TN 21 (02-14)

PR 01115.048 Texas

A. PR 14-030 Texas Law – Use of Y-Chromosome DNA Kinship Report to Establish Parent-Child Relationship (NH Michael, SSN ~) - REPLY

DATE: December 16, 2013

1. SYLLABUS

For purposes of inheritance in Texas, paternity may be established if clear and convincing evidence establishes that the purported father was the biological father of the child. In this case, the DNA kinship test report did not demonstrate by clear and convincing evidence that the number holder was or was not the child's biological father. The report only established a familial relationship between the number holder's brother and the child. It did not exclude or identify the number holder as the child's father. However, the totality of the evidence submitted by the child's mother in this case constitutes clear and convincing evidence under Texas law that the number holder is the child’s biological father. The child is entitled to child’s insurance benefits on the number holder’s account as the number holder’s child.

2. OPINION

QUESTION PRESENTED

This memorandum is in response to your request for an opinion on whether Karson, a minor child, may be entitled to Social Security child’s insurance benefits on the earnings record (account) of Michael, the deceased number holder (number holder).  Specifically, you have asked whether a Y-Chromosome deoxyribonucleic acid kinship report (DNA kinship test report), based on samples from the deceased number holder’s brother and Karson, in combination with other documentation, establish that Karson is the number holder’s biological child under Texas law.

ANSWER

In our opinion, the totality of the evidence constitutes clear and convincing evidence under the Texas Probate Code that the number holder is Karson’s biological father. Consequently, Karson is entitled to child’s insurance benefits on the number holder’s account. 

 BACKGROUND

On June 11, 2008, the request for legal opinion mistakenly states that Karson’s date of birth is July. The birth certificate shows that Karson’s date of birth is June.

Ashley gave birth to Karson. As per information on an agency’s “remarks screen,” Ashley advised the agency that she and the number holder were never married; that they lived together for about six months during Ashley’s pregnancy with Karson, but they were not living together when Karson was born; that the number holder did not contribute to Karson’s support; and that she began proceedings with the Texas Attorney General, Child Support Division, to have court-ordered child support, but the state could not find the number holder to establish the child support order. As per an e-mail dated October 30, 2013, from Joyce, a claims representative, to the Dallas Regional Office, Ashley has never been married.   

The number holder died on December 10, 2012. At the time of the number holder’s death, he was domiciled in Texas and was married to Monica. 

In August 2013, Ashley filed a child’s insurance benefits claim on Karson’s behalf, alleging that the number holder is Karson’s biological father. To establish the parent-child relationship between Karson and the number holder, Ashley submitted the following evidence:

  1. A DNA kinship test report based on samples from Matthew, the number holder’s brother, and Karson, dated July 25, 2013, finding a 99.99% probability that Matthew is Karson’s paternal uncle. 

  2. Ashley’s statement stating that she had seen Matthew twice in her life, was never romantically involved with him, and had never had a sexual relationship with Matthew or with anyone else in the number holder’s family.

  3. A form from the Attorney General of Texas, Child Support Division, titled “Verification of Child Support Income,” signed November 23, 2009, where Ashley named the number holder as the payor.

  4. A form from the Texas Health and Human Services Commission (HHSC)1 titled “Parent Profile Questionnaire,” signed in October 2009, where Ashley named the number holder as Karson’s absent parent.

  5. Two undated letters purportedly from the number holder that include content indicating that Ashley and the number holder had a sexual relationship.

  6. A picture of the number holder holding Karson at the hospital, when Karson was born.

  7. A Statement of Claimant or Other Person, Form SSA-795, dated August 6, 2013, where Ashley’s mother 2 stated that in October 2007, Ashley and the number holder went to her house and informed her about the pregnancy; that the number holder confirmed that he was the unborn child’s (Karson’s) father; that the number holder was present during Karson’s delivery; that the number holder cut Karson’s umbilical cord; that the number holder’s mother was also present during Karson’s delivery; and that the number holder’s mother and sister visited Ashley at the hospital when Karson was born. 

  8. A Statement of Claimant or Other Person, Form SSA-795, dated August 5, 2013, where Lynnell and Bruce, the number holder’s parents, acknowledged that Karson is the number holder’s son.

  9. A Statement of Claimant or Other Person, Form SSA-795, dated August 5, 2013, where the number holder’s parents stated that Matthew was the number holder’s only brother; that the number holder resided and died in Texas; that before the number holder died, he admitted to them that he was Karson’s father; that they were present at Karson’s baby shower; and that Karson was their grandson.

  10. A Child Relationship Statement, Form SSA-2519, dated August 5, 2013, where Ashley stated that she had commenced proceedings 3 to have court ordered child support for Karson, but the courts could not locate the number holder to establish the child support order; and that the number holder told Matthew that he was Karson’s father.  

  11. Karson’s birth certificate, showing his date of birth as June, naming Ashley as his mother, but it does not name anyone as his father.

  12. Matthew’s birth certificate, showing his date of birth August, naming Bruce and Lynnell as his parents.

  13. The number holder’s certificate of death, showing that he died in Austin, Texas on December 10, 2012.

ANALYSIS

  1. The Agency Applies State Intestacy Laws to Determine Status as a Child

    Under the Social Security Act, a child may be eligible for surviving child’s benefits if he is the child of an individual who has died fully or currently insured. 42 U.S.C. § 402(d)(1). To be entitled to survivor’s benefits on an insured number holder’s account, a child must:  (1) be the number holder’s child; (2) be dependent upon the number holder; (3) apply for benefits; (4) be unmarried; and (5) be under the age of 18. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a)(1)-(5).  Here, it is undisputed that Karson is unmarried and under the age of 18, and that his mother applied for surviving child’s benefits on his behalf. The agency will consider a child dependent upon a number holder if the child is the number holder’s child. See 20 C.F.R. § 404.361(a). Thus, we next determine whether Karson is the number holder’s child. The agency “must explore all possibilities of entitlement before disallowing a child’s claim because the relationship requirements are not met.” POMS GN 00306.001(D).

