For determining the claimant’s eligibility for child’s insurance benefits (CIB) on
the number holder’s earnings record, you have asked whether the claimant is the child
of the number holder based on DNA testing of the claimant, the claimant’s mother,
and the number holder’s father.
A North Carolina court would conclude the claimant is not the child of the number
holder under North Carolina intestacy law. Therefore, the claimant is not the number
holder’s child for determining the claimant’s eligibility for CIB on the number holder’s
On January XX, 2014, M2~, mother of C~ (Claimant), applied on Claimant’s behalf for
CIB on the earnings record of M~, the number holder (NH).
Claimant’s mother submitted a copy of Claimant’s birth certificate, which shows Claimant
was born on June, but does not identify Claimant’s father. NH’s death certificate
indicates he died on June XX, 2010, while a resident of North Carolina. NH’s death
certificate indicates he was married to someone other than Claimant’s mother and lists
his father as J~. NH’s birth certificate identifies D~ as his father.
Claimant’s mother submitted a DNA testing report dated January XX, 2014. The DNA testing
was performed on samples from Claimant, Claimant’s mother, and D~ (NH’s purported
father). The report states the probability of relatedness is 91.158%. The report also
states: “Based on the genetic results, the alleged grandparent is 10.31 times more
likely to be related as a grandparent than to be unrelated.” The DNA testing report
does not provide a probability regarding NH’s relationship to Claimant.
Claimant’s mother also completed a Child Relationship Statement on February XX, 2014.
The statement indicated NH never acknowledged Claimant in writing. Specifically, NH
did not make any statement to any agency asserting Claimant was his child; had never
written any letters to anyone acknowledging Claimant as his son or he as Claimant’s
father; never listed Claimant in a family tree or family record; did not list Claimant
as a dependent on his tax records; did not take any insurance policies out on Claimant
or make Claimant the beneficiary of an insurance policy; did not make a will listing
Claimant as a beneficiary; did not list Claimant as his child on any applications
for employment; did not register Claimant in a school or place of worship; never took
Claimant to a doctor, dentist, or hospital or list himself as a parent; did not accept
responsibility or pay for Claimant’s hospital expenses at birth; and did not make
regular and substantial contributions to support Claimant. Claimant’s mother also
stated NH orally admitted to a sister that Claimant was his child. 1
Claimant’s mother provided another signed statement that NH had no known brothers.
Claimant’s mother reported to agency personnel that NH was not present at Claimant’s
birth, NH got mad and left her because she did not list him as the father on Claimant’s
birth certificate, and NH never acknowledged Claimant at all. Agency personnel contacted
D~, NH’s purported father, who reported he did not know his son, NH, had a son, although
he also reported he did not have a relationship with NH.
A claimant may be eligible for CIB on the earnings record of an individual who dies
a fully or currently insured individual if the claimant is the insured individual’s
“child.” See Social Security Act (Act) § 202(d)(1); 20 C.F.R. § 404.350(a)(1) (2013). 2 “Child” includes “the child” of an insured individual. See Act § 216(e); 20 C.F.R. § 404.354; Astrue v. Capato, 132 S. Ct. 2021, 2027-28 (2012). A claimant may show he is “the child” of a deceased
insured individual who never married his mother, within the meaning of section 216(e)(1),
under section 216(h)(2)(A) or 216(h)(3)(C) of the Act. See C~, 132 S. Ct. at 2028. Under section 216(h)(2)(A) of the Act, a claimant is considered
“the child” of the insured individual if the claimant could inherit the insured individual’s
intestate personal property under the law of the State in which the insured individual
was domiciled when he died. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4); C~, 132 S. Ct. at 2028-34; Program Operations Manual System (POMS) GN 00306.001(C)(1)(a), (C)(2)(a).
NH’s death certificate indicates he was domiciled in North Carolina when he died.
Therefore, we look to North Carolina intestacy law to determine whether Claimant was
NH’s child under section 216(h)(2)(A) of the Act. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (4); POMS GN 00306.001(C)(1)(a), (C)(2)(a).
Under North Carolina intestacy law, a child of a person who died intestate generally
is entitled to a share of the person’s personal property. See N.C. Gen. Stat. Ann. §§ 29-13(a), 29-14(b)(1), (b)(2), 29-15(1), (2), 29-16(a)(1)
(West 2013). 3 North Carolina intestacy law states in pertinent part that a child born out of wedlock
shall be entitled to take by, through and from:
(1) Any person who has been finally adjudged to be the father of the child pursuant
to the provisions of G.S. 49-1 through 49-9 or the provisions of G.S. 49-14 through
(2) Any person who has acknowledged himself during his own lifetime and the child’s
lifetime to be the father of the child in a written instrument executed or acknowledged
before a certifying officer named in G.S. 52-10(b) and filed during his own lifetime
and the child’s lifetime in the office of the clerk of superior court of the county
where either he or the child resides.
