Puerto Rico allows the use of genetic tests to determine paternity. In this case, the test was not court-ordered, duly-qualified experts appointed by a court did not perform the tests, and the record does not contain an expert witness' testimony about the reliability of the test; therefore, the results of the genetic test are not probative. The father's voluntary recognition of a child born out of wedlock, however, may establish paternity. Puerto Rico intestacy laws provide that all children have the same inheritance rights as legitimate children. The NH voluntarily recognized the claimant as his daughter and, under Puerto Rico law, she is his child. She is entitled to benefits on his record.

QUESTION PRESENTED

Whether Erika (Erika) is entitled to child’s benefits as the daughter of the deceased number holder, Narciso (NH).

OPINION

The NH voluntarily recognized Erika as his daughter and thus, under Puerto Rico law, Erika is the child of the NH. Therefore, assuming all other requirements are met, Erika would be entitled to child’s benefits on the record of the NH as the NH’s child.

BACKGROUND

The NH died on June 10, 1999 in the Dominican Republic; his permanent residence was in Puerto Rico. The NH and Beatriz (Beatriz) were never married. On November 12, 1999, Beatriz gave birth to Erika in Rio Piedras, Puerto Rico. There is no father listed on the birth certificate.

On December 31, 2007, Beatriz filed an application on the record of the NH for surviving children’s benefits for her three children, K~; J~; and Erika. The agency approved the claims for K~ and J~ and denied the application for Erika because she was born after the NH’s death and there was insufficient evidence to prove their relationship.

Beatriz filed a new claim for Erika containing additional evidence. According to a statement by Beatriz, she and the NH lived together in Puerto Rico with their two children, K~ and J~. The family was on vacation together in the Dominican Republic when the NH died. The NH was the “bread winner” for the family and was the only one who worked and provided financial support. The NH covered all living expenses for Beatriz, K~, and J~. Beatriz also said that the NH told his sister, Y~, and his brother, L~, that Erika was his child-to-be. Beatriz stated that while pregnant with Erika, she lived in Puerto Rico together with the NH. The NH did not accompany her to any doctor’s visits in connection with her pregnancy—he died when she was two months pregnant with Erika.

The agency subsequently contacted L~, who confirmed that the NH had told him that Beatriz was pregnant with his daughter, Erika. L~ also stated that he is not the NH’s brother; he is Erika’s half-brother.

Y~ provided a statement that she took a DNA test with her niece (although Y~ stated that the niece in question was J~) in order to prove that her niece was the daughter of her brother, the NH. Y~ did not provide additional information about the date or the location of the test.  

Results of a DNA test from the DNA Diagnostics Center (DDC), representing that the DDC tested samples from Beatriz, Erika, and Y~, found a 98% probability of relatedness between Erika and Y~. The DNA test results do not discuss how DDC obtained the DNA samples.

You have informed us that Numident records for Y~ and the NH show that both were born in the same city and have the same two individuals listed as parents.

You provided the following evidence:

• •

  Death Certificate for the NH

• •

  Birth Certificate for Erika

• •

  SSA-795 Statement of Beatriz

• •

  SSA-2519 Child Relationship Statement

• •

  Statement from Y~

• •

  Reports of Contacts

• •

  DNA Lab results

ANALYSIS

The Social Security Act (the Act) states that the child of a deceased wage earner is entitled to survivor’s benefits if the child is unmarried, under age 18, and was dependent upon the deceased wage earner at the time of death. Act § 202(d)(1); 42 U.S.C. § 402(d)(1). For purposes of such child’s benefits under the Act, a “child” is defined as the child, legally adopted child, stepchild, or, in limited circumstances, grandchild of an insured individual. Act § 216(e); 42 U.S.C. § 416(e). The Act and the implementing regulations provide that in determining whether a claimant will be deemed the surviving “child” of an insured individual for purposes of child’s benefits, the Commissioner shall apply such law as would be applied in determining the devolution of interstate personal property by the courts of the State in which the insured wage earner was domiciled at the time of his death. Act § 216(h)(2)(A); 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b). The regulations define permanent home as the true and fixed home (legal domicile) of a person. It is the place to which a person intends to return whenever he or she is absent. 20 C.F.R. § 404.303.