    For purposes of surviving child’s benefits, a claimant is a number holder’s child if:  (1) he could inherit property through intestate succession as the number holder’s child; (2) he is the number holder’s child, and the number holder and the claimant’s other parent participated in a ceremony that would have resulted in a valid marriage, except for a legal impediment; (3) he is the number holder’s child, and before the number holder’s death, the number holder acknowledged him as his child in writing; a court decreed the number holder to be the claimant’s parent; or a court ordered the number holder to contribute to the claimant’s support because the claimant is the number holder’s child; or (4) the number holder is the claimant’s parent and was either living with the claimant or contributing to his support at the time the number holder died. See 42 U.S.C. §§ 416(h)(2)(A)-(B), 416(h)(3)(A),(C); 20 C.F.R. § 404.355(a)(1)-(4). Based on the information we received, Ashley and the number holder never married or participated in a ceremony that would have resulted in a valid marriage. No court decreed the number holder to be Karson’s parent or ordered the number holder to contribute to Karson’s support before the number holder’s death. Further, the number holder never lived with Karson, contributed to his support, or acknowledged him in writing as his child. The record includes two letters that purportedly the number holder sent to Ashley. One of the letters is not dated, does not mention either a child or a pregnancy, and a person named Mike sent the letter. The second letter states in part, “It’s also more than likely I’m responsible for your pregnancy,” and this letter does not identify Karson as the child, is not dated, is not signed, and does not identify the person writing the letter. The agency cannot consider these letters as proof of an acknowledgment of paternity because the agency cannot authenticate that the number holder wrote the letters. Moreover, the letters are not acknowledgment of paternity under Texas law. See footnote 10; Tex. Fam. Code Ann. §160.302.

    Therefore, Karson does not qualify as the number holder’s child under tests two, three, or four. To prove that he is eligible for child’s insurance benefits on the number holder’s account, Karson must therefore show under test one that he could inherit property from the number holder through intestate succession. 

    To determine whether an applicant could inherit a deceased number holder’s property through intestate succession, the agency must apply the intestacy laws of the state in which the deceased number holder had his permanent home at the time of his death. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b). Since the number holder’s permanent home was in Texas when he died, Karson’s eligibility for child’s insurance benefits on the number holder’s account depends upon whether he could inherit property under Texas intestacy laws as the number holder’s child. See id. 

  2. Analysis Under Section 42(b) of the Texas Probate Code

    The Texas intestacy laws are codified in the Texas Probate Code, which provide, in pertinent part, the framework for determining father-child relationships for inheritance purposes. See Tex. Prob. Code § 42(b).  The Texas Legislature has repealed the Texas Probate Code and has enacted the Texas Estates Code, which will become effective January 1, 2014. See Acts 2009, 81st Leg., ch. 680; Acts 2011, 82nd Leg., ch. 823 (H.B. 2759); and Acts 2011, 82nd Leg., ch. 1338 (S.B. 1198). The new provisions concerning maternal and paternal inheritance found in section 42 of the Texas Probate Code will be in sections 201.051 and 201.052 of the Texas Estates Code.

     For purposes of inheritance, a child is his biological A Texas court held that proof of a biological link to the father is not required for a child to be considered a “child of his biological father” under section 42(b), noting that a biological father includes a man who has adopted a child. See Wilson v. Estate of Williams, 99 S.W.3d 640, 650 (Tex App. –Waco 2003). 

    father’s child if: (1) he was born under circumstances section 160.201 Under section 160.201 of the Texas Family Code, a father-child relationship exists if:  (1) an unrebutted presumption of paternity arises in a marriage; (2) the man acknowledges his paternity (see footnote 10 for requirements of acknowledgment of paternity); (3) a court adjudicates the man’s paternity; (4) the man adopts the child; or (5) the man consents to assisted reproduction and his wife gives birth. See Tex. Fam. Code Ann. § 160.201(b)(1)-(5). Karson does not meet any of the methods described in section 160.201 of the Texas Family Code because he was not born under any of those circumstances. See id.

    of the Texas Family Code describes; (2) he was adjudicated to be the father’s child by court decree as provided by chapter 160 of the Texas Family Code; (3) the father adopted him; (4) the father executed an acknowledgement or like statement of paternity as provided by subchapter D of chapter 160 of the Texas Family Code; Under Texas law, “[a]n acknowledgment of paternity must: (1) must be in a record; (2) be signed, or otherwise authenticated, under penalty of perjury by the mother and the man seeking to establish paternity; (3) state that the child whose paternity is being acknowledged: (A) does not have a presumed father or has a presumed father whose full name is stated; and (B) does not have another acknowledged or adjudicated father; (4) state whether there has been genetic testing and, if so, that the acknowledging man’s claim of paternity is consistent with the results of the testing; and (5) state that the signatories understand that the acknowledgment is the equivalent of a judicial adjudication of the paternity of the child and that a challenge to the acknowledgment is permitted only under limited circumstances.”  Tex. Fam. Code Ann. § 160.302.

    or (5) clear and convincing evidence establishes that the purported father was the biological father of the child. Id. The first four methods set forth in the Texas Probate Code are not applicable in this case, as the number holder was not born under any of the circumstances section 160.201 of the Texas Family Code describes; there is no court decree adjudicating that the number holder is Karson’s father; the number holder never adopted Karson; and the number holder never executed an acknowledgment of paternity.  With respect to the court order of adjudication, we note that the Social Security regulations provide that if applicable state inheritance law requires a court determination of paternity, “we will not require that you obtain such a determination.” 20 C.F.R. § 404.355(b)(2). Instead, the agency decides a child’s “paternity by using the standard of proof that the state court would use as a basis for a determination of paternity.” Id. Texas applies the clear and convincing evidence standard of proof to determine paternity after the father’s death. See In re Interest A.S.L., 923 S.W.2d 814, 818 (Tex.App. –Amarillo 1996, no writ).  Thus, our analysis under the second method would be the same as under the fifth method and would concern whether clear and convincing evidence establishes the child relationship. See also POMS GN 00306.075.B.4.

