We are responding to your inquiry with respect to whether the results of a DNA test
performed to establish paternity for another child along with "other evidence" can
be used in New York State to establish paternity for MaKenna , alleged by Nicole to
be the child of Joseph ("wage earner"). Our answer is that because New York Courts
would not grant a paternity determination on this record, the application should be
II. Factual Background
MaKenna was born in New York on April. The wage earner died in New York, his place
of domicile, on July XX, 2004.
Trevor was believed by Nicole to be MaKenna's father. However, on March 3, 2004 he
filed a petition to vacate acknowledgement of paternity. The Family Court of Franklin
County granted the petition on November 29, 2004 based on a DNA test which excluded
Trevor as the father of MaKenna.
On August 10, 2005, Nicole filed an affirmation of paternity in Family Court claiming
the wage earner as the father of MaKenna. She and the wage earner were not married.
Also on August 10, 2005, Nicole asked LabCorp of North Carolina to use DNA specimens
previously collected from the wage earner on June 14, 2004, and collected from Nicole
and MaKenna on September 21, 2004, to determine if the wage earner could be identified
or excluded as MaKenna's father. The letter from the Franklin County Department of
Social Services requesting the test claims to have attached a letter from the estate
of the wage earner agreeing to the use of the wage earner's previously collected DNA
A report from LabCorp dated September 13, 2005 states that the DNA test showed that
the probability that the wage earner was the father of MaKenna is 99.99%.
Nicole filed an application for Survivor's Benefits on behalf of her daughter, MaKenna,
on December 21, 2005. As proof of paternity, MaKenna submitted the DNA test that concluded
it was 99.99% probable that the wage earner was MaKenna's father.
In a child relationship statement obtained from Nicole, she reported that the wage
earner was never decreed by a court to be MaKenna's parent and was never ordered to
contribute to MaKenna's support. Nicole answered "no" to all of the other questions,
including that the wage earner never admitted orally or in writing that he was the
father of MaKenna. Nicole stated that there was an "order" to have paternity testing
done and noted the results of the DNA test. However, Makenna's attorney, Thomas, told
Tina of the Oneonta District Office on February 2, 2006 that there was never a court
order to conduct the paternity testing because the wage earner's estate voluntarily
approved the request for the testing.
III. Legal Analysis
A. Social Security Act - Child Insurance Benefits
The Social Security Act ("Act") provides for payment of child's insurance benefits
where a child is unmarried, under 18 years of age, and dependent upon the deceased
wage earner at the time of his death. Act § 202(d); 20 C.F.R. § 404.350(a). Section
216(h)(2)(A) of the Act provides that in determining whether a claimant is the child
of a deceased wage earner, the Commissioner applies the law that 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 his death. See also 20 C.F.R. § 404.355(b)(4). We have applied the law of New York because you have provided
a copy of the wage earner's death certificate showing that he was domiciled in New
York at the time of his death. However, we note initially that there is no evidence
in the file you provided showing that MaKenna was at any time dependent upon the wage
earner. Thus, in order to be entitled to child's insurance benefits, it must be established
that MaKenna meets the SSA dependent standards. See 20 C.F.R § 404.360 to 361.
B. New York Law Regarding Paternity Determinations Based on DNA Tests
There are several ways under New York State law that paternity can be established:
a. E.P.T.L. 4-1.2(a)(2)(A): Court Orders Declaring Paternity
In New York, non-marital children may inherit from their father when "a court of competent
jurisdiction has, during the lifetime of the father, made an order of filiation declaring
paternity…" N.Y. Est. Powers & Trusts Law 4-1.2 (a)(2)(A). There is no court order of filiation declaring the wage earner as
the father of MaKenna. MaKenna may not be considered the child of the wage earner
under N.Y. Est. Powers & Trusts Law 4-1.2 (a)(2)(A).
b. E.P.T.L. 4-1.2(a)(2)(C): Clear and Convincing Evidence/Open and Notorious Acknowledgement
Non-marital children may also inherit from their father when "paternity has been established
by clear and convincing evidence and the father of the child has openly and notoriously
acknowledged the child as his own." N.Y. Est. Powers & Trusts Law 4-1.2 (a)(2)(C). Both the "clear and convincing" and "open and notorious" prongs
must be met under this statute. In re W~, N.Y.L.J., Dec. 17, 1996 at 29 (N.Y. Surr. Ct. Dec. 12, 1996).
a. Open and Notorious Acknowledgement
In this case, Nicole admits that the wage earner never acknowledged MaKenna as his
daughter. There is also no evidence in the file to show that the wage earner ever
acknowledged paternity. Moreover, in your memorandum, you state that Nicole believed
Trevor to be MaKenna's father.
