship retroactive to birth, the child was not entitled to retroactive benefits); Texas State Law Effective Date of Child Relationship (Boston – Aug. 7, 2007) (concluding that, where Texas law conferred inheritance rights, but did not legitimate a child, the child was not entitled to retroactive benefits).  After discussing this regional split with OGC Headquarters, we conclude that SSA policy, our precedent opinions, and Regions III and V’s opinions properly direct that, when the state does not confer legitimacy upon a child, any inheritance rights must operate prospectively only.  

BACKGROUND

As we understand the facts, the agency awarded Title II disability insurance benefits to Reynel (number holder), effective January 2009. In his application for benefits, the number holder reported no marriages or children. 

On September, Tanaya gave birth to Ivory . In July 2011, Tanaya filed an application for child’s insurance benefits on Ivory’s behalf on the number holder’s account, claiming that the number holder was Ivory’s father.  In support of her application, Tanaya provided a deoxyribonucleic acid (DNA) test report showing a 99.99 percent probability that the number holder was Ivory’s natural father.  Further, on August 29, 2011, a New Mexico District Court issued an Order to Withhold Income for Child Support (Withholding Order), which directed the number holder to pay $100.00 per month in child support payments for Ivory’s benefit.  Pursuant to the Withholding Order, the agency currently withholds $100.00 a month from the number holder’s Title II benefits to fulfill this child support obligation. 

Based on the DNA test report and the Withholding Order, the agency approved Tanaya’s application for child’s insurance benefits. Specifically, the agency concluded that Ivory was the number holder’s legitimate child and authorized fully retroactive benefits, effective July 2010, one year prior to the application date. Even though the agency concluded that Ivory was the number holder’s legitimate child and authorized retroactive benefits, you now ask whether the agency’s conclusion conforms with New Mexico state law.

DISCUSSION

To be entitled to child’s benefits on an insured number holder’s account, a child must: 

(1) be the number holder’s child; (2) be dependent upon the number holder; (3) apply for benefits; (4) be unmarried; and (5) be under the age of 18. See 20 C.F.R. § 404.350(a)(1)-(5). Here, Tanaya applied for benefits on Ivory’s behalf on the number holder’s account. Ivory is unmarried and under the age of 18. Further, using the evidence Tanaya submitted, the field office concluded that Ivory is the number holder’s natural child and dependent upon the number holder. See 20 C.F.R. §§ 404.350(a)(1)-(2); 404.361(a). Thus, Ivory is entitled to child’s benefits on the number holder’s account.  We must next determine whether Ivory is entitled to benefits either prospectively or retroactively.

After the agency determines a child’s entitlement to child’s benefits on an insured number holder’s account, the agency must determine when the child’s entitlement to benefits began. See 20 C.F.R. § 404.352.  When the number holder is still living, a child becomes entitled to benefits the first month covered by the application for benefits in which the child meets all the requirements for entitlement. See 20 C.F.R. § 404.352(a)(2).  However, agency policy provides that certain acts used to establish paternity will legitimize a child, and those acts generally operate retroactively to the child’s birth.  Social Security Ruling (SSR) 85-17; POMS GN 00306.050A(3); Texas State Law Effective Date of Child Relationship – REPLY (Boston – Aug. 7, 2007). Thus, a legitimate 2 child will meet the requirements for entitlement to child’s insurance benefits from its date of birth. See POMS GN 00306.050A(3); see also POMS GN 00306.010B (a number holder’s natural, legitimate children are considered to be both dependent upon a number holder and have inheritance rights in a number holder’s estate). Accordingly, a legitimate child is entitled to a period of retroactive benefits.  See POMS GN 00204.030B (authorizing retroactive benefits for a period of up to 12 months prior to the application date).

However, when a child is born out of wedlock, her birth raises a question as to whether the child has been legitimized or has inheritance rights in the number holder’s estate. POMS GN 00306.010C(4). An illegitimate child is a number holder’s child if the child has inheritance rights under the applicable state intestacy law. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1); POMS GN 00306.055A(1).  However, inheritance rights generally operate prospectively and take effect only from the date of the event conferring inheritance rights, such as a court’s determination of paternity. See SSR 85-17; POMS GN 00306.055A(3); Louisiana Filiation with Deceased NH – REPLY (W~ – Dec. 15, 2011); Texas State Law Effective Date of Child Relationship – REPLY (B~ – Aug. 7, 2007). 

Having established this background information, we turn now to your first question: whether, when establishing a child’s paternity, New Mexico state law legitimizes, or merely confers inheritance rights upon, a child born out of wedlock.  New Mexico’s Uniform Parentage Act controls paternity determinations. See, e.g., N.M. Stat. Ann. §§ 40-11A-101 et seq. Under the New Mexico Uniform Parentage Act, a father-child relationship is established between a man and a child by:  (1) an unrebutted presumption of the man’s paternity of the child pursuant to Section 2-204 of the New Mexico Uniform Parentage Act;3

(2) an effective acknowledgment of paternity by the man; (3) an adjudication of the man’s paternity; (4) adoption of the child by the man; or (5) the man’s consent to assisted reproduction by a woman that resulted in the child’s birth. N.M. Stat. Ann. § 40-11A-201. However, this provision provides no mechanism to legitimize a child after a paternity determination is made. Rather, New Mexico state law specifically states that “a child born to parents who are not married to each other has the same rights pursuant to the law as a child born to parents who are married to each other.” N.M. Stat. Ann. § 40-11A-202.  Thus, the New Mexico Uniform Parentage Act makes no distinction between legitimate and illegitimate children and prescribes no acts that will legitimize a natural child. See id. 

