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.