You asked whether a child is entitled to child's insurance benefits based on DNA tests
using genetic material from a sibling and acknowledged child of a deceased number
holder who died while domiciled in the State of Oregon.
In approximately late June 1992, Serina S~ (Serina) conceived a child. On March XX,
1993, she gave birth to Cameron C. R~ (Cameron). Serina was unmarried at the time
of Cameron's birth, but Felipe R~ Jr. (Felipe) was listed as the father on the birth
certificate. Nine months later, on December XX, 1993, Serina and Felipe married. After
three years of marriage, on April XX, 1997, the parties separated and Serina moved
in with her mother. Shortly thereafter, Serina filed for dissolution of the marriage.
On July XX, 1997, Serina and Felipe participated in mediation to reach an agreement
on the terms of a parenting plan for Cameron. In late October 1997 or early November
1997, about seven months after Serina and Felipe separated, Serina conceived another
child, Cassady G~ (Cassady).
Within days of Serina's conception of Cassady, on November XX, 1997, Serina and Felipe
signed a Marital Settlement Agreement. They remained husband and wife until the final
Dissolution Decree was entered, but were bound by the terms of the Marital Settlement
Agreement upon signing it. The agreement enforced the parenting plan the parties agreed
to in mediation and required Felipe to begin paying child support for Cameron and
alimony for Serina. On February XX, 1998, a decree of dissolution was entered, dissolving
Serina and Felipe's marriage effective March XX, 1998, thirty days from the date of
Serina gave birth to Cassady on August XX, 1998, five months after the decree of dissolution
was entered. Felipe was not listed as the father on the birth certificate and Cassady's
last name was listed as “G~,” Serina's maiden name. Serina remarried on January XX,
Almost four years after Cassady's birth, Felipe died on March XX, 2002, while domiciled
in Oregon. His mother's life partner, who is currently incarcerated for the crime,
murdered Felipe and his mother.
Shortly after Felipe's death, on April XX, 2002, Serina filed an application for child's
insurance benefits on behalf of Cameron. During her personal interview she did not
mention that she and Felipe had any other children. The claim was processed the same
day and Cameron was deemed entitled to benefits as of March 2002. For purposes of
child's insurance benefits, Cameron was considered Felipe's child because before Felipe's
death, he acknowledged in writing that Cameron was his son, was decreed by a court
to be Cameron's father, and was ordered to contribute to Cameron's support. See Social Security Act § 216(h)(3)(c)(i), 42 U.S.C. § 416(h)(3)(c)(i).
One month later, on May XX, 2002, Serina, Cameron, and Cassady underwent genetic (DNA)
testing. A DNA siblingship test report indicated that the probability of full-siblingship
between Cameron and Cassady is 99.5% and the likelihood that Cameron and Cassady share
the same biological father is 207 to 1.
On June XX, 2002, Serina filed an unopposed Petition to Establish Paternity and Amend
Birth Certificate in the Oregon Circuit Court alleging the following: she and Felipe
were married at the time of Cassady's conception, but legally divorced at the time
of her birth; she and Felipe had another child, Cameron, during their marriage; the
DNA siblingship test report established that Cassady and Cameron are full siblings;
and Felipe is Cassady's natural father. The Oregon Circuit Court issued a Decree Establishing
Paternity and Amending Birth Certificate on June XX, 2002, and ordered the Health
Division of the Oregon Department of Human Resources to amend Cassady's birth certificate
to show that Felipe is her natural father.
Shortly thereafter, on August XX, 2002, Serina filed an application for child's insurance
benefits on Cassady's behalf. She has submitted the DNA siblingship test report, the
Oregon Circuit Court decree, and statements from friends and family members. She alleges
that Cassady is Felipe's child. Because Cameron has already been deemed entitled to
child's insurance benefits, the only issue presented is whether Cassady is eligible
A surviving child is entitled to child's insurance benefits if:
the wage earner died either fully or currently insured; and
the child is the “child,” as defined in the Social Security Act, of the deceased wage
the child is under the age of 18 (there are other tests for this not applicable here);
the child was dependent upon the deceased wage earner; and
the child is not married; and
an application for child's insurance benefits is filed.
