TN 63 (10-16)

PR 01115.042 Pennsylvania

A. PR 16-152 Entitlement to Child’s Benefits

Date: June 21, 2016

1. Syllabus

The number holder (NH) was domiciled in New York when the application for child’s benefits was filed; therefore, the New York law of intestate succession applies in determining the child’s status under section 216(h)(2)(A) of the Act. New York would recognize the Pennsylvania court order declaring the NH and her spouse as the claimant’s parents. After analyzing the validity of the Pennsylvania judgment, we have concluded that it was valid and established a parent-child relationship between the claimant and the NH and the NH’s wife. Accordingly, the claimant is entitled to child’s benefits on the NH’s account.

2. Opinion

QUESTIONS PRESENTED

You have asked for an opinion as to whether S~ (claimant), born to N~ (gestational mother) through the use of in vitro fertilization with anonymous egg and sperm donors, would be eligible for child’s benefits on the account of F~ (NH), who became the parent of the claimant pursuant to a Pennsylvania court order dated August XX, 2013.

You have also asked for an opinion as to whether K~ (K~), the NH’s wife, would be entitled to wife’s benefits on the NH’s account as the parent of the claimant.

OPINION

New York would recognize the Pennsylvania court order declaring the NH and K~ as the claimant’s parents. Under New York intestacy law, a child can inherit as a “non-marital child” if, as here, a court of competent jurisdiction issued an order of filiation declaring parentage. Thus, the claimant could inherit from the NH under the intestacy laws of New York State and, therefore, is considered the child of the NH under the Social Security Act (the Act) for the purposes of entitlement to child’s benefits, assuming the claimant meets all other requirements for these benefits.

Because the NH and K~ have a valid marriage, are both listed as the claimant’s parents in her birth certificate, both became parents pursuant to the Pennsylvania court order, and live together with the claimant, K~ would be entitled to wife’s benefits on the NH’s account, again assuming she meets all other requirements for these benefits.

BACKGROUND

An in vitro fertilization procedure was performed upon a donor egg with donor sperm, and a physician transferred the resulting embryo to the uterus of the gestational mother on February XX, 2013. The gestational mother resided in Pennsylvania, and intended to surrender custody of the resulting child to the NH and her same-sex partner, K~.

The NH and K~ were married in S~, New York, on July XX, 2013. K~ and the NH petitioned the L~ County Court of Common Pleas, Orphans’ Court Division, for a declaration that the NH and K~ are the parents of the child to be born to the gestational mother. On August XX, 2013, the L~ County Court issued an Order and Decree that the NH and K~ are the parents of the child to be born to the gestational mother, and that the child’s birth certificate would reflect such.

The gestational mother gave birth to the claimant on October XX, 2013, in L~ County, Pennsylvania. The claimant’s birth certificate lists the NH and K~ as the parents.

The claimant currently lives with the NH and K~ in S~, New York.

The NH has been receiving social security disability benefits since January 2016. On January XX, 2016, K~ filed an application for child’s benefits on the claimant’s behalf, with a protective filing date of December XX, 2015. At the same time, K~ filed for wife’s benefits on the NH’s record.

ANALYSIS

I. Child’s Benefits Under the Act

A. Federal Law Regarding Child’s Benefits

Section 202(d) of the Act allows the dependent “child” of an insured individual to collect child’s benefits on the record of the insured individual. See Act § 202(d); 42 U.S.C. § 402(d). For purposes of child’s benefits under the Act, a “child” is defined as the natural child, legally adopted child, stepchild, and, in limited instances, grandchild or stepgrandchild of an insured individual. Act §§ 202(d) and 216(e); 42 U.S.C. §§ 402(d) and 416(e).

In determining whether an applicant is the child of an insured individual, the Commissioner applies the law governing the devolution of intestate personal property applied by the courts of the State in which the insured individual is domiciled at the time such applicant filed the application for child’s benefits. Act § 216(h)(2)(A); 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1). Because the NH was domiciled in New York when the applications for child’s benefits were filed, New York’s law of intestate succession applies in determining the child’s status under section 216(h)(2)(A) of the Act.

B. New York State Law Regarding Intestate Succession of Non-Marital Children

New York intestacy law allows “issue” of a decedent to inherit if the individual died without a will. N.Y. Est. Powers & Trusts Law § 4-1.1 (McKinney 2016). “Issue are the descendents in any degree from a common ancestor,” and includes adopted children. N.Y. Est. Powers & Trusts Law § 1-2.10 (McKinney 2016). New York intestacy law also states that a non-marital child is the legitimate child of his mother. N.Y. Est. Powers & Trusts Law § 4-1.2(a)(1) (McKinney 2016).

New York courts have held that the gestational mother is the natural mother of a child. See McDonald v. McDonald, 608 N.Y.S.2d 477 (N.Y. App. Div. 2d Dept. 1994). Even where all parties intend for another individual, including a genetic mother, to be the legal mother, courts have required the genetic mother to obtain either an adoption or a court order to be deemed the legal mother. See T.V. v. New York State Dept. of Health, 929 N.Y.S.2d 139, 150-52 (N.Y. App. Div. 2d Dept. 2011); Doe v. New York City Bd. of Health, 782 N.Y.S.2d 180, 183-84 (N.Y. Sup. Ct. 2004); Arredondo by Arredondo v. Nodelman, 622 N.Y.S.2d 181 (N.Y. Sup. Ct. 1994).

Here, the NH was not the claimant’s gestational mother and therefore, was not the claimant’s natural mother. Additionally, the claimant is not an adopted child of the NH. Thus, at first analysis, the claimant is not the NH’s child under N.Y. Est. Powers & Trusts Law § 4-1.2(a)(1). However, because the NH obtained a Pennsylvania Order and Decree declaring that the NH and K~ are the claimant’s parents, we must determine whether a New York court would give full faith and credit to that decree to recognize that the claimant is the legitimate child of the NH.

C. Full Faith and Credit

Under the full faith and credit clause of the Constitution, states must give full faith and credit to the public acts, records, and judicial proceedings of other states. See U.S. Const. Art. IV, § 1; 28 U.S.C. § 1738; Baker v. Gen. Motors Corp., 522 U.S. 222, 231-32 (1998). Under the full faith and credit clause of the Constitution, a final judgment of one state, “if rendered by a court with adjudicatory authority over the subject matter and persons governed by the judgment, qualified for recognition throughout the land.” Baker, 522 U.S. at 233.

Similarly, under New York law, “full faith and credit establishes a rule of evidence requiring recognition of a prior out-of-State judgment, giving it res judicata effect and ‘thus avoiding relitigation of issues in one State which have already been decided in another.’” Luna v. Dobson, 97 N.Y.2d 178, 182-83 (2001) (internal citations omitted). In effect, New York is “required to give the same preclusive effect” to the Pennsylvania decree that Pennsylvania would under its law. Id. at 183; see also Matter of Doe, 793 N.Y.S.2d 878, 882 (N.Y. Sur. Ct. 2005) (“Where a judgment of a sister state is issued with jurisdiction of all parties, New York must afford it full faith and credit.” (internal citations omitted)).

New York courts have further held that:

If there had been an adjudication of paternity by a court with competent jurisdiction, we would be precluded from looking behind the judgment and we would be required to give full faith and credit to that judgment of our sister state. New York must recognize the validly rendered judgments of our sister states.

Robertson v. Collings, 421 N.Y.S.2d 999, 1001 (N.Y. Fam. Ct., Oneida Cnty. 1979) (citing U.S. Const. Art IV, § 1). Because a New York court would “be precluded from looking behind the judgment” – that is, would not consider whether the judgment conflicted with New York public policy – it would accept the Pennsylvania order for purposes of intestate succession, provided that the Pennsylvania Orphans’ Court had competent jurisdiction and that the judgment was validly rendered.

After analyzing the validity of the Pennsylvania judgment, we have concluded that it was valid and established a parent-child relationship between the claimant and the NH and K.

Under Pennsylvania law, “[b]efore a court may determine a legal action, it must possess both subject-matter jurisdiction and jurisdiction of the person.” Schifano v. Schifano, 471 A.2d 839, 843 (Pa. Super. Ct. 1984).

A Pennsylvania court may exercise personal jurisdiction over a nonresident (such as the NH and K~) under certain circumstances. 42 Pa. Cons. Stat. § 5322 (2016). One such circumstance is where the nonresident individuals “[c]ontract[] to supply services or things in” Pennsylvania. Id. § 5322(a)(2). In the surrogacy agreement, the parties contracted for the gestational mother to give birth in a Pennsylvania hospital. It would appear, therefore, that the long-arm statute would confer personal jurisdiction over the parties. Moreover, a Pennsylvania court may exercise personal jurisdiction over a nonresident individual in a proceeding to determine parentage of a child if the individual submits to the jurisdiction of Pennsylvania. 23 Pa. Cons. Stat. § 7201 (2016); see also McCullough v. Clark, 784 A.2d 156, 157 (Pa. Super. Ct. 2001) (“A party may expressly or impliedly consent to a court’s personal jurisdiction.”). Here, the NH and K~ filed a joint petition with the gestational mother in the Pennsylvania Orphans’ Court seeking an order by the Orphans’ Court. Therefore, it would appear that the NH and K~ consented to the court’s personal jurisdiction.

Regarding subject-matter jurisdiction, Pennsylvania law vests the Orphans’ Court with jurisdiction over various subject matters, including decedents’ estates, guardianship, adoption, custody, birth records, and marriage licenses. See 20 Pa. Cons. Stat. §§ 711, 712. Section 712(3) provides the Orphans’ Court with jurisdiction over “any case where there are substantial questions concerning matters enumerated in section 711 and also matters not enumerated in that section.” 20 Pa. Cons. Stat. § 712(3). Thus, the Orphans’ Court has subject-matter jurisdiction to issue decrees regarding the parties’ parental rights. See In re I.L.P. & I.L.P. Joint Petition on Assisted Conception Birth Registration, 965 A.2d 251, 258 (Pa. Super. 2009) (Orphans’ Court has jurisdiction to issue a decree regarding the parental rights of the parties involved). We therefore believe that the Pennsylvania decree was valid because it was issued by a court that had both subject-matter jurisdiction and personal jurisdiction over the parties.

Thus, a New York court would give full faith and credit to the Pennsylvania decree that the NH and K~ are the claimant’s mothers. Accordingly, the claimant could inherit under New York’s intestate succession laws as the legitimate child of her mothers. See N.Y. Est. Powers & Trusts Law § 4-1.2(a)(1). Therefore, assuming the claimant satisfied the other statutory and regulatory requirements for such benefits, she is entitled to receive child’s benefits on the NH’s account.

II. Wife’s Benefits Under the Act

A. Federal Law Regarding Wife’s Benefits

Section 202(b) of the Act allows the “wife” of an insured individual to collect wife’s benefits on the record of the insured individual. See Act § 202(b); 42 U.S.C. § 402(b). For purposes of wife’s benefits under the Act, a “‘wife’ means the wife of an individual, but only if she (1) is the mother of his son or daughter, [and] (2) was married to him for a period of not less than one year immediately preceding the day on which her application is filed.” Act §§ 202(b), 216(b); 42 U.S.C. §§ 402(b), 416(b); 20 C.F.R. § 404.330.

SSA looks to the laws of the state where the insured had a permanent home at the time the application for benefits was filed to determine whether the claimant and insured were validly married. Act § 216(h)(1)(A)(i), 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345. Accordingly, we will look to the laws of New York to determine whether the NH and K~ were validly married.

B. New York State Law Regarding Same-Sex Marriage

Effective July 24, 2011, the Marriage Equality Act amended New York Domestic Relations Law to provide that a marriage that is “otherwise valid shall be valid regardless of whether the parties to the marriage are of the same or different sex.” N.Y. Dom. Rel. Law § 10-a (McKinney 2016). Accordingly, the NH’s July 2013 marriage to K~ was valid for purposes of determining K~’s entitlement to wife’s benefits. See Program Operations Manual System (POMS) GN 00210.003B New York.

Further, for the same reasons as discussed above, supra Section I, New York would recognize K~ as the claimant’s mother and therefore, K~ is the NH’s wife and mother of the NH’s daughter for purposes of wife’s benefits on the NH’s account.

CONCLUSION

The NH’s marriage to K~ was valid under New York Law. New York would recognize the Pennsylvania court’s Order and Decree granting parental rights of the claimant to the NH and K~. Accordingly, the claimant is entitled to child’s benefits on the NH’s account and K~ is entitled to wife’s benefits on the NH’s account, assuming the other statutory and regulatory requirements for such benefits have been met.

B. PR 13-019 L~ and M~ – Child Relationship

DATE: November 27, 2012

1. SYLLABUS

Based on our analysis under section 216(h)(2)(A) of the Social Security Act, the children are not entitled to benefits on the NH’s account. The NH was domiciled in Pennsylvania at the time of the March 2012 application, Pennsylvania State law of intestate succession applies in determining the claimants’ status as the children of the NH for purposes of section 216(h)(2)(A) of the Act. The evidence in this case would not meet the requirements for the children to inherit the NH’s personal property under the clear and convincing standard of the Pennsylvania intestacy statute

The mother presented a New Jersey Superior Court default order finding the NH to be the father of the two children. Pursuant to SSR 83-37c, SSA should not give deference to the New Jersey Superior Court default order because the issue of the NH’s paternity was not genuinely contested by the NH in the court proceeding. To date, the NH has never acknowledged paternity of the children and has not been ordered to pay support.

When a claimant cannot establish that he is the wage earner’s child under state intestate succession laws, the Act allows alternative avenues to establish child status for survivorship benefits. Under section 216(h)(2)(B), an applicant can be deemed a child under the Act if his parents went through a marriage ceremony that turned out to be legally invalid. This section of the Act is not applicable here because there is no evidence that Fanta ever went through a marriage ceremony with the NH. Under section 216(h)(3)(B)(i), an applicant can be deemed to be a child under the Act where 1) the NH acknowledged paternity in writing, 2) the NH was decreed a parent by a court, or 3) the NH was ordered by a court to contribute to the support of the applicant. In this case, the NH never acknowledged paternity in writing.

2. OPINION

QUESTION PRESENTED

Whether L~ and M~ , the biological children of Fanta (Fanta), are entitled to Social Security benefits as the children of Sabo , the number holder (the NH).

 OPINION

Based on our analysis under section 216(h)(2)(A) of the Social Security Act (Act), L~ and M~ are not entitled to benefits on the NH’s account. The evidence in the case would not meet the requirements for L~ and M~ to inherit the NH’s personal property under the clear and convincing standard of the Pennsylvania intestacy statute. Moreover, the Social Security Administration (agency) is not obligated to give deference to the New Jersey Superior Court’s default judgment according to Social Security Ruling (SSR) 83-37c.

BACKGROUND

The NH has been receiving Social Security disability insurance benefits since March 1992. The NH was living in New York State in 1994 when he filed his disability application. However, the NH has had a Pennsylvania address since 1997. The New York Center for Programs Support (CPS) confirmed that the NH has had a Pennsylvania address since 1997.

On June, Fanta gave birth to twins, L~ and M~, in Newark, New Jersey. The birth certificates list Alieu as the father.

Fanta later filed a complaint for child support against Alieu on April XX, 2010, at which time the Superior Court of New Jersey in Hunterdon County issued a summons calling for Alieu to undergo blood testing before the hearing. DNA test results obtained on April XX, 2010 from Laboratory Corporation of America revealed that Alieu was not the biological father of M~. The Hunterdon County Division of Social Services then excluded Alieu as the biological father of both L~ and M~ by Notice of Genetic Testing Results rendered May XX, 2010. Consequently, the court proceedings against Alieu were canceled on May 24, 2010.

Fanta then sought to establish that the NH was the father of L~ and M~, and to order child support from him. The Superior Court of New Jersey in Hunterdon County rendered a default order on March 11, 2011, noting that the NH had been properly served to appear for the hearing, but failed to do so. The default order notes that the NH was served by certified mail, which was returned unclaimed, and by regular mail, which was not returned. The NH’s address was not listed on the default order. The default order established the NH’s paternity of L~ and M~ only based on long-arm jurisdiction Long-arm jurisdiction allows a state to exercise jurisdiction over an out-of-state defendant when there exists such minimum contacts with the state to satisfy “traditional notions of fair play and substantial justice.” International Shoe Company v. Washington, 326 U.S. 310, 316 (1945). Specifically, New Jersey law states that New Jersey obtains personal jurisdiction over an out-of-state defendant by various means, including a court order consistent with due process of the law. 1B NJPRAC R 4:4-4(b)(3).

, and dismissed the complaint for support because the NH received Supplemental Security Income (SSI) benefits. Contrary to the language in the default order, CPS confirmed that the NH is receiving Social Security disability insurance benefits under Title II of the Social Security Act (Act), not SSI benefits under Title XVI of the Act.

Thereafter, Fanta applied for auxillary children’s benefits on behalf of L~ and M~ on the NH’s account on March 29, 2012. In doing so, Fanta submitted a Child Relationship Statement dated June 10, 2012, which identified the NH as the wage earner and father of L~ and M~. But, she denied that the NH was ever decreed by a court to be the children’s father, and that the NH was ever ordered by a court to contribute to the children’s support. Fanta also denied a series of other questions that may have established a relationship between the NH and L~ and M~. Also in this statement, Fanta described her history with the NH, stating that they met in 1998. She stated that she and the NH were a couple for about six months. She did not provide the dates of the relationship. Fanta stated that she later discovered that she was pregnant. Fanta went on to say that the NH told her he was going back to school, and the two lost contact. An agency computer query noted that Fanta reported that she did not name the NH as the father of the twins on each twin's birth certificate due to her religious background. Instead, she chose to name Alieu on the certificates.

The NH submitted a statement stating that he had a short relationship with Fanta but was not informed of her pregnancy or the birth of L~ and M~. He stated that once he found out about their births, he inquired as to whether he was the father of the twins. He notes that Fanta “categorically” denied that the twins were his children. Fanta also told the NH that she had designated her boyfriend as the father and that his name was on the twins’ birth certificates. The NH pressed Fanta for blood or DNA testing. She agreed to the testing but then relocated with the twins to live with her family in Africa. He and Fanta lost contact for about five years. Then, in 2008, the NH was informed that Fanta sought to have him relinquish his paternal rights so that Fanta’s boyfriend could adopt the children. The NH reports that he was surprised and confused by this and arranged to meet Fanta in Elizabeth, New Jersey, and she agreed to bring the children. Yet, when Fanta and the NH met, she did not bring the children. The NH’s statement concluded that he was confused but still wished to resolve the situation.

To date, the NH has never acknowledged paternity of the children and has not been ordered to pay support.

ANALYSIS

A. Federal Law

To qualify for child’s benefits on the earnings record of an insured individual, an applicant must be the “child” of the insured individual. The child must also (1) apply for child’s insurance benefits; (2) at the time such application is filed be unmarried and either be under age 18 or be under age 19 and a full-time elementary or secondary school student, or over 18 and under a disability which began before he attained the age of 22; and (3) be dependent on the NH. Act § 202(d)(1); 20 C.F.R. § 404.350.

See Act § 202(d)(1); 42 U.S. C. 402(d)(1); 20 C.F.R. § 404.350(a) (2012). “Child” includes the natural child of an insured individual. See Act § 216(e); 42 U.S.C. § 416(e); 20 C.F.R. § 404.355 (2012). Under section 216(h)(2)(A) of the Act, in determining whether an applicant is the child of an insured individual, the Commissioner applies the law governing the devolution of intestate personal property applied by the courts of the state in which the insured individual was domiciled at the time such applicant files the application. Act § 216(h)(2)(A). Because the NH was domiciled in Pennsylvania at the time of the March 2012 application, Pennsylvania State law of intestate succession applies in determining the claimants’ status as the children of the NH for purposes of section 216(h)(2)(A) of the Act. 20 C.F.R. §§ 404.355(a)(1), 404.355(b) (2012).

B. Analysis of Paternity under Pennsylvania Intestacy Law

We first turn to the question of whether the evidence would permit L and M~ to inherit the NH’s personal property under Pennsylvania intestacy law. The Pennsylvania intestacy statute provides that children born out of wedlock will be considered the children of a putative father if one of the following conditions is met:

1. If the parents of a child born out of wedlock shall have married each other; or

2. If during the lifetime of the child, the father openly holds out the child to be his and receives the child into his home, or openly holds the child out to be his and provides support for the child which shall be determined by clear and convincing evidence; or

3. If there is clear and convincing evidence that the man was the father of the child, which may include a prior court determination of paternity.

20 Pa. Cons. Stat. Ann. § 2107(c). Here, the first two conditions have not been met. The NH and Fanta were never married, and the NH never openly held out L~ and M~ as his children. Therefore, the question becomes whether a Pennsylvania court would find clear and convincing evidence that the NH was the father of L~ and M~.

Under Pennsylvania law, the clear and convincing evidence standard requires “‘proof greater than a mere preponderance, but less than beyond a reasonable doubt.’” Estate of V~, 798 A.2d 203, 209 (Pa. Super. 2002). “‘Clear and convincing evidence’ is the highest burden in our civil law and requires that the fact-finder be able to ‘come to clear conviction, without hesitancy, of the truth of the precise fact in issue.’” In re Estate of H~, 647 A.2d 243, 244 (Pa. Super. 1994) (citing Lessner v. Rubinson, 592 A.2d 678, 681 (Pa. 1991)). Clear and convincing evidence means “‘testimony that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.’” Paulshock v. Bonomo, 661 A.2d 1386, 1388 (Pa. Super. 1995). For purposes of paternity, clear and convincing evidence may be proven through genetic testing or by a prior court determination of paternity. In re Estate of G~, 587 A.2d. 749, 752 (Pa.Super. 1991).

Here, there was no paternity testing. Fanta listed Alieu as the father on the children’s birth certificates, and only sought to establish the NH’s paternity of the twins after her child support complaint against Alieu failed. In addition, Fanta initially denied that the NH was the twins’ father, and refused to cooperate with the NH when the NH voluntarily offered to undergo paternity testing. Moreover, the NH never asserted paternity of the twins. We believe this evidence falls short of the clear and convincing evidence standard. Therefore, L~ and M~ could not inherit the NH’s personal property under Pennsylvania intestacy law.

Moreover, we believe that agency policy would not give deference to the New Jersey default order. When determining whether to accept a trial court’s findings on domestic relations issues, we look to Social Security Ruling (SSR) 83-37c, which adopted the 6th Circuit’s ruling in Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973). Under this Ruling, although SSA is not bound by a state trial court’s decision in a case where the Commissioner was not a party, SSA must only give deference to a trial court’s decision when the issue was genuinely contested in state court by parties with opposing interests. SSR 83-37c.

We believe that the second requirement of SSR 83-37c was not met, i.e., the issue of whether paternity was genuinely contested by parties with opposing interests in the proceeding before the court. The New Jersey court resolved the issue of paternity on the basis of Fanta’s allegations of paternity after the NH was properly served with notice of the hearing, but failed to appear. Thus, the issue of paternity was not genuinely contested in court. The court did not resolve the issue of paternity upon the presentation of evidence by parties with opposing interests. While there is no specific agency guidance relating to New Jersey default orders, the agency’s Program Operations Manual System (POMS) contains an opinion finding that a default order of paternity issued in Pennsylvania was not genuinely contested for purposes of SSA recognition. POMS PR 01210.042 (PR 12-012). There, an unmarried mother sought auxiliary benefits for her child on the account of a deceased putative father. The Court of Common Pleas in Lancaster County entered a default judgment for paternity and support, after the putative father was properly served and failed to show up for the hearing. The finding was based solely on the mother’s allegation that the putative father had admitted paternity to her over the phone, but with no written evidence of such a declaration. Ultimately, the agency refused to recognize the judgment, finding that the default order was not genuinely contested by parties with opposing interests. POMS PR 01210.042 (PR 12-012). Similarly, another Pennsylvania opinion found that a court’s unsubstantiated finding of a common law marriage was not generally contested between opposing parties, due to a lack of evidence identifying parties and witnesses in a contested hearing. POMS PR 05605.042 (PR 08-131). As such, we conclude that SSA is not bound by New Jersey Superior Court default order of paternity in determining whether the NH is the twins’ father.