Further, the New Mexico Uniform Probate Code, which controls an heir’s inheritance rights, provides no mechanism to legitimize a child entitled to inherit from its parent. See, e.g., N.M. Stat. Ann § 45-1-102 et seq.  The New Mexico Uniform Probate Code provides that, if a parent-child relationship exists, the parent is a parent of the child and the child is a child of the parent for the purposes of intestate succession. N.M. Stat. Ann. § 45-2-116.  However, similar to the New Mexico Uniform Parentage Act, the New Mexico Probate Code makes no distinction between legitimate or illegitimate children, stating instead that a parent-child relationship exists between a child and the child’s genetic parents – and that child is entitled to inherit from that genetic parent – regardless of the parents’ marital status. See N.M. Stat. Ann. § 45-2-117. The New Mexico Uniform Probate Act defines “genetic parent” as a child’s genetic father or mother. N.M. Stat. Ann. § 45-2-115(G). The New Mexico Uniform Probate Act defines “genetic father” as the man for whom the father-child relationship was established pursuant to the New Mexico Uniform Parentage Act. See N.M. Stat. Ann. § 45-2-115(E), citing N.M. Stat. Ann. § 40-11A-201. Thus, when a parent-child relationship is established under New Mexico state law, New Mexico state law confers inheritance rights upon the child, regardless of marital status.  However, the provisions cited above, which allow a child born out of wedlock to inherit property from its parent, do not legitimize the child.4  

Therefore, in response to your general question regarding whether New Mexico state law legitimizes, or merely confers inheritance rights upon, a child born out of wedlock, we conclude that no provision of New Mexico state law prescribes an act that would legitimize a child born out of wedlock. Rather, when establishing a child’s paternity, New Mexico state law only confers inheritance rights upon the child.

We turn now to your next question regarding the specific facts in this matter and whether, when the court established that the number holder was Ivory’s father, Ivory became the number holder’s legitimate child.  Because New Mexico state law prescribes no act that would legitimate Ivory, she cannot be considered the number holder’s legitimate child. Thus, Ivory cannot establish an entitlement to benefits dating back to her birth based on legitimation.  See POMS GN 00306.050A(3) (a legitimized child meets the requirements for entitlement to child’s insurance benefits from its date of birth). 

If New Mexico conferred only inheritance rights upon Ivory, you asked whether New Mexico state law would only prospectively recognize Ivory’s relationship to the number holder, or whether New Mexico state law would retroactively recognize Ivory’s relationship to the number holder back to the date of her birth. In order for a child to be entitled to retroactive benefits extending prior to the date the claimant proved the parent-child relationship, the state law that granted legitimacy or inheritance rights to the child must make those rights retroactive for some period. See 42 U.S.C. § 416(h)(2)(A); POMS RS 00203.010, GN 00306.050, GN 00306.085.  The provision of New Mexico state law that allows an illegitimate child to inherit property from his father neither legitimizes the child nor confers retroactive inheritance rights. N.M. Stat. Ann. § 45-2-117.  Because New Mexico state law provides no basis for the agency to establish retroactively the parent-child relationship between Ivory and the number holder, Ivory is not entitled to retroactive benefits under 42 U.S.C. § 416(h)(2)(A). 

Therefore, we must determine when Ivory’s entitlement to benefits began. Because New Mexico state law provides no basis for the agency to establish retroactively the parent-child relationship between Ivory and the number holder, the effective date of the parent-child relationship is the date that Ivory first met all of the requirements for entitlement to child’s insurance benefits. See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.352(a)(2). 

In this case, the act that conferred inheritance rights upon Ivory was the March 22, 2011, DNA test report. In determining paternity under the New Mexico Uniform Parentage Act, a New Mexico court will consider the results of genetic testing, provided the DNA testing and the DNA test report meet specific requirements to establish reliability and authenticity, and the testing reveals at least a 99 percent probability of paternity with a combined paternity index of at least 100 to 1. See N.M. Stat. Ann. §§ 40-11A-503, 40-11A-504, 40-11A-505. In this case, the DNA test report showed a 99.99 percent probability that the number holder was Ivory’s biological father, with a combined paternity index of 232,179,488 to 1, which satisfied the probability provision of the New Mexico Uniform Parentage Act. See N.M. Stat. Ann. § 40-11A-505(A).  Further, on August 29, 2011, a New Mexico District Court issued a Withholding Order, directing the number holder to pay $100.00 per month in child support payments for Ivory’s benefit, and the agency currently withholds $100.00 a month from the number holder’s Title II benefits to fulfill this child support obligation.5  Thus, we can conclude that the March 22, 2011, DNA test report constitutes sufficient evidence to establish Ivory’s relationship to the number holder, as the New Mexico courts already concluded the DNA test report constituted such evidence. 

Accordingly, Ivory met all requirements for entitlement on March 22, 2011, the date of the DNA test report. We therefore conclude that she became entitled to benefits as of that date.  However, because Ivory did not meet all requirements for entitlement until March 22, 2011, 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.

CONCLUSION

In summary, New Mexico state law prescribes no act that would legitimize a child born out of wedlock. Instead, following an adjudication of paternity, New Mexico law only confers inheritance rights upon a child born out of wedlock.  Therefore, when adjudicating Ivory’s relationship to the number holder, the court did not legitimize Ivory. Rather, New Mexico state law confers only inheritance rights upon Ivory, and New Mexico state law provides no basis for the agency to establish retroactively the parent-child relationship between Ivory and the number holder. As such, Ivory is not entitled to retroactive child’s benefits; rather, Ivory is entitled to child’s benefits beginning March 22, 2011, the date of the DNA test report.  