See Social Security Act § 202(d), 42 U.S.C. § 402(d); 20 C.F.R. § 404.350 (2002). Here,
the wage earner, Felipe, was fully insured at the time of his death. The child, Cassady,
is under the age of 18, is not married, and has applied for benefits. Thus, the only
issues are whether Cassady meets the second and fourth requirements above. If Cassady
meets the second requirement, she is also considered dependent, which would satisfy
the fourth requirement. See 20 C.F.R. § 404.361.
Cassady may prove that she is Felipe's “child” (the second requirement) in any of
the following four ways:
She could inherit Felipe's property under Oregon intestacy law. See Social Security Act § 216(h)(2)(A), 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1).
She is Felipe's natural child and Felipe and Serina went through a ceremony that would
have resulted in a valid marriage between them except for a “legal impediment.” See Social Security Act § 216(h)(2)(B), 42 U.S.C. § 416(h)(2)(B); 20 C.F.R. § 404.355(a)(2).
Before his death, Felipe acknowledged in writing that Cassady was his daughter; was
decreed by a court to be Cassady's father; or was ordered by a court to contribute
to Cassady's support because she was his daughter. See Social Security Act § 216(h)(3)(C)(i), 42 U.S.C. § 416(h)(3)(C)(i); 20 C.F.R. § 404.355(a)(3).
Felipe is shown by evidence satisfactory to the Commissioner of Social Security to
have been Cassady's father, and he was living with Cassady or contributing to her
support at the time of his death. See Social Security Act § 216(h)(3)(C)(ii), 42 U.S.C. § 416(h)(3)(C)(ii); 20 C.F.R. §
Number 1 requires application of state intestacy law; numbers 2 through 4 require
the application of alternative federal standards.
Cassady cannot meet number 2 because Felipe and Serina did not go through a ceremony
that would have resulted in a valid marriage except for a legal impediment after Cassady's
birth. Cassady cannot meet number 3 because there is no evidence that, before his
death, Felipe acknowledged in writing that Cassady was his child. Furthermore, prior
to Felipe's death no court order stated that Cassady was his child or required Felipe
to pay support for Cassady. Cassady cannot meet number 4 because Felipe did not reside
with Cassady and Serina admits that Felipe never paid any of the bills associated
with pregnancy, went to any doctor appointments, or supported her or Cassady.
The other way Cassady may prove that she is Felipe's “child” is under the first requirement,
by showing that she could inherit Felipe's property under state intestacy law. Because
Felipe died while domiciled in the State of Oregon, the laws of the State of Oregon
must be applied to determine whether Cassady would be entitled to Felipe's personal
property if Felipe had died without a will (intestate).
Under Oregon intestacy law, a child may inherit if she is the issue of the decedent.
See OR. REV. STAT. § 112.045. For a child to establish that she is the issue of her father,
the child must establish the paternity of the father. See OR. REV. STAT. § 112.105. If the father did not acknowledge himself to be the father
in writing signed by him during the lifetime of the child, paternity must be established
under OR. REV. STAT. § 109.070. See OR. REV. STAT. § 112.105.
Cassady may establish Felipe's paternity in any of the following seven ways:
Serina was married to, and cohabited with, Felipe, who was not impotent or sterile,
at the time of Cassady's conception.
Cassady was born while Serina and Felipe were married and there was no decree of separation
from bed or board.
Serina and Felipe were married after Cassady's birth.
Felipe's paternity was established in filiation proceedings.
Felipe completed a voluntary acknowledgement of paternity form and filed it with the
State Registrar of the Center of Health Statistics.
Felipe completed a voluntary acknowledgement of paternity process in another state.
Felipe's paternity is established or declared by other provision of law.
See OR. REV. STAT. § 109.070. Cassady cannot meet the first test because Serina and Felipe
were legally separated in April 1997, seven months before Serina conceived Cassady.
Cassady cannot meet the second through sixth tests because Serina and Felipe were
not married when Cassady was born or after she was born, there were no filiation proceedings
conducted, and Felipe did not voluntarily acknowledge his paternity. Therefore, Cassady
can only establish paternity by the seventh test, under another provision of law.
See OR. REV. STAT. § 109.070(g).