C. Alternative Sections of the Act

Finally, we consider whether the twins are entitled to benefits under any alternative sections of the Act. When a claimant cannot establish that he is the wage earner’s child under state intestate succession laws, the Act allows alternative avenues to establish child status for survivorship benefits. First, under section 216(h)(2)(B), an applicant can be deemed a child under the Act if his parents went through a marriage ceremony that turned out to be legally invalid. See 42 U.S.C. § 416(h)(2)(B). This section of the Act is not applicable here because there is no evidence that Fanta ever went through a marriage ceremony with the NH.

Second, under section 216(h)(3)(B)(i), an applicant can be deemed to be a child under the Act where 1) the NH acknowledged paternity in writing, 2) the NH was decreed a parent by a court, or 3) the NH was ordered by a court to contribute to the support of the applicant. 42 U.S.C. § 416(h)(3)(B)(i)(I)-(III). In this case, the NH never acknowledged paternity in writing. Although Fanta presented a New Jersey Superior Court default order finding the NH to be the father of L~ and M~, we will not give deference to this Order. As explained in detail above, pursuant to SSR 83-37c, SSA should not give deference to the New Jersey Superior Court default order because the issue of the NH’s paternity was not genuinely contested by the NH in the court proceeding. Finally, the NH has not been ordered by a court to contribute to the support of L~ and M~. The New Jersey Superior Court default order clearly articulated that the default order only makes a finding of paternity, and that the default order does not call for support. In fact, the default order even states “ORDERED: DEFAULT ORDER FOR PATERNITY ONLY BASED ON LONG-ARM JURISDICTION, COMPLAIN [sic] FOR SUPPORT DISMISSED AS DEFENDANT IS SSI RECIPIENT.” Thus, the New Jersey default order does not compel the NH to contribute to the support of L~ and M~.

Third, under section 216(h)(3)(B)(ii), an applicant can be deemed a child under the Act if the NH was living with or contributing to the support of the child. See 20 C.F.R. § 416(h)(3)(B)(ii). In the instant matter, there is no evidence that the NH was living with or contributing to the support of L~ and M~. Therefore, we find that L~ and M~ cannot be deemed children of the NH under sections 216(h)(2)(B) and 216(h)(3)(B) of the Act.

CONCLUSION

We conclude that no parent-child relationship existed between the NH and L~ and M~ under the Act, and therefore, L~ and M~ are not entitled to benefits on the NH's record.

Stephen P. Conte
Regional Chief Counsel

By: Daniel R. Janes

Assistant Regional Counsel

C. PR 08-132 Reply to Your Request for a Legal Opinion Regarding the Effective Date of a Parent-Child Relationship Under Pennsylvania Law Between the Number Holder, Chris and the Claimant, Cayden, SSN: ~

DATE: June 23, 2008

1. SYLLABUS

In Pennsylvania, in a case where the deceased number holder openly held out the claimant as his child during his lifetime, received him into his home and supported him, the court would find that a parent-child relationship existed by the clear and convincing standard.

Since the evidence of the highest value was dated on November 5, 2007, that is the earliest possible date of entitlement.

2. OPINION

QUESTIONS PRESENTED

On December 20, 2007, you requested our opinion as to (1) whether a parent-child relationship exists between Chris (Number Holder) and Cayden ; (2) the effective date of the parent-child relationship, if any; and (3) whether retroactive benefits should be paid.

On January 22, 2008, we requested additional evidence consisting of the following documents that were referenced in the file: (1) a copy of the lease showing that the mother and child had lived with the Number Holder; (2) a copy of the letter from the landlord confirming that the mother and child had lived in the same home as the Number Holder; (3) statements from family members addressing the Number Holder's acknowledgment of paternity; and (4) a copy of the acknowledgment of paternity form signed by the Number Holder and referenced on the "Social Security & Paternity & Acknowledgment" form dated March 27, 2006. In response, on June 5, 2008, you provided us with copies of affidavits from eight family members confirming that the Number Holder had acknowledged paternity.

CONCLUSION

We have reviewed the information you provided and have researched the relevant provisions of Pennsylvania law as it pertains to paternity. We have also reviewed the relevant regulations to determine the effective date of the parent-child relationship and whether retroactive benefits should be paid. Based on our review, we believe that a Pennsylvania court would likely determine that the evidence is sufficient to constitute clear and convincing evidence of a parent child relationship between the Number Holder and Cayden.

BACKGROUND

According to the information that you have provided, Cayden was born on March. Cayden's birth certificate indicates that his mother is Casey . The birth certificate does not include the name of his father, indicating only that the information was not recorded. It does, however, include his full name, Cayden, identifying his surname as that of the Number Holder. At the time of his birth, Casey and the Number Holder were not married.

On March XX, 2006, the P~ Memorial Medical Center issued a record of birth which certified that Cayden was born on that date to Casey and Chris, the Number Holder. The record of birth was signed by an authorized official and an attending physician, and affixed with the official hospital seal. According to the Pennsylvania Department of Health, Division of Vital Records, a record of birth such as this one is considered a hospital memento and is not an official record of birth.

Also on March XX, 2006, on a hospital form titled "Social Security & Paternity & Acknowledgment," a hospital official certified that the mother and father of Cayden had signed acknowledgment of paternity forms. The hospital form provides for, and contains, the name of the mother, Casey, but does not provide for the name of the father. The acknowledgment of paternity that the Number Holder allegedly signed was not itself included in the documents that you have forwarded to us. In addition, a memo from the New York regional office indicates that the hospital could not verify paternity from its records.

According to an Agency worksheet, on April 10, 2006, and March 14, 2007, Casey filed applications for a social security number on Cayden's behalf. Both applications included the name of Cayden's mother, but indicated that the name of his father was unknown.

On or about March 22, 2007, Casey and Cayden moved to the state of New York. On April 17, 2007, Casey filed a paternity petition with the family court in New York. At a default hearing on June 28, 2007, Casey testified that the Number Holder had signed an acknowledgment of paternity in the Commonwealth of Pennsylvania. The matter was adjourned for thirty days to await further notice from the department of social services regarding any prior paternity.

One month later, on July 27, 2007, the Number Holder died in the Commonwealth of Pennsylvania.

On August 14, 2007, Casey filed an application for surviving child's benefits on behalf of Cayden and for a lump sum death payment. This application is not contained in the materials that you have forwarded to us.

On August 22, 2007, a family court judge in the state of New York entered an order dismissing Casey's paternity petition. The judge indicated that there was no need for the matter to proceed because the Number Holder had acknowledged paternity.

An Agency worksheet also shows that Casey submitted as evidence a letter from a landlord, as well as a copy of a lease, indicating that she and Cayden had lived with the Number Holder until March 2007. Neither of these documents is contained in the materials that you have forwarded to us.

Finally, at our request, you have provided additional documents consisting of affidavits from eight relatives of the Number Holder and Casey. These affidavits include individual statements from the Number Holder's parents and brother, as well as Casey's parents and brother, that the Number Holder had acknowledged that Cayden was his son. Both the Number Holder's parents and Casey's parents also stated that they and the Number Holder had been present at Cayden's birth. Sherry, the Number Holder's mother, stated that for approximately one year, Casey and the Number Holder had lived in the apartment above her home, and that the Number Holder had cared for Cayden in his first year before Casey took Cayden to live in New York. Chris ., the Number Holder's father, confirmed that the Number Holder had supported Cayden until Casey had moved to New York.

James , Casey's brother, stated that he had known the Number Holder for several years and that the Number Holder had been present at Casey's baby shower.

DISCUSSION

The Social Security Act provides that, in determining whether an applicant is the child of an insured individual, the Commissioner will apply the inheritance law of the state in which the individual was domiciled at the time the application was filed or, if the insured individual is dead, of the state in which the insured individual was domiciled at the time of his death. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1)(2007). Because the Number Holder was domiciled in Pennsylvania at the time of his death, Pennsylvania intestacy law applies.

The Pennsylvania intestacy statute addressing persons born out of wedlock, 20 Pa. Cons. Stat. Ann. § 2107(c), indicates that an individual will be considered to be the child of a putative father if one of the following conditions is met:

  1. If the parents of a child born out of wedlock shall have married each other.

  2. If during the lifetime of the child, the father openly holds out the child to be his and receives the child into his home, or openly holds the child out to be his and provides support for the child which shall be determined by clear and convincing evidence.

  3. If there is clear and convincing evidence that the man was the father of the child, which may include a prior court determination of paternity.

In this case, the first condition has not been met because the Number Holder and Casey were not married. We believe, however, that a Pennsylvania court would likely find that the second condition has been met. That is, we believe that a court would find that there is clear and convincing evidence that the Number Holder openly held out Cayden as his child, received him into his home, and provided support for him. Under Pennsylvania law, the clear and convincing evidence standard requires "'proof greater than a mere preponderance, but less than beyond a reasonable doubt.'" Estate of V~, 798 A.2d 203, 209 (Pa. Super. Ct. 2002) (citations omitted). "'Clear and convincing evidence' is the highest burden in our civil law and requires that the fact-finder be able to 'come to clear conviction, without hesitancy, of the truth of the precise fact in issue.'" In re Estate of H~, 647 A.2d 243, 244 (Pa. Super. Ct. 1994) (citing Lessner v. Rubinson, 592 A.2d 678, 681 (Pa. 1991)). Here, the strongest evidence that the Number Holder openly held out Cayden as his child consists of affidavits from eight members of both his and Casey's families, including all four grandparents, in which they confirm that the Number Holder had acknowledged that Cayden was his child. In addition to the Number Holder's acknowledgment of paternity to his family, the parents of both the Number Holder and Casey stated that they and the Number Holder had been present at Cayden's birth. Furthermore, Casey's mother specifically stated that the Number Holder had acknowledged paternity to the hospital staff as well as to all who had been present.

In addition to evidence that the Number Holder openly held out Cayden to be his child by acknowledging paternity, the evidence shows that the Number Holder received Cayden into his home and provided support for him. Pennsylvania courts have considered providing a home and support for a child to be relevant factors in establishing that a father has openly held out a child as his under 20 Pa. Cons. Stat. Ann. § 2107(c)(2). See In re Estate of S~C~, 644 A.2d 791, 797 (Pa. Super. 1994) (finding, among other factors, that evidence that a relationship between the alleged father and the mother began several years before the child's birth, that the parties continued to live together after the birth, and that the alleged father treated the child as his and provided support for her met the criteria for determining paternity under § 2107); In re M~, Jr., 528 A.2d 1381, 1384 (Pa. Super. 1987) (holding that a putative father was estopped from denying paternity where he had held himself out to be the child's father by marrying the mother and assuming responsibility for the care of their child).

In this case, Agency notes reference a copy of a lease which shows that Cayden and his mother lived with the Number Holder until March 2007. Although the copy of the lease was not included in the documents that we received, sworn affidavits from several family members attest to the fact that Cayden and his mother lived with the Number Holder for approximately the first year of Cayden's life. For example, the Number Holder's mother testified in her affidavit that the Number Holder and Casey lived together for approximately one year before Casey became pregnant. Similarly, Casey’s mother testified in her affidavit that the Number Holder and her daughter had been in a relationship since 2002, and had lived together in her home before moving, together, to another home in October 2005. Moreover, separate affidavits from the Number Holder's mother and father, as well as from Casey's mother, show that the Number Holder provided support for Cayden until Casey moved to New York. Based on these affidavits, we believe that a Pennsylvania court would find that there is clear and convincing evidence that the Number Holder openly held out Cayden as his child, received him in his home, and provided support for him.

Finally, although we need not reach the third condition, we believe that a court would likely find that the evidence also satisfies the requirements of § 2107(c)(3). To meet this provision, Cayden must show by clear and convincing evidence that the Number Holder was his father, and such evidence may include a prior court determination of paternity. In this case, the evidence in support of paternity includes a hospital record of birth which certifies that the Number Holder was Cayden's father. Although this document is a hospital memento rather than an official birth record, it is consistent with the family members' affidavits stating that the Number Holder was Cayden's father. The evidence also includes a hospital form indicating that the Number Holder had signed an acknowledgment of paternity. Similarly, although this form is not the official acknowledgment of paternity, it too provides additional evidence consistent with the affidavits in support of the Number Holder's paternity. The evidence further includes a New York family court order dismissing Casey's petition for paternity based on evidence that the Number Holder had acknowledged paternity. Although the court order dismissing Casey's paternity petition does not meet the requirements of a court determination of paternity under § 2107(c)(3), it does show that a court considered the Number Holder's acknowledgment of paternity sufficient to render Casey's paternity petition moot. Finally, as discussed above, the evidence includes sworn affidavits from eight family members who attested to the Number Holder's acknowledgment of paternity. Based on the considerable favorable evidence, and in the absence of any directly contradictory evidence, it is our opinion that a Pennsylvania court would likely find clear and convincing evidence that the Number Holder was Cayden's father.

You have also requested our opinion as to the effective date of the parent-child relationship, if any, and whether retroactive benefits should be paid. Regarding the effective date of the parent child relationship, the regulations provide that, if the insured is deceased, the child is entitled to benefits beginning with the first month covered by the application in which he meets all other requirements for entitlement. 20 C.F.R. § 404.352(a)(1). The requirements for entitlement include establishing that you are the insured's child. 20 C.F.R. § 404.350(a)(1). Here, the date of Cayden's application for benefits is August 14, 2007. Although there is other evidence in the file to support a finding that Cayden was the Number Holder's child, the strongest evidence in support of paternity consists of affidavits from the Number Holder's family members which establish that the Number Holder openly held out Cayden as his child. Accordingly, the date of the latest necessary piece of evidence establishing the Number Holder's paternity is November 5, 2007, the latest date of the affidavits from the family members. It is our opinion, therefore, that a parent-child relationship was established effective November 5, 2007.

Regarding retroactive benefits, the regulations further provide that if a child files an application for benefits after the first month in which he could have been entitled to them, he may receive retroactive benefits for up to six months preceding the month in which his application was filed. 20 C.F.R. § 404.621(a)(2). Benefits may begin with the first month in this six-month period in which the claimant meets all the requirements for entitlement. 20 C.F.R. § 404.621(a)(2). In this case, Cayden did not file his application after the first month in which he could have been entitled to them. Rather, he filed his application for benefits on August 14, 2007, and met all of the requirements for entitlement to benefits on November 5, 2007. Therefore, because he filed his application for benefits three months before he met all of the requirements for entitlement, retroactive benefits are not applicable.

CONCLUSION

For the reasons stated above, it is our opinion that a Pennsylvania court would likely find the evidence sufficient to establish that the Number Holder was Cayden's father under Pennsylvania law. Therefore, the Agency should find that there was a parent-child relationship between the Number Holder and Cayden, with an effective date of November 5, 2007, but that retroactive benefits are not applicable.

Michael McGaughran
Regional Chief Counsel

By: Anne von Scheven
Assistant Regional Counsel

D. PR 08-047 Reply to Your Request for an Updated Legal Opinion Regarding Whether a Parent-Child Relationship Exists between the Number Holder, Leonard SSN: ~, and the Minor Claimant, Lauren .

DATE: December 21, 2007

1. SYLLABUS

A Pennsylvania court would likely find that DNA test results indicating a 99.99% probability that the Number Holder is the claimant's father, along with the additional evidence of a Pennsylvania court order establishing paternity and the acknowledgment of paternity by two sisters of the Number Holder, would constitute clear and convincing evidence sufficient to establish a parent-child relationship between the Number Holder and the claimant. The effective date of the parent-child relationship is July 19, 2007, the date of the DNA test results.

2. OPINION

QUESTION PRESENTED

Upon receipt of additional evidence, on November 27, 2007 and December 5, 2007, respectively, you requested our updated opinion as to whether a parent-child relationship exists between Leonard, ("the Number Holder"), and the minor claimant, Lauren ("the claimant"). If a parent-child relationship can be established, you also asked for the effective date of that relationship and whether retroactive benefits should be paid.

SUMMARY

Based upon our review of the facts of this case and our research of relevant Pennsylvania statutes and case law, we have determined that a Pennsylvania court applying the state's inheritance law would likely find that the July XX, 2007 deoxyribonucleic acid (DNA) test results indicating a 99.99% probability that the Number Holder is the claimant's father, along with the additional evidence of a Pennsylvania court order establishing paternity and the acknowledgment of paternity by two sisters of the Number Holder, would constitute clear and convincing evidence sufficient to establish a parent-child relationship between the Number Holder and the claimant. The effective date of the parent-child relationship is July XX, 2007, the date of the DNA test results.

BACKGROUND

According to the information you provided, the Number Holder was a resident of Dallas, Pennsylvania, and died there on April XX, 2005.

The claimant was born on December. The claimant's birth certificate lists her mother's maiden name as Michelle. It does not include the name of her father. The claimant's mother and the Number Holder were not married and did not cohabit. The claimant's mother, however, reported that she was expecting a child with the Number Holder at the time of his death.

An application for a social security number completed on February XX, 2006, indicates that Michelle is the claimant's mother. The application does not include the name of the claimant's father.

The claimant's mother goes by the name of Michelle reported that she married John, in August 1997. The couple had two children, Taylor and Darren S~. They divorced in November 2002, and Taylor claims she had no involvement with Darren after that time. Taylor reported that she gave the claimant the last name "Darren’s" so that she and all of her children would have the same last name.

On July XX, 2007, Taylor and the claimant underwent deoxyribonucleic acid (DNA) testing with DNA evidence that had been collected from the Number Holder on July XX, 2007. The test results indicate a 99.99% probability that the Number Holder was the claimant's father.

On August 29, 2007, Taylor filed an application on the claimant's behalf for surviving child's benefits on the Number Holder's account.

Taylor subsequently filed a petition in the Court of Common Pleas of Bradford County, Pennsylvania requesting an order to determine the claimant's paternity.

On October 3, 2007, Taylor, the Administratrix of the Number Holder's Estate (hand-written signature appears to read as "Barbara"), and Patricia, signed a Stipulation wherein they agreed that: (1) the Number Holder had been determined to be the natural father of the claimant based upon paternity tests; (2) Taylor would identify the Number Holder as the father of the minor child on the birth certificate; and (3) with the evidence from the DNA analysis and the birth certificate, Taylor would be entitled to apply for social security death benefits on the claimant's behalf as an heir of the Number Holder.

Based upon the Stipulation, the Court of Common Pleas of Bradford County issued an order on October 12, 2007, finding the claimant to be the natural child of the Number Holder and entitled to all rights and privileges as the natural child of the Number Holder.

On December 5, 2007, Taylor submitted two additional documents in support of the claimant's application for surviving child's benefits.

The first document is an undated letter to Taylor from Sue, the Number Holder's sister. Sue initially writes that the Number Holder believed that Taylor was unfaithful to him. She also states that the Number Holder's family did not believe that the claimant was his child. However, Sue then proceeds to acknowledge the Number Holder as the claimant's father. She writes that the Number Holder's parents were going to be told about the claimant, but they had not learned about her sooner because "we did not want to expose them to additional anxiety if the baby was not [the Number Holder's]." Sue offers to provide pictures of the Number Holder to Taylor so that the claimant "will at least have some pictures of her Dad to have." Sue also requests to be involved in the claimant's life "so as she grows up she can have some kind of connection to her Dad."

The second document is an alleged e-mail from the Number Holder to Taylor dated April 17, 2005, wherein the Number Holder expresses his love for Taylor.

DISCUSSION

As we advised you in our original memorandum dated October 26, 2007, the Social Security Act provides that, in determining whether an applicant is the child of an insured individual, the Commissioner will apply the inheritance law of the state in which the individual was domiciled at the time the application was filed or, if the insured individual is dead, of the state in which the insured individual was domiciled at the time of his death. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1)(2007). Because the Number Holder was domiciled in Pennsylvania at the time of his death, Pennsylvania intestacy law applies.

The Pennsylvania intestacy statute addressing persons born out of wedlock, 20 Pa. Cons. Stat. Ann. § 2107(c), indicates that an individual will be considered to be the child of a putative father if one of the following conditions is met:

  1. If the parents of a child born out of wedlock shall have married each other.

  2. If during the lifetime of the child, the father openly holds out the child to be his and receives the child into his home, or openly holds the child out to be his and provides support for the child which shall be determined by clear and convincing evidence.

  3. If there is clear and convincing evidence that the man was the father of the child, which may include a prior court determination of paternity.

In this case, the first two provisions of § 2107(c) have not been met. As noted above, the Number Holder and Taylor were not married. Additionally, the Number Holder died before the claimant was born.

In our original memorandum, we opined that the claimant had not satisfied § 2107(c)(3), the only provision that could apply in this case. As we explained, in order to satisfy this provision, the claimant had to prove by clear and convincing evidence that the Number Holder was her father. Under Pennsylvania law, the clear and convincing evidence standard requires "'proof greater than a mere preponderance, but less than beyond a reasonable doubt.'" Estate of V~, 798 A.2d 203, 209 (Pa. Super. Ct. 2002) (citations omitted). "'Clear and convincing evidence' is the highest burden in our civil law and requires that the fact-finder be able to 'come to clear conviction, without hesitancy, of the truth of the precise fact in issue.'" In re Estate of H~, 647 A.2d 243, 244 (Pa. Super. Ct. 1994) (citing Lessner v. Rubinson, 592 A.2d 678, 681 (Pa. 1991)).

Initially, the evidence submitted by the claimant included the DNA test results establishing a 99.99% probability that the Number Holder is the claimant's father, and the statement of the claimant's mother, Taylor, that the Number Holder is the claimant's father.

As we previously explained, Pennsylvania case law generally establishes that in all civil matters, DNA test results should be considered as a factor in assessing whether there is clear and convincing evidence of paternity but the evidence, itself, is not conclusive to proving paternity by clear and convincing evidence. See Zearfoss v. Frattaroli, 646 A.2d 1238, 1241 (Pa. Super. Ct. 1994); Wawrykow v. Simonich, 652 A.2d 843, (Pa. Super. Ct. 1994). Accordingly, we opined that, while it was possible that a reviewing court would find that the DNA test results and Ms. S~ statement, along with the absence of contradictory evidence, comprised sufficient evidence to establish paternity by clear and convincing evidence, we were unable to determine for certain whether this would be the result. See Z~, 646 A.2d at 1243 (holding that a court may find non-paternity despite DNA test results establishing a probability of paternity of 99.99% "if the other facts are supportive of such a verdict").

Upon receipt of additional evidence, however, we now believe that a court would likely find that there is clear and convincing evidence that the Number Holder was the claimant's father. The DNA test results establish a 99.99% probability that the Number Holder is the claimant's father. The additional evidence that has been submitted corroborates the DNA test results and Taylor assertion that the Number Holder is the claimant's father. The October 12, 2007 order issued by the Court of Common Pleas of Bradford County declares the claimant to be the natural child of the Number Holder. In addition, two of the Number Holder's sisters have acknowledged the Number Holder's paternity. Patricia signed a Stipulation on October 3, 2007 wherein she formally agreed that the Number Holder is the claimant's father. Sue acknowledged the Number Holder's paternity, albeit less formally, in a letter to Taylor. Furthermore, no evidence has been presented, and we know of none, which contradicts the aforementioned evidence.

Regarding the effective date of the parent-child relationship, the regulations provide that, if the insured is deceased, the child is entitled to benefits beginning with the first month covered by the application in which she meets all other requirements for entitlement. 20 C.F.R. § 404.352(a)(1). Here, the date of the latest necessary piece of evidence establishing the Number Holder's paternity is July 19, 2007, the date of the DNA test results. Therefore, it is our opinion that a parent-child relationship was established effective July 19, 2007.

The regulations further provide that if a child files an application for benefits after the first month in which she could have been entitled to them, she may receive retroactive benefits for up to six months preceding the month in which her application was filed. 20 C.F.R. § 404.621(a)(2).