    Thus, for Karson to establish that he had a right to paternal inheritance from the number holder, he must establish it under the fifth method of section 42(b) of the Texas Probate Code by presenting clear and convincing evidence that he is the number holder’s biological child. See footnote 8. 

     See Tex. Prob. Code § 42(b). 

    Under Texas law, “the clear and convincing standard is the degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be proved.” Villery v. Solomon, 16 S.W.3d 106, 107 (Tex.App. –Houston, 2000 [1st Dist.], no pet.), quoting In the Interest of G.M., 596 S.W.2d 846, 847 (Tex.1980); see also Tex. Fam. Code Ann. § 101.007. Thus, we must determine whether the totality of the evidence Ashley submitted to the agency constitutes clear and convincing evidence to establish that Karson is the number holder’s biological child.

    We first consider the genetic testing evidence that Ashley provided to the agency to support the parent-child relationship between Karson and the number holder. Under Texas law, a man is rebuttably identified as the father of a child if the genetic testing complies with statutory requirements, In order to establish a genetic testing report’s reliability and authenticity, first the genetic testing must take place in a laboratory accredited by the American Association of Blood Banks, the American Society for Histocompatibility and Immunogenetics, or another accrediting body the Secretary of the United States Department of Health and Human Services designates. See Tex. Fam. Code Ann. § 160.503(a). Second, a laboratory designee must sign the DNA kinship test report under penalty of perjury. See Tex. Fam. Code Ann. § 160.504(a). Third, testimony or documentation must establish a reliable chain of custody by providing the following:  (1) the names and photographs of the persons whose specimens have been taken; (2) the names of the persons who collected the specimens; (3) the places and dates the specimens were collected; (4) the names of the persons who received the specimens in the testing laboratory; and (5) the dates the specimens were received. See Tex. Fam. Code Ann. § 160.504(b). 

    and the results disclose that the man has at least a 99% probability of paternity and a combined paternity index of at least 100 to 1. See Tex. Fam. Code §§ 160.503(a); 160.504(a),(b); 160.505(a); 160.621(a). Here, the number holder’s specimen was not available for genetic testing because the number holder was deceased.  Instead, as part of the evidence to establish paternity posthumously, Ashley submitted a DNA kinship test report dated July 25, 2013, based on specimen from Matthew and Karson. “One may choose to do DNA Y chromosome testing for paternity if the alleged father is unable to do the Y chromosome DNA testing himself (like if, for example, he is missing or dead). However, if the alleged uncle does the DNA Y chromosome testing for paternity of his brother, there will be no way for the child to know whether the uncle is his father or his    brother. . . .  DNA Y chromosome testing for paternity will just show that there is a familial connection between whoever gives a DNA sample, nothing more.” http://www.dna-testing4u.com/ancestry/dna-y-chromosome-testing-for-paternity/ (last searched on November 1. 2013).

     Under Texas law, when the man has died and cannot provide a specimen for genetic testing, in looking at whether clear and convincing evidence exists to establish paternity, as one piece of evidence, the court may consider the results of genetic testing of the man’s brother. See Tex. Fam. Code §160.508(a)(2); see also Tipps v. Metropolitan Life Ins. Co., 768 F.Supp. 577, 580 (S.D. Tex. 1991) (after death of purported father, Texas court may draw inferences from grandparentage DNA testing to determine paternity). 

    The DNA kinship test report showed a 99% probability that Matthew is Karson’s paternal uncle, which satisfies the probability provision of the Texas Family Code. See Tex. Fam. Code § 160.505(a).  The DNA kinship report does not meet the Texas statutory requirements for genetic testing to establish paternity between Karson and the number holder because the DNA kinship test report did not exclude or identify the number holder as Karson’s father. See Tex. Fam. Code Ann. §§ 160.102(8); 160.505(a)(1) (the man has at least a 99% probability of paternity).  Instead, the DNA kinship test report only established a familial relationship between Matthew and Karson.    

    Although the DNA kinship test report did not demonstrate by clear and convincing evidence that the number holder was or was not Karson’s biological father, Ashley submitted other evidence to support the parent-child relationship between Karson and the number holder. Ashley submitted two undated letters purportedly from the number holder that include content indicating that Ashley and the number holder had a sexual relationship. Ashley also submitted a picture that is purportedly the number holder holding Karson at the hospital when Karson was born.  Although the record indicates that the number holder was at the hospital during Karson’s birth, it does not include any evidence explaining why Karson’s birth certificate does not name the number holder as his father. See Tex. Health & Safety Code Ann. § 192.012(a) (if the mother of a child is not married to the father of the child, a person responsible for filing the birth certificate shall provide an opportunity for the child’s mother and putative father to sign an acknowledgment of paternity).

     Additionally, Ashley stated that she had requested services from the Texas Attorney General, Child Support Division, to establish a child support order for Karson, but the courts could not locate the number holder to establish the child support order. We note that the Attorney General of Texas, Child Support Division, may have initiated the child support services with Ashley because Karson’s birth certificate does not name an individual as a father. See Tex. Health & Safety Code Ann. § 192.005(d) (“If the items relating to the child’s father are not completed on a birth certificate filed with the state registrar, the state registrar shall notify the attorney general”).

     In support of her statement, Ashley submitted a form from the Attorney General of Texas, Child Support Division, titled “Verification of Child Support Income,” signed on November 23, 2009, where Ashley named the number holder as the payor; and a form from the HHSC, See footnote 2.

    titled “Parent Profile Questionnaire,” signed in October 2009, where Ashley named the number holder as Karson’s absent parent. Ashley further submitted a personal statement stating that she had seen Matthew twice in her life, but that she had never had a sexual relationship with Matthew or anyone else in the number holder’s family. The number holder’s letters, the forms requesting public assistance, the number holder’s picture at the hospital holding Karson, and Ashley’s statements constitute evidence supporting the parent-child relationship between Karson and the number holder.