Michael McGaughran

Regional Chief Counsel

By: _____________

Nicole Dana

Assistant Regional Counsel

B. PR 11-018 New Mexico Law – Status of Child Relationship (NH Joseph, SSN ~) – REPLY

DATE: November 17, 2010

1. SYLLABUS:

In the state of New Mexico a deoxyribonucleic (DNA) test report involving a deceased number holder, the child’s mother, and the child is sufficient to establish a parent child relationship between the child and the deceased number holder when the DNA Report shows a 99.99 percent probability that the number holder and the child are related.

In this case, although the DNA satisfied the probability provision for genetic testing under New Mexico law, the DNA test report did not meet the statutory requirements for genetic testing to establish paternity because the documentation was insufficient to establish a reliable chain of custody.

2. OPINION

This memorandum is in response to your request for a legal opinion on whether, under New Mexico law, a deoxyribonucleic acid (DNA) test report involving a deceased number holder, the child’s mother, and the child is sufficient to establish a parent-child relationship between the child and the deceased number holder when the DNA test report shows a 99.99 percent probability that the deceased number holder and child are related. It is our opinion that, under New Mexico law, the facts presented here are insufficient to establish the child’s paternity. Although the DNA test report satisfies the probability provision for genetic testing under New Mexico law, the DNA test report did not meet the New Mexico statutory requirements for genetic testing to establish paternity because the documentation is insufficient to establish a reliable chain of custody.

As we understand the facts, Joseph (number holder) died on February 9, 2010, while domiciled in New Mexico. The number holder had been receiving Title II Disability Insurance Benefits from November 1998 until his death on February 9, 2010. Joshua was born to Julie in April. The number holder never married Julie, and he did not live with, support, or acknowledge Joshua during his lifetime. Joshua’s birth certificate does not list a father.

On March 11, 2010, Julie filed for child’s benefits on Joshua’s behalf on the number holder’s account, claiming that the number holder was Joshua’s father. In support of her application, Julie provided an April 26, 2010, DNA report. The report tested DNA samples from the number holder, Julie, and Joshua. With the consent of the number holder’s family, Julie obtained a muscle sample from the number holder secured after his death. The DNA test showed that there was a 99.99 percent probability that the number holder was Joshua’s biological father. On June 30, 2010, the Social Security Administration (agency) denied the March 2010 application for child’s benefits because of a name discrepancy on the DNA report, which incorrectly listed the number holder as Joseph, and because Julie failed to provide any other evidence to establish a biological relationship between the number holder and Joshua.

On July 1, 2010, Julie requested reconsideration of the agency’s denial. In support of her request for reconsideration, Julie provided a corrected DNA report showing the number holder’s correct name and a 99.99 percent probability that the number holder was Joshua’s biological father. She also provided a statement from the number holder’s sister, Diane, who stated that she was aware of Joshua’s birth, believed that Joshua was the number holder’s child, and that she had encouraged Julie to obtain a DNA test to establish the biological relationship.

To be entitled to child’s benefits on an insured number holder’s account, a child must:

(1) be the number holder’s child; (2) be dependent upon the number holder; (3) apply for benefits; (4) be unmarried; and (5) be under the age of 18. See 20 C.F.R. § 404.350(a)(1)-(5). Here, Julie applied for benefits on Joshua’s behalf on the number holder’s account. Joshua is unmarried and under the age of 18. The agency will consider Joshua to be dependent upon the number holder if Joshua is the number holder’s natural child. See 20 C.F.R. § 404.361(a). Thus, the only remaining criterion Joshua must establish is that he is the number holder’s natural child.

To determine whether an applicant is a deceased number holder’s child, the agency will apply the intestacy laws of the state in which the number holder had his permanent home at the time of death. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b). New Mexico law controls because the number holder’s permanent home was in New Mexico when he died. Thus, Joshua’s eligibility for child’s benefits on the deceased number holder’s account depends upon whether he could inherit property under New Mexico intestacy laws as the number holder’s child. See id.

The New Mexico Probate Code provides the framework for determining father-child relationships for inheritance purposes. N.M. Stat. Ann. §§ 45-2-114, 45-2-401. For purposes of inheritance, an individual is the child of his natural parents, regardless of their marital status, and the father-child relationship may be established under the New Mexico Uniform Parentage Act. N.M. Stat. Ann. §§ 40-11A-201, 45-2-114. Under the New Mexico Uniform Parentage Act, a father-child relationship is established between a man and a child by: (1) an unrebutted presumption of the man’s paternity of the child pursuant to Section 2-204 of the New Mexico Uniform Parentage Act;6 (2) an effective acknowledgment of paternity by the man; (3) an adjudication of the man’s paternity; (4) adoption of the child by the man; or (5) the man’s having consented to assisted reproduction by a woman that resulted in the birth of the child. N.M. Stat. Ann. § 40-11A-201. The first, second, fourth, and fifth methods set forth in the New Mexico Uniform Parentage Act are not applicable in this case, as an unrebutted presumption of the number holder’s paternity does not exist in this case, the number holder neither executed an acknowledgment of paternity nor adopted Joshua, and Joshua was not born via assisted reproduction. Thus, for Julie to establish that Joshua had a father-child relationship with the number holder, it must be under the third method.. The first, second, fourth, and fifth methods set forth in the New Mexico Uniform Parentage Act are not applicable in this case, as an unrebutted presumption of the number holder’s paternity does not exist in this case, the number holder neither executed an acknowledgment of paternity nor adopted Joshua, and Joshua was not born via assisted reproduction. Thus, for Julie to establish that Joshua had a father-child relationship with the number holder, it must be under the third method.