The evidence provided with this application does not meet the standard for open and
notorious acknowledgement. N.Y. Est. Powers & Trusts Law 4-1.2 (a)(2)(C). Thus, although the clear and convincing portion of the statute's
requirement is addressed below, this application cannot meet the standard for paternity
under E.P.T.L. 4-1.2(a)(2)(C) because the open and notorious prong is not met.
b. Clear and Convincing
With respect to E.P.T.L. 4-1.2(a)(2)(C), New York Courts have generally allowed posthumous
DNA testing to show the clear and convincing evidence prong of the statutory requirement.
As one Court explained:
There is no basis in law or logic to exclude the results of posthumously conducted
DNA tests on a decedent's genetic material from the category of "clear and convincing"
evidence under EPTL 4-1.2 (a) (2) (C). This is particularly true where the material
is available without the drastic remedy of exhumation, comes from a reliable source,
and is amenable to accurate testing. To hold otherwise would ignore the precision
that DNA testing contributes to the paternity issue.
In re Estate of B~, 192 Misc. 2d 86, 88 (N.Y. Misc. 2002) (citations omitted); see also In re D~, 812 N.Y.S.2d 543, 546 (2d Dep't 2006)(EPTL 4-1.2 (a) (2) (C) allows for posthumous
DNA testing to establish paternity under the clear and convincing standard); Anne R. v. Estate of Francis C., 167 N.Y. Misc. 2d 343, 350 (1995) (disagreeing that posthumously conducted DNA test
made the test results inadmissible); In re Estate of J~, 157 N.Y. Misc. 2d 999, 1001 (1993) (noting that EPTL 4-1.2 (a)(2)(C) does not prohibit
posthumous genetic marker tests while EPTL 4-1.2 (a)(2)(D) does).
Notwithstanding the issues related to laboratory and DNA sample safeguards addressed
below, the DNA test results here, showing a 99.99% probability of parental relationship
could be considered under EPTL 4-1.2 (a)(2)(C) as clear and convincing evidence of
paternity. However, as noted, MaKenna's application cannot meet the "open and notorious
acknowledgement" prong of the statute, and thus, does not satisfy the requirements
of proof of paternity under EPTL 4-1.2 (a)(2)(C).
c. EPTL 4-1.2(a)(2)(D): Blood Genetic Marker Test Plus "Other Evidence" to Establish
Non-marital children may also inherit from their father when "a blood genetic marker
test had been administered to the father which together with other evidence establishes
paternity by clear and convincing evidence." EPTL 4-1.2(a)(2)(D).
a. Admissibility and Reliability of Blood Genetic Marker Tests
A DNA test conducted according to the requirements of New York Civil Practice Law
and Rules Section 4518(d) and either administered pursuant to Family Court Act §§
418 (child support proceedings), 532 (paternity proceedings) or Social Services Law
§ 111-k may be admitted into evidence, and, if it shows a probability of relatedness
of at least 95%, the test establishes a rebuttable presumption of paternity. N.Y.C.P.L.R.
§ 4518(d) and (e); NY CLS Family Ct. Act §§ 418, 532; Social Serv. Law § 111-k. To
be admissible, the test must bear a certification or authentication by the head of
the laboratory or by a qualified physician. N.Y.C.P.L.R. § 4518(d). Further, to be
admissible to establish paternity, the test must be performed pursuant to a court
or administrative order and must be performed by an accredited laboratory. NY CLS
Family Ct Act §§ 418, 532; Social Serv. Law § 111-k
Here, the posthumous DNA test bore a certification pursuant to CPLR 4518(d) and (e)
which was dated September 13, 2005 and signed by Karl, Ph.D., the Director of the
DNA Identification Testing Division of Laboratory Corporation of America Holdings.
Karl certified and authenticated the reports relating to the administration and analysis
of DNA tests administered by a court order pursuant to sections 418 and 532 of the Family Court
Act or an administrative order pursuant to section 111-k of the Social Services Law relating to Nicole, MaKenna , and Joseph (emphasis added). The certification also
stated that Laboratory Corporation of America Holdings is duly approved to perform
DNA tests by the New York State Commissioner of Health and is accredited by the American
Association of Blood Banks. The certification also noted the report was made in the
regular course of business.