Benefits may begin with the first month in this six-month period in which the claimant meets all the requirements for entitlement. 20 C.F.R. § 404.621(a)(2). In this case, the application was filed on August 29, 2007. The DNA test results, which establish paternity, are dated July 19, 2007. As such, the claimant is entitled to retroactive benefits as of July 2007, when she met all of the requirements for entitlement.

CONCLUSION

For the reasons stated above, we believe that a court would likely find the evidence sufficient to establish that the Number Holder is the father of the claimant under Pennsylvania law. Hence, the Agency should find that there was a parent-child relationship between the Number Holder and the claimant, with an effective payment date of July 19, 2007.

Michael McGaughran

By: Maija Pelly
Assistant Regional Counsel

E. PR 07-195 Reply to Your Request for a Legal Opinion Regarding the Effective Date of a Parent-Child Relationship Under Pennsylvania Law Between the Number Holder, Avery, and the Claimant, Skyler , SSN: ~

DATE: August 13, 2007

1. SYLLABUS

In Pennsylvania, DNA test results showing a 99.99996% probability of paternity, along with three supporting statements and no contradictory evidence, is clear and convincing evidence of the parent-child relationship.

The effective date of the relationship is March 15, 2007, the date that the last piece of the evidence was obtained.

2. OPINION

QUESTION PRESENTED

On July 20, 2007, you requested our opinion as to (1) whether a parent-child relationship exists between Avery (Number Holder) and Skyler; (2) the effective date of the parent-child relationship, if any; and (3) whether retroactive benefits should be paid.

SUMMARY

We have reviewed the information you provided and have researched the relevant provisions of Pennsylvania law as it pertains to paternity. We have also reviewed the relevant regulations to determine the effective date of the parent-child relationship and whether retroactive benefits should be paid. Based on our review, we believe that a reviewing court in Pennsylvania would likely determine that deoxyribonucleic acid (DNA) test results showing a 99.99996% probability of paternity, in addition to three statements in support of paternity and no contradictory evidence, is clear and convincing evidence of a parent-child relationship between the Number Holder and Skyler. We further believe that the effective date of the parent-child relationship was March 15, 2007, the date of the latest necessary piece of evidence establishing paternity, but that retroactive benefits should not be paid.

BACKGROUND

According to the information you provided, Skyler was born on March. Skyler's birth certificate indicates that her mother is Gwen. It does not include the name of her father. At the time of her birth, Gwen and the Number Holder were not married and did not cohabit. An application for a social security number completed on April 16, 1996, also indicates that Gwen is Skyler's mother, and does not include the name of her father.

The Number Holder was a resident of Pennsylvania and died there on December XX, 2006. Also on that date, the funeral director provided a written statement to the Agency indicating that Skyler was the Number Holder's daughter.

On March XX, 2007, Gwen and Skyler underwent DNA testing with DNA evidence that had been collected from the Number Holder on January XX, 2007. The test results indicate a 99.99996% probability that the Number Holder was Skyler's father.

On March 26, 2007, Gwen filed an application on Skyler's behalf for surviving child's benefits on the Number Holder's account.

On April 29, 2007, Sharon , a friend, provided a written statement to the Agency indicating that the Number Holder had told her that he was Skyler's father. According to her statement, the Number Holder had spent every available day with Skyler and she resembled him. The Number Holder had also expressed how proud he was that Skyler was his daughter.

Emmi, the Number Holder's mother, provided an undated written statement to the Agency indicating that Skyler was the Number Holder's daughter. She stated that on many occasions, the Number Holder had told her that Skyler was his daughter and her granddaughter, and that he had loved her very much.

DISCUSSION

The Social Security Act provides that, in determining whether an applicant is the child of an insured individual, the Commissioner will apply the inheritance law of the state in which the individual was domiciled at the time the application was filed or, if the insured individual is dead, of the state in which the insured individual was domiciled at the time of his death.

42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1)(2007). Because the Number Holder was domiciled in Pennsylvania at the time of his death, Pennsylvania intestacy law applies.

The Pennsylvania intestacy statute addressing persons born out of wedlock, 20 Pa. Cons. Stat. Ann. § 2107(c), indicates that an individual will be considered to be the child of a putative father if one of the following conditions is met:

  1. If the parents of a child born out of wedlock shall have married each other.

  2. If during the lifetime of the child, the father openly holds out the child to be his and receives the child into his home, or openly holds the child out to be his and provides support for the child which shall be determined by clear and convincing evidence.

  3. If there is clear and convincing evidence that the man was the father of the child, which may include a prior court determination of paternity.

Here, the first two conditions are not met. The Number Holder and Avery were not married and there is no evidence that the Number Holder openly held out Skyler as his child, received her into his home, or provided support for her. Although Ms. B~, the Number Holder's mother, and Sharon, a friend, provided statements that the Number Holder had acknowledged Skyler as his daughter, we do not believe that a Pennsylvania court would find that these two statements, alone, constitute clear and convincing evidence that the Number Holder openly held out Skyler as his child. Under Pennsylvania law, the clear and convincing evidence standard requires "'proof greater than a mere preponderance, but less than beyond a reasonable doubt.'" Estate of V~, 798 A.2d 203, 209 (Pa. Super. Ct. 2002) (citations omitted). "'Clear and convincing evidence' is the highest burden in our civil law and requires that the fact-finder be able to 'come to clear conviction, without hesitancy, of the truth of the precise fact in issue.'" In re Estate of H~, 647 A.2d 243, 244 (Pa. Super. Ct. 1994) (citing Lessner v. Rubinson, 592 A.2d 678, 681 (Pa. 1991)).

The only provision that could apply in this case would be § 2107(c)(3). To meet this provision, Skyler must prove by clear and convincing evidence that the Number Holder was her father.

As noted above, DNA test results indicate a 99.99996% probability that the Number Holder was Skyler's father. Pennsylvania's Uniform Act on Blood Tests to Determine Paternity, which was adopted in 1990, establishes that blood test results proving non-paternity will be conclusive in all civil matters in Pennsylvania courts. 23 Pa. Cons. Stat. Ann. § 5104. However, under Pennsylvania case law, blood test results are not conclusive evidence of paternity. Rather, as the Superior Court of Pennsylvania has held, they are "but one factor to be weighed in the totality of the evidence presented on the question of paternity." Zearfoss v. Frattaroli, 646 A.2d 1238, 1241 (Pa. Super. 1994); see also Wawrykow v. Simonich, 652 A.2d 843, 848 (Pa. Super. 1994) (finding that DNA testing alone is not conclusive evidence of paternity, but is merely "a factor in a chain of elements which compose the parenting bond by clear and convincing evidence.").

Here, we believe that a court would likely find that there is clear and convincing evidence that the Number Holder was Skyler's father. The DNA test results establish a 99.99996% probability that the Number Holder was Skyler's father. Statements from three individuals, the funeral director, the Number Holder's mother, and the Number Holder's friend, support Skyler's assertion that the Number Holder was Skyler's father. In the absence of any contradictory evidence, the high probability of paternity established by the DNA tests coupled with the supporting statements of three individuals is sufficient to establish a parent-child relationship between the Number Holder and Skyler. Accordingly, it is our opinion that a Pennsylvania court would find clear and convincing evidence that the Number Holder was Skyler's father.

Regarding the effective date of the parent-child relationship, the regulations provide that, if the insured is deceased, the child is entitled to benefits beginning with the first month covered by the application in which she meets all other requirements for entitlement. 20 C.F.R. § 404.352(a)(1). Here, the date of the latest necessary piece of evidence establishing the Number Holder's paternity is March XX, 2007, the date of the DNA test results. Therefore, it is our opinion that a parent-child relationship was established effective March 15, 2007.

The regulations further provide that if a child files an application for benefits after the first month in which she could have been entitled to them, she may receive retroactive benefits for up to six months preceding the month in which her application was filed. 20 C.F.R. § 404.621(a)(2). Benefits may begin with the first month in this six-month period in which the claimant meets all the requirements for entitlement. 20 C.F.R. § 404.621(a)(2). In this case, Skyler did not file her application for benefits after the first month in which she could have been entitled to them. As indicated above, she filed an application for benefits on March 26, 2007. She met all of the requirements for entitlement to benefits on March 15, 2007. Therefore, because she filed her application for benefits in the same month in which she met all of the requirements for entitlement, retroactive benefits are not applicable.

CONCLUSION

For the reasons stated above, it is our opinion that a Pennsylvania court would likely find the evidence sufficient to establish that the Number Holder was Skyler's father under Pennsylvania law. Therefore, the Agency should find that there was a parent-child relationship between the Number Holder and Skyler, with an effective date of March 15, 2007, but that retroactive benefits are not applicable.

Michael McGaughran

By: Anne von Scheven
Assistant Regional Counsel

F. PR 07-172 Reply to Your Request for a Legal Opinion Regarding the Effective Date of a Parent-Child Relationship Under Pennsylvania Law Between the Number Holder, Paul SSN: ~, and the Claimant, Austin

DATE: July 6, 2007

1. SYLLABUS

Pennsylvania's Uniform Act on Blood Tests to Determine Paternity, which was adopted in 1990, establishes that blood test results proving non-paternity will be conclusive in all civil matters in Pennsylvania state courts. Therefore, despite legitimating actions by the number holder a Pennsylvania court would find that the DNA test excluding the number holder as the father of the claimant is conclusive evidence to rebut his prior acknowledgment of paternity.

2. OPINION

QUESTION PRESENTED

On May 31, 2007, you requested our opinion as to (1) whether a parent-child relationship exists between Paul (Number Holder) and Austin; (2) the effective date of the parent-child relationship, if any; (3) whether Austin's entitlement to child's insurance benefits ended; and (4) if so, on what date should the benefits end.

CONCLUSION

We have reviewed the information you provided and have researched the relevant provisions of Pennsylvania law as it pertains to paternity. We have also reviewed the relevant regulations to determine whether conditions for reopening have been met. Based on our review, we believe that a reviewing court in Pennsylvania would likely determine that the deoxyribonucleic acid (DNA) test results showing a 0.00% probability of paternity is conclusive evidence that a parent-child relationship does not exist between the Number Holder and Austin. Without the requisite parent-child relationship, Austin is not entitled to child's benefits on the Number Holder's earnings record. Because reopening is permitted within four years of the notice of the initial determination if new and material evidence is provided, we recommend that SSA reopen the initial determination awarding child's benefits to Austin and reevaluate his entitlement to those benefits. Finally, we believe that Austin's entitlement to child's insurance benefits should end on December 11, 2006, the date of the DNA test results.

BACKGROUND

According to the information you provided, Austin was born on September. Austin's birth certificate indicates that his mother is Nicole and the Number Holder is his father. At the time of Austin's birth, Nicole and the Number Holder were not married. An application for a social security number (NUMI) completed on December 11, 2001 indicates that Nicole is Austin's mother, but father information was withheld by the state. The Number Holder and Nicole were married on October XX, 2002.

The Number Holder filed an application for disability benefits on May 20, 2005, listing Cheyenne and Austin as his children under age 18. In October 2005, the Number Holder became entitled to disability benefits.

On September 13, 2005, Nicole filed an application for child's benefits on behalf of Austin on the Number Holder's account, which indicates that Austin is the natural legitimate child of the Number Holder. The application was granted in October 2005, and Austin continues to receive benefits on the Number Holder's account.

On December 11, 2006, the Number Holder, Austin, and Nicole underwent DNA testing due to an impending divorce between the Number Holder and Nicole. The results indicate a 0.00% probability that the Number Holder is Austin's father, which excludes the Number Holder from paternity.

DISCUSSION

I. Austin Would Not Be Entitled to Child's Benefits on the Number Holder's Account.

The Social Security Act (Act) provides for payment of child's benefits where the claimant is entitled to such benefits on the earnings record of an insured person who is entitled to disability benefits, and the claimant is the insured person's child. Social Security Act § 202(d); 20 C.F.R. §§ 404.350(a)(1)-.368 (2006). In determining whether a child born out-of-wedlock is the child of an insured individual, the Commissioner will apply the inheritance law of the state in which the insured individual was domiciled at the time the application was filed or, if the insured individual is dead, of the state in which the insured individual was domiciled at the time of his death. Social Security Act § 216(h)(2)(A); 20 C.F.R. 404.355(b). In this case, since the Number Holder resided in Pennsylvania on the date of Austin's application for child's benefits, Pennsylvania law applies.

The Pennsylvania intestacy statute addressing persons born out of wedlock, 20 Pa. Cons. Stat. Ann. § 2107(c), indicates that an individual will be considered to be the child of a putative father if one of the following conditions is met:

  1. If the parents of a child born out of wedlock shall have married each other.

  2. If during the lifetime of the child, the father openly holds out the child to be his and receives the child into his home, or openly holds the child out to be his and provides support for the child which shall be determined by clear and convincing evidence.

  3. If there is clear and convincing evidence that the man was the father of the child, which may include a prior court determination of paternity.

Here, the first two conditions were met. Following Austin's birth, the Number Holder and Nicole married each other. Second, the Number Holder openly held Austin out to be his child. Although the state withheld the name of Austin's father on his numident record, Austin's birth certificate indicates that the Number Holder is his father. Moreover, on his application for disability benefits, the Number Holder listed Austin as one of his two dependent children. Therefore, under Pennsylvania intestacy laws, Austin would normally be found to be the child of the Number Holder.

However, as you indicated, the Number Holder's actions legitimating Austin as his child is complicated by a DNA test, which indicates a 0.00% probability that the Number Holder is Austin's father and excludes the Number Holder from paternity.

Pennsylvania's Uniform Act on Blood Tests to Determine Paternity, which was adopted in 1990, establishes that blood test results proving non-paternity will be conclusive in all civil matters in Pennsylvania state courts. 20 Pa. Cons. Stat. Ann. § 5104. In fact, even the presumption of legitimacy of a child born during wedlock can be overcome if the test results show that the husband is not the father of the child. 20 Pa. Cons. Stat. Ann. § 5104(f). Thus, although the Number Holder's actions in this case can legitimate Austin as his child, a Pennsylvania court would find that the DNA test excluding the Number Holder as the father of Austin is conclusive evidence to rebut his prior acknowledgment of paternity. Accordingly, we believe that a parent-child relationship does not exist in this case.

II. Reopening of the Prior Determination is Permitted Due to New and Material Evidence.

Without the requisite parent-child relationship, Austin is not entitled to child's insurance benefits under the Act on the Number Holder's earnings record. This raises an issue as to whether the DNA test would allow SSA to reopen the final determination that granted Austin child's insurance benefits. See 20 C.F.R. § 404.987(2006). SSA can reopen and revise a final determination on its own initiative under certain conditions. See 20 C.F.R. § 404.987(b) (explaining the procedure for reopening and revising a final determination). More specifically, 20 C.F.R. § 404.988(b) states, in relevant part, that a final determination may be reopened "[w]ithin four years of the date of the notice of the initial determination if we find good cause . . . to reopen the case."

The regulations state that good cause exists to reopen a determination where new and material evidence is furnished. 20 C.F.R. § 404.989; see also Program Operations Manual System (POMS) GN 04010.030. New and material evidence is any evidence that was not part of the claims file when the final determination was made, but relates back to the date of the original determination and shows facts that would result in a conclusion different from that originally reached had the new evidence been introduced or available at the time of the original determination. POMS GN 04010.030.

The facts of this case meet the requirements for reopening. The notice of the initial determination was necessarily issued sometime after September 13, 2005, the date the application for child's insurance benefits was filed, which is within the four year period outlined in 20 C.F.R. § 404.988(b). Good cause exists to reopen the initial determination because the DNA test results constitute new and material evidence, as the evidence relates back to the date of the original determination and shows facts that would result in a conclusion different from that originally reached. Reopening is permitted for new and material evidence even if the reopening is unfavorable to the claimant, as in this case, where the new and material evidence shows that a child is not child of a number holder. See POMS GN 04010.030C (providing as an example a situation where a revised court order, received after the initial determination, showed that a child was not the child of the number holder). Thus, SSA can reopen and revise Austin's application for benefits.

This still leaves open your question as to what date Austin's entitlement to benefits should end. We believe that Austin's entitlement to benefits should end on December 11, 2006, the date of the DNA test results. This is because it is the date of the first piece of evidence that conclusively demonstrated that a parent-child relationship did not exist.

Eric Kressman,

By: Taryn F. Jasner
Assistant Regional Counsel

G. PR 07-108 Sufficiency of Evidence of Parent-Child Relationship Between John , Deceased, the Number Holder, and Peyton

DATE: April 2, 2007

1. SYLLABUS

Pennsylvania case law generally establishes that in civil matters, other than child support actions, DNA test results should be considered as a factor in assessing whether there is clear and convincing evidence of paternity but the evidence itself is not conclusive of proving paternity by clear and convincing evidence. Additionally, the law is silent on the usage of grandparentage DNA to establish a parent-child relationship.

However, under Pennsylvania intestacy law, DNA test results showing 99.94 percent probability that the number holder's parents are the grandparents of our claimant would be considered strong evidence of the number holder's paternity that with supporting evidence, and with confirmation that there is no conflicting evidence to dispute that paternity, would likely be found by a court to constitute clear and convincing evidence of paternity of the number holder.

2. OPINION

QUESTION PRESENTED

On March 6, 2007, we received a request for advice on whether the evidence submitted was sufficient to establish a parent-child relationship between John , the Number Holder (NH) who died on January XX, 2006 and Peyton , who was born on January. (NH-SSN: ~).

SUMMARY

Based on our review of the facts of this case and our research of the relevant Pennsylvania statutes and case law, we believe that a Pennsylvania court applying the state's inheritance law would likely find that the evidence submitted to date would not constitute clear and convincing evidence sufficient to establish a parent-child relationship between the NH and Peyton but would likely do so on submission of limited additional evidence.

According to the information provided, Pamela filed for survivor's benefits for her daughter, Peyton, on February 10, 2006 as a child of the NH. On February 21, 2006, Kevin , an acquaintance of Pamela and a friend of the NH, told the Agency representative handling the claim that the NH had told him that he and Pamela had sexual relations sometime in early 2005 and that Pamela was pregnant, but that he was not going to acknowledge paternity until forced to do so because he was already paying child support for a son, Nicholas. We understand that Nicholas is the child of the NH and his former spouse and that they were divorced in July 2000.

The NH had apparently been seriously injured in an accident in October 2005 and died intestate or without a will on January XX, 2006. A commencement date of disability of the NH of October 17, 2005 appears in the documents provided. Peyton was born on January. According to Pamela, the NH was not aware of Peyton's birth because of the serious nature of his condition.

The Agency initially advised Pamela that Peyton's claim was denied because there was no proof of paternity of the NH. (A copy of the Agency's initial denial letter is not included in the materials provided.). Subsequently, on December 11, 2006, Pamela, through her attorney, Anthony, submitted evidence of paternity by way of DNA testing of the NH's parents and a filing with the Register of Wills of Allegheny County, Pennsylvania relating to the NH's Estate. In this filing, the Personal Representative or Administratrix of the Estate, identified in attorney S~ letter as the NH's sister, identified Peyton as the NH's daughter.

DISCUSSION

The Social Security Act provides that, in determining whether an applicant is the child of an insured individual, the Commissioner will apply the inheritance law of the state in which the individual was domiciled at the time the application was filed or, if the insured individual is dead, of the state in which the insured individual was domiciled at the time of his death. Section 216(h)(2)(A) of the Social Security Act, 42 U.S.C. § 416(h)(2)(A). Although the documents provided to us do not include a death certificate of the NH, the information provided consistently indicates that the NH was domiciled in Pennsylvania at the time of his death and we assume that the state of domicile is not an issue herein. Accordingly, Pennsylvania inheritance law, specifically, the Pennsylvania intestacy statute, applies.

The Pennsylvania intestacy statute addressing persons born out-of-wedlock indicates that an individual will be considered to be the child of a putative father if one of the following conditions is met:

  1. If the parents of a child born out of wedlock shall have married each other.

  2. If during the lifetime of the child, the father openly holds out the child to be his and receives the child into his home, or openly holds the child out to be his and provides support for the child which shall be determined by clear and convincing evidence.

  3. If there is clear and convincing evidence that the man was the father of the child, which may include a prior court determination of paternity.

20 Pa. Cons. Stat. Ann. § 2107(c).

According to the information provided, Ms. B~ and the NH were not married. The NH, who was in critical condition when Peyton was born, and who died shortly after she was born, did not openly hold out Peyton as his own nor support her.

Accordingly, the only provision that appears possibly applicable in this case is 20 Pa. Cons. Stat. Ann. § 2107(c)(3). To satisfy this provision, there must be clear and convincing evidence that the NH was Peyton's father. The clear and convincing evidence standard is greater than the proof by a preponderance of the evidence standard but less than the proof beyond a reasonable doubt standard. Williams v. Heckler, 616 F. Supp. 928, 930 (E.D. Pa 1985).

We first note that the DNA testing in this case was based upon buccal swabs or saliva specimens and not blood extraction. Buccal swab DNA testing has, however, been accepted by Pennsylvania courts as an alternative method to blood extraction for obtaining DNA samples to conduct paternity testing. Cable v. Anthou, 699 A.2d 722 (Pa. 1997). Moreover, it is the standard method of DNA testing routinely used by the Domestic Relations Office in some Pennsylvania counties for purposes of establishing paternity or disproving paternity in support actions.

Pennsylvania does not have DNA statutes specifically applicable to grandparent DNA. Although the Uniform Act on Blood Tests to Determine Paternity is not directly applicable in this matter where the specimens from which the DNA was extracted were saliva specimens from putative grandparents and not blood specimens from the putative father, it offers some guidance on how a Pennsylvania court may view genetic evidence. The Uniform Act on Blood Tests to Determine Paternity establishes that blood test results of a mother, child, and alleged father establishing non-paternity will be conclusive in all civil matters in Pennsylvania state courts.

23 Pa. Cons. Stat. Ann. § 5104(f). This Act does not address the situation where blood test results suggest paternity. Id. at § 5104. This issue has, however, been addressed in case law.

In Zearfoss v. Frattaroli, 646 A.2d 1238, 1241 (Pa. Super. Ct. 1994), the Superior Court of Pennsylvania held that blood test results were not conclusive, but were "one factor to be weighed in the totality of the evidence presented on the question of paternity." The Superior Court determined that a lower court had erred in finding that DNA test results establishing paternity conclusively outweighed contradictory evidence of non-paternity. Id., at 1241, 1244. The Superior Court stated that a court may hold for a putative father against a natural mother in a paternity action, regardless of DNA test results establishing a 99.99% probability of paternity, "if other facts are supportive of such a verdict." Id. at 1243.

The Zearfoss decision was issued on August 19, 1994. Both 23 Pa. Cons. Stat. Ann. ' 4343(c)(2) and Pa.R.C.P. No. 1910.15, 42 Pa. Cons. Stat. Ann. relating to actions for support for a child born out of wedlock where the alleged father is the defendant, as amended since that date, provide that if the results of genetic testing indicate a 99% or more probability of paternity, the court shall issue a rule against the defendant identified as the putative father to show cause why an order should not be entered finding him to be the father and limiting his defense to showing by clear and convincing evidence that the genetic tests are not reliable. Thus, Pennsylvania case law generally establishes that in civil matters, other than child support actions, DNA test results should be considered as a factor in assessing whether there is clear and convincing evidence of paternity but the evidence, itself, is not conclusive of proving paternity by clear and convincing evidence. Pennsylvania statutory law and Rules of Civil Procedure governing support actions for a child born out of wedlock effectively place on the putative father the burden of showing why genetic tests showing a 99% or more probability of paternity are not reliable to prevent a finding of paternity. It, therefore, appears that DNA testing results showing a 99% probability of paternity are viewed as highly probative evidence of paternity in Pennsylvania.