Under the third method, if a court adjudicated Joshua to be the number holder’s child, he would be entitled to child’s insurance benefits on the number holder’s account. See N.M. Stat. Ann. § 40-11A-201(B)(3) (father-child relationship is established between a man and a child by an adjudication of the man’s paternity). Although we are unaware of an adjudication of paternity in this case, Social Security regulations provide that, if applicable state inheritance law requires a court determination of paternity, “we will not require that you obtain such a determination.” 20 C.F.R. § 404.355(b)(2). Instead, the agency “decide[s a child’s] paternity by using the standard of proof that the State court would use as the basis for a determination of paternity.” Id.

In determining paternity under the New Mexico Uniform Parentage Act, a New Mexico court will consider the results of genetic testing, provided the DNA testing and the DNA test report meet specific requirements to establish reliability and authenticity, and the testing reveals at least a 99 percent probability of paternity with a combined paternity index of at least 100 to 1. See N.M. Stat. Ann. §§ 40-11A-503, 40-11A-504, 40-11A-505, 40-11A-509. In this case, the DNA test report showed a 99.99 percent probability that the number holder is Joshua’s biological father, which satisfies the probability provision of the New Mexico Uniform Parentage Act. See N.M. Stat. Ann. § 40-11A-505(A). However, the DNA testing and the DNA test report do not meet the New Mexico statutory requirements for genetic testing to establish paternity because the documentation is insufficient to establish a reliable chain of custody.

First, under New Mexico law, the DNA testing must take place in a laboratory accredited by the American Association of Blood Banks, the American Society for Histocompatibility and Immunogenetics, or another accrediting body designated by the Secretary of the United States Department of Health and Human Services. See N.M. Stat. Ann. § 40-11A-503(a)(1)-(3). Second, a laboratory designee must sign the DNA test report under penalty of perjury. See N.M. Stat. Ann. § 40-11A-504(a). Third, a reliable chain of custody of the DNA samples must be established through testimony or documentation by: (1) the names and photographs of the persons whose specimens have been taken; (2) the names of the persons who collected the specimens; (3) the places and dates the specimens were collected; (4) the names of the persons who received the specimens in the testing laboratory; and (5) the dates the specimens were received. See N.M. Stat. Ann. § 40-11A-504(b)(1)-(6).

In this case, DNA testing took place at Genetica DNA Laboratories, Inc. Although the laboratory is accredited by the American Association of Blood Banks, and Maria , Ph.D., the assistant laboratory director, certified the DNA analysis report, the report does not include the additional documentation required under New Mexico law to satisfactorily document the chain of custody of the DNA samples. See N.M. Stat. Ann. §§ 40-11A-503(a)(1), 40-11A-504(a), (b)(1)-(6). For instance, although the report contains Julie’s, Joshua’s, and the number holder’s names, the report does not state that their photographs were obtained. N.M. Stat. Ann. § 40-11A-504(b)(1). Additionally, although the report states the date the specimens were collected, it does not contain the name of the person who collected the specimens, the place where the specimens were collected, the name of the person who received the specimens in the testing laboratory; or the date the specimens were received. See N.M. Stat. Ann. § 40-11A-504(b)(2)-(6). Consequently, without further evidence satisfying all of the reliability and authenticity provisions of the New Mexico Uniform Parentage Act, a New Mexico court would not consider the April 26, 2010, DNA test report as evidence of the number holder’s paternity.

Because the DNA testing and the DNA test report did not meet the New Mexico statutory requirements for genetic testing to establish paternity because the documentation was insufficient to establish a reliable chain of custody, Joshua would not be entitled to inherit from the number holder under the third method for determining paternal inheritance rights. For these reasons, we cannot conclude that Joshua is the number holder’s child for child’s benefits purposes. Thus, Julie has not established paternal inheritance rights under any of the methods provided under the New Mexico intestacy laws. Consequently, Julie cannot establish that the number holder is Joshua’s father, and the agency should not consider Joshua to be the number holder’s child for Social Security purposes.

Michael McGaughran

Regional Chief Counsel

By: _____________

Carolyn E. Whitson

Assistant Regional Counsel

C. PR 03-085 Acceptability of Navajo Nation District of Ramah, New Mexico Number Holder Frank, SSN

DATE: January 27, 2003

1. SYLLABUS

A Navajo Nation paternity decree issued almost three years after the NH's death, for the sole purpose of establishing eligibility for governmental benefits, does not establish the child claimant's inheritance rights under New Mexico law.

2. OPINION

You have asked whether a paternity decree by the family court of the Navajo Nation, District Court of Ramah, New Mexico, rendered almost three years after the death of the purported father is sufficient to establish inheritance rights for Social Security benefit purposes. It is our view that, even after considering the doctrine of full faith and credit under federal and state law, the Navajo Nation decree is not sufficient to establish inheritance rights of the child claimant to the purported father.

According to the information provided with your request for a legal opinion, Frank began receiving retirement benefits under Title II of the Social Security Act (the Act) around June 1990. At that time, the number holder indicated that he was married to Dorothy and had no dependent children. Frank died on March 13, 1996, while domiciled in New Mexico. Dorothy is currently receiving widow's insurance benefits on her husband's record. The deceased number holder was not of Navajo descent.