    Ashley also submitted statements from family members to show that the number holder had acknowledged to family members that he was Karson’s father. Ashley submitted a Statement of Claimant or Other Person, Form SSA-795, dated August 6, 2013, where Ashley’s mother See footnote 3. 

    stated that in October 2007, prior to Karson’s birth, Ashley and the number holder went to her house and informed her about the pregnancy; that when they went to her house, the number holder confirmed that he was the father of the unborn child; that the number holder was present during Karson’s birth; that the number holder cut Karson’s umbilical cord; that the number holder’s mother was also present during Karson’s birth; and that the number holder’s mother and sister visited Ashley at the hospital when Karson was born. Ashley also submitted a Statement of Claimant or Other Person, Form SSA-795, dated August 5, 2013, where Bruce and Lynnell, the number holder’s parents, stated that before the number holder died, he admitted to them that he was Karson’s father; that they were present at Karson’s baby shower; that Karson was their grandson; that Matthew was the number holder’s only brother; and that the number holder resided and died in Texas. The family’s statements further support the parent-child relationship between Karson and the number holder.

    CONCLUSION

    Based on the information provided to the agency, we have determined that, while DNA kinship test report does not establish that the number holder is Karson’s father, the totality of the evidence constitutes clear and convincing evidence under Texas law that the number holder is Karson’s biological father. Therefore, Karson is entitled to child’s insurance benefits on the number holder’s account as the number holder’s child. Our office is in the process of proposing changes to Program Operations Manual System (POMS) General (GN) 00306.640 related to the issue of retroactivity under the Texas Intestacy Laws; however, under present POMS provisions, we are unable to issue an opinion establishing a retroactive effective date of a parent-child relationship.

    Michael McGaughran
    Regional Chief Counsel

       

    By:     /s/ Ruben Montemayor
    Ruben Montemayor
    Assistant Regional Counsel

B. PR 11-067 Texas Law – Status of Child Relationship Based on Deoxyribonucleic Acid Y Chromosome Test (NH Miguel , SSN ~) – REPLY

DATE: March 8, 2011

1. SYLLABUS

The evidence is insufficient to establish paternal inheritance rights under the Texas Probate Code. Consequently, Ms. T~ cannot establish that the number holder is Armando’s father, and the agency should not consider Armando to be the number holder’s child for Social Security purposes.

2. OPINION

This memorandum is in response to your request for a legal opinion on whether, under Texas law, a deoxyribonucleic acid (DNA) Y Chromosome Report based on samples from a deceased number holder’s brother and a child is sufficient evidence to establish a parent-child relationship between the child and the deceased number holder. It is our opinion that, under Texas law, the facts presented here are insufficient to establish the child’s paternity. The DNA Y Chromosome Report does not meet the Texas statutory requirements for genetic testing to establish paternity, as the DNA Y Chromosome Report did not exclude or identify the deceased number holder as the father of the child. 4 In addition, while Texas law provides that paternity can be established through other clear and convincing evidence, the facts presented in this case do not constitute clear and convincing evidence.

As we understand the facts, Miguel (number holder), who was domiciled in Texas, died on October 25, 2009, while visiting his parents in Cuidad Juarez, Mexico. Armando was born to Liliana T~ on April. The number holder lived with Liliana in El Paso, Texas, for approximately four and a half years prior to his death, but they never married. Armando’s birth certificate does not list a father.

On June 21, 2010, Liliana filed for child’s benefits on Armando’s behalf on the number holder’s account, claiming that the number holder was Armando’s father. In support of her application, Liliana provided a June 1, 2010, single grandparentage DNA Report. 5 The DNA Report tested DNA samples from Maria , the number holder’s mother; Liliana; and Armando. The number holder’s father could not be tested because he died in the same incident in Cuidad Juarez, Mexico, as the number holder.

The single grandparentage DNA Report showed that there was an 85.29 percent probability that one of Maria’s sons was Armando’s biological father. 6 On June 25, 2010, the Social Security Administration (agency) denied the June 2010 application for child’s benefits because the single grandparentage DNA Report did not meet the Texas statutory requirements for genetic testing to establish paternity, as the test showed that the probability of relationship was lower than Texas law requires in order to create a presumption of paternity. In addition, Liliana failed to provide any other evidence to establish a biological relationship between the number holder and Armando.

On September 3, 2010, the agency received Liliana’s request for reconsideration of the agency’s denial. In support of her request for reconsideration, Liliana provided an August 26, 2010, DNA Y Chromosome Report based on samples taken from Armando and Llamil , the number holder’s brother, which showed a 99.93 probability that Armanda and Llamil shared a common male ancestor. Liliana also provided two statements in support of the reconsideration – one from herself and one from Llamil both stating that Liliana lived with the number holder in El Paso, Texas, from April 2005 through his death in October 2009.

To be eligible for surviving child’s benefits on the account of an insured individual, a child must: (1) be that individual’s child for purposes of the Social Security Act (Act), (2) file for benefits, (3) be unmarried, (4) be either under the age of 18 or under age 19 and a full-time elementary or secondary school student, and (5) be dependent on the individual in question. 42 U.S.C. § 402(d)(1)(A)-(C). In this case, elements two, three, and four are satisfied. Additionally, if Armando is considered to be the number holder’s child, he will be considered to be dependent on the number holder, thus satisfying the fifth element. 20 C.F.R. § 404.361(a). Accordingly, the only remaining criterion Armando must establish is that he is the number holder’s child under the first element.