Yet, despite the certification, there is no evidence that the DNA test was performed
pursuant to court order under sections 418 and 532 of the Family Court Act. Indeed,
Nicole 's attorney, Thomas reported that there was no court order. A New York Court
has held that a DNA test with a certification stating that the test was administered
under court order pursuant to sections 418 and 532 of the Family Court Act or an administrative
order pursuant to section 111-k of the Social Services Law, when in fact there was
no court or administrative order, along with questions about the chain of custody
of the DNA samples, rendered the test results inadmissible. Barbara A. W~ v. David W~, 183 Misc.2d 228, 240 (1999).
Further, despite the certification, there is no evidence that the DNA test was performed
pursuant to an administrative order issued under section 111-k of the Social Services
Law. Social Services Law § 111-k states that a social services official or designated
representative may order the mother, child and alleged father to submit to a DNA test.
The administrative order may be issued prior to or subsequent to the filing of a petition
with the court to establish paternity, shall be served on the parties, and shall include
a sworn statement which either alleges or denies paternity. Soc. Serv. Law § 111-k.
The Franklin County Department of Social Services made a letter request of the laboratory
to perform the DNA test to establish paternity. However, the letter from the Social
Services Department attorney alone does not make clear whether the test was done pursuant
to an administrative order as required by Soc. Serv. Law § 111-k.
We note also that New York Courts have found DNA testing is not reliable where there
was no evidence of the procedures followed by the laboratory and where the father
delivered the samples to the laboratory. Brian B. v. Dionne B., 267 A.D.2d 188, 188-89 (2d Dep't.1999). However, courts have also noted that DNA
test results are not inadmissible just because, absent a court order, parties voluntarily
submitted to the test. See Salicco v. Salicco, 125 Misc.2d 137, 144 (1984) (admitting voluntarily performed paternity test under
CPLR 4518, noting no evidence of fraud, duress or compulsion and suggesting tests
undergone voluntarily be given greater weight than court ordered tests).
Here, we have not been provided with any evidence regarding the circumstances under
which the wage earner, MaKenna, and Nicole first provided DNA samples to the laboratory.
Moreover, the DNA test results do not state where the testing was conducted, by whom,
or what methods were used. It is not clear whether proper laboratory procedures were
followed. See N.Y.C.P.L.R. § 4518(d); Barbara A. W~, 183 N.Y. Misc.2d 228, 232.
The circumstances of the DNA test do not meet the standards for a presumption of paternity
since the DNA test does not appear to have been conducted pursuant to a court order
or administrative order. N.Y.C.P.L.R. § 4518 (d). Nevertheless, the DNA test results
should be considered. However, further information regarding the laboratory procedures
and the chain of custody of the parties DNA samples should be obtained in considering
the weight to be given to the DNA test results.
With respect to E.P.T.L. 4-1.2(a)(2)(D), "New York courts have ruled that an application
to establish paternity may be made only where a blood genetic marker test had been
administered to decedent during his lifetime." Howell v. Barnhart, 265 F. Supp. 2d 268, 272 (S.D.N.Y. 2003) (quotations and citation omitted); see also, In re D~, 812 N.Y.S.2d 543, 545 (2d Dep't. 2006); In re Estate of W~, 184 Misc. 2d 218, 220 (2000); In re Estate of J~, 157 Misc. 2d 999, 1001 (1993).
However, the test need not have been administered to the decedent in relation to the
immediate paternity question. In a situation factually analogous to the one you have
presented, a court admitted DNA test results from the father based upon the results
of an earlier paternity blood test taken by the decedent during his lifetime relating
to a different child, unrelated to any of the parties in the case. In re Estate of W~, 184 Misc. 2d 218, 220. The court found the earlier test met the statutory definition
of "testing on the putative father prior to his death." Id.
Here, since the DNA test had been administered to the wage earner during his lifetime,
it is likely it would be admissible under E.P.T.L. 4-1.2(a)(2)(D). However, the statute
also requires "other evidence." The DNA test result itself is not sufficient to prove
b. Other Evidence
You asked specifically whether the Certification Pursuant to CPLR 4518(d) & (e) issued
by the Family Court of the State of New York, and the Petition to Vacate Acknowledgment
of Paternity, also issued by the Family Court, could be considered other evidence
to establish clear and convincing evidence.