Jordan, the child claimant, was born in August. Jordan is considered to be one-half degree Navajo Indian blood. He is an enrolled member of the Navajo Tribe. Julia is Jordan's mother, and she is also a member of the Navajo Tribe. Jordan initially filed a claim for child's insurance benefits on April 9, 1996. The claim was denied due to a lack of evidence establishing a relationship to the deceased number holder. Jordan filed a new claim for child's insurance benefits on September 21, 2000. The only documentary evidence presented with the current claim for benefits consisted of: (1) a “stipulated” paternity decree from the Navajo Nation, District Court of Ramah, New Mexico, issued on March 11, 1999, almost three years after the number holder's death; and (2) a New Mexico birth certificate dated in September, listing Frank as the father of the child claimant.

Section 216(h)(2)(A) of the Act provides that in determining whether an applicant is the child or parent of a deceased insured individual, the Commissioner of Social Security shall apply the law that would be applied in determining the devolution of intestate personal property by the courts of the state in which the insured individual was domiciled at the time of death. 42 U.S.C. § 416(h)(2)(A). Since Frank was domiciled in New Mexico at the time of his death, we must apply New Mexico law. Agency regulations provide that the Social Security Administration will not apply any state inheritance law requirement that an action to establish paternity must have been started or completed before the worker's death. 20 C.F.R. § 404.355(b)(2) (2002). Accordingly, for Social Security benefit purposes, Jordan may still establish his relationship to the number holder after his death./

Under New Mexico law, for the purposes of intestate succession, an individual is considered to be the child of his natural parents regardless of their marital status. N.M. Stat. Ann. § 45-2-114 (1978). Under State law, the parent-child relationship for intestate succession can be established under the Uniform Parentage Act. Id. New Mexico has adopted the Uniform Parentage Act. N.M. Stat. Ann. § 40-11-1 (1978).

The Uniform Parentage Act statute states that, “Full faith and credit must be given to determination of paternity made by other states, including acknowledgements of paternity.” N.M. Stat. Ann. § 40 -11-5F (1978). While the statute itself does not define whether the phrase “other states” applies to tribal court determinations, the Supreme Court of New Mexico has ruled in other situations that the laws of the Navajo Tribe are entitled by federal law to full faith and credit in the courts of the State because the Navajo Nation is a territory within the meaning of 28 U.S.C. § 1738, which requires such treatment./ See Allen v. CIT Financial Services Corp., 533 P.2d 751, 752 (N.M. 1975); see also Halwood v. Cowboy Auto Sales, Inc., 946 P.2d 1088, 1090-91 (N.M. Ct. App. 1997)./ Thus, if the Navajo tribal court has subject matter jurisdiction, New Mexico precedents appear to require granting full faith and credit to a judgment issued within that jurisdiction. See H~, 946 P.2d at 1090-91. However, as will be discussed herein, there is an issue as to what the Navajo Nation decree actually conveyed to the child claimant.

Under State law, a person who has sexual intercourse within New Mexico submits to the jurisdiction of the courts of the State with respect to any child who may have been conceived by that act of intercourse. N.M. Stat. Ann. § 40-11-8 (1978). While any interested party may bring an action for the purpose of determining the existence and non-existence of paternity, the district court has jurisdiction over the action, usually in the county where one of the parties resides. N.M. Stat. Ann. §§ 40-11-7, 40-11-8 (1978). We note that State law apparently does not provide district courts with exclusive jurisdiction over paternity actions. Id. New Mexico law is silent as to the specific treatment of paternity determinations made by tribal courts; however, New Mexico law is not silent as to the requirement of giving full faith and credit to tribal court orders and decrees in general. See N.M. Stat. Ann. §§ 40 -11-1 to 40-11-23.

New Mexico law provides some guidance on the jurisdictional limits of tribal courts for Native American children within the state. Under the general provisions of the Children's Code, New Mexico law states that exclusive tribal court jurisdiction exists in proceedings where the child is a delinquent child, a child in need of family services, a neglected child, an abused child, a child subject to adoption, or a child subject to placement for a mental disorder or developmental disorder. N.M. Stat. Ann. § 32A-1-8A (1978). In addition, a tribal court has exclusive original jurisdiction to emancipate a minor under the children's code. N.M. Stat. Ann. § 32A-1-8B (1978). It appears that New Mexico's recognition of original exclusive tribal jurisdiction within the state applies to Native American children whose paternity has been established.

The United States Supreme Court has ruled that, absent governing acts of Congress, the question has always been whether a state action has infringed on the right of reservation Indians to make their own laws and be ruled by them. See Williams v. Lee, 358 U.S. 217, 220 (1959). This test is applicable in situations involving a non-Indian party. See Fort Mojave Tribe v. San Bernardino County, 543 F.2d 1253, 1258 (9th Cir. 1976), cert. den., 430 U.S. 983 (1977). We have found no acts of Congress that give Indian tribes the exclusive or concurrent rights to determine paternity, especially with regard to the Act. However, there is a large body of law and legal commentary on the use of jurisdictional ambiguity in order to benefit Native American children, as well as preserve tribal sovereignty and cultural survival. See Barbara, Fighting Over Indian Children: The Uses and Abuses of Jurisdictional Ambiguity, 36 UCLA L. Rev. 1051 (1989).

In addition, we have found that the Department of Interior's Bureau of Indian Affairs created a regulation that states, “The Court of Indian Offenses shall have jurisdiction of all suits brought to determine the paternity of a child and obtain judgment for the support of the child. A judgment of the court establishing the identity of the father of the child shall be conclusive of that fact in all subsequent determinations of inheritance by the Court of Indian Offenses or by the Department of the Interior.” 25 C.F.R. § 11.609 (2000). However, it is clear from both the regulation's language and history, that it applies only to the Department of Interior or the Court of Indian Offenses, and not to the state of New Mexico. Id.; see 58 Fed. Reg. 54411 (1993). Our research has found no federal or New Mexico cases that have interpreted this particular regulation.

