TN 6 (04-07)

PR 01115.044 Rhode Island

A. PR 07-099 Parent-Child Relationship under Rhode Island State Law, Glenn E. T~, SSN ~

DATE: March 22, 2007

1. SYLLABUS

Under Rhode Island law, DNA testing showing a 99.99 % probability that the deceased number holder is the claimant's father combined with statements of friends and family of the deceased, pictures of the deceased with the child, cards sent by the deceased to the child and a family court notice to appear for a support hearing represent clear and convincing evidence that the number holder is the claimant's father.

The parent-child relationship is effective with the month of the DNA testing.

2. OPINION

This is in response to your request for an opinion concerning whether a DNA test report and other documents constitute sufficient evidence to establish a parent-child relationship for purposes of determining the child's eligibility for Child's Insurance Benefits (CIB), and if so, the date at which the child became entitled to benefits. For the reasons set forth below, we believe that the evidence submitted here is sufficient to establish a parent-child relationship and that the child became entitled to benefits by the first month covered by her August 30, 2006 application.

Factual Background

The child claimant, Tamara L~, was born on November 4, 1999. It is reported that the wage earner, Glenn E. T~, is not stated to be the child's father on her birth certificate. The wage earner died on November 8, 2004, while domiciled in Rhode Island. DNA testing evidence completed sometime between August 8, 2006, and August 30, 2006, 1 shows a 99.99 probability that the wage earner is the child's father. In addition, the child's mother has submitted three letters from friends and family members of the wage earner stating that he was the child's father, as well as a notice for the wage earner to appear in family court for a child support hearing, photos of the wage earner with the child and copies of cards sent by the wage earner to the child referring to himself as her father. The child's mother also states that the wage earner had applied for food stamps as the child's father and had declared her as his dependent on two tax returns, though these documents have not been submitted. The child's mother filed a claim for CIB on August 30, 2006.

Analysis

The Social Security Act ("the Act") provides for the payment of CIB to a child of a number holder who dies when fully or currently insured if the child has filed an application for CIB and was unmarried and under age 18 (or age 19 if a full-time student) at the time the application was filed and was dependent upon the number holder at the time of death. 2 42 U.S.C. §402(d)(1); 20 C.F.R. § 404.350; POMS RS 00203.001.A.1. The Act provides that in determining whether a claimant is the child of an insured individual, the Commissioner of Social Security ("Commissioner") shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the state where the insured individual is domiciled at the time of application or death.3 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(4); POMS GN 00306.001.C.2.a.

According to the evidence presented here, the number holder was a resident of Rhode Island at the time of his death. Therefore, we apply Rhode Island's law of intestate succession in determining whether the claimant is the number holder's child for purposes of determining CIB eligibility. See 42 U.S.C. 416(h)(2)(A); 20 C.F.R. § 404.355; POMS GN 00306.001.C.1.a.

Under Rhode Island's intestacy statute, after any distribution of a decedent's estate to a surviving spouse, the residue of the estate is distributed to the decedent's children. R.I. Gen. Laws §§ 33-1-1, 33-1-6, 33-1-10. Rhode Island law provides that for purposes of intestate succession a child born out of wedlock is capable of inheriting from a parent just as a child born in wedlock. R.I. Gen. Laws § 33-1-8. Such a child must prove paternity by clear and convincing evidence. In Re Estate of Cherkas, 506 A.2d 1029, 1031 (R.I. 1986). Under Agency Regulations a claimant is not required to obtain an adjudication of paternity, but rather, the Agency may decide paternity using the standard of proof that the state court would use as the basis for a paternity determination. 20 C.F.R. § 404.355(b)(2).

In Rhode Island, paternity must be established by clear and convincing evidence. R.I. Gen. Laws § 15-8-8; POMS GN 00306.620. Pursuant to R.I. Gen. Laws § 15-8-15, evidence relating to paternity may include:

(1) Evidence of sexual intercourse between the mother and alleged father at any possible time of conception;

(2) A written report of blood or tissue typing test results including a calculation of the probability of paternity as specified under § 15-8-11;

(3) Medical or anthropological evidence relating to the alleged father's paternity of the child based on tests performed by experts. If a man has been identified as a possible father of the child, the court may, and upon motion of a party shall, require the child, the mother, and the man to submit to appropriate tests;

(4) All other evidence relevant to the issue of paternity of the child; and

(5) Copies of bills for parentage testing, and for prenatal and postnatal health care of the mother and child may be introduced into evidence without the need for foundation testimony or other proof of authenticity or accuracy and without the necessity of calling the expert as a witness, unless an objection challenging the test procedures or results has been filed within ten (10) days before any hearing at which the results may be introduced into evidence and a cash bond posted with the registry of the family court in an amount sufficient to cover the costs of the duly qualified expert or witness to appear and testify.

Rhode island law provides that DNA test results establishing a ninety-seven (97) percent or greater probability of paternity shall constitute a "conclusive" presumption of paternity which may note be rebutted. R.I. Gen. Laws §§ 15-8-3(a)(5), 15-8-3(b), 15-8-11(e). 4 Here, the claimant submitted a DNA test report stating that there is a statistical probability of 99.99 percent that the deceased wage earner is the child's father. Accordingly, we believe the DNA test report is sufficient to establish a parent-child relationship between the child and the wage earner under Rhode Island law.

Under 20 C.F.R. § 404.352(a)(1), entitlement to CIB begins with the first month covered by the application in which the child meets all the requirements for entitlement. All of the requirements for the child's entitlement to benefits were met in this instance when the child's mother filed the application on her behalf on August 30, 2006. See 42 U.S.C. §402(d)(1)(A); 20 C.F.R. § 404.350(a)(3); POMS RS 00203.001.A.1 (a child is entitled to CIB, inter alia, when she applies for benefits).

Conclusion

We believe that the Rhode Island courts would find that the child could inherit from the deceased wage earner as his child under Rhode Island's intestacy statute. Therefore, we conclude that the child qualifies as the wage earner's child for purposes of entitlement to CIB. Further, we believe that the child's entitlement to benefits began by the first month covered by her application of August 30, 2006.


Footnotes:

[1]

While the test results are undated, the last sample was obtained August 8, 2006, and the child's mother submitted the test results to the Agency at the time she filed the child's application on August 30, 2006.

[2]

A number holder's natural child, as defined in 20 C.F.R. § 404.355, is presumed to have been dependent on the number holder. 20 C.F.R. § 404.361(a).

[3]

We note that there are other circumstances under which a child may be considered the child of an insured individual. A claimant can be deemed to be the deceased wage earner's child upon proof that, prior to the wage earner's death, one of the following conditions was met: (1) the wage earner and claimant's mother went through a ceremony, which would have resulted in a valid marriage between them except for a legal impediment; (2) the claimant is the wage earner's natural child and the wage earner acknowledged in writing that the child was his natural child, was decreed by a court to be the child's parent, or was ordered by a court to contribute to the child's support; or (3) the wage earner is shown by evidence satisfactory to the Commissioner to have been the child's father, and he was living with or contributing to the child's support at the time of his death. 42 U.S.C. § 416(h)(2)-(3); 20 C.F.R. § 404.355(a)(2)-(4). None of these circumstances appear to apply in this case.

[4]

We note that POMS GN 00306.620 erroneously states that such results may be rebutted.


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PR 01115.044 - Rhode Island - 06/01/2011
Batch run: 06/01/2011
Rev:06/01/2011