The Act provides that a child is considered the number holder’s child for benefit purposes if the child could inherit the number holder’s property as his natural child under the intestacy laws of the state in which the number holder was domiciled at the time of his death. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1). 7 At the time of his death, the number holder was domiciled in Texas.

Thus, we look to Texas law to determine whether Armando is the number holder’s child for purposes of intestate succession.

The Texas Probate Code provides the framework for determining father-child relationships for inheritance purposes. Tex. Prob. Code § 42(b)(1). For purposes of inheritance, a child is his biological father’s child if: (1) he was born under circumstances described in Section 160.201 8 of the Family Code; (2) he was adjudicated to be the child of the father by court decree as provided by Chapter 160 of the Family Code; (3) the father adopted him; (4) the father executed an acknowledgement or like statement of paternity as provided by Subchapter D of Chapter 160 of the Family Code; or (5) clear and convincing evidence establishes that the purported father was the biological father of the child. Id. The third and fourth methods set forth in the Texas Probate Code are not applicable in this case, as the number holder neither adopted Armando nor executed an acknowledgment of paternity. Thus, for Liliana to establish that Armando had a right to paternal inheritance from the number holder, it must be under the first, second, or fifth methods.

Under the first and second methods, if a court adjudicated Armando to be the number holder’s child, he would be entitled to child’s insurance benefits on the number holder’s account. See Tex. Fam. Code § 160.201(b)(3) (parent-child relationship is established between a man and a child by an adjudication of the man’s paternity). Although we are unaware of an adjudication of paternity in this case, Social Security regulations provide that, if applicable state inheritance law requires a court determination of paternity, “we will not require that you obtain such a determination.” 20 C.F.R. § 404.355(b)(2). Instead, the agency “decide[s a child’s] paternity by using the standard of proof that the State court would use as the basis for a determination of paternity.” Id.

In determining paternity under chapter 160 of the Texas Family Code, a Texas court will consider the results of genetic testing, provided the DNA testing process and the DNA report meet specific requirements to establish reliability and authenticity. 9 See Tex. Fam. Code §§ 160.503, 160.504, 160.631. In this case, the DNA Y chromosome testing process and the DNA Y Chromosome Report met the requirements. 10

Under Texas law, if the DNA testing process and DNA test report satisfy the reliability and authenticity requirements, and the testing reveals at least a 99 percent probability of paternity with a combined paternity index of at least 100 to 1, a man is rebuttably identified as the child’s father. See Tex. Fam. Code § 160.505(a). When the man has died and cannot provide a specimen for genetic testing, the court may consider the results of genetic testing of the man’s parents, brothers or sisters, any other children of the man and their mothers, and other relatives. See Tex. Fam. Code § 160.508(a); see also Tipps v. Metropolitan Life Ins. Co., 768 F.Supp. 577, 579-80 (S.D. Tex. 1991) (after death of purported father, Texas court may draw inferences from grandparentage DNA testing to determine paternity). The results of genetic testing can only be rebutted by other genetic tests. Tex. Fam. Code §§ 160.505(b); 160.631.

Here, as Texas law allows, Llamil , the number holder’s brother, underwent DNA Y chromosome testing because the number holder is deceased. In this case, the DNA Y Chromosome Report revealed a 99.93 percent probability that Llamil and Armando shared a common male ancestor, which satisfies the probability provision of the Texas Family Code. See Tex. Fam. Code § 160.505(a). However, the DNA Y Chromosome Report did not exclude or identify the number holder as the father of the child, which Texas law also requires. The Texas Family Code requires genetic testing to “exclude or identify a man as the father of a child.” See Tex. Fam. Code §§ 160.102(8) (“Genetic testing” means an analysis of an individual’s genetic markers to “exclude or identify a man as the father of a child”); 160.505(a) (“the man has at least a 99 percent probability of paternity”). In this case, the DNA Y Chromosome Report indicated only a common male lineage between the number holder’s brother and Armando. Thus, the DNA Y Chromosome Report does not meet the Texas statutory requirements for genetic testing to establish paternity as the test did not exclude or identify the deceased number holder as the father of the child. 11 Accordingly, Armando would not be entitled to inherit from the number holder under the first or second methods for determining paternal inheritance rights.

Armando also cannot establish paternal inheritance rights under the fifth method, because the facts do not provide clear and convincing evidence that the number holder was Armando’s biological father. See Tex. Prob. Code § 42(b)(1). The Texas Family Code defines “clear and convincing evidence” as “the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” Tex. Fam. Code § 101.007. Although a Texas court will consider the June 2010 single grandparentage DNA Report that Ms. T~ submitted with her initial application, along with the August 2010 DNA Y Chromosome Report, when deciding whether the evidence in a particular case is clear and convincing, the DNA test results must demonstrate by clear and convincing evidence that the number holder was or was not Armando’s biological father. See T~, 768 F.Supp. at 479-80.

As discussed above, the single grandparentage DNA Report only showed an 85.29 percent probability that one of Maria’s sons was Armando’s biological father, which falls below the probability threshold that Texas requires in order to create a rebuttable presumption of paternity. See Tex. Fam. Code § 160.505(a). In addition, the DNA Y Chromosome Report failed to exclude or identify the number holder as Armando’s father, which Texas law also requires. See Tex. Fam. Code §§ 160.102(8), 160.505(a). Thus, the single grandparentage DNA Report and the DNA Y Chromosome Report do not constitute clear and convincing evidence that the number holder was Armando’s biological father.