N.C. Gen. Stat. Ann. § 29-19(b). The evidence does not indicate NH acknowledged Claimant
as his child and thus subsection (b)(2) does not apply in Claimant’s claim. The only
provision in subsection (b)(1) that is relevant to Claimant’s claim is N.C. Gen. Stat.
Ann. § 49-14, which discusses civil actions to establish paternity. 4 See N.C. Gen. Stat. Ann. § 49-14. North Carolina law prohibits civil actions to establish
paternity unless the action is commenced, and judgment entered, either prior to the
death of the putative father or within a certain period of the putative father’s death.
See N.C. Gen. Stat. Ann. § 49-14(c). However, SSA will not apply any State inheritance
law requirement that an action to establish paternity must be taken or commenced before
or within a specified time of the insured individual’s death. See 20 C.F.R. § 404.355(b)(2). Similarly, if the State inheritance law requires a court
determination of paternity, SSA will not require a claimant to obtain a court determination,
but will decide the claimant’s paternity by using the standard of proof that the State
court would use as the basis for the determination of paternity. See id.
Under North Carolina law, proof of paternity must be established by “clear, cogent,
and convincing evidence.” N.C. Gen. Stat. Ann. § 49-14(b). “Clear, cogent and convincing
evidence describes an evidentiary standard stricter than a preponderance of the evidence,
but less stringent than proof beyond a reasonable doubt.” Nash Cnty Dep’t of Soc. Servs., v. Beamon, 485 S.E.2d 851, 852 (N.C. Ct. App. 1997). In deciding a paternity claim under § 49-14,
a trial court has the duty “to determine whether evidence offered in a particular
case is clear, cogent, and convincing,” and “it is within the court’s discretion to
consider some, none or all of the evidence, and to determine the appropriate weight
to place on the testimony.” Brown v. Smith, 526 S.E.2d 686, 687-88 (N.C. Ct. App. 2000) (quotations omitted).
Our office previously addressed the evidentiary value of DNA testing involving the
father of a deceased number holder in determining paternity for the purpose of North
Carolina intestate succession. See POMS PR 01115.036 (PR 08-158, PR 08-093). As discussed in PR 08-093, North Carolina recognizes the general
admissibility and reliability of DNA testing in establishing paternity. See POMS PR
01115.036C (PR 08-093); N.C. Gen. Stat. Ann. §§ 8-50.1(b1), 49-14(f).
North Carolina law on the competency of blood tests establishes presumptions of paternity
based on court-ordered genetic testing that are applicable in any civil action in
which the question of parentage arises. See N.C. Gen. Stat. Ann. § 8-50.1(b1). North Carolina law creates a presumption of paternity
based on genetic test results that show a statistical probability of paternity of
97% or higher. See N.C. Gen. Stat. Ann. § 8-50.1(b1)(4). If the tests show that the probability of parentage
is between 85% and 97%, the test results will be weighed with other competent evidence.
See N.C. Gen. Stat. Ann. § 8-50.1(b1)(3). In at least one case, a North Carolina court
relied on this evidentiary statute in making an intestacy determination. See Batcheldor v. Boyd, 423 S.E.2d 810, 812 (N.C. Ct. App. 1992) (the court granted a motion to exhume the
alleged father’s body to conduct genetic testing to establish inheritance rights).
Nevertheless, neither subsection of section 8-50.1(b1) specifies the weight due genetic
tests that address the likelihood of some relationship other than paternity, such
as the grand-paternity relationship at issue here.
In addition, N.C. Gen. Stat. Ann. § 49-14(f) states that DNA tests constitute clear,
cogent, and convincing evidence of paternity if the probability of parentage is 97%
or higher. 5 Even assuming this statutory provision applies, the DNA evidence in Claimant’s case
does not constitute “clear, cogent, and convincing evidence” under section 49-14(f)
because the DNA test results do not identify a probability of paternity and fall below
the percentage required to create a presumption of paternity.