The states and the federal government are generally required by federal law to give full faith and credit to judicial tribal proceedings relating to Indian child custody issues where the child resides or is domiciled within the reservation of such tribe. See Indian Child Welfare Act of 1978 (ICWA), §§ 4, 101; codified 25 U.S.C. §§ 1903, 1911./ New Mexico law complies with the ICWA. N.M. Stat. Ann. § 32A-1-8 (1978). The ICWA gives tribal courts exclusive jurisdiction over state courts regarding issues relating to adoption and foster care of Indian children. 25 U.S.C.A. § 1911. The ICWA says nothing about paternity proceedings. Id. Nonetheless, it is clear that the common purpose is to benefit the child.

New Mexico evidentiary standards for proving paternity are generally permissive to include “all other evidence relevant to the issue of paternity of the child.” N.M. Stat. Ann. § 40-11-13 (1978). This standard may very well incorporate the stipulated facts contained in the Navajo Nation paternity decree. Id. Assuming arguendo that it does, a reading of the stipulated facts contained Navajo Nation paternity decree reveal that the order was entered, “… for the sole purpose of establishing eligibility of governmental benefits and petitioner has waived any claims for child support or inheritance.” See Navajo Nation Paternity Decree at paragraph No. 8 (District Court of Ramah, No. RM-FC-05-98, ordered March 11, 1999). The Navajo Nation paternity decree by its own wording has failed to establish inheritance rights for the child claimant. Id. Even if the New Mexico courts were to give full faith and credit to this decree, it would fail to establish the very inheritance rights critical to a determination of relationship and benefit entitlement under the Act. 42 U.S.C. § 416(h)(2)(A).

Apart from the issue concerning full faith and credit for the Navajo Nation paternity decree, there are serious credibility concerns with the evidence submitted by the claimant in this case. For instance, the Navajo Nation paternity decree was a “stipulated order” issued almost three years after the death of Frank. Obviously, the number holder could not have stipulated to the order since he was deceased. In addition, the Navajo Nation paternity decree stated that Chris provided for Jordan until his death on March 13, 1996. However, the claimant has not provided any documentary evidence to support the legal conclusions as stated in the Navajo Nation paternity decree. While the New Mexico evidentiary standard for proving paternity is generally permissive, such evidence must still be relevant to the issue of paternity. N.M. Stat. Ann. § 40-11-13 (1978).

Agency policy states that while the Commissioner is not bound by a decision of a state trial court where the Agency is not a party, the Commissioner must still recognize a state court adjudication where all of the following prerequisites are found: (1) an issue in a claim for Social Security benefits previously has been determined by a state court of competent jurisdiction; (2) this 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 Social Security Ruling 83-37c (SSR); Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973). Assuming that the Navajo Nation paternity decree would come under the ambit of SSR 83-37c (if the State of New Mexico gave it full faith and credit as the order of a court of competent jurisdiction), the decree would not be determinative under the facts because the issues were not genuinely contested by parties with opposing interests. Id. Therefore, the Agency would not be required to recognize the paternity decree.

In addition, the New Mexico birth certificate does not suffice to establish Jordan's paternity to Frank. New Mexico law allows for the issuance of a new birth certificate upon the order of a New Mexico Court or request by a court of another jurisdiction. N.M. Stat. Ann. § 40-11-22 (1978). Under the facts of this case, Jordan did not produce a birth certificate until after the Navajo Nation paternity decree was issued. The state registrar signed the birth certificate on September 6, 2000, just over two weeks prior to Jordan filing for benefits. It appears from the statute that the issuance of the new birth certificate is simply a clerical act by the state of New Mexico with little probative value. The relevance of the New Mexico birth certificate is negligible at best.

It is our opinion that the Navajo Nation paternity decree issued almost three years after the number holder's death does not establish Jordan's inheritance rights as to Frank under New Mexico law. Consequently, Jordan cannot establish entitlement to child's insurance benefits under section 216 (h)(2) of the Act.

Tina M. Waddell
Regional Chief Counsel

By: ____________________________
Thomas C. Strafuss
Assistant Regional Counsel

D. PR 00-499 New Mexico Law Regarding The Use of DNA Testing to Establish Child Relationship (NH Chris, SSN ~)

DATE: June 14, 2000

1. SYLLABUS

Since New Mexico does not require accreditation for laboratories engaging in genetic testing to determine parentage and there is no apparent basis for questioning the credibility of Blood Systems Laboratories (BSL), SSA may accept the results of tests performed by BSL.

There is authority under New Mexico State law which supports the valid use of genetic tests performed on a deceased's relatives. If SSA is satisfied that there are no male siblings of the deceased who could have fathered the child, then a lab report which concludes that the deceased is the biological father of a child based on genetic tests which show a 99.5% probability that the deceased's parents are the biological grandparents of the child are sufficient to prove paternity for Social Security benefit purposes.

Note: To clarify paragraph 4, section 216(h)(3)(c)(ii) requires other satisfactory evidence of paternity in addition to living with or contributions to support to establish paternity.

2. OPINION

On January 24, 2000, you requested a legal opinion on whether a genetic test using samples from the parents of a deceased number holder, Chris, is sufficient to legitimate a purported child of Chris under New Mexico state law. In our opinion, the genetic test is sufficient.