In this case, we have DNA test results from Gene Tree DNA Testing Center establishing that the probability of grandparentage of the NH's parents is 99.94%. The information provided to us states that the original test results from Gene Tree were provided to the Agency. Gene Tree is accredited by the American Association of Blood Banks, one of the two specifically named accreditation entities identified in 23 Pa. Cons. Stat. Ann. ' 4343(c)(3). We believe that under Pennsylvania intestacy law, the law applied by the Agency, the grandparentage DNA test results reported by Gene Tree are strong evidence of the NH's paternity (or paternity of a NH's sibling) that with supporting evidence, and with confirmation that there is no conflicting evidence, would likely be found by a court to constitute clear and convincing evidence of paternity of the NH.1

In addition to the DNA showing the probability of grandparentage of the NH's parents to be 99.94%, other evidence supports the claim of paternity. First, statements of the NH to a third party, Kevin , confirm that he and Ms. B~ had sexual relations at a time period consistent with Peyton's date of birth. Second, in July 2006, the Administratrix of the Estate, the NH's sister, by her attorney, Patricia, identified Peyton as the NH's daughter on a notice certified as filed and of record by the Register of Wills and Ex-Officio Clerk of Orphans' Court Division. Because of the importance of the latter evidence as supporting the DNA evidence of paternity of the NH, we recommend that prior to making a decision in this case, the Agency request documentation that the Estate of the NH has been officially closed with the Register of Wills and Clerk of the Orphans' Court Division without objection to the reliability of the DNA evidence or other challenge to the identification of Peyton as the child of the NH. If this additional evidence is submitted and the Agency finds no other evidence to contradict the DNA test results and other evidence in the file, the Agency could find that Peyton is the NH's child for purposes of the Social Security Act, 42 U.S.C. § 416(h)(2), based upon the likelihood that a court would so find pursuant to 20 Pa. Cons. Stat. Ann. § 2107(c)(3).

CONCLUSION

For the above reasons, we conclude that based on the evidence provided to date, it is not clear that a court would likely find clear and convincing evidence of a parent-child relationship between the NH and Peyton under Pennsylvania intestacy law.

If evidence is submitted that there has been no objection to the reliability of the grandparentage DNA test results nor any challenge to the identification of Peyton as the NH's child, that evidence together with the evidence already submitted would likely be sufficient for a Pennsylvania court to find clear and convincing evidence of paternity under 20 Pa. Cons. Stat. Ann. § 2107(c)(3) and for Peyton to be entitled to Surviving Child's Benefits under 42 U.S.C. § 416(h)(2).

Michael McGaughran

By: Margaret M. Maguire
Assistant Regional Counsel

H. PR 07-057 Effective Date of Parent-Child Relationship Between Number Holder Walter, and Robert, the Minor Child

DATE: January 19, 2007

1. SYLLABUS

In Pennsylvania, in a case where DNA test results show a 99.5 percent probability that the claimant is a full sibling of another child already found to the deceased number holder's child and where the mother, the number holder's parents and a friend have all confirmed that he was the father, the courts would find that a parent-child relationship has been established by the clear and convincing standard.

2. OPINION

QUESTION PRESENTED

On December 22, 2006, you requested a legal opinion as to (1) whether a parent-child relationship exists between Walter (hereinafter referred to as "the Number Holder") and the minor claimant, Robert (hereinafter referred to as "the claimant"); (2) the effective date of any such relationship; and (3) whether the claimant is entitled to retroactive benefits if such relationship is established.

SUMMARY

Based on our review of the facts of this case and our research of the relevant Pennsylvania statutes and case law, we have determined that a court would likely find that a parent-child relationship has been established between the Number Holder and the claimant. The effective date of the parent-child relationship is December 21, 2005, and the claimant is entitled to retroactive benefits starting on that date.

BACKGROUND

The Number Holder lived in Pennsylvania at the time of his death on June 5, 1990. The birth record, which documents that the claimant was born on February, lists the father as Walter and the mother as Beverly (hereinafter referred to as ("Beverly"). The Number Holder was not required by the Bureau of Vital Statistics to sign an acknowledgment of paternity prior to being listed as the claimant's father on the birth record. Beverly and the Number Holder were never married, but Beverly indicated on a Statement Regarding Contributions form that they lived together and that he worked sporadically and contributed child support for the claimant. Beverly indicated that the Number Holder's parents acknowledge the claimant as their grandchild; that the claimant is listed in the Number Holder's family bible; and that the Number Holder asked a friend to be the claimant's Godfather in a letter.

On February 14, 2006, Beverly filed an application for surviving child's benefits and a lump sum death payment for the claimant on the record of the Number Holder. Beverly's older son, Nathan, previously was proven to be the biological child of the Number Holder. Nathan previously received surviving child's benefits from the Agency based on the Number Holder's account. On December 12, 2005, the DNA Diagnostic Center conducted a DNA Siblingship Test based on blood samples from the claimant and Nathan. DNA test results (dated December 21, 2005) indicated a 99.5% probability that the claimant and Nathan - the Number Holder's biological child - had the same mother and father.

DISCUSSION

The Social Security Act provides that, in determining whether an applicant is the child of an insured individual, the Commissioner will apply the inheritance law of the state in which the insured individual was domiciled at the time the application was filed, or if the insured individual is dead, of the state in which the insured individual was domiciled at the time of his death. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1) (2006). Pennsylvania intestacy law applies because the Number Holder was domiciled in Pennsylvania at the time of his death.

The Pennsylvania intestacy statute addressing persons born out of wedlock, 20 Pa. Cons. Stat. Ann. § 2107(c), indicates that an individual will be considered to be the child of a putative father if one of the following conditions is met:

  1. If the parents of a child born out of wedlock shall have married each other.

  2. If during the lifetime of the child, the father openly holds out the child to be his and receives the child into his home, or openly holds the child out to be his and provides support for the child which shall be determined by clear and convincing evidence.

  3. If there is clear and convincing evidence that the man was the father of the child.

The Number Holder and Beverly were never married. Beverly stated on Agency forms that the Number Holder openly held out the claimant as his child and provided child support, but the file does not contain clear and convincing evidence that documents the same. Hence, the only provision that could apply in this case is § 2107(c)(3). To meet this provision, the claimant would have to prove by clear and convincing evidence that the Number Holder was his father.

In Pennsylvania, DNA test results are not conclusive evidence to establish paternity. Zearfoss v. Frattaroli, 646 A.2d 1238, 1241 (Pa. Super. 1994); Mastromatteo v. Harkins, 615 A.2d 390 (Pa. Super. 1992); Smith v. Shaffer, 515 A.2d 527, 529 (Pa. Super. 1986). DNA test results are merely one factor to be weighed in totality with other evidence presented on the question of paternity. Zearfoss v. Frattaroli, 646 A.2d at 1238; Mastromatteo v. Harkins, 615 A.2d at 390; Smith v. Shaffer, 515 A.2d at 529. Indeed, the Court has stated on more than one occasion that DNA test results indicating an extremely high probability of paternity (99.99%) were not conclusive evidence enough to establish paternity. Zearfoss v. Frattaroli, 646 A.2d at 1238; Smith v. Shaffer, 515 A.2d at 529.

In Z~, the court determined that a lower court erred in finding that DNA test results established paternity conclusively, despite contradictory evidence of non-paternity. Zearfoss v. Frattaroli, 646 A.2d at 1241, 1244. Likewise, in S~, the Court reinstated a verdict in favor of the alleged father due to abuse of discretion of the court below in placing greater emphasis on DNA test results instead of the jury's weighing of all of the evidence regarding paternity.

Smith v. Shaffer, 515 A.2d at 528-29.

Here, we believe that the Court would likely find that there is clear and convincing evidence that the Number Holder is the claimant's father. The DNA test results indicated a 99.5% probability that the claimant and Nathan share the same father and the Number Holder was proven to be the latter's biological father. Next, the Number Holder is listed as the father on the claimant's birth record. Beverly indicated that the Number Holder's parents hold out the claimant as their grandson. The extremely high probability of paternity established by the DNA test results, coupled with the other supporting evidence of record, in the absence of any contradictory evidence, is sufficient to establish a parent-child relationship between the Number Holder and the claimant. Accordingly, it is our opinion that a court would likely find that a parent-child relationship exists between the Number Holder and the claimant.

With regard to the effective date of the parent-child relationship, the regulations provide that, if the insured is deceased, the child is entitled to benefits beginning with the first month covered by the application in which he meets all other requirements for entitlement. 20 C.F.R. § 404.352(a)(1). In this case, the date of the latest necessary piece of evidence establishing the number holder's paternity is December 21, 2005, the date of the DNA siblingship test report.

Therefore, it is our opinion that a parent-child relationship was established effective December 21, 2005. The regulations further provide that a child may receive retroactive benefits for up to six months preceding the date of his application. 20 C.F.R. § 404.621(a) (2). In this case, the application was filed on February 14, 2006. The DNA test results, which establish paternity, are dated December 21, 2005. As such, the claimant is entitled to retroactive benefits as of December 2005, when he met all of the requirements for entitlement.

CONCLUSION

For the reasons stated above, it is our opinion that a court would likely find the evidence sufficient to establish that the Number Holder is the father of the claimant under Pennsylvania law. Hence, the Agency should find that there was a parent-child relationship between the Number Holder and the claimant, with an effective payment date of December 21, 2005.

Michael McGaughran

By: Roxanne Andrews
Assistant Regional Counsel

I. PR 06-350 Claims for Insurance Benefits of Child Conceived by Artificial Insemination on the Account of Semen Donor in the State of California (1) or of Resumed Father in the State of Pennsylvania (2) Claimant: Laurie o/b/o Jonathan Wage Earners: Bruce (1); and Robert (2)

DATE: September 30, 2006

1. SYLLABUS

In California in a case where a claim has been filed for an artificially conceived child on the record of the sperm donor, courts would not find the donor to qualify as the child's father for inheritance purposes since he had never acknowledged or held the child out as his own. Additionally, the mother's husband at the time of the child's birth had taking the child in to his home as his own and raised him for seven years. There is no likelihood that a California court would entertain a challenge to the presumed father's paternity of a child born, like the claimant, over 10 years ago. Finally, it is unlikely that the claimant could show that his best interest requires disregarding a longstanding father-child relationship.

In the same case, the claimant also filed for benefits on the record of his presumed father, the man married to his mother at the time of conception. In Pennsylvania, the State where the presumed father now resides, the claimant is presumed to be the child of his mother's former husband as the child of a marriage.

Even if the presumption could be successfully overcome, the former husband would be estopped from denying paternity because he consented to the artificial insemination, supported the child as his own for more than seven years, agreed to do so in a marital settlement agreement, and did not appeal the court's support order. Pennsylvania courts would find the claimant to be the child of his mother's former husband.

2. OPINION

You asked whether a child conceived by artificial insemination qualifies for child's insurance benefits as the child of the semen donor or the mother's husband at the time of conception and birth.

PROCEDURAL HISTORY

On January 19, 2006, Laurie , a.k.a. Laurie (the claimant's mother) filed an application for child's insurance benefits (life claim) on behalf of Jonathan (the claimant) on the account of Bruce (the alleged biological father), her husband from a prior marriage. See January 19, 2006 application. You indicated that the biological father was domiciled in the State of California at the time the application was filed. The application was granted with payments retroactive to September 2005. See Notice of Award.

The claimant's mother, however, was married to another man, Robert , at the time of the claimant's conception and birth. See Worksheet Remarks. She had not provided medical evidence that the presumed father was sterile. See id. Thus, on November 22, 2005, the claim on the biological father's account was disallowed on reconsideration. See id.

On June 26, 2006, Laurie filed a new application (life claim) on Jonathan's behalf on the account of the presumed father, Rober . See Development Worksheet dated June 26, 2006. You indicated that the presumed father was domiciled in the State of Pennsylvania at the time the application was filed.

We consolidated the review of the claimant's successive applications in this opinion. The following is a summary of the evidence presented in support of these applications.

SUMMARY OF EVIDENCE

Laurie married Robert in P~, California. See marriage certificate. They divorced on July XX, 2003 in the State of Nevada. See Decree of Divorce (filed July XX, 2003). Starting in 1991, Laurie underwent a course of artificial insemination in a California clinic "due to her husband's history of vasectomy." Report by L.V. B~, M.D., dated February 25, 1994; see also April 27, 2006 letter from Emerald Bay Center for Women's Health.

The record suggests that Robert was aware of, and consented to the artificial insemination of his wife. There is no written record of his consent because the clinic's policy did not require a husband's consent. See Report of Contact with Practice Manager at Emerald Bay Center for Women's Health on July 6, 2006. There is nonetheless a later record indicating that Laurie was accompanied by Robert for a pregnancy care visit. See July 21, 1995 treatment notes.

In addition, Laurie stated that Robert and the biological father agreed to her artificial insemination with the latter's semen. See Report of Contact of Claimant's mother on October 7, 2005. According to Laurie, the artificial insemination was performed not at the clinic, but at the family's home. See Report of Contact of Claimant's mother on October 7, 2005. Robert and Laurie lived together at the time. See their declarations of March 14 and 28, 2006. On October XX, 1995, Laurie gave birth to Jonathan in California. See Claimant's birth certificate. The birth certificate lists Laurie as the mother and informant, and Robert as the father. See id. According to Laurie, Robert raised Jonathan as his child during the marriage. See Report of Contact of Claimant's mother on October 7, 2005.

On July 1, 2003, a Nevada court entered a final decree of divorce incorporating the parties' marital settlement agreement. See Property Settlement and Child Custody Agreement (Agreement) and Decree of Divorce (filed July 1, 2003). In the Agreement, they acknowledge the existence of "one minor child the issue of this marriage, to-wit: Jonathan, born October . . . ." Agreement. The court ordered Robert to pay child support for Jonathan and granted legal custody of Jonathan to both parents. See id. According to Laurie, however, Robert "now since they are no longer married refuses to pay child support." See Report of Contact of Claimant's mother on October 7, 2005.

On or about January 11, 2006, Laurie, Jonathan, Robert, and Bruce were genetically tested. See DNA Parentage Test Report dated January 11, 2006. The results established a 99.99+ percent probability that Bruce is Jonathan's biological father. See id. On January 19, 2006, Bruce acknowledged that he is the biological father based on that evidence. See Child Relationship Statement - Bruce . He explained, however, that he did not otherwise acknowledge, provide for, or hold out the child as his own. See id.

In a February 2, 2006 declaration, Robert indicated that he was sterilized in approximately 1972, and that Bruce is Jonathan's biological father. See Robert 's declaration (February 2, 2006). In a March 28, 2006 declaration, Robert stated that he was unable to provide medical records of his vasectomy. See Robert ‘s declaration (March 28, 2006).

ANALYSIS

A. Federal Law

We determine a claimant's eligibility for child insurance benefits under section 202(d)(1) of the Social Security Act by determining whether he is the "child" of an insured individual as defined in section 216(e) and was dependent on the insured under section 202(d)(3). See Social Security Act § 202(d)(1); 20 C.F.R. § 404.350 (2006). In cases where parentage is in dispute or the child is illegitimate, section 216(h) remains the appropriate analytical framework for determining "child" status under section 216(e). See Gillett-Netting v. Barnhart, 371 F.3d 593, 596-97 (9th Cir. 2004) (holding that parentage need not be established under § 216(h) unless parentage is in dispute or the child is illegitimate); see also Acquiescence Ruling (AR) 05 1(9), 70 Fed. Reg. 55,656 (September 22, 2005).

Section 216(h)(2)(A) directs us to "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 is domiciled . . . at the time the application was filed . . . ." Social Security Act § 216(h)(2)(A). We would apply California law to the claimant's January 19, 2006 application on the account of his alleged biological father who was domiciled in California at that time. If we find that that application was properly denied, we would apply Pennsylvania law to the claimant's June 26, 2006 application on the account of his presumed father who was domiciled in Pennsylvania.

B. California Intestacy Laws and Claimant's Application on the Account of his Alleged Biological Father, Bruce

Under California intestacy law, a child may inherit the intestate estate of his natural parent. Cal. Prob. Code §§ 6401, 6402, 6450 (2006). A natural parent and child relationship for purposes of intestate succession may be established based on a "presumed father" status under the Uniform Parentage Act (Cal. Fam. Code § 7600, et seq.). Cal. Prob. Code § 6453. A man who was neither legally married nor attempted to legally marry the mother of his child cannot, however, be a "presumed father" unless he receives the child into his home and openly holds out the child as his natural child. Cal. Fam. Code § 7611(d). Further, a "donor" who provided semen for use in the artificial insemination of a woman other than his wife through a physician has no valid paternity claim. See Cal. Fam. Code § 7613(b).

Here, even if Bruce's semen was used, he was only a "donor," and never attained "presumed father" status. See id. Notwithstanding the fact that Bruce may have been Laurie's husband by a prior marriage, he was not married or attempted to marry her at any relevant time, and had no relationship with the claimant. See Cal. Fam. Code § 7611. There is no indication that he attempted to create a relationship with the claimant either before or after Laurie's divorce from Robert. See id.

As further consideration, California law would not recognize Bruce's biological paternity since he had not taken the child into his home nor developed a parent-child relationship; on the other hand, the claimant's longstanding father-child relationship with Robert, his presumed father militates against the existence of presumed or natural father status with Bruce. For more than seven years after the child's birth, Robert assumed the obligations and functions characteristic of a father-child relationship. See, e.g., Agreement; and Cal. Fam. Code § 7611(d) (presumed father status based on actual parenting). The existence of a longstanding relationship provides the strongest policy consideration for preserving Robert's status in this case. See Guardianship of Claralyn S., 148 Cal. App. 3d 81, 86 (1983) ("in the case of an older child the familial relationship between the child and the man purporting to be the child's father is considerably more palpable than the biological relationship of actual paternity") (internal quotes and citation omitted). In addition, the claimant was born during Robert and Laurie's marriage. See Cal. Fam. Code § 7611(a) (husband presumed father of child born in wedlock).

That the presumed father Robert belatedly disclaimed paternity is of no consequence to his status. As the California Supreme Court reasoned in a leading case:

[o)ne who consents to the production of a child cannot create a temporary relation to be assumed and disclaimed at will, but the arrangement must be of such character as to impose an obligation of supporting those for whose existence he is directly responsible.

People v. Sorenson, 68 Cal. 2d 280, 285 (1968). In Sorenson, the California Supreme Court held the father criminally liable for unpaid child support for a child who was not genetically related to him, when he consented to the procreation of the child through artificial insemination of his wife by an anonymous sperm donor. Based in part on the decision in Sorenson and other case law cited therein, we advised that a husband who had consented to artificial insemination of his wife was the legal father of the child, even though the father and mother separated before the child was born, and the biological father never had any contact with the child. See POMS PR 01105.006.A, Claim for Child Insurance Benefits on account of wage earner, Joseph (September 24, 2003).

Here, the presumed father Robert took Jonathan into his home and raised him as his own for seven years. Thus, even if Robert later chose to have his DNA tested to disclaim paternity, such evidence would not be admissible because he consented to the claimant's conception by artificial insemination and assumed the obligations of a father for seven years. See Cal. Fam. Code § 7541(e).

Finally, the Nevada stipulated court order would be given full faith and credit by courts and have the same effect as a paternity determination made in California. See Cal. Fam. Code § 5604. The order would be binding on the parties and their privies. See Guardianship of Claralyn S., 148 Cal. App. 3d 81, 85 (1983). In addition, Cal. Fam. Code § 7630(a)(2) would require that an action to declare the nonexistence of a presumed parent and child relationship be "brought within a reasonable time." Cal. Fam. Code § 7630(a)(2). The statute reflects the strong California public policies of maintaining established parent-child relationships and ensuring the finality of paternity judgments, which go beyond the doctrines of res judicata and collateral estoppel. See Guardianship of Claralyn S., 148 Cal. App. 3d at 85 (applying policy to preclude a challenge brought by grandparents who were not parties to the action in which the parentage finding was made). There is no likelihood that a court would entertain a challenge to the presumed father's paternity of a child born, like the claimant, over 10 years ago. Finally, it is unlikely that the claimant could show that his best interest requires disregarding a longstanding father-child relationship.

As the foregoing analysis indicates, the court's determination appears to be fair and correct under California law, and is not the result of a judgment by defA~. There is no reason why it should be disturbed by the Agency. See Gray v. Richardson, 474 F.2d 1370, 1372 (6th Cir. 1973) (Agency is not free to ignore the adjudication of a state trial court in a contested proceedings where it is fair and consistent with the law as enunciated by the highest court of the State); see also SSR 83-37c, http://www.socialsecurity.gov/OP_Home/rulings/oasi/09/SSR83-37-oasi-09.html (adopting that circuit court decision), and Memorandum from Regional Chief Counsel, San Francisco, to Ass't Reg. Comm.-MOS, Richmond, Claim for Child's Insurance Benefits on Account of Wage Earner Michael P~ F~, Jr. (August 22, 2005) (reprinted in POMS PR 01215.006).

In light of the foregoing, we believe that the claimant's application for child's insurance benefits on the account of Bruce was properly disallowed on reconsideration. We thus turn to the claimant's application on the account of his presumed father in light of Pennsylvania intestacy laws.

C. Pennsylvania Intestacy Laws and Claimant's Application on the Account of his Presumed Father, Robert

Pennsylvania law vests intestate inheritance rights in "the issue of the decedent." 20 Pa. C.S. § 2103 (2006). As to the determination of Jonathan's paternity, Pennsylvania law relies on the same policy considerations as California. As indicated below, these considerations lead us to conclude that Robert is the claimant's father.

Specifically, Robert is presumed to be the legitimate father of the claimant as a child of the marriage. Miscovich v. Miscovich, 688 A.2d 726, 728-29 (Pa. Super. Ct. 1997). "Although the presumption is rebuttable, one who attempts to overcome it bears a heavy burden." Id.

Even if the presumption could be successfully overcome, Robert would be estopped from denying paternity because he consented to the artificial insemination, supported Jonathan as his own for more than seven years, agreed to do so in a marital settlement agreement, and did not appeal the court's support order. See e.g., McConnell v. Berkheimer, 781 A.2d 206, 211 (Pa. Super. Ct. 2001) (applying estoppel doctrine where, in particular, father lived with the mother and the child for four months after the child's birth, accepted the child as his own for over a year; and failed to timely appeal support and contempt order); M~, 688 A.2d at 726 (denying husband's request for blood tests to disprove paternity where husband had an established relationship with child that did not deteriorate until after relationship with wife deteriorated, a familial relationship existed at the time the child was born, and no evidence of nonaccess, sterility, or impotency was offered); Commonwealth ex rel. Gonzalez v. Andreas, 369 A.2d 416, 418 (Pa. Super. Ct. 1976) (same where, for approximately three years, parties lived together following the child's birth and father supported the child as his own and never expressed any doubts about the child's parentage).

That the alleged biological father belatedly acknowledged paternity is of no consequence. As previously indicated and as opposed to Robert's conduct, Bruce has not played any significant role in the child life. As a result, he would be estopped from asserting paternity. See Buccieri v. Campagna, 889 A.2d 1220, 1228 (Pa. Super. Ct. 2005) (finding that delay and inactivity for eight years barred alleged biological father from asserting paternity where mother's husband was involved in child parenting for three years).

Finally, the Nevada court's July 1, 2003 final order would be given full faith and credit by Pennsylvania courts and have the same effect as a paternity determination made in Pennsylvania. See Chrzanowski v. Chrzanowski, 472 A.2d 1128, 1131 (Pa. Super. Ct. 1984). Because Robert was afforded the opportunity to litigate, he would be barred from relitigating the issue of his paternity that was determined by a court of competent jurisdiction. See Ruth F. v. Robert B., 690 A.2d 1171, 1174-75 (Pa. Super. Ct. 1997) ("Principles of res judicata are also applicable to determinations of paternity."). Again, the Agency is not free to disregard the court order, which appears to be fair and correct.

In sum, we believe that the claimant's application for child's insurance benefits on the account of Robert should be granted.