One such provision of law is the Uniform Act on Blood Tests to Determine Paternity
(UABT), which was enacted in Oregon in 1953. See 1953 Or. Laws Ch. 628 § 4. The Oregon statute that mirrors the UABT creates a “disputable
presumption” of paternity if results of a blood test show a cumulative paternity index
of 99 or greater. See OR. REV. STAT. § 109.258; see also State v. Lyons, 924 P.2d 802, 804-06 (Or. 1996) (citing OR. REV. STAT. § 109.250). Oregon law does
not specifically allow for blood tests from alleged siblings, but it does not expressly
limit test results to those using the blood or tissue sample of the putative father. See OR. REV. STAT. § 109.251.
We were unable to find any reported cases in Oregon where genetic testing of siblings
or other relatives has been at issue. Other states that have adopted the UABT, however,
have allowed the fact finder to consider DNA testing, of legitimate siblings of the
putative father, as probative of the question of paternity. See Sudwischer v. Estate of Hoffpauir, 589 So. 2d 474, 474 (La. 1991), cert. denied, 112 S. Ct. 1937 (1992). Although UABT
states have refused to compel siblings to submit to blood tests, we were unable to
find any cases where a UABT state refused to admit voluntary blood tests from alleged
siblings as evidence to establish paternity.
We further found that, where the genetic testing uses DNA samples from the putative
father's legitimate children, it may be sufficient to reconstruct the man's DNA fingerprint.
See Charles Nelson LeRay, Implications of DNA Technology on Posthumous Paternity Determination: Deciding the
Facts When Daddy Can't Give His Opinion, 35 Boston College Law Review 747, 765 (May
1994). DNA fingerprinting is capable of determining the possibility that two alleged
siblings shared a common relative. See J.E. Cullens, Jr., Should the Legitimate Child be Forced to Pay for the Sins of Her Father?: Sudwishcer v. Estate of Hoffpauir, 53 Louisiana Law Review 1675, 1681 (May 1993).
Therefore, we conclude that genetic testing which includes blood or tissue samples
from a legitimate sibling and child of the father is probative and useful to determine
paternity. For these reasons, we find that DNA evidence from siblings is likely admissible
to establish paternity under Oregon Law.
In the case at hand, genetic material from Serina, Cameron, and Cassady was tested.
The DNA test report shows the following interpretation:
Combined Sibship Index 206.5675
Probability of Sibship 99.5%
DNA testing was done to determine siblingship of alleged siblings, Cameron C. R~ and
Cassady S. G~. Based on testing results obtained from analyses of 6 different DNA
probes, the probability of full-siblingship is 99.5%. The likelihood that they share
the same biological father is 207 to 1. This probability of siblingship is calculated
by comparing to an untested, random individual of the North American Caucasian population
(assumes prior probability equals .50).
The DNA siblingship test report explains the siblingship analysis as follows:
DNA testing can also be used to determine the likelihood of individuals being related
as brother and/or sister. The DNA of two possible siblings is compared to determine
if there are any common alleles between the two. At each DNA locus it is possible
that 0, 1, or 2 alleles will be shared whether two people are siblings or not. Any
matching alleles are analyzed to determine the statistical chance that the people
in question would share that DNA if they are siblings, compared to the chance if they
are unrelated. Based on this statistical analysis, the relative chance that two people
are full-siblings or half-siblings can be calculated. It is important to note that
it is not possible to determine with 100% certainty whether or not two people are
definitely siblings: only whether they are likely to be or not. In some cases there
is not enough information from the DNA analysis to determine siblingship or non-siblingship.
When this occurs the results are said to be inconclusive.
The DNA testing was performed by the DNA Diagnostics Center (Fairfield, Ohio), a facility
accredited by the American Association of Blood Banks (AABB). Accreditation by the
AABB establishes that the genetic testing of record is reliable and authentic under
all regulations of the Centers for Medicare and Medicaid Services (CMS) and the Clinical
Laboratory Improvement Amendments (CLIA). See 63 Fed. Reg. 17,429 (1998). Oregon follows the accreditation regimens used by CMS
and CLIA. See OR. ADMIN. R. 333-024-0010 (2002).
Thus, following Oregon regulatory law, we can accept the genetic testing evidence
from the DNA Diagnostics Center as authoritative. Thus, we can also accept the probability
that Cassady and Cameron had the same biological father is 207 to 1. The DNA test
report, however, does not demonstrate that Felipe is the biological father of Cassady,
only that Cameron and Cassady share a common biological father.