Chris, died March 12, 1999, while domiciled in New Mexico. A claim for Christopher (Christopher), was filed in December 1999, with a protective filing of October 1999. Christopher was born in September. No father's name was shown on the birth certificate at the time of Christopher's birth. The mother, Jody, was not married at the time of conception or birth of Christopher. There is no court order for support or court order for paternity, and Chris made no written acknowledgment of Christopher. Chris's parents have signed a statement that Chris and Jody lived together. It was also reported by Chris's mother that chris verbally acknowledged the child.

Section 216(h)(3) of the Social Security Act (the Act) provides that a child such as Christopher can be entitled as Chris's child if Chris (1) had acknowledged the child in writing, (2) had been decreed by a court to be the child's father, or (3) had been ordered by a court to contribute to his support. See 42 U.S.C. § 416 (h)(3)(C)(i). Under the facts noted above, none of these requirements were met.

However, section 216(h)(3)(C)(ii) of the Act states that a child such as Christopher can be entitled as Chris's child if chris had been living with or contributing to Christopher's support at the time of his death. See 42 U.S.C. § 416 (h)(3)(C)(ii). Although Chris died before Christopher was born, he lived with Jody while she was pregnant and financially supported her. Chris's mother reported that Chris would accompany Jody on visits to the doctor's office, and was present when she underwent an ultrasound. Social Security Ruling 68-22 states that where the deceased insured worker, at the time of his death, was living with and contributing to the support of the mother of his unborn illegitimate child, the worker's contributions to the support of the child's mother and his living with the mother constitute contributions to the support of, and living with, the unborn child within the meaning of section 216(h)(3)(C)(ii) of the Act, provided that the child was born alive. See SSR 68-22; see also Wolfe v. Sullivan, 988 F.2d 1025, 1028 (10th Cir. 1993)(Support may be shown either by proof that contributions such as baby clothes or a crib were made to the unborn child, or that contributions such as food, shelter, or medical care were made to the mother). Arguably, the facts of this case support a finding that Christopher qualifies Chris's child under section 216(h)(3)(C)(ii) of the Act.

If Christopher does not qualify as a child of Chris under section 216(h)(3) of the Social Security Act, then Section 216(h)(2) of the Social Security Act provides that in determining whether an applicant is the child or parent of a deceased insured individual, the Commissioner of Social Security shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual was domiciled at the time of death.

42 U.S.C. § 416(h)(2) (1999). Since Chris was domiciled in New Mexico at the time of his death, we apply New Mexico law.

A DNA lab report (lab report) dated November 22, 1999, from Blood Systems Laboratories (BSL), shows a 99.5 percent probability that Chris's parents, Dorothy and Alfonso, are the biological grandparents of Christopher. The file states that the two brothers of the NH are ruled out as being the father of the child. The lab report concludes that the NH is the biological father of the child. In our opinion, the lab report is sufficient to establish paternity under New Mexico law. We were asked to address two questions concerning the lab report:

(1) Is accreditation by the American Association of Blood Banks (AABB) for Parentage Testing sufficient to meet New Mexico state law requirements?

(2) Are results based on testing of relatives sufficient under New Mexico State law to legitimate the child and establish paternity?

According to our research, there is no federal law that addresses the required accreditation of laboratories engaged in genetic testing to determine parentage. There is a Federal law that prohibits any person from accepting materials derived from the human body for laboratory examination or other procedures unless the laboratory has obtained a certificate from the Secretary of the Department of Health and Human Services (the Secretary). See 42 U.S.C. § 263a. However, this law, and its accreditation requirements, do not apply to components or functions of any "facility or component of a facility that only performs testing for forensic purposes". See 42 CFR § 493.3. Genetic testing to determine parentage is considered forensic testing rather than clinical, diagnostic, or medical evaluation.

New Mexico has adopted the Uniform Parentage Act, which states that a blood test is admissible if it is performed by a "qualified individual" and "evaluated by an expert." N.M. Stat. Ann.§ 40-11-13 (C). Regarding genetic tests,

"The court shall admit into evidence, for purposes of establishing paternity, the results of any genetic test that is of a type generally acknowledged as reliable by accreditation bodies designated by the secretary of human services and performed by a laboratory approved by such an accreditation body".

N.M. Stat. Ann. § 40-11-12 (C).

However, 40-11-12 (C) concerns the admissibility of genetic testing evidence in court proceedings. It does not directly address the issue of required accreditation. In fact, although 40-11-12 (C) mentions "accreditation bodies designated by the secretary of human services", there are no such accreditation bodies designated by the New Mexico Secretary of Human Services, nor is there a list of accredited laboratories used by the New Mexico Department of Human Services.

Therefore, because there are no state or federal laws that require accreditation for laboratories engaging in genetic testing to determine parentage, and there is no apparent basis for questioning the credibility of this laboratory, the results of tests performed by BSL may be used by the agency.

As noted above, SSA will decide the child's paternity by using the standard of proof that the State court would use as the basis for a determination of paternity. 20 C.F.R. § 404.355(b)(2). Although New Mexico has no statute or case law specifically stating that genetic tests performed on a deceased's relatives are admissible, there is authority which supports the valid use of such tests. At least one New Mexico court has ordered that tests be performed on a deceased individual's parents for the purposes of proving paternity. See Abalos v. Pino, 115 N.M. 759, 761, 858 P.2d 426, 428 (Ct.App.1993). In A~, plaintiff filed a petition to establish paternity which named six individuals as potential fathers. Five were excluded through blood testing but the sixth died before testing could commence. Medical personnel asserted that testing the decedent's parents would achieve conclusive results, and the state district court ordered the decedent's parents to submit to blood testing, which they appealed. The Court of Appeals dismissed and remanded the interlocutory appeal of the testing order because it was not a final order in the case. This had the effect of upholding the testing order. The Court of Appeals commented that the blood test performed on the deceased's parents "is a part of the probate proceeding initiated by [the mother] to determine whether [the daughter] is an heir of [the deceased]." A~, 858 P.2d at 428.