J. PR 06-135 Rebuttal of Acknowledgement of Parent-Child Relationship Between Larry (Number Holder) and Laura (Laura), SSN: ~

DATE: May 17, 2006

1. SYLLABUS

In a Pennsylvania claim, subsequent DNA testing showing a 99.99999% probability that another person is the child beneficiary's father is sufficient to overcome the prior establishment that the deceased number holder was the father based on section 216(h)(3) of the Social Security Act. In this case, sufficient time has past to prevent the Agency from reopening the child's award for surviving child's benefits. Monthly benefits must continue.

Additionally if the claimant produces additional proof of the actual father's paternity, such as his acknowledgment, it is likely that a Pennsylvania court would find that the acknowledgment coupled with the DNA test result would constitute clear and convincing evidence of that individual's paternity. The child would eligible for entitlement on that person's Social Security record as well.

2. OPINION

QUESTIONS PRESENTED

This is in response to your request for an opinion as to (1) whether the acknowledgment of a parent child relationship between the Number Holder and Laura has been rebutted under Pennsylvania law; and (2) if so, when benefits to Laura should cease.

CONCLUSION

Based on our review of the facts of this case and our research of the relevant statutes, regulations, and case law, we have concluded that a parent-child relationship between the Number Holder and Laura no longer exists. However, because there has been no event which ends Laura's entitlement to surviving child's benefits, and because the Agency may not reopen its previous determination, Laura's benefits on the Number Holder's account cannot be terminated.

At the same time, we have concluded that Laura may simultaneously be entitled to child's benefits on Philip account in light of DNA evidence that establishes a 99.99999% probability that Philip is Laura's father. If Laura's mother submits additional evidence such as an acknowledgment of Philip paternity, the Agency should apply 20 C.F.R. § 404.407(d) to determine the amount of child's benefits Laura should be receiving.

FACTUAL BACKGROUND

The following is a summary of the relevant facts in this matter. Laura was born on March, to Kelly . The Number Holder and Kelly were never married. Laura's birth certificate indicates that Kelly is Laura's mother and the Number Holder is listed as Laura's father. According to Kelly, the Number Holder signed Laura's birth certificate and raised Laura until his death in November 1996, notwithstanding that Laura physically resembled Philip by the time she was eighteen months old. In December 1996, Kelly completed a surviving child's benefits application on the Number Holder's account, which was granted effective November 1996. Laura continues to receive benefits on the Number Holder's account.

In February 2004, Kelly, Philip, and Laura underwent DNA testing, the results of which revealed a 99.99999% probability that Philip was Laura's father. In June 2004, Philip filed an application for disability benefits on his own account, and in May 2005, Kelly filed an application for child's benefits on Philip account. That application is currently in delayed status.

ANALYSIS

A. Child Status Under the Number Holder's Account

Child's benefits may be granted based on the earnings record of an insured person who has died if the applicant is the insured's child. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a)(1) (2005). Where a claimant's mother and putative father never married, the child may be granted surviving child status pursuant to either section 216(h)(3)(C) or section 216(h)(2)(A) of the Act, 42 U.S.C. §§ 416(h)(3)(C), (h)(2)(A).

To establish child status under section 216(h)(3)(C), a claimant must demonstrate that she is the natural child of the number holder, and one of the following: (1) that the number holder acknowledged in writing that the claimant is his child; (2) that a court decreed the number holder to be the father of the child claimant; (3) that a court ordered the number holder to contribute to the support of the child claimant; or (4) that the number holder is the father and was living with or contributing to the support of the child claimant at the time the number holder died. 42 U.S.C. § 416(h)(3)(C)(i)(I); 20 C.F.R.§§ 404.355(a)(3), (a)(4) (2005). In this case, the Number Holder acknowledged his paternity by signing Laura's birth certificate, and was living with her and contributed to her support until his death in 1996. Accordingly, at the time of Laura's application for surviving child's benefits, she qualified as the Number Holder's child pursuant to section 216(h)(3)(C) of the Act.

While Laura qualified as the Number Holder's child at the time of her application, the Agency now has DNA evidence that indicates a 99.99999% probability that Philip is Laura's father. This raises the issue of whether surviving child's benefits being paid on the Number Holder's account should cease.

The Agency may stop paying surviving child's benefits only if there is either an event which ends Laura's entitlement to surviving child's benefits, or if the Agency reopens the original child-status determination. 20 C.F.R. §§ 404.352(b), 404.988 (2005). Evidence that another insured individual is the child's natural father is not an event that terminates entitlement under the Act. 20 C.F.R. § 404.352(b) (2005). Accordingly, the Agency may cease paying benefits on the Number Holder's account only if it reopens and revises the original child-status determination.

Under the facts of this case, the DNA test results are not enough to allow the Agency to reopen the initial determination that granted Laura's application for surviving child's benefits. The Agency can reopen and revise a determination on its own initiative only if certain conditions are met. A determination can be reopened within twelve months for any reason; within four years if the Agency finds good cause; or at any time if one of eleven enumerated factors is satisfied. 20 C.F.R. § 404.988(a) - (c) (2005). Because the initial determination granting Laura's application for surviving child's benefits occurred nearly ten years ago, it cannot be reopened pursuant to subsections (a) or (b) of this section of the regulations. In addition, none of the eleven factors set forth in subsection (c) applies to the facts of this case. Accordingly, despite the existence of new evidence virtually excluding the Number Holder as Laura's father, the Agency's initial determination cannot be reopened, and Laura's benefits under the Number Holder's account may not be terminated.

B. Child's Status Under Philip Account

Laura may also be entitled to child's benefits on Philip account. Under the Commissioner's regulations, a child may be simultaneously entitled to a child's insurance benefit on more than one individual's earnings if all the conditions for entitlement described in 20 C.F.R. § 404.350 are met with respect to each claim. Where a child is simultaneously entitled to child's insurance benefits on more than one earnings record, the general rule is that the child will be paid an amount which is based on the record having the highest primary insurance amount. 20 C.F.R. § 404.407(d) (2005).

Under the Commissioner's regulations, a child is the insured's natural child if she could inherit the insured's personal property under state inheritance laws. 20 C.F.R. § 404.355(a)(1) (2005). Laura can inherit Philip personal property under Pennsylvania's intestacy statute if there is clear and convincing evidence that Kelly is Laura's father. 20 Pa. Cons. Stat. Ann. § 2107(c)(3) (West 2005).

As noted above, DNA test results indicate a 99.99999% probability that Kelly is Laura's father. Pennsylvania has adopted the Uniform Act on Blood Tests to Determine Paternity, which states that blood test results proving non-paternity will be conclusive in all civil matters in Pennsylvania state courts. 23 Pa. Cons. Stat. Ann. § 5104. As for whether DNA blood test results can establish paternity, the Superior Court of Pennsylvania has held that they may be material to, but do not conclusively prove paternity by clear and convincing evidence and that they are just "one factor to be weighed in the totality of the evidence presented on the question of paternity." Zearfoss v. Frattaroli, 646 A.2d 1238, 1241 (Pa. Super. 1994; see also Wawrykow v. Simonich, 652 A.2d 843, 848 (Pa. Super. 1994) (finding that while DNA test results alone are not conclusive evidence of paternity, they are "a factor in a chain of elements which compose the parenting bond by clear and convincing evidence.").

Outside of the DNA test results, no additional evidence in the file supports a finding that Laura is Philip child, other than Kelly’s uncorroborated claim that Philip contacted her last year stating that he was dying and wanted to have a relationship with Laura before he died, and that Laura has been visiting with Philip family. The record is unclear as to whether Philip openly holds Laura out as his child. Based on the current information in the record, we believe a Pennsylvania court would not find clear and convincing evidence that Philip is Laura's biological father. However, if Kelly were able to obtain evidence such as an acknowledgment of paternity by Philip, a Pennsylvania court would likely find clear and convincing evidence of his paternity, entitling Laura to benefits on his account.

CONCLUSION

For the above reasons, we conclude that while a parent-child relationship had previously been established between the Number Holder and Laura that relationship no longer exists. However, because there has been no event that ends Laura's entitlement to benefits as a surviving child, and because the Agency may not reopen its previous determination, the Agency must continue to pay surviving child's benefits on the Number Holder's account. In addition, if Kelly produces additional evidence such as an acknowledgment of paternity by Philip, Laura would be entitled to benefits on his account as well. If Laura is entitled to benefits on Philip account, the Agency should apply 20 C.F.R. § 404.407(d) to determine the amount of child's benefits Laura should be receiving.

Donna L. Calvert
Regional Chief Counsel

By: Elizabeth A. Corritore
Assistant Regional Counsel

K. PR 06-117 Effective Date of Parent-Child Relationship Between Anthony, the Number Holder, and Linda, SSN: ~

DATE: April 24, 2006

1. SYLLABUS

Under Pennsylvania's intestacy statute, a court order of paternity issued as a result of the number holder's failure to appear at a full support conference constitutes clear and convincing evidence of the number holder's paternity.

The date of the parent-child relationship is the date of the court order.

2. OPINION

QUESTION PRESENTED

This is in response to your request for an opinion as to whether Linda is entitled to child's benefits on the account number of Anthony (Number Holder). If a parent-child relationship is established, you have asked for the effective date of that relationship and whether it entitles Linda to retroactive benefits.

CONCLUSION

Based on our review of the facts of this case and our research of the relevant Pennsylvania statutes and case law, we have determined that a parent-child relationship has been established between the Number Holder and Linda as of April 27, 2005, but that Linda is not entitled to retroactive benefits.

FACTUAL BACKGROUND

The following is a summary of the relevant facts in this matter. Based on a December 1994 application, the Number Holder became entitled to disability benefits in January 1995. Linda was born on February, to Lisa. The Number Holder and Lisa were never married. Linda's birth certificate indicates that Lisa is Linda's mother and the Number Holder is listed as Linda's father.

On February XX, 2001, the Court of Common Pleas of Philadelphia County temporarily ordered that the Number Holder pay $25.00 per week in child support payments. On March 16, 2005, the Court directed the Number Holder to appear at a full support conference on April XX, 2005. The Court's order admonished the Number Holder that his failure to appear on April 5 could result in an order establishing his paternity. On April 27, 2005, after failing to appear, the Court issued a paternity order adjudicating Anthony as Linda's father. On July 5, 2005, the Court amended the temporary support order to a final order of support.

On April 25, 2005, Lisa filed applications for child's benefits and for a social security number which identify the Number Holder as Linda's father. The Number Holder is contesting his paternity, stating that Lisa forged his name on Linda's birth certificate.

DISCUSSION

Child's benefits may be granted based on the earnings record of an insured person who is entitled to disability benefits if the applicant is the insured's child and is dependent on the insured.

42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a) (2005). In determining whether an applicant is the insured's child, the Commissioner will determine whether any of four conditions is met. Under 20 C.F.R. § 404.355(a)(3) (2005), Linda is the insured's natural child because the Number Holder has been ordered by a Pennsylvania court to contribute to Linda's support. In addition, Linda could be eligible for benefits as the Number Holder's natural child if she could inherit the Number Holder's property under state inheritance laws. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. §§ 404.355(a)(1), 404.355(b) (2005). Under this method for determining whether Linda is the Number Holder's natural child, the Commissioner looks to the law of the state where the Number Holder had his permanent home at the time the application was filed. 20 C.F.R. § 404.355(b)(1) (2005). Because the Number Holder was domiciled in Pennsylvania at the time Lisa filed the application for child's benefits, Pennsylvania law applies.

Under Pennsylvania's intestacy statute, persons born out-of-wedlock will be considered the child of a putative father if one of the following three conditions is met:

  1. If the parents of a child born out of wedlock shall have married each other.

  2. If during the lifetime of the child, the father openly holds out the child to be his and receives the child into his home, or openly holds the child out to be his and provides support for the child which shall be determined by clear and convincing evidence.

  3. If there is clear and convincing evidence that the man was the father of the child, which may include a prior court determination of paternity.

20 Pa.C.S.A. § 2107(c) (West 2005). Linda cannot be considered the Number Holder's child pursuant to Paragraph (1) because the Number Holder and Lisa never married. Paragraph (2) is also inapplicable because the Number Holder has contested his paternity. Accordingly, the only applicable provision is § 2107(c)(3), which requires clear and convincing evidence of paternity to determine whether Linda was the Number Holder's child such that she could take a share of his intestate property.

We believe that clear and convincing evidence of paternity exists such that the Number Holder is Linda's father. Pursuant to 23 Pa.C.S.A. § 5104(c), a Pennsylvania court may order any party to submit to blood tests to resolve the question of paternity and, if any party refuses to submit to the tests, the Court may resolve the question of paternity against the party. Rule 1910.15 of the Pennsylvania Rules of Civil Procedure states that if a defendant refuses to execute an acknowledgment of paternity, the court shall enter an order directing the parties to appear for genetic testing. The order advises the defendant that his failure to appear for the testing will result in entry of an order finding that he is the father of the child.

We have spoken with staff at the Domestic Relations Branch, who indicated that the Number Holder did not appear for genetic testing as ordered. As noted above, the Court thereafter entered a paternity order on April 27, 2005, adjudicating the Number Holder as Linda's biological father. The Court also entered a final support order against the Number Holder in July 2005. In addition to the court orders, Linda's birth certificate identifies the father as the Number Holder, and Linda and the Number Holder share the same surname. Based on all of this evidence, Linda is the Number Holder's child for purposes of obtaining child's benefits.

The POMS GN 00306.055 directs that where a state law confers inheritance rights based on an adjudication of paternity (but does not legitimate the child), and the provision is effective prospectively only, the effective date of the claimant's status as the Number Holder's child is as follows:

if one piece of evidence satisfies the applicable standard of proof (e.g., blood test results constitute clear and convincing evidence), the date of that piece of evidence[.]

POMS GN 00306.055. Since the April 27, 2005 paternity order constitutes clear and convincing evidence of paternity under Pennsylvania inheritance laws, and confers child status upon Linda pursuant to 20 C.F.R. § 404.355(a)(3) (2005), the parent-child relationship is effective that date. Because Linda applied for benefits in April 2005, the same month in which all requirements for entitlement were met, she is not entitled to retroactive benefits.

CONCLUSION

For the above reasons, we conclude that a parent-child relationship has been established between the Number Holder and Linda. The effective date of that relationship is April 27, 2005.

Donna L. Calvert
Regional Chief Counsel

By: Elizabeth A. Corritore
Assistant Regional Counsel

L. PR 05-259 Entitlement to Surviving Child's Benefits Based on DNA Test Results as Clear and Convincing Evidence in the Commonwealth of Pennsylvania - Deceased Number Holder, Amir - SSN~

DATE: October 6, 2005

1. SYLLABUS

Under Pennsylvania law, a posthumous DNA test showing a 99.99% probability that the number holder is the claimant's father combined with a statement from the number holder's twin brother that he himself had no sexual relationship with the claimant's mother and that he believed the late number holder to be the father of the claimant constitute clear and convincing evidence of paternity. Since the provision does not legitimate the child under Pennsylvania law, the parent-child relationship is determined to have existed since June 24, 2005, the date that the last piece of the clear and convincing evidence was obtained.

2. OPINION

QUESTION PRESENTED

On September 19, 2005, you asked for our advice as to whether:(1) DNA test results performed on Amir (number holder), Amir, and Nicole, and a statement from Malek, the number holder's twin brother, meet the Commonwealth of Pennsylvania'a legal requirement for clear and convincing evidence of paternity for inheritance purposes; (2) if so, what is the effective date of the relationship; and (3) whether retroactive benefits can be paid on behalf of the child.

SUMMARY

Based on our review of the facts of this case and our research of the relevant Pennsylvania statutes and case law, we have determined that a court could find that the evidence provided to us constitutes clear and convincing evidence of paternity under Pennsylvania intestacy law. We have also determined that the effective date of the parent-child relationship between the number holder and the child for purposes of child’s insurance benefits was June 24, 2005, and that the child would be entitled to retroactive benefits beginning on that date.

BACKGROUND

In your request, you indicated that the number holder died on June XX, 2004, while domiciled in Pennsylvania. Amir , a minor child, was born on November. Amir’s birth certificate does not identify a father. On August 4, 2005, Nicole, Amir’s mother, filed a claim for surviving child’s benefits behalf of Amir, on the earnings record of the number holder. In her application, Nicole stated that she and the number holder were not married and did not live together. However, she provided a written statement dated June 26, 2005, in which she reported that the number holder was happy about the pregnancy, and that he was very supportive of her, accompanied her to medical appointments, and wanted to know the sex of the child

In support of her application, Nicole had DNA testing performed on herself, Amir, and tissue collected from the number holder after his death. The information which you provided to us contains a DNA Parentage Test Report, dated June 14, 2005, which shows that the probability of paternity is 99.99%.

In support of her application, Nicole also submitted a June 24, 2005, statement from Malik, the number holder’s twin brother, stating that he had never had a relationship with Nicole, and that it was his belief that his brother, the number holder, was the father of Nicole’s baby, Amir.

We have reviewed the materials you provided and researched the relevant portions of Pennsylvania’s domestic relations and inheritance law as they relate to establishing paternity. Our research indicates that the results of the DNA Parentage Test Report and inferences from other evidence, in the absence of contradictory evidence, constitute clear and convincing evidence of paternity.

DISCUSSION

The Social Security Act provides that, in determining whether an applicant is the child of an insured individual, the Commissioner will apply the inheritance law of the state in which the insured individual was domiciled at the time the application was filed or, if the insured individual is dead, of the state in which the insured individual was domiciled at the time of his death. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R.§ 404.355(b)(1) (2005). Because the number holder was domiciled in Pennsylvania at the time of his death, Pennsylvania intestacy law applies.

The Pennsylvania intestacy statute addressing persons born out of wedlock, 20 Pa. Cons. Stat. Ann. § 2107(c), indicates that an individual will be considered to be the child of a putative father if one of the following conditions is met:

  1. If the parents of a child born out of wedlock shall have married each other.

  2. If during the lifetime of the child, the father openly holds out the child to be his and receives the child into his home, or openly holds the child out to be his and provides support for the child which shall be determined by clear and convincing evidence.

  3. If there is clear and convincing evidence that the man was the father of the child, which may include a prior court determination of paternity.

Because there is no information indicating that Nicole and the number holder ever married, and because the number holder died before Amir was born, the only provision that might apply in this case is § 2107(c)(3). To meet this provision, Amir would have to prove by clear and convincing evidence that the number holder was his father.

The Uniform Act on Blood Tests to Determine Paternity establishes that blood test results proving non-paternity will be conclusive in all civil matters in Pennsylvania State courts. 20 Pa. Cons. Stat. Ann. § 5104. The Act does not address the situation where blood test results establish paternity. Id. However, relevant case law has addressed this issue. In Zearfoss v. Frattaroli, 646 A.2d 1238, 1241 (Pa. Super. 1994), the Superior Court of Pennsylvania held that blood test results were not conclusive, but were "one factor to be weighed in the totality of the evidence presented on the question of paternity." The Court determined that a lower court had erred in finding that DNA test results establishing paternity conclusively outweighed contradictory evidence of non-paternity. Id. at 1241, 1244. The Court stated that a court may hold for a putative father/defendant against a natural mother/plaintiff in a paternity action, regardless of DNA test results establishing a 99.99% probability of paternity, "if other facts are supportive of such a verdict." Id. at 1243. The Court then remanded the case to the lower court for a jury trial, during which the totality of the evidence would be considered.

The Court reached a similar conclusion in Wawrykow v. Simonich, 652 A.2d 843 (Pa. Super. 1994). The Court held that a lower court may order exhumation of a deceased putative father for DNA testing if certain conditions were met. Id. at 847. The Court noted that blood tests previously submitted were not conclusive, but may be used as "some evidence" of paternity, and that DNA testing was material and relevant to proving paternity. Id. at 845, 847. The Court ultimately concluded that DNA testing was material to, but not conclusive of, paternity. Id. at 848. Thus, Pennsylvania case law establishes that DNA test results should be considered as one factor in assessing whether there is clear and convincing evidence of paternity.

In this case, we have the results of the DNA Parentage Test Report which shows that the probability of paternity is 99.99%. In addition, we have the statement of the number holder’s twin brother, which excludes the issue of paternity of Amir by the number holder’s twin brother. Absent the possibility of paternity of Amir by the number holder’s twin brother, the results of the DNA Parentage Test Report are strong evidence of the number holder’s paternity of the child.

In addition, Nicole’s statement that the number holder was happy about her pregnancy, supportive of her, and accompanied her to medical appointments constitutes additional evidence of paternity, and suggests that had the number holder lived, he would have acknowledged that the child was his and provided support for him. Thus, absent the number holder’s premature demise, it is likely that Amir would have been able to establish paternity pursuant to 20 Pa. Cons. Stat. Ann. § 2107(c)(2).

The only other evidence of paternity in the documents provided is Amir’s birth certificate. Although the name of the father is not recorded on his birth certificate, the child was named Amir, taking both the first and last name of the deceased number holder. The birth certificate, in and of itself, is of limited probative value in establishing paternity.

In the absence of contradictory evidence, a reviewing court could find that the results of the DNA Parentage Test Report, and the number holder’s twin brother’s statement that he believes Amir is his brother’s child and that he never had a relationship with Amir’s mother, sufficient to establish clear and convincing evidence of paternity and that Amir is the number holder’s child pursuant to 20 Pa. Cons. Stat. Ann. § 2107(c)(3).

As to the effective date of the parent-child relationship, the POMS direct that where a state law confers inheritance rights based on an adjudication of paternity (but does not legitimate the child), and the provision is effective prospectively only, the date of the latest necessary piece of evidence needed to satisfy the applicable standard of proof is the effective date. POMS GN 00306.055. In this case, the statement from the number holder’s twin brother was the latest necessary piece of evidence provided establishing paternity under Pennsylvania law. Therefore, the effective date of the parent-child relationship is June 24, 2005, the date that Malik’s statement was obtained.

Finally, you have asked whether the child is entitled to retroactive benefits. The regulations provide that if the insured is deceased, the child is entitled to benefits beginning with the first month covered by the application in which he meets all other requirements for entitlement. 20 C.F.R.

§ 404.352(a)(1) (2005). The regulations further provide that a child may receive retroactive benefits for up to six months beginning with the first month in which all requirements are met. 20 C.F.R. § 404.621(a)(2) (2005); see also POMS

GN 00204.030. Here, the child met the requirements for entitlement on June 24, 2005, less than two months before he filed his application on August 4, 2005. Therefore, he is entitled to benefits retroactive to June 24, 2005.

CONCLUSION

For the foregoing reasons, we conclude that there is clear and convincing evidence of paternity under Pennsylvania intestacy law and that the agency should find that Amir is the number holder’s child for purposes of 42 U.S.C. § 416(h)(2) and award Surviving Child’s Benefits. In addition, Amir is entitled to benefits retroactive to June 24, 2005.

Donna L. Calvert
Regional Chief Counsel

By: Beverly H. Zuckerman
Assistant Regional Counsel

M. PR 05-168 Reopening of a Surviving Child's Benefits Claim Based on DNA Test Results Indicating the Probability of Parental Grandparentage is 0.0% - Christopher (SSN: ~), Number Holder (NH)

DATE: June 1, 2005

1. SYLLABUS

In Pennsylvania, given the absence of any evidentiary or legal support for the mother of the deceased number holder's current allegation that her husband was not the number holder's father, DNA testing of the number holder's mother and the man she alleges is the father showing a 0.0% probability that they are the grandparents of the child beneficiary does not constitute the new and material evidence necessary to reopen the child's original entitlement to benefits.

2. OPINION

QUESTION PRESENTED

On May 6, 2005, you asked us whether DNA test results, indicating the probability of parental grandparentage is 0.0%, can be used to reopen and revise the entitlement determination of Christina , the claimant (SSN: ~).

SUMMARY

Based on our review of the facts of this case and our research of the relevant Federal and Pennsylvania law, we have determined that DNA test results, indicating a probability of parental grandparentage of 0.0%, should not be used to reopen Christina's original entitlement determination that a parent-child relationship was established between Christina and the NH.