In Oregon, paternity may be established in a proceeding for Social Security benefits
after the father's death. See Thom v. Bailey, 481 P.2d 355, 358 (Or. 1970); Zahradnik v. Sullivan, 966 F.2d 355, 356-58 (8th Cir. 1992) (applying Oregon law). The burden of proof
to establish paternity in such a proceeding is a preponderance of the evidence. See Thom, 481 P.2d at 358.
In Zahradnik, the Eighth Circuit Court of Appeals, applying Oregon law, outlined the need for
corroborating evidence of paternity independent of the mother's testimony to meet
the preponderance of the evidence test. See Zahradnik, 966 F.2d at 359-60. Corroborating evidence is “some substantial fact or circumstance,
which independent of the mother's testimony, tends to connect the [putative father]
with fatherhood of the child. ” Id. at 359 (citing Moore v. Gruetter, 544 P.2d 1047, 1047 (Or. Ct. App. 1975)). In Zahradnik corroborating evidence existed in the form of statements from other individuals who
claimed that the mother told them during her pregnancy that the alleged father was
the actual father of her child. See Zahradnik, 966 F.2d at 360-61. In addition, the court noted the evidence indicating that the
mother was exclusively linked romantically with the alleged father at the time of
conception. See id.
Thus, the issue is whether other evidence corroborates Serina's allegation that Felipe
is Cassady's father and whether this evidence as a whole establishes paternity by
a preponderance of the evidence. A preponderance means that the fact sought to be
proved is more probable than not. See Black's Law Dictionary 819 (6th ed. Abridged 1991).
The DNA test report establishes that Cameron and Cassady share the same biological
father. The question remains, however, whether Felipe is that person. At first blush,
it appears that the Oregon Circuit Court Decree Establishing Paternity and Amending
Birth Certificate corroborates Serina's allegation that Felipe is Cassady's father.
SSA, however, is not necessarily bound by the Oregon Circuit Court's determination
of paternity. See Haas v. Chater, 79 F.3d 559, 562 (7th Cir. 1996). The Commissioner is bound by a State court determination
where all of the following prerequisites are met:
an issue in a claim for Social Security benefits previously has been determined by
a state court of competent jurisdiction;
this issue was genuinely contested before the state court by parties with opposing
the issue falls within the general category of domestic relations law; and
the resolution by the state trial court is consistent with the law enunciated by the
highest court in the state.
See Social Security Ruling (SSR) 83-37c, adopting Gray v. Richardson, 474 F.2d 1370, 1373 (6th Cir. 1973); see also George v. Sullivan, 909 F.2d 857, 860-61 (6th Cir. 1990); Rogers v. Sullivan, 795 F. Supp. 761 (E.D.N.C. 1992). If any of the above criteria are not met, the Commissioner
is not bound, but may accept or reject a state court determination.
The first, third, and fourth prerequisites are met. The issue of Felipe's paternity
of Cassady was previously determined by the Oregon Circuit Court, Felipe's paternity
falls within the general category of domestic relations law, and the resolution by
the state court is consistent with Oregon law.
The second prerequisite is not met. Parties with opposing interests did not genuinely
contest Felipe's paternity. The evidence we received indicates that the Oregon Circuit
Court based its findings solely on Serina's allegations and the DNA test report. Furthermore,
Serina's allegations in the Petition were materially false. She alleged, “Felipe R~,
Jr. and I had another child, Cameron Carl R~, during our marriage.” This is false.
Cameron was born nine months before Serina and Felipe were married. This misrepresentation
is significant because Oregon law treats children born during a marriage different
than children born before a marriage. A child born during a marriage is entitled to
a presumption of paternity, whereas a child born before the marriage is not. See OR. REV. STAT. § 109.070(1)(3). Therefore, the Oregon Circuit Court order was based
on false representations. Because the second prerequisite of SSR 83-37c was not met,
the Commissioner is not bound, but may accept or reject the Oregon Circuit Court's
determination of paternity. See Gray, 474 F.2d at 1373.