The willingness of the state district court to rely on forensic evidence similar to the evidence in this case supports the use of genetic test results performed on a decedent's relatives in this instance. Therefore, if the agency is satisfied that the Chris's two brothers have been properly ruled out as fathers, it is our opinion that the lab report, which concludes that Chris is the biological father of the child, is sufficient to prove that Chris is Christopher's father for benefit purposes under section 216(h)(2) of the Act. Alternatively, it is our opinion that based on Chris's support of Jody and the live birth of Christopher, that he may be considered the father under section 216(h)(3)(C)(ii) of the Act.


Footnotes:

[1]

Currently, a split in the regions exists on whether a child is entitled to retroactive benefits when, as in New Mexico, state law makes no distinction between legitimate and illegitimate children, but provides no avenue to legally legitimize a child.  As discussed in more depth below, a legitimate child will meet the requirements for entitlement to benefits from the date of its birth. POMS GN 00306.050A(3); POMS GN 00306.010B.  Conversely, an illegitimate child will only have inheritance rights in the number holder’s estate, and inheritance rights operate prospectively from the effective date of the parent-child relationship. See SSR 85-17; POMS GN 00306.055A(3).  Region III and Region V have both issued opinions concluding that, where the state law is silent on whether inheritance rights are prospective, state law must be narrowly construed as permitting only prospective inheritance rights from the effective date of the relationship. See e.g., Entitlement to Surviving Child’s Benefits Based on DNA Results as Clear and Convincing Evidence in the Commonwealth of Pennsylvania (A~ – Oct. 6, 2005) (finding entitlement to benefits begins with the effective date of the parent-child relationship); Wisconsin Posthumous Paternity Action (R~ – Mar. 22, 2001) (reaffirming SSR 85-17’s statement that an act that confers inheritance rights operates prospectively only).  Conversely, Region IV and Region VII have concluded that, when the state makes no distinction between legitimate and illegitimate children, all children are entitled to retroactive benefits back to their date of birth. See, e.g., Genetic Testing of Relatives, Florida (W~ – Feb. 21, 2006) (a natural out-of-wedlock child qualifies for the same retroactive rights as a legitimate child under Florida law); Status of H~ O~-P~’s Entitlement to Child’s Insurance Benefits (P~ – Aug. 17, 2011) (holding that, because Nebraska does not distinguish between legitimate and illegitimate children, Nebraska state law establishes that the parent-child relationship began at birth).  Region VII also noted that, because Nebraska state law awarded retroactive child support payments after adjudicating paternity, this finding of retroactive child support payments further indicated that Nebraska state law would confer retroactive benefits. See Status of H~ O~-P~’s Entitlement to Child’s Insurance Benefits (P~ – Aug. 17, 2011).

[2]

Agency policy defines a legitimate child as one born of a valid marriage. See POMS GN 00306.010.

[3]

Under Article 2-204 of the New Mexico Uniform Parentage Act, a man is presumed to be the child’s father if: (1) he and the child’s mother are married to each other and the child is born during the marriage; (2) he and the mother of the child were married to each other and the child was born within three hundred days after the marriage was terminated by death, annulment, declaration of invalidity or divorce or after a decree of separation; (3) before the birth of the child, he and the mother married each other in apparent compliance with law, and the child was born during the invalid marriage; (4) after the child’s birth, he and the mother married each other in apparent compliance with law, and he voluntarily asserted his paternity; or (5) for the first two years of the child’s life, he resided in the same household with the child and openly held out the child as his own. See N.M. Stat. Ann. § 40-11A-204(A)(1)-(5). Ivory does not meet any of these circumstances.

[4]

We recognize that POMS GN 00306.085 provides a list of states in which a child is “Legitimate from the Date of Birth” according to each state’s laws. However, there is no basis in New Mexico state law to allow a father to formally legitimize a child born out of wedlock. Thus, we cannot rely upon this POMS provision.

[5]

We note that Region VII concluded that, when a state awards retroactive child support following a paternity determination, state law would direct payment of retroactive benefits to the child. See Status of H~ O~-P~’s Entitlement to Child’s Insurance Benefits (P~ – Aug. 17, 2011).  However, we discussed the relevance of child support payments with respect to a retroactive benefits determination with OGC Headquarters, and they encouraged us to avoid basing a retroactive benefits determination on a state’s child support laws. Therefore, we conclude that Ivory’s entitlement to child support does not impact our retroactive benefits determination.

[6]

Under Article 2-204 of the New Mexico Uniform Parentage Act, a man is presumed to be the child’s father if: (1) he and the child’s mother are married to each other and the child is born during the marriage; (2) he and the mother of the child were married to each other and the child was born within three hundred days after the marriage was terminated by death, annulment, declaration of invalidity or divorce or after a decree of separation; (3) before the birth of the child, he and the mother married each other in apparent compliance with law, and the child was born during the invalid marriage; (4) after the child’s birth, he and the mother married each other in apparent compliance with law, and he voluntarily asserted his paternity; or (5) for the first two years of the child’s life, he resided in the same household with the child and openly held out the child as his own. See N.M. Stat. Ann. § 40-11A-204(A)(1)-(5). Joshua does not meet any of these circumstances.


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http://policy.ssa.gov/poms.nsf/lnx/1501115034
PR 01115.034 - New Mexico - 06/19/2012
Batch run: 06/19/2012
Rev:06/19/2012