The certification referred to was issued by LabCorp, not by the Family Court as you
suggested (it is not signed or ordered by a judge). Further, as noted, the certification
is inaccurate, as it claims that the testing was completed pursuant to court or administrative
order, when in fact there was no such order and the testing was conducted voluntarily.
For these reasons, the certification adds nothing to aid in answering the question
of paternity and should not be considered.
Second, while the Petition to Vacate Acknowledgment of Paternity is probative of the
fact that Trevor is not MaKenna's father, it is not evidence of who is MaKenna's father.
There is no evidence in the file stating that Nicole had only two sexual partners,
Trevor and the wage earner, during the time which Makenna was conceived. Thus, although
the Court has recognized Trevor is not MaKenna's father, the so ordered petition is
not evidence that the wage earner or anyone else is MaKenna's father. The Petition
to Vacate Acknowledgment of Paternity for Trevor should not be considered evidence
of paternity of the wage earner.
The file contains no "other evidence" that could be considered to show the wage earner
is MaKenna's father. There are no statements from friends or family that the wage
earner acknowledged MaKenna as his daughter. Nicole answered "No" to all of the questions
on the Agency's Child Relationship Statement. It does not appear from this record
that MaKenna's application satisfies the requirements of E.P.T.L. 4-1.2(a)(2)(D).
Alternative Provisions of The Act Providing for Paternity Determinations
The Act also provides that if a child is not deemed the child of the wage earner after
application of the State law, a child can still be deemed the child of a wage earner
if the wage earner and the child's mother went through a marriage ceremony with a
legal impediment (see Act § 216(h)(2)(B)). Here, there is no allegation that Nicole was married to the
wage earner. Thus, the application would not meet the requirement of § 216(h)(2)(B).
The Act also provides that if a child is not deemed the child of the wage earner after
application of the State law, a child can still be deemed the child of a deceased
wage earner if (1) the wage earner acknowledged the daughter to be his daughter in
writing, (2) had been decreed the father of the applicant by court order, or (3) had
been ordered by a court to contribute to the support of the applicant because the
applicant was his daughter, and such acknowledgement, court decree or court order
was made before the death of the insured individual; or if the wage earner was shown
by evidence satisfactory to the Commissioner of Social Security to have been the father
of the applicant and was living with or contributing to the support of the applicant
at the time of his death. See Act § 216(h)(3)(C).
Here, there is no evidence that the wage earner acknowledged MaKenna as his daughter
in writing. Nor was he, during his lifetime, decreed the father of MaKenna by court
order nor had he been ordered by a court to contribute to the support MaKenna. Finally,
because there is no evidence that the wage earner was living with or contributing
to the support of Makenna at the time of his death, even if the DNA test was deemed
to be evidence satisfactory to the Commissioner to establish paternity, the final
clause of § 216(h)(3)(C) would not be satisfied.
Under the Act the child applicant must be dependent upon the deceased wage earner
at the time of death to collect child's insurance benefits. Act § 206(d). There is
no evidence in the documentation provided which shows that MaKenna was ever dependent
upon the wage earner. This threshold issue must be determined.
First, the conclusion as to both clear and convincing evidence of paternity and open
and notorious acknowledgement are factual determinations. The DNA test results show
a very high probability of paternal relatedness between the wage earner and MaKenna.
The presence or absence of a court or administrative order for the DNA test and the
reliability of the DNA test procedures should be confirmed. However, even if the Agency
determines that the DNA test is clear and convincing evidence, because there is no
open and notorious acknowledgement, New York courts would likely not grant a petition
to establish paternity under E.P.T.L. 4-1.2(a)(2)(C).
Second, aside from the DNA test result, there is no other evidence that goes to show
the wage earner was MaKenna's father. Therefore, on this record, New York courts would
likely not grant a petition to establish paternity under E.P.T.L. 4-1.2(a)(2)(D).
As noted, MaKenna's application also does not meet the other statutory provision in
the Act for deemed paternity.
Because New York Courts would not grant a paternity determination on this record,
it is recommended that the application be denied.
Very truly yours,
BARBARA L. Spivak
Chief Counsel, Region II
By: Jennifer S. Rosa
Assistant Regional Counsel