BACKGROUND

According to the information you provided, Christina was born on January. Erica and the NH are named, respectively, as Christina's mother and father on her birth certificate. Erica and the NH were never married. On January 24, 2000, the Court of Common Pleas of Philadelphia County, Pennsylvania, ordered primary physical and legal custody of Christina to Erica. The order also identified the NH as Christina's father and granted him partial custody of her every other weekend. Valerie, Christina's grandparent, said the NH was never ordered by the court to contribute to Christina's support. The NH died on July XX, 2001. The NH was domiciled in Pennsylvania at the time of his death.

On May 21, 2002, Valerie applied for surviving child's benefits on behalf of Christina. On July 5, 2002, Lucie, the NH's mother, provided a statement to the Agency acknowledging the NH had three children and mentioning Christina as one of his children. The Agency subsequently adjudicated Christina's claim in July 2002 and awarded surviving child's benefits to Christina, effective November 2001.

In October 2004, Lucie visited a local field office and submitted DNA tests results of herself, Christina and Dwayne, the alleged paternal grandparents of Christina. Lucie reported that she had decided to undergo DNA testing because Erica had "admitted" to her that Christina was not the NH's daughter. The DNA test results excluded Lucie and Dwayne as the biological paternal grandparents of Christina. Based on testing results obtained from the analyses of 15 different DNA probes, the probability of grandparentage was 0.0%. The Agency used the DNA test results to reopen Christina's entitlement determination under the "New and Material Evidence" provisions of POMS GN 04010.030 and stopped paying her benefits.

In February 2005, a request for reconsideration was filed on Christina's behalf. Investigation revealed the NH's numident record listed Lucie as the NH's mother and Wymon as the NH's father. The field office then interviewed Lucie to determine if Dwayne, who was listed as the alleged paternal grandfather on the DNA test results, was the biological father of the NH. Lucie advised Dwayne was the NH's biological father. Lucie explained she had separated from Wymon, her husband, for a time and during this separation, the NH was born. Lucie said she was with Dwayne for only a short period of time and she did not tell him about the NH. Lucie reported she and Wymon eventually reunited and Wymon wanted to give the NH his name. Lucie acknowledged the only proof she had that Dwayne was the NH's biological father was that "he looks just like him." Lucie reported that the DNA testing was conducted on her, Dwayne and Christina because the laboratory had told her that the testing needed to include the grandfather. However, you subsequently contacted the laboratory that administered the test and the laboratory advised you that the alleged paternal grandmother only could be tested.

DISCUSSION

A determination, revised determination, decision, or revised decision may be reopened within four years of the notice of the initial determination if there is good cause, as defined in § 404.989, to reopen the case. 20 C.F.R. § 404.988(b) (2004). There is good cause to reopen a determination or decision if:

  1. New and material evidence is furnished;

  2. A clerical error in the computation or recomputation of benefits was made; or

  3. The evidence that was considered in making the determination or decision clearly shows on its face that an error was made.

20 C.F.R. § 404.989(a) (2004). Given the information provided and the Agency's actions to-date in this case, the only provision that appears applicable to this case is the new and material evidence provision. The Agency defines new and material evidence as any evidence which was not part of the claims, disability or earnings discrepancy file when the final determination/decision was made, but relates back to the date of the original determination/decision and shows facts that would result in a conclusion different from that originally reached had the new evidence been introduced or available at the time of the original determination. POMS GN 04010.030A.

Here, the DNA test results were not part of the claims file when the initial determination was made. The Agency has already determined that the DNA results relate back to the date of the initial determination inasmuch as it originally relied on them to reopen Christina's entitlement determination. Thus, the central issue is whether the DNA results show facts that would have resulted in a conclusion different from the original determination that a parent-child relationship was established, had the results been introduced at the time of the original determination. From the information you have provided, we do not believe the DNA results show facts that would have resulted in a conclusion different from the original determination. While the DNA results indicate the probability of Lucie's and Dwayne's paternal grandparentage of Christina is 0.0%, there is a dispute in the record regarding whether Dwayne was the NH's father. Although Lucie alleges Dwayne was the NH's biological father, she admits there is no objective evidence which supports her allegation. Lucie's allegation is disputed by the NH's numident record, which identifies Wymon as the NH's father. The NH's numident record is, itself, consistent with Pennsylvania law. Lucie admits she and Wymon were married at the time of the NH's birth. Pennsylvania law recognizes a presumption of paternity which provides that a child conceived or born during a marriage will be presumed to be a child of the marriage. B.S. and R.S. v. T.M., 782 A.2d 1031, 1034 (Pa. Super. Ct. 2001). Thus, under Pennsylvania law, Wymon is presumptively considered the NH's father for paternity purposes because he was married to the NH at the time of the NH's birth. Accordingly, given the absence of any evidentiary or legal support for Lucie's allegation that Dwayne was the NH's biological father, the DNA test results are not relevant evidence and cannot be construed as new and material evidence.

CONCLUSION

For the above reasons, we conclude that DNA test results, indicating a probability of parental grandparentage of 0.0%, should not be used to reopen Christina's original entitlement determination that a parent-child relationship was established between Christina and the NH.

Donna L. Calvert
Regional Chief Counsel

By: Lori Karimoto
Assistant Regional Counsel

N. PR 05-105 Effective Date of Parent-Child Relationship Between Edward , the Number Holder, and Brianna

DATE: March 21, 2005

1. SYLLABUS

The facts in this case do not satisfy the requirement of Pennsylvania intestacy law that a child born out of wedlock will be considered the child of his/her father if there is clear and convincing evidence of paternity. Under Pennsylvania law, DNA test results should be considered a factor in assessing whether there is clear and convincing evidence of paternity but the evidence, itself, is not conclusive of proving paternity by clear and convincing evidence.

2. OPINION

QUESTION PRESENTED

The facts in this case do not satisfy the requirement of Pennsylvania intestacy law that a child born out of wedlock will be considered the child of his/her father if there is clear and convincing evidence of paternity. Under Pennsylvania law, DNA test results should be considered a factor in assessing whether there is clear and convincing evidence of paternity but the evidence, itself, is not conclusive of proving paternity by clear and convincing evidence.

SUMMARY

Based on our review of the facts of this case and our research of the relevant Pennsylvania statues and case law, we have determined that a parent-child relationship has not been established between the NH and Brianna.

BACKGROUND

According to the information you provided, Jessica and the NH were in a "relationship" through sometime in May 2003, when they separated. Jessica and Lester started living together in June 2003. Jessica and Lester married in September 2003, after Jessica discovered she was pregnant. Brianna was born on December. Brianna (a/k/a Jessica) claimed Lester "knew/thought" Brianna was not his child in the beginning, but after she was born, Lester reportedly believed Brianna looked like him. Lester agreed to raise Brianna as his child. Brianna stated Lester acknowledged Brianna as his child and signed her birth records at the hospital. Brianna's birth certificate named Lester as her father.

Lester also listed Brianna as his child on his health insurance plan. Also, the December 2003 application for a social security number (SSN) which was filed on Brianna's behalf named Lester and Jessica as Brianna's parents. Otherwise, Lester never adopted Brianna.

Brianna and Lester separated in November 2004 and Brianna filed a "PFA" (protection from abuse) against him in December 2004. Brianna said she subsequently had DNA testing done in order to preclude Lester from having any visitation rights with Brianna. The January 2005 DNA test results indicated a 99.98% probability of grandparentage by the NH's parents, Virginia and Edward. Brianna said Lester had been leary of having paternity tests done before because he was uncertain how he would react if the test results indicated Brianna was not his child. According to Lancaster County Domestic Relations, as of January 26, 2005, there was no record that Brianna had filed a child support claim against Lester on Brianna's behalf. In January 2005, Brianna applied for surviving child's benefits on Brianna's behalf.

Regarding her relationship with the NH, Brianna said she had no contact with him since June 2003, when she filed a "PFA" against him. Brianna advised the NH had no contact with Brianna before he died on November XX, 2004. The NH was a resident of Pennsylvania when he died. Brianna also claimed that the NH's parents acknowledged Brianna as their grandchild since her birth. This claim was not reported as either confirmed or denied in a January 2005 Report of Contact which was done with Virginia, the NH's mother. However, Virginia stated that the NH was her and her husband's only son.

DISCUSSION

The Social Security Act provides that, in determining whether an applicant is the child of an insured individual, the Commissioner will apply the inheritance law of the state in which the individual was domiciled at the time the application was filed or, if the insured individual is dead, of the state in which the insured individual was domiciled at the time of his death. Section 216(h)(2)(A) of the Social Security Act, 42 U.S.C. § 416(h)(2)(A). Because the NH was domiciled in Pennsylvania at the time of his death, Pennsylvania intestacy law applies.

The specific question which was asked was whether Brianna could be established as the child of the NH based on the DNA testing results of the grandparents. According to the information you provided, Brianna and the NH never married. The Pennsylvania intestacy statute addressing persons born out-of-wedlock indicates that an individual will be considered to be the child of a putative father if one of the following conditions is met:

  1. If the parents of a child born out of wedlock shall have married each other.

  2. If during the lifetime of the child, the father openly holds out the child to be his and receives the child into his home, or openly holds the child out to be his and provides support for the child which shall be determined by clear and convincing evidence.

  3. If there is clear and convincing evidence that the man who was the father of the child, which may include a prior court determination of paternity.

20 Pa. Cons. Stat. Ann. § 2107(c) (West 2005). As noted already, the NH and Brianna never married. The record was unclear as to whether the NH had openly held out Brianna to be his child. Nevertheless, though, Brianna said the NH had no contact with Brianna and no information was provided which suggested the NH had supported Brianna before he died. Given this, the only provision that appears applicable in this case is § 2107(c)(3). To satisfy this provision, there must be clear and convincing evidence that the NH was Brianna's father.

The Uniform Act on Blood Tests to Determine Paternity establishes that DNA test results providing non-paternity will be conclusive in all civil matters in Pennsylvania state courts.

23 Pa. Cons. Stat. Ann. § 5104(f) (West 2005). This Act does not address the situation where DNA tests results suggest paternity. Id., at § 5104. However, relevant case law has addressed this issue. In Zearfoss v. Frattaroli, 646 A.2d 1238, 1241 (Pa. Super. Ct. 1994), the Superior Court of Pennsylvania held that blood test results were not conclusive, but were "one factor to be weighed in the totality of the evidence presented on the question of paternity." The Superior Court determined that a lower court had erred in finding that DNA test results establishing paternity conclusively outweighed contradictory evidence of non-paternity. Id., at 1241, 1244. The Superior Court stated that a court may hold for a putative father against a natural mother in a paternity action, regardless of DNA test results establishing a 99.99% probability of paternity, "if other facts are supportive of such a verdict." Id., at 1243.

The Superior Court reached a similar conclusion in Wawrykow v. Simonich, 652 A.2d 843 (Pa. Super. Ct. 1994). The Superior Court held that a lower court may order exhumation of a deceased putative father for DNA testing if certain conditions were met. Id., at 846. The Superior Court noted that blood tests previously submitted were not conclusive, but may be used as "some evidence of paternity." Id., at 845. The Superior Court ultimately concluded that DNA testing was material to, but not conclusive of, paternity. Id., at 848. Thus, Pennsylvania case law establishes that DNA test results should be considered as a factor in assessing whether there is clear and convincing evidence of paternity but the evidence, itself, is not conclusive of proving paternity by clear and convincing evidence. Id.

In this case, we have DNA test results establishing that the probability of grandparentage by the NH's parents is 99.98%; therefore, the NH's parents cannot be excluded as Brianna's biological grandparents. These DNA test results appear to be somewhat strong evidence of the NH's paternity. However, as noted already, such evidence is not conclusive of proving paternity by clear and convincing evidence. See id. A court may hold for a putative father and against a natural mother in a paternity action, regardless of DNA results establishing a 99.99% probability of paternity, "if other facts are supportive of such a verdict." Zeafross, 646 A.2d at 1243. Accordingly, a 99.98% probability of grandparentage is not conclusive evidence on the issue of the NH's paternity. Outside of the DNA results, no additional evidence was presented which supported a finding that Brianna was the NH's child, except for Brianna's uncorroborated claim that the NH's parents had acknowledged Brianna as their grandchild since her birth.

Juxtaposed against the paucity of evidence corroborating the DNA results, Brianna admitted that the NH had no contact with Brianna and, as mentioned already, the information provided did not clearly establish that the NH had ever recognized Brianna as his child. Additionally, there was no statement from Brianna attesting to the fact that her sexual relations were limited to the NH at the time of Brianna's conception. Brianna stated Lester believed Brianna looked like him and he was leary of having paternity tests done because he was uncertain how he would react if the results indicated Brianna was not his child. Brianna's statement suggested Lester believed Brianna could be his child. However, the record contained no DNA/blood test results or other evidence that clearly excluded Lester as the father. Moreover, no information was provided which suggested that Brianna and Lester and Brianna did not live together as an intact family after Brianna's birth before Brianna and Lester separated. Information was provided which indicated Lester had assumed parental responsibility for Brianna. Lester held himself out as Brianna's father, had signed Brianna's birth records at the hospital as her father, was named as Brianna's father on her birth certificate and SSN application, and had named Brianna as his child on his health insurance plan. Indeed, inasmuch as Pennsylvania law recognizes a presumption of paternity which provides that a child conceived or born during a marriage will be presumed to be a child of the marriage, B.S. and R.S. v. T.M., 782 A.2d 1031, 1034 (Pa. Super. Ct. 2001), Brianna would arguably be considered Brianna's father for paternity purposes because he was married to Brianna's mother at the time of Brianna's birth. See generally POMS PR 04-049, "Effective Date of Parent-Child Relationship Between Number Holder (Lonnie W~) and Troy A~ W~, SSN ~" (discussing the application of presumption of paternity and paternity by estoppel under Pennsylvania law).

We have not found a case in Pennsylvania addressing this exact fact pattern. However, given the paucity of evidence contained in the record which corroborates the DNA results, we believe it is unlikely a reviewing court in Pennsylvania would find clear and convincing evidence that the NH was Brianna's father under Pennsylvania's intestacy statue. Cf. POMS PR 03-123, "Entitlement to Surviving Child's Benefits Based on DNA Test Results as Clear and Convincing Evidence in the Commonwealth of Pennsylvania - Deceased Number Holder, Andrew B~ - SSN: ~" (recommending further development of the record where, amongst the information already provided, DNA test results suggested a probability of grandparentage of 99.99999% and DNA test results excluded another man as the father). Thus, we recommend Brianna should not be considered the NH's child for purposes of § 216(h)(2) given the evidence provided.

CONCLUSION

For the above reasons, we conclude that a parent-child relationship has not been established between the NH and Brianna given the evidence you provided.

Donna L. Calvert
Regional Chief Counsel

By: Lori Korimoto
Assistant Regional Counsel

O. PR 04-210 Entitlement to Surviving Child's Benefits Based on Blood Test Results as Clear and Convincing Evidence in the Commonwealth of Pennsylvania - Deceased Number Holder, Aaron

DATE: April 28, 2004

1. SYLLABUS

Genetic test results performed on members of the deceased number holder's family showing a 98.48% probability of paternity meet Pennsylvania's legal requirement for clear and convincing evidence of paternity for inheritance purposes.

2. OPINION

QUESTION PRESENTED

On March 22, 2004, you asked us to advise you whether genetic test results performed on members of the deceased number holder's family meet the Commonwealth of Pennsylvania'a legal requirement for clear and convincing evidence of paternity for inheritance purposes.

SUMMARY

Based on our review of the facts of this case and our research of the relevant Pennsylvania statutes and case law, we have determined that a court could find that the evidence provided to us constitutes clear and convincing evidence of paternity under Pennsylvania intestacy law.

BACKGROUND

In your request, you indicated that Aaron , the number holder, died in an automobile accident on July 13, 2002, while domiciled in Pennsylvania. Aaron , a minor child, was born on January. Aaron's birth certificate does not identify a father. In July 2003, Amber , Aaron's mother, filed a claim for surviving child's benefits on behalf of Aaron, on the earnings record of Aaron. In her application, Amber stated that Aaron was born out of wedlock.

On October 8, 2003, Amber's claim was denied because it was determined that the facts did not show that Aaron was child. On October 31, 2003, Amber filed a request for reconsideration of the denied claim.

In support of her application, Amber stated that she had DNA testing performed on herself, Aaron and family members. The information which you provided to us contains a Genetic Test Report, based upon blood drawn from Amber; Aaron; Cindy , aka Cynthia , Aaron’s mother; and Nicole, aka Lynn's sister. The report shows that the probability of paternity is 98.48%. Amber also stated that DNA testing could not be performed on Aaron (that no body fluids were available), and that she had been notified that no other testing could be performed because of the formaldehyde which had been used by the funeral director.

In support of her application, Amber also submitted a November 15, 2003, notarized statement from Cynthia, Aaron's mother, attesting to her belief that Aaron is the child of her deceased son, Aaron . According to Cynthia specifically stated, on July XX, 2002, one day prior to his death, that "he planned on taking care of his responsibilities concerning Amber and his unborn child." Cynthia referred to the "DNA test" which had been performed, and verified that she had no other biological sons who could have fathered Aaron. In addition, Cynthia reported that Aaron looks like her son, Aaron , when he was a baby, and that she has pictures which show a resemblance to her son. Cynthia also stated that Aaron spends time with her family, and that he is very much a part of her family.

We have reviewed the materials you provided and researched the relevant portions of Pennsylvania's domestic relations and inheritance law as they relate to establishing paternity. Our research indicates that the results of the Genetic Test Report and inferences from other evidence, in the absence of contradictory evidence, constitute clear and convincing evidence of paternity.

DISCUSSION

The Social Security Act provides that, in determining whether an applicant is the child of an insured individual, the Commissioner will apply the inheritance law of the state in which the insured individual was domiciled at the time the application was filed or, if the insured individual is dead, of the state in which the insured individual was domiciled at the time of his death. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1) (2003). Because Aaron was domiciled in Pennsylvania at the time of his death, Pennsylvania intestacy law applies.

The Pennsylvania intestacy statute addressing persons born out of wedlock, 20 Pa. Cons. Stat. Ann. § 2107(c), indicates that an individual will be considered to be the child of a putative father if one of the following conditions is met:

  1. If the parents of a child born out of wedlock shall have married each other.

  2. If during the lifetime of the child, the father openly holds out the child to be his and receives the child into his home, or openly holds the child out to be his and provides support for the child which shall be determined by clear and convincing evidence.

  3. If there is clear and convincing evidence that the man was the father of the child, which may include a prior court determination of paternity.

Because there is no information indicating that Amber and Aaron ever married, and because Aaron died before Aaron was born, the only provision that might apply in this case is § 2107(c)(3). To meet this provision, Aaron would have to prove by clear and convincing evidence that Amber was his father.

The Uniform Act on Blood Tests to Determine Paternity establishes that blood test results proving non-paternity will be conclusive in all civil matters in Pennsylvania State courts. 20 Pa. Cons. Stat. Ann. § 5104. The Act does not address the situation where blood test results establish paternity. Id. However, relevant case law has addressed this issue. In Zearfoss v. Frattaroli, 646 A.2d 1238, 1241 (Pa. Super. 1994), the Superior Court of Pennsylvania held that blood test results were not conclusive, but were "one factor to be weighed in the totality of the evidence presented on the question of paternity." The Court determined that a lower court had erred in finding that DNA test results establishing paternity conclusively outweighed contradictory evidence of non-paternity. Id. at 1241, 1244. The Court stated that a court may hold for a putative father/defendant against a natural mother/plaintiff in a paternity action, regardless of DNA test results establishing a 99.99% probability of paternity, "if other facts are supportive of such a verdict." Id. at 1243. The Court then remanded the case to the lower court for a jury trial, during which the totality of the evidence would be considered.

The Court reached a similar conclusion in Wawrykow v. Simonich, 652 A.2d 843 (Pa. Super. 1994). The Court held that a lower court may order exhumation of a deceased putative father for DNA testing if certain conditions were met. Id. at 847. The Court noted that blood tests previously submitted were not conclusive, but may be used as "some evidence" of paternity, and that DNA testing was material and relevant to proving paternity. Id. at 845, 847. The Court ultimately concluded that DNA testing was material to, but not conclusive of, paternity. Id. at 848. Thus, Pennsylvania case law establishes that DNA test results should be considered as one factor in assessing whether there is clear and convincing evidence of paternity.

In this case, we have the results of the Genetic Test Report which shows, based upon blood drawn from Aaron, his mother, Aaron's mother, and Aaron's sister that the probability of paternity is 98.48%. In addition, we have Aaron's mother's statement which excludes the issue of paternity of Aaron by a brother of Aaron. Absent the possibility of paternity of Aaron by a biological brother of Aaron, the results of the Genetic Test Report are strong evidence of Aaron's paternity of Aaron.

In addition, Aaron's mother's statement attesting to her belief that Aaron is the child of her deceased son is strong evidence of paternity, particularly in light of the fact that it was based, in part, upon Aaron's reported acknowledgement of his responsibilities toward Amber and his unborn child. This statement strongly suggests that had Aaron lived, he would have received Aaron into his home and provided support for him. Thus, absent Aaron's premature demise, it is likely that Aaron would have been able to establish paternity pursuant to 20 Pa. Cons. Stat. Ann. § 2107(c)(2).

In her statement, Aaron's mother also indicated that Aaron looks like her son when he was a baby. In Tyler v. King, 496 A.2d 16, 25, (Pa. Super. 1985), the Superior Court of Pennsylvania found that a comparison of a child's traits to the putative father's traits was a valid comparison in paternity cases. See also Mitchell v. Hopson, 545 A.2d 371, 374 (Pa. Super. 1988) (providing that a party seeking to establish paternity should be given the opportunity to offer evidence regarding factors relevant to paternity such as the child's physical resemblance to the putative father).

The only other evidence of paternity in the documents provided is Aaron's birth certificate. Although the name of Aaron's father is not recorded on his birth certificate, his surname is recorded as Aaron and his middle name is recorded as Aaron's first name. The birth certificate, in and of itself, is of limited probative value in establishing paternity.

In the absence of contradictory evidence, a reviewing court could find that the results of the Genetic Test Report, Aaron's mother's statement attesting to her belief that Aaron is the child of her deceased son, Aaron's reported statement to his mother just one day prior to his death acknowledging his responsibilities toward Amber and his unborn child, Aaron's resemblance to Aaron, and the surname and middle name on Aaron's birth certificate sufficient to establish clear and convincing evidence of paternity and that Aaron's child pursuant to 20 Pa. Cons. Stat. Ann. § 2107(c)(3).

CONCLUSION

For the foregoing reasons, we conclude that there is clear and convincing evidence of paternity under Pennsylvania intestacy law and that the agency should find that Aaron's child for purposes of 42 U.S.C. § 416(h)(2) and award Surviving Child's benefits.

Patricia M. Smith
Regional Chief Counsel

By: Beverly H. Zuckerman
Assistant Regional Counsel

P. PR 03-123 Entitlement to Surviving Child's Benefits Based on DNA Test Results as Clear and Convincing Evidence in the Commonwealth of Pennsylvania - Deceased Number Holder, Andrew - SSN: ~

DATE: April 29, 2003

1. SYLLABUS

In the absence of contradictory evidence, a Pennsylvania court would find that the DNA test results from the NH's parents, the DNA results excluding another man as the father, and the child's mother's testimony sufficient to establish the child claimant's paternity by clear and convincing evidence. However, SSA should seek additional evidence prior to making a decision in this case. In particular, SSA should determine if the NH had a brother who could be the child's father; and consider obtaining a statement from the mother about her relationships when the child was conceived.

2. OPINION

QUESTION PRESENTED

On April 7, 2003, you asked us to advise you whether DNA test results meet the Commonwealth of Pennsylvania's legal requirement for clear and convincing evidence of paternity for inheritance purposes.

SUMMARY

Based on our review of the facts in this case and our research of the relevant Pennsylvania statutes and case law, we have determined that a court could possibly find clear and convincing evidence of paternity in this case. However, because of the paucity of evidence other than the DNA test results, we cannot establish conclusively that the requirements for proving paternity have been met. Accordingly, we suggest that the agency conduct further investigation before awarding Surviving Child's Benefits.