Moreover, the single grandparentage DNA Report and the DNA Y Chromosome Report also are not clear and convincing evidence that the number holder is Armando’s biological father because they do not rule out Maria’ other son, Llamil , as Armando’s biological father. 12 Thus, further DNA testing of the number holder’s brother(s) would be necessary to rule him out as Armando’s father. See Tex. Fam. Code § 160.505(c); Tex. Fam. Code § 160.508 (permits a court to order genetic testing of relatives, including brothers, when the alleged father is not available); Tex. Fam. Code § 160.631(e) (if a court finds that genetic testing does not identify or exclude a man as the father of a child, the results of genetic testing and other evidence are admissible to adjudicate the issue of paternity). Although Liliana and Llamil stated that Liliana lived with the number holder from April 2005 through his death in October 2009, we do not believe that these statements, standing alone, eliminate the possibility that Llamil, or another man, could have fathered Armando. Since Liliana’s and Llamil ’s statements would not instill a firm belief or conviction in a fact finder that the number holder was Armando’s biological father, coupled with the fact that Armando’s birth certificate does not name the number holder as Armando’s father and no other corroborating evidence exists, we do not believe that a Texas court would find the statements to constitute clear and convincing evidence. Thus, Liliana has not established paternal inheritance rights under any of the five methods provided under the Texas Probate Code.

The evidence is insufficient to establish paternal inheritance rights under the Texas Probate Code. Consequently, Liliana cannot establish that the number holder is Armando’s father, and the agency should not consider Armando to be the number holder’s child for Social Security purposes.

Michael McGaughran
Regional Chief Counsel

By: _____
Carolyn E. Whitson
Assistant Regional Counsel

C. PR 10-075 Texas Law – Use of Full Sibling Screening Report to Establish Child Relationship (NH Bobby C~, SSN ~) – REPLY

DATE: March 16, 2010

1. SYLLABUS

A DNA test that satisfies both the reliability and authenticity requirements under Texas law and shows a 99.97 probability that the claimant is the half- biological sibling of the number holder’s legitimate child is sufficient to establish the parent-child relationship.

Under Texas law it does not establish legitimacy and, therefore, the relationship is only established prospectively no earlier than the date of the test.

2. OPINION

This memorandum is in response to your request for a legal opinion on whether a siblingship deoxyribonucleic acid (DNA) test report establishes that Colton (Colton) is Bobby’s (number holder’s) child. If Colton is the number holder’s child, you asked what is the effective date of the parent-child relationship. In our opinion, the available evidence is sufficient under Texas law to establish that Colton is the number holder’s child. We also believe that the DNA report grants inheritance rights to Colton, but does not legitimate him. Thus, he is only entitled to benefits as of September 17, 2009, the date of his application for child’s benefits. 20 C.F.R. § 404.352(a)(1) (2010).

As we understand the facts, the number holder was married to Kathy (Kathy) from 1980 to 1993. The number holder and Kathy had a son, Kasey (Kasey), who was born in 1985. A Social Security Numerical Identification query (NUMIDENT) on Kasey lists the number holder as Kasey’s father. Also, records from the Texas Department of State Health Services, Vital Statistics Unit, verifies that the number holder was Kasey’s father. On August 2, 1997, Shalena (Shalena) gave birth to her son, Colton. There is no evidence that documents a marital relationship between the number holder and Shalena. Colton’s birth certificate did not list a father. No evidence indicates that the number holder acknowledged Colton in writing or that a court issued an order declaring paternity or requiring the number holder to provide support for Colton.

On November 10, 2007, the number holder died while domiciled in Texas. On September 17, 2009, Shalena filed a claim for Social Security child’s insurance benefits on behalf of Colton on the number holder’s account. In support of her claim, Shalena provided a July 31, 2009, siblingship DNA report. Independent Forensics, an American Association of Blood Banks (AABB) accredited testing facility, conducted the DNA test with samples from Colton and Kasey. The DNA report indicates a combined sibling index of 3,402 to 1 and a 99.97% probability that Colton and Kasey have the same father. The report includes the following evidence to document the chain of custody of the DNA samples: (1) Colton’s and Kasey’s names and photographs; (2) the names of the phlebotomists who collected the specimens; (3) the places in which the specimens were collected and the date of each collection; (4) the name of the individual who received the specimens in the testing laboratory; and (5) the dates the specimens were received. P. W. B~, Ph.D., the laboratory director, certified the DNA analysis report.

To be entitled to child’s benefits on an insured number holder’s account, a child must:

(1) be the number holder’s child; (2) be dependent upon the number holder; (3) apply for benefits; (4) be unmarried; and (5) be under the age of 18. See 20 C.F.R. § 404.350(a)(1)-(5) (2010). Here, Shalena applied for benefits on Colton’s behalf. Colton is unmarried and under the age of 18. The agency will consider Colton to be dependent upon the number holder if Colton is the number holder’s natural child. See 20 C.F.R. § 404.361(a) (2010). Thus, the only remaining criterion Colton must establish is that he is the number holder’s natural child.

A claimant proves that he is a number holder’s natural child if: (1) he could inherit property through intestate succession as the number holder’s natural child; (2) he is the number holder’s natural child, and the number holder and the claimant’s other parent participated in a ceremony that would have resulted in a valid marriage, except for a legal impediment; (3) he is the number holder’s natural child and the number holder has acknowledged this in writing, a court has decreed the number holder to be the claimant’s parent, or a court has ordered the number holder to contribute to the claimant’s support because the claimant is the number holder’s child; or (4) the number holder is the claimant’s natural parent and was either living with the claimant or contributing to his support at the time the claimant applied for benefits. See 42 U.S.C. §§ 416(h)(2)(A)-(B), 416(h)(3) (2010); 20 C.F.R. § 404.355(a)(1)-(4) (2010). We have no information indicating that Shalena and the number holder were ever married. The number holder apparently never acknowledged Colton as his child, and no court decreed Colton to be his child or ordered him to pay child support. No evidence shows that Colton lived with the number holder or received support from him. In fact, the number holder died in 2007, and Shalena did not file for child’s benefits on his account until 2009. Thus, we conclude that Colton does not qualify as the number holder’s natural child under tests two, three, or four. Consequently, to prove that he is eligible for child’s benefits on the number holder’s account, Shalena must show under the first test that Colton could inherit property through intestate succession as the number holder’s child. Texas law controls because the number holder had his permanent home in Texas when he died. See 42 U.S.C. § 416(h)(2)(A) (2010); 20 C.F.R. §§ 404.355(a)(1), (b) (2010).