Here, although the NH died while on vacation in the Dominican Republic, his permanent residence was in Puerto Rico. Thus, because the NH was domiciled in Puerto Rico when he died, Puerto Rico laws regarding the devolution of interstate personal property apply.

Puerto Rico laws of intestacy provide that succession first follows the descending direct line from the decedent. P. R. Laws Ann. tit. 31, § 2641 (2010). The children of the deceased shall always inherit from him in their own right, dividing the inheritance in equal shares. P. R. Laws Ann. tit. 31, § 2643 (2010). All children have, with respect to their parents and to the estate left by the latter, the same rights that correspond to legitimate children. P.R. Laws Ann. Tit. 31, §441 (2010); Ocasio v. Diaz, 88 D.P.R. 676, 749 (P.R. 1963); Social Security Ruling (SSR) 68-21 (citing O~ and stating that all children have the status of “children” of their parents to whom they are legally filiated and thus all children have equal inheritance rights with respect to such parents); SSR 66-46 (same). 

As to children born out of wedlock, paternity may be established by judicial declaration or by voluntary recognition by the father. O~, 88 D.P.R. at 749; SSR 68-21; SSR 66-46; Program Operations Manual System (POMS) GN 00306.615. Paternity must be satisfactorily proven by a preponderance of the evidence. O~, 88 D.P.R. at 749 (1963); POMS GN 00306.615. A voluntary recognition by the father constitutes any act or deed, express or implied, by which the father (or his heirs) acknowledges or recognizes the child as his own. O~, 88 D.P.R. at 749; SSR 68-21; SSR 66-46; POMS GN 00306.615. This includes the conduct, treatment, behavior, and all acts performed by the father with respect to his child and from which paternity could be reasonably inferred, or considered as a tacit confession of paternity. O~, 88 D.P.R. at 710. In considering what constitutes voluntary recognition, a court will take into account the human experience and the realities of life and thus did not frame voluntary action within formulas that are impossible to meet. O~, 88 D.P.R. at 710.

Here, the NH voluntarily recognized Erika as his child. Evidence of that voluntary recognition includes the NH’s admission to both to his sister, Y~, and Erika’s half-brother L~, that Erika was his child. Additionally, he supported Beatriz financially and lived with her while she was pregnant with Erika. Accordingly, based on the precedent set in O~, and taking into account “the realities of life,” the NH’s voluntary implied and expressed acts are sufficient to establish paternity. O~, 88 D.P.R. at 710.

We note that Beatriz submitted genetic testing results. Puerto Rico does allow for the use of genetic tests to determine paternity. P.R. Laws Ann. tit. 32, App. IV, Rule No. 82 (2010); accord Rivera Perez v. Leon, 138 D.P.R. 839 (P.R. 1995) (approving the use of genetic evidence in paternity cases, provided that the court has carefully evaluated the admissibility of the results, and if admitted, weighs their probative value along with the other evidence in the case.) In fact, under Puerto Rico law, paternity is presumed incontrovertible in those cases in which the genetic test ordered by the Court produces a probability of paternity of ninety-eight percent or higher. P.R. Laws Ann. tit. 8, § 512 (2010). In the event that the putative father is deceased, as relevant here, the parents, children, siblings, and grandchildren of the putative father may be submitted to court ordered genetic testing, following an order of preference in accordance with the degree of consanguinity of the relative with the putative father.  P.R. Laws Ann. tit 32, App. IV, Rule No. 82. These tests shall be performed by duly-qualified experts appointed by the court. P.R. Laws Ann. tit 32, App. IV, Rule No. 82.  If the tests are not performed by experts appointed by the court, an expert witness and the presentation of the results of testing may be used to demonstrate the reliability of a test conducted outside the court. Pueblo v. Calderon Alvarez , 140 D.P.R. 627 (P.R.1996).