Serina submitted statements from her friends and family to corroborate her allegation
that Felipe is Cassady's father. Lisa L~, a friend of Serina and Felipe, observed
Felipe bring Cassady gifts and play with her when he visited Serina's home. Serina's
sister, Cynthia N~, confirms that Serina continued to have an intimate relationship
with Felipe after they separated. Ms. N~ also states that when Cassady was born, Felipe
went to see her and gave her a gift. She states that Felipe gave Cassady gifts for
her birthday and Christmas. Ms. N~ also confirms Serina's statement that Felipe indicated
that he wanted Cassady to participate in his visitations with Cameron when she was
older. Katrina T~, also Serina's sister, states that she was present at Cassady's
birth and witnessed Felipe visit Cassady and bring her a gift. Ms. T~ confirms Serina's
statements that Felipe gave Cassady gifts at Christmas and wanted to participate in
visitation with her when she was older. Serina's current husband, Matthew S~, also
verified that Felipe indicated a desire to include Cassady in visitation, gave her
gifts at Christmas, and displayed affection for her when visiting the home. These
statements corroborated Serina's statements.
On the other hand, there is ample evidence that disputes Serina's allegation that
Felipe is Cassady's father. The dissolution decree, which was finalized approximately
five months after Serina conceived Cassady, only referenced one child born of the
marriage, Cameron. The parenting plan the parties agreed to also only contemplated
custody and child support for only once child, Cameron. Although the dissolution decree
was finalized March XX, 1998, five months after Cassady was born, Serina never requested
that the dissolution decree or parenting plan include Cassady and never petitioned
the court for child support for Cassady. Serina alleges that she did not discover
she was pregnant until after the dissolution decree was finalized, on April XX, 1998.
She states that she could not afford to have the decree amended to reflect that another
child was born of the marriage. The attorney who represented Serina in the dissolution,
Max M~, however, states that Serina became pregnant during the time of the dissolution
and the unborn child was not included in the decree because the parties had an oral
agreement that Felipe would not request custody and Serina would not require support.
Mr. M~'s statement contradicts Serina's allegation that she did not know about the
pregnancy until the dissolution decree was finalized.
Felipe's actions during the four years after Cassady's birth also contradict Serina's
allegation of paternity. Serina admits that Felipe never paid any of the bills associated
with pregnancy, never attended any doctor appointments, and although he participated
in regular visitation with Cameron, he never took Cassady. Serina also admits that
Cassady did not refer to Felipe as “daddy,” and Felipe never referred to himself as
Statements from Felipe's family and friends do not support Serina's allegation that
Felipe is Cassady's father. Rigoberto M~, Felipe's friend and co-worker, stated that
Felipe had asked Serina about the paternity of her second child, but Serina never
told Felipe who Cassady's father was. Another friend of Felipe's, Dorothy V~, stated
that Felipe and his family believed that he had only one child, Cameron. Felipe's
sister, Bernidet R~, stated that Felipe never indicated that Cassady was his child
and only had a relationship with Cameron. Felipe's father, Felipe R~, Sr., stated
that Felipe told him that Serina had become pregnant with another man's child during
the dissolution proceedings and that Felipe never considered Cassady as his child.
Stephanie M~, Felipe's aunt, stated that Felipe believed that Cameron was his son,
but never stated or acted as if Cassady was his daughter. A memorial pamphlet, prepared
by Felipe's family, remembered that he was survived by one son, Cameron, and did not
mention Cassady or that Felipe had any other children.
Other evidence does not lend credibility to Serina's allegations of paternity. Information
received from the State of Oregon with respect to a prior claim for medical assistance
revealed that Serina had a felony conviction for drug manufacturing and was on probation
for two years. The State's records indicate that Cassady was born positive to methamphetamine.
There is also information that Serina told a social worker that Cassady's father was
a man named “Jay” who lived in Lebanon, Oregon. Other case notes reveal that Serina
told her obstetrician that Cassady's father was a man named “Nick N~” who lived in
Therefore, it is our legal opinion that you are not precluded from considering the
DNA test report, the Oregon Circuit Court decree, and the witness' statements to determine
whether Felipe is Cassady's father under Oregon law. It is our opinion that the totality
of the evidence does not appear to constitute a preponderance of the evidence.
Lucille G. M~
Regional Chief Counsel