The Texas Probate Code provides the framework for determining father-child relationships for inheritance purposes. Tex. Prob. Code Ann. § 42(b)(1) (Vernon 2010). Under Texas law, a child is the child of his biological father if: (1) he was born under circumstances described in Section 160.201 of the Family Code 13 ; (2) a court adjudicated him to be the child of the father as provided by Chapter 160 of the Family Code; (3) the father adopted him; (4) the father executed an acknowledgement or like statement of paternity as provided by Subchapter D of Chapter 160 of the Family Code; or (5) clear and convincing evidence establishes that the purported father was the child’s biological father. Id. The third and fourth methods set out in the Texas Probate Code are not applicable in this case, as the number holder neither adopted Colton nor executed an acknowledgment of paternity. See id. Thus, Shalena must establish that Colton had a right to paternal inheritance from the number holder under the first, second, or fifth methods.

Under the first test, Section 160.204 of the Texas Family Code provides that the State will presume paternity in certain situations, which do not apply here. There is no evidence of any purported marital relationship at any time between Shalena and the number holder. There is no evidence suggesting that Colton lived with the number holder during the first two years of his life or that the number holder acknowledged Colton as his child. No court has found that the number holder is Colton’s father, and the number holder did not adopt Colton. There is no evidence suggesting that the number holder and Shalena were married or that Colton was conceived through assisted reproduction. Accordingly, the number holder cannot be Colton’s presumed father under the first method.

Under the second method of establishing a parent-child relationship, if a court adjudicated Colton to be the number holder’s child, he would be entitled to child’s insurance benefits on the number holder’s account. See Tex. Fam. Code Ann. § 160.201(b)(3) (Vernon 2010) (parent-child relationship is established between a man and a child by an adjudication of the man’s paternity). Although the evidence submitted indicates that Colton is a Plaintiff in a wrongful death action involving the number holder, the case is still pending in the state county court, and there is no indication that any court has ruled that Colton is the number holder’s child. We are also unaware of any other adjudication of paternity in this case. Nevertheless, Social Security regulations provide that, if applicable state inheritance law requires a court determination of paternity, “we will not require that you obtain such a determination.” 20 C.F.R. § 404.355(b)(2) (2010). Instead, the agency “decide[s a child’s] paternity by using the standard of proof that the State court would use as the basis for a determination of paternity.” Id.

Texas courts allow genetic DNA testing to establish paternity, provided the DNA testing and DNA test report meet specific reliability and authenticity requirements. See Tex. Fam. Code Ann. §§ 160.503, 160.504, 160.631 (Vernon 2010); see also In re Office of Atty Gen., 276 S.W.3d 611, 615 (Tex.App. – Houston [1st Dist.] 2008). First, the DNA testing must take place in a laboratory accredited by the AABB, the American Society for Histocompatibility and Immunogenetics, or another accrediting body designated by the Secretary of the United States Department of Health and Human Services. Seeu Tex. Fam. Code Ann. § 160.503(a) (2010). Second, a laboratory designee must sign the DNA test report under penalty of perjury. See Tex. Fam. Code Ann. § 160.504(a) (Vernon 2010). Third, the report must establish a reliable chain of custody through testimony or documentation. See Tex. Fam. Code Ann. § 160.504(b) (Vernon 2010). Documentation from the testing laboratory is sufficient to establish a reliable chain of custody that allows the results of genetic testing to be admissible without testimony if the documentation includes (1) the name and photograph of each individual whose specimens have been taken; (2) the name of each individual who collected the specimens; (3) the places in which the specimens were collected and the date of each collection; (4) the name of each individual who received the specimens in the testing laboratory; and (5) the dates the specimens were received. Id.

Under Texas law, if the DNA testing and DNA test report satisfy the reliability and authenticity requirements, and the testing reveals at least a 99 percent probability of paternity with a combined paternity index of at least 100 to 1, a man is rebuttably identified as the father of a child. See Tex. Fam. Code Ann. § 160.505(a) (Vernon 2010); see also In re Z.L.T., 124 S.W.3d 163, 164 n. (Tex. 2003). A court may order testing of an alleged father or of an alleged father’s relatives, including parents, siblings, other children, and other relatives, when a specimen from an alleged father is not available. See Tex. Fam. Code § 160.508(a)(1) (Vernon 2010). The results of genetic testing can only be rebutted by other genetic tests. Tex. Fam. Code Ann. §§ 160.505(b); 160.631 (Vernon 2010).

Because the number holder is deceased, there was no genetic specimen available for testing to establish that the number holder was Colton’s father. Instead, Colton and Kasey provided samples for a siblingship DNA test. The DNA testing took place at Independent Forensics, an AABB-accredited facility. The testing facility documented the chain of custody with Colton’s and Kasey’s names and photographs. The facility identified the persons who collected the specimens, as well as the time and place that they collected the specimens. Finally, the facility documented the names of the individuals who received the specimens in the laboratory and the date they received the specimens. Dr. B~, the laboratory’s designee, signed the test report before a notary public and verified the interpretation of the results. The testing revealed a combined paternity index of 3,402 to 1 and a 99.97% probability that Colton and Kasey have the same biological father. Because the DNA test satisfies both the reliability and authenticity requirements under Texas law, we believe that the report satisfies Texas state law standards for establishing that the tested subjects are half- biological siblings.