BACKGROUND

In your request, you indicated that Andrew and Natoshia were never married and did not cohabit. Alexander was born on January. In the period of Alexander's conception, Alexander admits to having sexual relations with two men - Joseph and Jason . Alexander's birth certificate does not identify a father. Joseph died on September XX, 2002.

At the time of Alexander's birth, Alexander believed that Jason was Alexander's father. However, a September XX, 2002 DNA test excluded Jason as Alexander's biological father. In December 2002, DNA testing established a 99.99999% probability that Joseph and Marion's parents, are the grandparents of Alexander. Alexander applied for Surviving Child's Benefits and a lump sum payment on February 22, 2003, on the basis that Alexander is the surviving child of Joseph.

We have reviewed the materials you provided and researched the relevant portions of Pennsylvania's domestic relations and inheritance law as they relate to establishing paternity. Our research indicates that the DNA test results and inferences from other evidence, in the absence of any contradictory evidence, may constitute clear and convincing evidence of paternity. However, the agency should conduct further investigation into this case before awarding benefits.

DISCUSSION

The Social Security Act provides that, in determining whether an applicant is the child of an insured individual, the Commissioner will apply the inheritance law of the state in which the insured individual was domiciled at the time the application was filed or, if the insured individual is dead, of the state in which the insured individual was domiciled at the time of his death.

42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1) (2002). Because Andrew was domiciled in Pennsylvania at the time of his death, Pennsylvania intestacy law applies.

The Pennsylvania intestacy statute addressing persons born out of wedlock, 20 Pa. Cons. Stat. Ann. § 2107(c), indicates that an individual will be considered to be the child of a putative father if one of the following conditions is met:

  1. If the parents of a child born out of wedlock shall have married each other.

  2. If during the lifetime of the child, the father openly holds out the child to be his and receives the child into his home, or openly holds the child out to be his and provides support for the child which shall be determined by clear and convincing evidence.

  3. If there is clear and convincing evidence that the man was the father of the child, which may include a prior court determination of paternity.

Because Andrew and Natoshia never married, and because Andrew never held out Alexander as his son, the only provision that could apply in this case is § 2107(c)(3). To meet this provision, Alexander would have to prove by clear and convincing evidence that Andrew was his father.

The Uniform Act on Blood Tests to Determine Paternity establishes that DNA test results proving non-paternity will be conclusive in all civil matters in Pennsylvania state courts. 23 Pa. Cons. Stat. Ann. § 5104. The Act does not address the situation where DNA test results establish paternity. Id. However, relevant case law has addressed this issue. In Zearfoss v. Frattaroli, 646 A.2d 1238, 1241 (Pa. Super. 1994), the Superior Court of Pennsylvania held that blood test results were not conclusive, but were “one factor to be weighed in the totality of the evidence presented on the question of paternity.” The Court determined that a lower court had erred in finding that DNA test results establishing paternity conclusively outweighed contradictory evidence of non-paternity. Id. at 1241, 1244. The Court stated that a court may hold for a putative father/defendant against a natural mother/plaintiff in a paternity action, regardless of DNA test results establishing a 99.99% probability of paternity, “if other facts are supportive of such a verdict.” Id. at 1243. The Court then remanded the case to the lower court for a jury trial, during which the totality of the evidence would be considered.

The Court reached a similar conclusion in Wawrykow v. Simonich, 652 A.2d 843 (Pa. Super. 1994). The Court held that a lower court may order exhumation of a deceased putative father for DNA testing if certain conditions were met. Id. at 1243-44. The Court noted that blood tests previously submitted were not conclusive, but may be used as “some evidence” of paternity, and that DNA testing was material and relevant to proving paternity. Id. at 845, 847. The Court ultimately concluded that DNA testing was material to, but not conclusive of, paternity. Id. at 848. Thus, Pennsylvania case law establishes that DNA test results should be considered as one factor in assessing whether there is clear and convincing evidence of paternity.

In this case, we have DNA test results establishing that Joseph and Marion are the grandparents of Alexander by a 99.99999% probability. Assuming that an issue of paternity of Alexander by a brother of Andrew, if he had one, is excluded, the DNA test results are strong evidence of Andrew paternity. The only other evidence of paternity in the documents provided is that Natoshia claims that she was having sexual relations with only two men (Andrew and Jason ) in the period of Alexander's conception, and that DNA testing has excluded Jason as Alexander's biological father.

In the absence of any contradictory evidence, a reviewing court could possibly find the DNA test results from Andrew's parents, the DNA results excluding Jason as the father, and Natoshia’s testimony that her sexual relations were confined to Andrew and Jason sufficient to establish paternity by clear and convincing evidence. Before finding that Andrew was Alexander's father, a court might attempt to rule out the possibility that Andrew had any brothers who could be Alexander's father, a possibility left open by grandparentage DNA testing. Therefore, based upon the evidence we have been given in this case, we are unable to determine for certain whether a court would find paternity. See Zearfoss, 646 A.2d at 1243 (holding that a court may find non-paternity despite DNA test results establishing a probability of paternity of 99.99% “if the other facts are supportive of such a verdict”).

Accordingly, we recommend that the agency seek additional evidence prior to making a decision in this case. In particular, the agency could seek to discover if the possibility of sibling paternity existed. If so, the agency may ask Natoshia to seek DNA evidence from Andrew's brothers. The agency should also consider obtaining a sworn statement from Natoshia attesting to the fact that her sexual relations at the time of Alexander's conception were limited to Andrew and Jason. If the agency either finds additional evidence to support the DNA test results or finds no evidence to contradict the DNA test results, then the agency could find that Alexander was Andrew's child for purposes of the Social Security Act, 42 U.S.C. § 416(h)(2), based upon the likelihood that a court would find that Alexander is Andrew's child pursuant to 20 Pa. Cons. Stat. Ann. § 2107(c)(3).

CONCLUSION

For the above reasons, we suggest that the agency seek additional evidence related to whether B~ was Alexander's father. If the agency either finds additional evidence to support the DNA test results or finds no evidence to contradict the DNA test results, then the agency could find that Alexander was Andrew's child and award Surviving Child's Benefits.

James A. Winn
Regional Chief Counsel

By: Stephen T. Giacchino
Assistant Regional Counsel

Q. PR 03-063 Effective Date of Parent-Child Relationship Between Number Holder Charles (SSN: ~) and Ashley

DATE: December 13, 2002

1. SYLLABUS

The facts in this case satisfy the requirement of Pennsylvania intestacy law that a child born out of wedlock will be considered the child of her father if there is clear and convincing evidence of paternity, which may include a prior court determination of paternity. The Acknowledgment signed by the NH and a Pennsylvania family court judge satisfies the requirement of a prior court determination of paternity. The effective date of the parent-child relationship is the date the Acknowledgment was signed.

2. OPINION

QUESTIONS PRESENTED

You asked our advice as to whether an October 2002 court sanctioned Acknowledgment of Paternity signed by Charles (number holder) stating that he is the father of Ashley and a deoxyribonucleic acid (DNA) paternity test indicating a 99.95% probability that the number holder is Ashley's father are sufficient to establish a parent-child relationship between the number holder and Ashley. You have also asked our advice on the effective date of this relationship and whether this effective date allows for the payment of retroactive child's insurance benefits.

SUMMARY

We have reviewed the material that you provided and have researched the relevant provisions of Pennsylvania law as it pertains to establishing paternity for purposes of intestate succession. We conclude that, in this case, the evidence provided to us constitutes clear and convincing evidence of paternity under Pennsylvania intestacy law. We have also determined that the effective date of the parent-child relationship between the number holder and Ashley for purposes of entitlement to child's insurance benefits was October 8, 2002 and that Ashley would be entitled to retroactive child's benefits beginning on this date.

BACKGROUND

On December XX, 2000, Susan (Ashley's mother) gave birth to Ashley. Ashley's father's name is not recorded on Ashley's birth certificate. Ashley's mother applied for a social security number for Ashley, which the Agency issued on March 13, 2001. Ashley's application for a social security number does not identify her father.

On July 16, 2002, Ashley's mother filed an application for child's insurance benefits on behalf of Ashley as the child of the number holder. On August 13, 2002, Ashley, Ashley's mother, and the number holder underwent a DNA paternity test. The results of the paternity test show a 99.95% statistical probability of paternity between Ashley and the number holder. On October 8, 2002, the number holder signed an Acknowledgment of Paternity and Waiver of Trial (Acknowledgment). A L~ County, Pennsylvania family court judge also signed the Acknowledgment, thereby accepting the number holder's acknowledgment of paternity of Ashley.

APPLICABLE LAW

The Social Security Act provides that a child born out of wedlock can qualify for child's insurance benefits if the child is entitled to inherit personal property under “such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which [the] insured individual is domiciled at the time such applicant files application.” 42 U.S.C. § 416(h)(2)(A). In the present case, the number holder was domiciled in Pennsylvania at the time he filed his application and, therefore, Pennsylvania intestacy law applies. The Pennsylvania intestacy statute addressing persons born out of wedlock, provides in pertinent part:

(c) Child of father.- For purposes of descent by, from and through a person born out of wedlock, he shall be considered the child of his father when the identity of the father has been determined in any one of the following ways:

  1. If the parents of a child born our [sic] of wedlock shall have married each other.

  2. If during the lifetime of the child, the father openly holds out the child to be his and receives the child into his home, or openly holds the child out to be his and provides support for the child which shall be determined by clear and convincing evidence.

  3. If there is clear and convincing evidence that the man was the father of the child, which may include a prior court determination of paternity.

20 Pa. Cons. Stat. Ann. § 2107 (West Supp. 2002).

ANALYSIS

In the present case, Ashley can demonstrate that she would be considered the number holder's child for purposes of intestate succession in Pennsylvania. As a result, Ashley is considered the child of the number holder for purposes of entitlement to child's insurance benefits. The facts in this case satisfy the requirements of title 20, section 2107(c)(3) of the Pennsylvania intestacy statute. As stated above, this section provides that a child born out of wedlock will be considered the child of her father if there is clear and convincing evidence of paternity, which may include a prior court determination of paternity. Here, the Acknowledgment signed by the number holder and a Lackawanna County, Pennsylvania family court judge on October 8, 2002, satisfies the requirement of a prior court determination of paternity. Accordingly, Ashley has demonstrated by clear and convincing evidence that the number holder is her father for purposes of intestate succession and has thus satisfied the requirements of title 20, section 2107(c)(3) of the Pennsylvania intestacy statute. By satisfying the requirements of this statute, Ashley is considered the child of the number holder for purposes of entitlement to child's insurance benefits. See 42 U.S.C. § 416(h)(2)(A).

With respect to the effective date of the parent-child relationship, the Program Operations Manual System (POMS) states the Agency's position that in Pennsylvania, where inheritance rights are conferred by statute based on an adjudication of paternity (but the statute does not legitimate the child), and the act or event conferring inheritance rights is prospective only, if more than one piece of evidence is needed to satisfy the applicable standard of proof, the date of the latest necessary piece of evidence is the effective date that the claimant's status as the number holder's child is established. POMS GN 00306.055. In this case, the date of the latest necessary piece of evidence establishing the number holder's paternity, under title 20, section 2107(c)(3) of the Pennsylvania intestacy statute is October 8, 2002, the date the number holder and a Lackawanna County, Pennsylvania family court judge signed the Acknowledgment. Therefore, it is our opinion that the parent-child relationship was established effective October 8, 2002.

You have further asked whether Ashley is entitled to retroactive benefits. The regulations provide that if the insured is living, the child is entitled to benefits beginning with the first month covered by the child's application throughout which the child meets all the other requirements for entitlement, if the child's first month of entitlement is September 1981 or later. 20 C.F.R. § 404.352(a)(2)(i)(2002). The regulations further provide that child's benefits based on the earnings record of a person entitled to disability benefits may be paid retroactively for up to twelve months beginning with the first month in which all requirements for entitlement are met. 20 C.F.R. § 404.621(a)(i)(2002). According to the information provided by you, Ashley's mother filed an application for child's insurance benefits on July 16, 2002. The date that Ashley established she was the child of the number holder, and thus met all other requirements for entitlement, was October 8, 2002, the date the number holder and the Lackawanna County, Pennsylvania family court judge signed the Acknowledgment. Therefore, because Ashley met all of the requirements for entitlement on October 8, 2002, three months after filing her application for child's insurance benefits, she would be entitled to retroactive benefits effective October 8, 2002.

CONCLUSION

Based on the above information, we conclude there is clear and convincing evidence of paternity under Pennsylvania intestacy law and, thus, a parent-child relationship can be established between the number holder and Ashley. We also conclude that Ashley would be entitled to retroactive child's benefits as of October 8, 2002.

James A. Winn
Regional Chief Counsel

By: Nicole L. Appalucci
Assistant Regional Counsel

R. PR 03-045 Entitlement to Surviving Child's Benefits Based on DNA Test Results as Clear and Convincing Evidence in the Commonwealth of Pennsylvania - Deceased Number Holder, Jason - SSN: ~

DATE: November 18, 2002

1. SYLLABUS

Under Pennsylvania law, blood test results are not conclusive, but are one factor to be weighed in the totality of the evidence presented on the question of paternity. In this case, DNA test results establishing a 99.99% probability that the NH's parents are the grandparents of the child claimant are strong evidence of paternity, assuming that an issue of paternity by a sibling of the NH, if any, is excluded. The other evidence, however, is of limited probative value. It is recommended that SSA seek additional evidence relating to paternity prior to making a decision in this case.

2. OPINION

QUESTION PRESENTED

On October 15, 2002, you asked us to advise you whether DNA test results meet the Commonwealth of Pennsylvania's legal requirement for clear and convincing evidence of paternity for inheritance purposes.

SUMMARY

Based on our review of the facts in this case and our research of the relevant Pennsylvania statutes and case law, we have determined that a court could possibly find clear and convincing evidence of paternity in this case. However, because of the paucity of evidence other than the DNA test results, we cannot establish conclusively that the requirements for proving paternity have been met. Accordingly, we suggest that the agency conduct further investigation before awarding Surviving Child's Benefits.

BACKGROUND

In your request, you indicated that Jason and Dionne were never married and did not cohabit, that Jayson died on September XX, 2001 and that Jayson was born on June. Jayson's birth certificate states that information concerning his father was not recorded. Dionne applied for Surviving Child's Benefits for Jayson on September 11, 2002, on the basis that Jayson is the surviving child of Charles. In July 2002, DNA testing ordered by the Domestic Relations Section of the Court of Common Pleas of Montgomery County, Pennsylvania established a 99.99% probability that Charles and Annie are the grandparents of Jayson.

We have reviewed the materials you provided and researched the relevant portions of Pennsylvania's domestic relations and inheritance law as they relate to establishing paternity. Our research indicates that the DNA test results and inferences from other evidence, in the absence of any contradictory evidence, may constitute clear and convincing evidence of paternity. However, the agency should conduct further investigation into this case before awarding Surviving Child's Benefits.

DISCUSSION

The Social Security Act provides that in determining whether an applicant is the child of an insured individual, the Commissioner will apply the inheritance law of the state in which the insured individual was domiciled at the time the application was filed or, if the insured individual is dead, of the state in which the insured individual was domiciled at the time of his death. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. 404.355(b)(1) (2002). Because Jayson was domiciled in Pennsylvania at the time of his death, Pennsylvania intestacy law applies.

The Pennsylvania intestacy statute addressing persons born out of wedlock, 20 Pa. Cons. Stat. Ann. § 2107(c), indicates that an individual will be considered to be the child of a putative father if one of the following conditions is met:

  1. If the parents of a child born out of wedlock shall have married each other.

  2. If during the lifetime of the child, the father openly holds out the child to be his and receives the child into his home, or openly holds the child out to be his and provides support for the child which shall be determined by clear and convincing evidence.

  3. if there is clear and convincing evidence that the man was father of the child, which may include a prior court determination of paternity.

The Uniform Act on Blood Tests to Determine Paternity establishes that DNA test results proving non-paternity will be conclusive in all civil matters in Pennsylvania state courts. 23 Pa. Cons. Stat. Ann. § 5104. The Act does not address the situation where DNA test results establish paternity. Id. However, relevant case law has addressed this issue. In Zearfoss v. Frattaroli, 646 A.2d 1238, 1241 (Pa. Super 1994), the Superior Court of Pennsylvania held that blood test results were not conclusive, but were "one factor to be weighed in the totality of the evidence presented on the question of paternity." The Court determined that a lower court had erred in finding that DNA test results establishing paternity conclusively outweighed contradictory evidence of non-paternity. Id. at 1241, 1244. The Court stated that a court may hold for a putative father/defendant against a natural mother/plaintiff in a paternity action, regardless of DNA test results establishing a 99.99% probability of paternity, “if other facts are supportive of such a verdict.Id. at 1243. The Court then remanded the case to the lower court for a jury trial, during which the totality of the evidence would be considered.

The Court reached a similar conclusion in Wawrykow v. Simonich, 652 A.2d 843 (Pa. Super. 1994). The Court held that a lower court may order exhumation of a deceased putative father for DNA testing if certain conditions were met. Id. at 1243-44. The Court noted that blood tests previously submitted were not conclusive, but may be used as “some evidence” of paternity, and that DNA testing was material and relevant to proving paternity. Id. at 845, 847. The Court ultimately concluded that DNA testing was material to, but not conclusive of, paternity. Id. at 848.

Pennsylvania case law establishes that DNA test results should be considered as one factor in assessing whether there is clear and convincing evidence of paternity. In the Charles case, we have DNA test results establishing that Charles and Annie are the grandparents of Jayson by 99.99% probability. Charles and Annie are identified as Jayson's parents on his death certificate. Assuming that an issue of paternity of Jayson by a sibling of Charles, if any, is excluded, the DNA test results are strong evidence of Charles's paternity. The only other evidence of paternity in the documents provided is the fact that Jayson's last name or surname is recorded as “Charles” on his birth certificate as originally filed on June 12, 2002 within a week of his birth and the similarity of the child's name, (Jayson ), and the putative father's name, (Jason); the information on the birth certificate presumably came from Dionne and was furnished at a time when Jayson was already deceased. There is also an indication of some contact between Annie and Jayson and Dionne as evidenced by the photograph on the DNA test report. This “other evidence” in its totality is, however, of limited probative value.

In the absence of any contradictory evidence, a reviewing court may possibly find the DNA test results and the surname on Jayson's birth certificate sufficient to establish paternity by clear and convincing evidence. However, based upon the evidence we have been given in this case, we are unable to determine for certain whether this would be the result. See Z~, 646 A.2d at 1243 (holding that a court may find non-paternity despite DNA test results establishing a probability of paternity of 99.99% “if the other facts are supportive of such a verdict”).

We recommend that the agency seek additional evidence relating to paternity prior to making a decision in this case. In particular, the agency could seek evidence as to whether S~ and R~ were engaging in a sexual relationship during the possible time of conception for Jayson. We note in this regard that Jayson was born approximately nine months and seven days after R~'s death. The agency may also wish to confirm that no issue of sibling paternity is present. If the agency either finds additional evidence to support the DNA test results or finds no evidence to contradict the DNA test results and the indirect identification of Jason as Jayson's father based on recording his surname as “Jayson” on his birth certificate within a week of his birth, then the agency could find that Jayson is Jason's child for purposes of the Social Security Act, 42 U.S.C. § 416(h)(2), based upon the likelihood that a court would find that Jayson is Jason's child pursuant to 20 Pa. Cons. Stat. Ann. § 2107(c)(3).

CONCLUSION

For the above reasons, we suggest that the agency seek additional evidence related to whether Jason was Jayson's father. If the agency does not find any evidence contradicting the DNA test results and other evidence in the file, it should find that Jayson is Jason's child for purposes of 42 U.S.C. § 416(h)(2) and award Surviving Child's Benefits.

James A. Winn
Regional Chief Counsel

By: Margaret M. Maguire
Assistant Regional Counsel

S. PR 02-130 Effective Date of Parent-Child Relationship Between Number Holder (Richard ) and Ja'Nai , SSN: ~

DATE: August 29, 2002

1. SYLLABUS

The NH died domiciled in Pennsylvania on August XX, 2001; the child claimant was born on December. The evidence of paternity in this case is contradictory. It is unlikely that Pennsylvania would recognize the Delaware Stipulation and Order of Paternity in this case, since it is neither a valid settlement agreement under Delaware law nor a valid court order of paternity. Nor does the remaining evidence establish clear and convincing evidence of paternity under Pennsylvania law. Therefore, the child claimant does not have inheritance rights with respect to the NH under Pennsylvania law.

2. OPINION

INTRODUCTION

This is in response to your request for our advice regarding the establishment of paternity between Richard , the number holder, and Ja'Nai , a minor child, under Pennsylvania law.

BACKGROUND

Richard died on August XX, 2001, in Pennsylvania. He was a resident of Pennsylvania. Ja'Nai was born on December.

The number holder and Lagemia, Ja'Nai's mother, were not married.

On January 2, 2002, Lagemia filed a claim for surviving child's benefits on Ja'Nai's behalf. Lagemia stated that the number holder had resided in Delaware.

On January 4, 2002, Lagemia filed an application for a Social Security Number on Ja'Nai's behalf. On the application, she did not provide any information regarding the identify of Ja'Nai's father.

On February 19, 2002, in connection with a petition filed by Lagemia, and in response to its request, the Family Court of the State of Delaware for New Castle County received an answer sheet from Eric stating that the number holder was Ja'Nai's father.

On April 17, 2002, a Commissioner for the Family Court of the State of Delaware approved a Stipulation and Order of Paternity, signed by Lagemia and Eric, ostensibly establishing the number holder as Ja'Nai's father. Eric signed the stipulation as the number holder's purported representative.

On May 7, 2002, the Agency sent a representative to the Delaware Family Court to review the paternity file. The representative reported that the file contained a note indicating that Eric was the number holder's next of kin.

On May 23, 2002, Natosha, the mother of one of the number holder's children, contacted the Agency regarding an adverse adjustment notice. She stated that she had reviewed the paternity file at the Delaware Family Court with Tamika , the number holder's sister, and Tasha, and that Eric was not the number holder's next of kin, but merely a friend.

In a statement to the Agency dated May 29, 2002, Tamika reported that she had reviewed the Delaware Family Court file regarding Ja’Nai petition, which showed that Eric was the number holder's next of kin. She stated that the number holder had no brothers, that Eric was not her brother, and that she did not know of the number holder's relationship with Ja’Nai but would have expected to know if he had been the father of Ja’Nai 's child, because he had told her of his other children. She submitted information showing that the number holder was a resident of Pennsylvania and not of Delaware, as Eric had represented. She stated that Eric was a friend of her and her brother and the best friend of Ja’Nai .

On May 29, 2002, Ja’Nai , the mother of three of the number holder's children who are entitled to survivor benefits, provided a statement to the Agency protesting Ja'Nai's entitlement to benefits. She submitted a program for the number holder's mother's burial service in which the number holder is listed as the only son of his mother's three children.

The file also includes a copy of the number holder's obituary, which references two sisters, Tamika and Angela , and one brother, Arlen.

DISCUSSION

The Social Security Act provides that an illegitimate child can qualify for benefits if the child is entitled to inherit personal property under Asuch law as 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 his death.@ 42 U.S.C. § 416(h)(2)(A). An illegitimate child who meets the standard which Congress set forth in section 216(h)(2)(A) is deemed to be legitimate and, therefore, dependent. Mathews v. Lucas, 427 U.S. 495, 514-15 n.17 (1976). In the present case, Richard, the alleged father, was domiciled in the Commonwealth of Pennsylvania at the time of his death. Therefore, Pennsylvania intestacy law applies in this case.