Here, the results submitted are not probative. The test resulted in a 98% match between Erika and the NH’s sister only, the test was not court-ordered and the test was not performed by duly-qualified experts appointed by the court.  Further, the record contains no testimony by an expert witness demonstrating the reliability of this test conducted outside the court. Finally, the record contains no evidence about how DDC obtained these DNA samples, or of the chain of custody of the samples once they were obtained. Accordingly, the results of this test are not probative as to the question of whether the NH is Erika’s father. Nonetheless, as outlined above, there is sufficient other evidence to establish paternity.

CONCLUSION

The NH voluntarily recognized Erika as his daughter and thus, under Puerto Rico law, Erika is the child of the NH. Therefore, assuming all other requirements are met, Erika would be entitled to child’s benefits on the record of the NH as the NH’s child.

A birth certificate is sufficient proof of maternity in Puerto Rico. However, in the very unlikely event that a birth certificate, or other record, such as a baptismal certificate, is not available, there must be acts of acknowledgement, either implicit or explicit, by the mother.

Issue:

Is a birth certificate sufficient proof of maternity in Puerto Rico, or is acknowledgement by the mother required?

Answer:

A birth certificate is sufficient proof of maternity in Puerto Rico. However, in the very unlikely event that a birth certificate, or other record, such as a baptismal certificate, is not available, there must be acts of acknowledgement, either implicit or explicit, by the mother.

DISCUSSION

A birth certificate is sufficient proof of maternity. If a birth certificate is not available, then some type of acknowledging acts by the mother are necessary to establish maternity. However, in the very unlikely event that there is no birth certificate, or other public record of the birth available, acts of acknowledgment on behalf of the purported mother are necessary.

Effective July 25, 1952, a child born out of wedlock in Puerto Rico has the same inheritance rights with respect to his or her parents, and to the estate left by the latter, as legitimate children. Ocasio v. Diaz, 88 P.R.R. 658, 708 (1963). A child born out of wedlock may acquire the status of child if he is recognized by the father and mother jointly or by one of them only, either in the record of birth, in a will, or in any public document. O~ 88 P.R.R. at 691, 699.

Significantly, the O~ Court also held that the father-child voluntary recognition be found pursuant to any act or deed, express or implied, by which the father or his heirs, acknowledges or recognizes the child as his own. See Social Security Ruling ("SSR") 66-46 (discussing and applying O~ to a Social Security paternity case.)

SSR 68-21, regarding the mother's benefits, where there is no birth certificate, follows the O~ rationale. The SSR gives an example of a woman in Puerto Rico who sought parents benefits, but had no birth certificate, baptismal record or any other public instrument to prove she was the child's mother. Although she did not have documentation to prove the child was hers, maternity was found because there were sufficient acknowledging acts by the woman to substantiate her claim that the child is in fact hers. Such acts included the woman's statements that the insured was her child, that she raised him in her family, and that they were known as parent and child within their community. Other examples were the woman's conduct, treatment, and behavior towards the child. See O~, 88 P.R.R. at 691.

While the SSR states that "the laws of Puerto Rico require some recognizing or acknowledging act by the mother before [maternity] can be established," it is important to note that the example given in the SSR clearly states that no birth certificate or baptismal record is available. In the very unlikely event that there is no birth certificate, baptismal record or other public document identifying the mother available, the woman claiming maternity must have acknowledged or recognized the child as her own. Significantly, the acknowledging acts relied on in SSR 68-21 follow the standard set forth in O~.

Once sufficient proof of maternity through acknowledging acts is established, the child becomes the legal child of the mother and confers on the mother the legal status of parent of such child. See 31 P.R. Laws Ann. § 2435 (rights of succession extend reciprocally between parent and child).

In conclusion, in order to establish maternity in Puerto Rico, a birth certificate is sufficient. In the absence of a birth certificate, acknowledging acts, either implicit or explicit, on behalf of the purported mother are necessary.

Barbara L. Spivak

Regional Chief Counsel By:

Sixtina Fernandez

Assistant Regional Counsel