As PR 01115.036C (PR 08-903) notes, North Carolina courts also have not addressed the relevance of
DNA test results showing the probability of a relationship between a child and a close
relative of the deceased putative father. However, in 2010 the United States district
court for the Western District of North Carolina remanded a Social Security case back
to the agency to address DNA evidence showing 95% probability of relatedness between
the claimant child and the alleged father’s brother. See Carson v. Astrue, No. 3:09-cv-251-RJC-DCK, 2010 WL 4977055 (W.D.N.C. Nov. 8, 2010). The court found
the DNA evidence did not rise to “clear and convincing” under North Carolina standards
because the percentage was less than 97%, but it was still significant evidence. See id. at *3. The court did not draw a distinction between DNA evidence from the alleged
parent and from a close relative. See id. Further, as discussed in PR 01115.036C (PR 08-903), North Carolina will look to other jurisdictions for guidance, and other
jurisdictions have recognized DNA testing of a putative grandparent as evidence of
paternity. Therefore, in our earlier opinions, we determined a North Carolina court
would consider test results based on DNA samples from the claimant’s putative grandfather
(i.e., the number holder’s father), along with other relevant evidence, when deciding
the number holder’s paternity.
In PR 01115.036B (PR 08-158), we concluded that DNA test results indicating a 99.99% probability that
the number holder’s father was the biological grandparent of the claimant, statements
from the mother that she did not date anyone other than the number holder, and evidence
that the number holder’s parents established a savings account for the claimant qualified
as clear and convincing evidence that the claimant was the number holder’s child under
North Carolina intestacy law. In PR 01115.036C (PR 08-093), DNA test results indicated a 99.99% probability of grand-paternity,
together with the evidence that NH had no brothers and the mother had never been married
to anyone else, qualified as clear and convincing evidence.
In Claimant’s case, we believe a North Carolina court would admit and consider the
DNA testing report to determine whether Claimant was NH’s child. However, we believe
a North Carolina court would conclude that without additional corroborating statements,
the DNA testing report in Claimant’s case does not provide clear, cogent, and convincing
evidence that Claimant was NH’s child under North Carolina intestacy law.
Unlike our earlier opinions that relied in part on a 99.99% probability of grand-parentage
to establish paternity, the testing in Claimant’s case shows only a 91.158% probability
of grand-parentage. Also, there is a discrepancy between NH’s birth certificate and
death certificate regarding the identity of NH’s father. Therefore, it is unclear
if D~, whose DNA was used as the putative grandfather, is actually NH’s father. Additionally,
Claimant’s mother did not provide much corroborating non-genetic evidence. Although
she stated NH was the father and left her when she did not list him as the father
on Claimant’s birth certificate, the mother did not provide statements that she had
never been married or that she did not date anyone other than NH. Further, NH’s purported
father was not aware that NH had a child, NH never made any written statements acknowledging
Claimant, and NH did not provide financial support to Claimant. Even though Claimant’s
mother reported in the Child Relationship Statement that NH acknowledged Claimant
to a sister, she provided a conflicting statement to agency personnel that NH never
acknowledged Claimant. Thus, although the DNA evidence and the non-genetic evidence
presented here would be probative of paternity, the evidence provided does not constitute
“clear, cogent, and convincing” evidence of NH’s paternity. Therefore, Claimant is
not NH’s child for purposes of North Carolina intestacy law and section 216(h)(2)(A)
of the Act.
The evidence also does not establish Claimant is NH’s child under section 216(h)(3)(C)
of the Act. To qualify as “the child” of a deceased insured individual under section
216(h)(3)(C), a claimant must be the son or daughter of the insured individual and
show one of the following: (1) the insured individual acknowledged in writing that
the child was his child, (2) a court decreed the insured individual to be the father
of the child, (3) a court ordered the insured individual to contribute to the support
of the child, or (4) the insured individual is the child’s natural father and was
living with or contributing to the support of the child at the time the insured individual
died. See Act § 216(h)(3)(C); 20 C.F.R. § 404.355(a)(3), (4). To show he or she is the son
or daughter of an insured individual, a claimant must show he or she is the biological
child of the insured individual. See POMS GN 00306.100.D.1. The record does not indicate Claimant met the threshold requirement of section
216(h)(3)(C) of being NH's biological child. See Act § 216(h)(3)(C); 20 C.F.R. § 404.355(a)(3), (a)(4); POMS GN 00306.100.D.1. Moreover, the evidence provided in Claimant’s case does not satisfy the other
requirements of section 216(h)(3)(C). Therefore, Claimant cannot qualify as the child
of NH under any provision of section 216(h)(3)(C) of the Act.
A North Carolina court would conclude Claimant is not NH’s child under North Carolina
intestacy law. Therefore, Claimant is not NH’s child for determining Claimant’s eligibility
for CIB on NH’s earning record.
Mary A. Sloan
Regional Chief Counsel
Assistant Regional Counsel