The Pennsylvania intestacy statute addressing persons born out of wedlock, 20 Pa. Cons. Stat. Ann. ' 2107 (West 2001), provides in pertinent part:

(C) Child of father. — For purposes of descent by, from and through a person born out of wedlock, he shall be considered the child of his father when the identity of the father has been determined in any one of the following ways:

(1) If the parents of a child born our [sic] of wedlock have married each other.

(2) If during the lifetime of the child, the father openly holds out the child to be his and receives the child into his home or openly holds the child out to be his and provides support for the child which shall be determined by clear and convincing evidence.

(3) If there is clear and convincing evidence that the man was the father of the child, which may include a prior court determination of paternity.

In the present case, there is no evidence that the number holder and Ja’Nai were married to each other or that the number holder openly held out Ja'Nai as his child, as she was not born until after his death. Therefore, the only provision that might apply in this case is § 2107(c)(3). Under this provision, a Pennsylvania court would look for clear and convincing evidence of paternity to determine whether Ja'Nai was the child of the number holder such that she could take a share of his intestate property.

We conclude that under Pennsylvania law, the evidence that we have reviewed does not establish by clear and convincing evidence that Ja'Nai was the child of the deceased number holder. As discussed above, Pennsylvania law provides that a person born out of wedlock shall be considered the child of her father for purposes of intestate succession if there is clear and convincing evidence that the man was the father of the child. 20 Pa. Cons. Stat. Ann. § 2107(c)(3) (West 2001). Clear and convincing evidence may include a prior court determination of paternity. 20 Pa. Cons. Stat. Ann. § 2107(c)(3).

In the present case, Ja’Nai has submitted a Stipulation and Order of Paternity, signed by her and Eric and approved by a Commissioner for the Family Court of the State of Delaware, purportedly establishing the number holder as Ja'Nai's father. Although ordinarily a Pennsylvania court would recognize a determination of paternity made by another state, it is unlikely that it would recognize the Delaware Stipulation and Order of Paternity in this case as a valid court determination of paternity. See 23 Pa. Con. Stat. Ann. § 4343(c)(5) (West 2001). First, the stipulation and order here is not a standard court order of paternity, but rather is intended to be a written settlement agreement between a mother and a putative father. See Del. Code Ann. tit. 13, § 809(d) (2002). The stipulation and order here would not qualify as a valid agreement between a mother and a putative father, as it is in fact an agreement between a mother, Ja’Nai , and a friend of the mother, Eric. As such, it appears to be neither a valid settlement agreement under Delaware law nor a valid court order of paternity recognizable under Pennsylvania law.

Second, there is considerable evidence in the record to question the veracity of Eric' assertions. For example, testimony from an Agency representative, Natosha, and Tamika, all show that Eric represented to the family court of Delaware that he was the number holder's next of kin. Both Natosha and Tamika , however, indicated that Eric was not the number holder's brother, but rather a friend of Ja’Nai . This assertion is supported by the program from the number holder's mother's burial service, which indicates that the number holder was the only son of her three children. Although evidence in the number holder's obituary conflicts with this by referencing two sisters and one brother, the brother is identified as Arlen and not as Eric. Therefore, because the evidence suggests that Eric is a friend of Ja’Nai , and as such he does not have authority to enter into a settlement agreement as the putative father, the Delaware Family Court agreement of paternity does not appear to be a valid court order of paternity so as to constitute clear and convincing evidence under Pennsylvania intestacy law.

Nor does the remaining available evidence establish clear and convincing evidence of paternity under Pennsylvania law. For example, neither Ja'Nai's birth certificate nor her application for a Social Security Number contain information regarding the identity of her father.

The often contradictory evidence in this case is not sufficient to constitute clear and convincing evidence of paternity under Pennsylvania intestacy law. Therefore, because Ja'Nai has not established by clear and convincing evidence that she is the child of the number holder for purposes of intestate succession under the laws of Pennsylvania, she is not entitled to surviving child's insurance benefits under section 216(h)(2)(A) of the Act.

CONCLUSION

For the reasons stated above, we believe the evidence is not sufficient to constitute clear and convincing evidence of paternity under Pennsylvania law. Therefore, because she would not be eligible to inherit from the number holder under the Pennsylvania laws of intestate succession, Ja'Nai may not be determined to be the child of the number holder under ' 216(h)(2)(A) of the Act for purposes of entitlement to surviving child's insurance benefits.

James A. Winn
Regional Chief Counsel

By: Anne von. Sheven
Assistant Regional Counsel

T. PR 02-075 Sufficiency of DNA Testing in Establishing the Parent-Child Relationship Between the Number Holder, Loren , and Dakota , SSN: ~

DATE: April 30, 2002

1. SYLLABUS

In this case there is a DNA Parentage Test Report showing a 99.995% probability that the NH is the child claimant's father. A Pennsylvania court would require additional evidence to substantiate the child's claim that the NH is the child's father “by clear and convincing evidence.” The NH's brother's statement that the NH told him that the child's mother was pregnant with his child, and (although less persuasive) the child's maternal grandmother's statement, coupled with the DNA test results, would likely satisfy the clear and convincing standard. Since the child's inheritance rights are conferred prospectively based on an adjudication of paternity, and the statute does not legitimate the child, the date of the latest necessary piece of evidence (the NH's brother's statement) is the effective date upon which the claimant's status as the NH's child is established.

2. OPINION

INTRODUCTION

This is in response to your March 19, 2002 request for our advice as to whether: (1) DNA test evidence from the Number Holder, as well as statements from the Number Holder's brother and Dakota’s grandmother, are sufficient to establish a parent-child relationship between the Number Holder and Dakota under Pennsylvania law; (2) if so, what is the effective date of that relationship; and (3) whether retroactive benefits can be paid on behalf of Dakota.

Based on our review of the information you have provided and our research of the applicable law, we have concluded that a parent-child relationship was established between the Number Holder and Dakota, effective November 29, 2001, the date of the signed statement from Lynn , the Number Holder's brother. We further conclude that retroactive benefits should not be allowed.

BACKGROUND

In your request, you indicated that Loren , the Number Holder, died on April XX, 2001. Dakota was a resident of Pennsylvania at the time of his death. Dakota , a minor child, was born on May. Dakota and Tammy, Dakota's mother, never married and did not cohabit.

On November 26, 2001, Linda, Tammy's mother, filed an application for surviving child's benefits on behalf of Dakota, on the earnings record of Dakota. 1/ In support of this application, Tammy's submitted a DNA Parentage Test Report dated November 8, 2001 which indicated that the blood drawn from the Number Holder, Tammy , and Dakota showed a 99.995% probability that the Number Holder was Dakota's father as compared to an untested, unrelated man. Tammy's also submitted Dakota's birth certificate, issued on May XX, 2001, which does not include father information. Finally, Tammy's submitted a signed statement, dated December 1, 2001, in which she stated that the Number Holder told her that he was the father of the child that Tammy was expecting in May 2001 and told her that he hoped the baby was a boy. Further, Tammy's stated that the Number Holder was "the only one she [Tammy] went with."

The file also contains a signed statement from Lynn , the Number Holder's brother, dated November 29, 2001, in which Lynn states that in April 2001, two weeks before the Number Holder's death, the Number Holder told him that Tammy was pregnant with his child.

DISCUSSION

The Social Security Act (Act) provides that an illegitimate child can qualify for benefits if the child is entitled to inherit personal property under "such law as 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 his death." 42 U.S.C. § 416(h)(2)(A). In the present case, the Number Holder resided in the Commonwealth of Pennsylvania at the time of his death. Therefore, Pennsylvania intestacy law applies.

The Pennsylvania intestacy statute addressing persons born out of wedlock, 20 Pa. Cons. Stat. Ann. § 2107(c), provides that an individual will be considered to be the child of a putative father if one of the following conditions are met:

  1. If the parents of a child born out of wedlock shall have married each other.

  2. If during the lifetime of the child, the father openly holds out the child to be his and receives the child into his home or openly holds the child out to be his and provides support for the child which shall be determined by clear and convincing evidence.

  3. If there is clear and convincing evidence that the man was the father of the child, which may include a prior court determination of paternity.

Conditions (1) and (2) are clearly not applicable in the instant case. The only applicable provision in this case is number (3). Consequently, under the intestacy statute, a Pennsylvania court would look for "clear and convincing" evidence of paternity to determine if Dakota is the daughter of the Number Holder.

In this case, the most significant evidence submitted is the DNA Parentage Test Report which shows a 99.995% probability that the Number Holder is Dakota's father. However, we are cautioned by the Pennsylvania case law interpreting § 2107(c)(3) which provides that "DNA testing . . . might be material to (but not conclusive of) proving paternity by clear and convincing evidence . . . [and] is merely a factor in a chain of elements which compose the parenting bond by clear and convincing evidence." Wawrykow v. Simonich, 652 A.2d 843, 848 (Pa. Super. Ct. 1994); see also Zearfoss v. Frattaroli, 646 A.2d 1238, 1241-44 (Pa. Super. Ct. 1994)(DNA evidence is not conclusive of paternity and "is but one factor to be weighed in the totality of the evidence presented on the question of paternity."). 2/ Therefore, for purposes of the intestacy statute, we believe that the Pennsylvania court would require additional evidence beyond the DNA testing in this case to substantiate Tammy's claim that the Number Holder is Dakota's father by "clear and convincing evidence."

However, we believe that the other supporting evidence in this case, coupled with the DNA test results, would likely satisfy the "clear and convincing" evidence standard. Namely, the Number Holder's brother acknowledged and confirmed that in April 2001, the Number Holder told him that Tammy was pregnant was his child. Second, although not as persuasive because she has a vested interest in the outcome, Tammy, Dakota's grandmother, stated that the Number Holder told her that he was the father of the child that Tammy was carrying and that he hoped the child would be a boy. Further, Tammy stated that the Number Holder was the only man that Tammy "went with." Finally, the evidence of record does not provide any other evidence that rebuts the claim that Dakota is the Number Holder's daughter.

Furthermore, although we do not have a court order of paternity in this case, we believe that, if petitioned, a Pennsylvania court would likely issue a court order of paternity finding that the Number Holder is Dakota's father. The section of the Pennsylvania statute regarding domestic relations provides the following guidance:

Genetic test results indicating a 99% or greater probability that the alleged father is the father of the child shall create a presumption of paternity which may be rebutted only by clear and convincing evidence that the results of the genetic tests are not reliable in that particular case.

23 Pa. Cons. Stat. Ann. § 4343(c)(2). The Pennsylvania courts have determined that the presumption of paternity may be rebutted by proving non-access to the mother or that an identical twin had access to the mother, that controls failed in testing, the chain of custody was breached, the blood sample was contaminated, the mechanical or laboratory processes were flawed, the computations or computer analyses were incorrect, or that the process was compromised in some other way. Reed v. Boozer, 693 A.2d 233, 241 (Pa. Super. Ct. 1997), appeal denied, 703 A.2d 1275.

In the instant case, the DNA test results showed a 99.995% probability that the Number Holder was Dakota's father, and there is no evidence that we are aware of that would rebut the validity of the test. Thus, we believe that a Pennsylvania court would find that the Number Holder is the father of Dakota. Accordingly, for the above reasons, we believe that Dakota would likely be able to inherit from the Number Holder, pursuant to 20 Pa. Cons. Stat. Ann. § 2107(c), and she would be entitled to benefits under the Act as the child of the Number Holder. 42 U.S.C. § 416(h)(2).

With regard to the effective date of the parent-child relationship, the POMS state the Agency's position that in Pennsylvania, where inheritance rights are conferred by statute based on an adjudication of paternity (but the statute does not legitimate the child), and the act or event conferring inheritance rights is prospective only, if more than one piece of evidence is needed to satisfy that applicable standard of proof, the date of the latest necessary piece of evidence is the effective date that the claimant's status as the number holder's child is established. POMS GN 00306.055. In this case, the date of the latest necessary piece of evidence establishing the number holder's paternity is November 29, 2001, the date of the signed statement from Lynn , the Number Holder's brother. Therefore, it is our opinion that a parent-child relationship was established effective November 29, 2001.

Finally, you have asked whether Dakota is entitled to retroactive benefits. The regulations provide that if the insured is deceased, the child is entitled to benefits beginning with the first month covered by the application in which she meets all other requirements for entitlement. 20 C.F.R. § 404.352(a)(1). The regulations further provide that a child may receive retroactive benefits for up to six months beginning with the first month in which all requirements are met. 20 C.F.R. § 404.621(a)(1)(ii); see also POMS GN 00204.030. In this case, however, the application date is the same month that all requirements for entitlement were met, November 2001. Hence, retroactive benefits should not be allowed.

CONCLUSION

For the above reasons, it is our opinion that DNA test evidence indicating that the blood drawn from the Number Holder, Tammy, and Dakota show a 99.995% probability that the Number Holder is Dakota's father as compared to an untested, unrelated man, in conjunction with the other evidence of record, would likely constitute clear and convincing evidence of paternity under Pennsylvania intestacy law. Therefore, it is our opinion that a parent-child relationship was established between the Number Holder and Dakota, effective November 29, 2001, the date of the signed statement from Lynn, the Number Holder's brother. We further conclude that retroactive benefits should not be allowed.

James A. Winn
Regional Chief Counsel

By: Amanda M. Kent
Assistant Regional Counsel

U. PR 01-221 The Use of DNA Grandparentage Testing to Establish Paternity Between the Number Holder, Byron , SSN ~, and Joshua

DATE: October 31, 2001

1. SYLLABUS

Pennsylvania law provides that a person born out of wedlock shall be considered the child of his father for purposes of intestate succession if there is clear and convincing evidence that the man was the father of the child. DNA evidence, when considered with other evidence, may be sufficient to establish paternity for purposes of intestate succession under Pennsylvania law. DNA test evidence showing a 99.98% probability that the NH's parents are the child's grandparents; a Pennsylvania BC naming the NH as the child's father; and testimony that the grandparents participate in the child's life and acknowledge that he is their son's child; are sufficient to constitute clear and convincing evidence of paternity under Pennsylvania law.

2. OPINION

INTRODUCTION

This is in response to your request for our advice regarding the sufficiency of DNA grandparentage testing to establish paternity between Byron , the Number Holder, and Joshua, a minor child.

BACKGROUND

Byron , the Number Holder, died on January XX, 1991, while domiciled in Pennsylvania. Joshua, a minor child, was born on January.

On August 8, 1991, Crystal , Joshua's mother, filed a claim for survivor's benefits on Joshua's behalf. In support of his application, she submitted a Pennsylvania birth certificate showing the Number Holder as Joshua's father. In addition, she stated in her application that she did not have any documents, letters, or other papers from Byron that would indicate that he had acknowledged Joshua as his child. She also stated that he did not pay for any of her medical expenses, but that they had lived together for three months during her pregnancy. She added that Byron's parents acknowledge Joshua as his child. They visit him, buy him clothes and diapers, and have always told her that if she needs anything for her son, she should let them know. This claim was disallowed on November 18, 1991, because a parent-child relationship between the Number Holder and Joshua had not been established.

On July 20, 2001, Crystal filed a second claim on Joshua's behalf.

At this time, she submitted additional evidence consisting of DNA test results, dated February 29, 2000, indicating a 99.98% probability that Kathryn and Byron, the Number Holder's parents, were Joshua's biological grandparents.

DISCUSSION

The Social Security Act provides that an illegitimate child can qualify for benefits if the child is entitled to inherit personal property under Asuch law as 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 his death." 42 U.S.C. § 416(h)(2)(A). An illegitimate child who meets the standard which Congress set forth in section 216(h)(2)(A) is deemed to be legitimate and, therefore, dependent. Mathews v. Lucas, 427 U.S. 495, 514-15 n.17 (1976). In the present case, Byron , the alleged father, was domiciled in the Commonwealth of Pennsylvania at the time of his death. Therefore, Pennsylvania intestacy law applies in this case.

The Pennsylvania intestacy statute addressing persons born out of wedlock, 20 Pa. Cons. Stat. Ann. § 2107 (West 2001), provides in pertinent part:

(c) Child of father. - - For purposes of descent by, from and through a person born out of wedlock, he shall be considered the child of his father when the identify of the father has been determined in any one of the following ways:

  1. If the parents of a child born our [sic] of wedlock have married each other.

  2. If during the lifetime of the child, the father openly holds out the child to be his and receives the child into his home or openly holds the child out to be his and provides support for the child which shall be determined by clear and convincing evidence.

  3. If there is clear and convincing evidence that the man was the father of the child, which may include a prior court determination of paternity.

The only provision that might apply in this case is § 2107(c)(3).

Under this provision, a Pennsylvania court would look for clear and convincing evidence of paternity to determine if Joshua were the son of the Number Holder such that he could take a share of his intestate property.

We conclude that under Pennsylvania law, Joshua may establish by clear and convincing evidence that he was the child of the deceased Number Holder. As discussed above, Pennsylvania law provides that a person born out of wedlock shall be considered the child of his father for purposes of intestate succession if there is clear and convincing evidence that the man was the father of the child. 20 Pa. Cons. Stat. Ann. § 2107(c)(3) (West 2001). The Pennsylvania intestacy statute does not set forth precisely what evidence, other than a prior court determination of paternity, would be sufficient to constitute clear and convincing evidence. However, Pennsylvania case law interpreting § 2107(c)(3), provides that DNA evidence might be material to (but not conclusive of) proving paternity by clear and convincing evidence." Wawrykow v. Simonich, 652 A.2d 843, 848 (Pa. Super. 1994). In other words, DNA evidence, when considered with other evidence, may be sufficient to establish paternity for purposes of intestate succession under Pennsylvania law.

In the present case, Joshua has submitted sufficient evidence to establish, by clear and convincing evidence, that he is the child of the Number Holder under Pennsylvania intestacy law. In addition to the results of a DNA grandparentage test, which show a 99.98% probability that Kathryn and Byron, the Number Holder's parents, were Joshua's biological grandparents, the evidence includes a Pennsylvania birth certificate showing the Number Holder as Joshua's father. Furthermore, statements from Kathryn, Joshua's mother, show that she lived with the Number Holder for three months during her pregnancy, that the Number Holder's parents acknowledge that Joshua is their son's child, that they visit him and buy him clothes and diapers, and that they have told her that if she needs anything for her son, she should let them know. This evidence, in addition to the DNA test results, is sufficient to constitute clear and convincing evidence of paternity under Pennsylvania intestacy law.

Therefore, because Joshua has established by clear and convincing evidence that he is the child of the Number Holder for purposes of intestate succession under the laws of Pennsylvania, he is entitled to surviving child's insurance benefits under section 216(h)(2)(A) of the Act.

CONCLUSION

For the reasons stated above, we believe that DNA test evidence showing a 99.98% probability that the Number Holder's parents are Joshua's grandparents, evidence that a Pennsylvania birth certificate names the Number Holder as Joshua's father, and testimony that the grandparents participate in Joshua's life and acknowledge that he is their son's child, is sufficient to constitute clear and convincing evidence of paternity under Pennsylvania law. Therefore, because he would be eligible to inherit from the Number Holder under the Pennsylvania laws of intestate succession, Joshua may be determined to be the child of the Number Holder under § 216(h)(2)(A) of the Act for purposes of entitlement to surviving child's insurance benefits.

V. PR 01-213 Acceptability of an Insurance Policy for Establishing the Parent-Child Relationship Between the Number Holder, Ned , and Angela , SSN: ~

DATE: September 19, 2001

1. SYLLABUS

The superior court of Pennsylvania has stated that a life insurance policy which named a particular individual as the father was competent evidence, but not sufficient evidence alone to show the existence of a parent-child relationship.

2. OPINION

QUESTION PRESENTED

You asked whether a life insurance policy (insurance policy) purchased by the number holder, Ned was sufficient evidence to establish the parent-child relationship between Ned and Angela. Additionally, if a parent-child relationship can be established, you requested the effective date of the relationship. Finally, you have asked whether retroactive benefits could be paid on behalf of Angela.

CONCLUSION

We have reviewed the material that you provided and have researched the relevant provisions of Pennsylvania law as it pertains to establishing paternity. We conclude that, in this case, the insurance policy purchased by Ned, which showed him as the grandfather of Angela, without other evidence demonstrating that Angela is the daughter of Ned, does not constitute clear and convincing evidence of paternity under Pennsylvania intestacy law.

BACKGROUND

Angela was born on November to Cynthia. Ned is listed as the father of Angela on her birth certificate. However, Ned never signed an acknowledgment at the hospital to list his name on the birth certificate. Angela's social security number application indicates that the state withheld the father's information. Cynthia and Ned were never married to each other, and never cohabitated with each other. Ned and Cynthia are each married to other people. Ned is a resident of Pennsylvania. He began receiving social security benefits in July of 1992.

Cynthia filed a claim for child's insurance benefits on May 10, 2001, on behalf of her daughter, Angela. At the time of the application, Cynthia informed the claims representative that she had a birth certificate which listed Ned as Angela's father. She also informed the claims representative that there was an insurance policy purchased and signed by Ned which listed him as Angela's grandfather.

The claims representative then contacted Ned, who stated that he would sign a statement acknowledging that Angela was his biological daughter. Ned signed a statement on May 11, 2001, acknowledging that Angela was his natural biological child. The signed statement from Ned was received in the social security office on May 15, 2001.

On May 15, 2001, the claims representative contacted Ned again in order to determine why he was listed as Angela's grandfather on the insurance policy. Ned informed the claims representative that he would forward an explanation as to why he was listed as Angela's grandfather on the insurance policy. On May 21, 2001, the claims representative received a letter from Ned regarding the insurance policy. In this letter, dated May 18, 2001, Ned stated that the insurance policy was written by an insurance agent who was a good friend of his wife. As such, he and his wife were embarrassed to say that he was the father of Angela. Due to their silence, the insurance agent assumed that Angela was Ned's granddaughter. In this letter, Ned once again acknowledged that he was Angela's father.

DISCUSSION

The Social Security Act (Act) provides for payment of child's benefits where the claimant is entitled to such benefits on the earnings record of an insured person who is entitled to disability benefits and the claimant is the insured person's child. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a)(1)(2001). In determining whether an applicant is the child of an insured individual, the Commissioner will apply the inheritance law of the state in which the insured individual was domiciled at the time the application was filed. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b) (2001). In this case, Ned, the alleged father, was domiciled in Pennsylvania at the time Cynthia filed the application for benefits on Angela's behalf. Therefore, Pennsylvania intestacy law applies.

The Pennsylvania intestacy statute addressing persons born out of wedlock, provides in pertinent part:

(c) Child of father. For purposes of descent by, from and through a person born out of wedlock, he shall be considered the child of his father when the identity of the father has been determined in any one of the following ways:

  1. If the parents of a child born out of wedlock shall have married each other.

  2. If during the lifetime of the child, the father openly holds out the child to be his and receives the child into his home, or openly holds the child out to be his and provides support for the child which shall be determined by clear and convincing evidence.

  3. If there is clear and convincing evidence that the man was the father of the child, which may include a prior court determination of paternity.

20 Pa. Cons. Stat. Ann. § 2107 (West 2000). In interpreting this statute, the Superior Court of Pennsylvania has stated that a life insurance policy, which named a particular individual as the father, was competent evidence, but not sufficient evidence alone, to show the existence of a parent-child relationship. Estate of H~, 320 Pa. Super. 113, 466 A.2d 1087 (1983).

Applying the law to the facts of this case, the insurance policy purchased by Ned, which indicated that he was Angela's grandfather, is not clear and convincing evidence in order to establish the parent-child relationship under Pennsylvania law.

The reasoning for this conclusion is two-fold. First, by indicating that Angela was his granddaughter on the insurance policy, Ned did not openly hold Angela out to be his daughter. Secondly, the statute also requires the father to either receive the child into his home, or provide support for the child while openly holding the child out to be his. There is no evidence contained within the record demonstrating that Ned provided support or received Angela into his home. For these reasons, the insurance policy is insufficient evidence to establish the parent-child relationship under Pennsylvania law. Since the parent-child relationship was not established by the insurance policy, the issue of retroactivity of child's benefits is moot.


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PR 01115.042 - Pennsylvania - 10/07/2016