Thus, we must determine who Kasey’s father is, so that we can identify whether the number holder is Colton’s father. 14 According to the information you provided, Kasey was born on March, during the marriage of the number holder and Kathy, Kasey’s mother. Both a NUMIDENT on Kasey’s account and information from the Texas Department of State Health Services document the father-child relationship between the number holder and Kasey. Under the Texas Uniform Parentage Act, an unrebutted presumption of a man’s paternity can establish a father-child relationship. Tex. Fam. Code Ann. § 160.201 (Vernon 2010). When a child is born during a period that the child’s mother is married to a man, the man is presumed to be the child’s father. Tex. Fam. Code Ann. § 160.204 (Vernon 2010). Because the number holder was married to Kasey’s mother when Kasey was born, the number holder is Kasey’s presumed father. Consequently, the DNA test results showing a 99.97% probability that Kasey and Colton have the same biological father sufficiently establishes that the number holder is also Colton’s father.

With respect to the first possible month of entitlement to benefits, agency policy provides that acts that legitimate a child generally operate retroactively to the birth of the child. SSR 85-17. Acts that merely confer inheritance rights, on the other hand, operate prospectively from the date of the act. Id. The provision of Texas law that allows an illegitimate child to inherit property from his father does not legitimate the child. See Tex. Prob. Code Ann. § 42(b)(1) (Vernon 2010). Instead, it merely confers inheritance rights. See id. In this case, the act that conferred inheritance rights to Colton was the DNA test report of July 29, 2009.

The child of a deceased number holder becomes entitled to benefits in the first month covered by his application in which he meets all requirements for entitlement. 20 C.F.R. § 404.352(a)(1) (2010). As indicated above, these requirements include proof that the child: (1) is the number holder’s child; (2) is dependent upon the number holder; (3) has applied for benefits; (4) is unmarried; and (5) is under the age of 18. See 20 C.F.R. § 404.350(a)(1)-(5) (2010). Here, Colton met all requirements for entitlement on September 17, 2009, the date Shalena filed an application for child’s insurance benefits on Colton’s behalf. We therefore conclude that he became entitled to child’s insurance benefits as of that date. Because Colton did not meet all requirements for entitlement until September 17, 2009, and because actions that confer inheritance rights operate only from the date of their occurrence, he is not entitled to a retroactive award of benefits on the number holder’s account.

Michael McGaughran
Regional Chief Counsel

By: _____
James D. Sides
Assistant Regional Counsel

D. PR 09-145 Texas State Law Status of Child Based on Grandparent DNA Test (NH Codi , SSN ~) – REPLY

DATE: June 31, 2009

1. SYLLABUS

In Texas, DNA testing of a paternal grandparent showing a 99.84 percent probability that one of her sons was the claimant's biological father would satisfy the Texas Family Code threshold of a 99 percent probability of paternity if similar testing were to exclude grandparent's other sons as the father.

In this specific case, however, the report is not notarized or signed under penalty of perjury and cannot satisfy the admissibility requirements under the Texas Family Code.

2. OPINION

This memorandum is in response to your request for an opinion regarding whether a deoxyribonucleic acid (DNA) test involving one paternal grandparent can establish a child relationship under Texas law. It is our opinion that under Texas law a properly certified grandparentage DNA test involving one paternal grandparent, in some situations, is sufficient evidence to establish that the child is the number holder’s biological child, provided that the grandparent’s other sons can be ruled out as the child’s father. However, the facts presented here are insufficient to establish the child’s paternity because the DNA test did not meet the Texas statutory requirements for genetic testing to establish paternity. Specifically, a designee of the testing laboratory did not sign the DNA test report under penalty of perjury and the grandparent’s other sons have not been ruled out as the child’s biological father.

As we understand the facts, on December 15, 1976, Codi (number holder) was born to Dorothy (formerly known as Dorothy ) (Dorothy) and an unknown father. Neither the number holder’s birth certificate nor his Social Security record names his father. Dorothy reports that she had two other sons, Les and Payton . On July 28, 1998, the number holder died while domiciled in Texas.

Dylan was born on August, to Jennifer (now Jennifer . Dylan’s birth certificate does not name a father. Jennifer initially believed someone other than the number holder was Dylan’s biological father, but a DNA ruled out this other man. No witness has stated that the number holder ever acknowledged Dylan as his son. The numberholder and Dylan were never married.

In August 2001, Dylan filed an application on Dylan’s behalf for child’s benefits on the number holder’s account. She claimed that the number holder was Dylan’s father. Dylan stated that the number holder knew about Dylan, but never addressed Dylan as his child. She provided statements from two of the number holder’s cousins, stating that Dylan was the number holder’s son. Dorothy, the number holder’s mother, also provided a statement indicating that Dylan was her grandson and that the number holder knew of Dylan. Because Jennifer did not provide clear and convincing evidence that the number holder was Dylan’s father, the Social Security Administration (agency) denied the August 2001 application for child’s benefits.

On May 2, 2008, Jennifer filed a second application on Dylan’s behalf for child’s benefits on the number holder’s account. To support this application, Jennifer submitted a grandparentage DNA test report of Dorothy dated April 4, 2008, as well as statements from the number holder’s brothers. The grandparentage DNA test shows that there is a 99.84% probability that one of Dorothy’s sons is Dylan’s biological father. Statements from the number holder’s brothers, Les and Payton, allege that neither is Dylan’s biological father and that they both first met Jennifer after Dylan’s birth.

To be entitled to child’s benefits on the account of an insured number holder, a child must: (1) be the number holder’s child; (2) be dependent upon the number holder; (3) apply for benefits; (4) be unmarried; and (5) be under the age of 18. See 20 C.F.R. § 404.350(a)(1)-(5). Here, Jennifer applied for benefits on Dylan’s behalf. Dylan is unmarried and under the age of 18. The agency will consider Dylan to be dependent upon the number holder if Dylan is the number holder’s child. See 20 C.F.R. § 404.361(a). Thus, the only remaining criteria Dylan must satisfy is establishing that he is the number holder’s child.

To determine whether an applicant is a deceased number holder’s child, the Commissioner will apply the intestacy laws of the state in which the number holder had his permanent home. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b). Texas law controls because the number holder’s permanent home was in Texas when he died. Thus, Dylan’s eligibility for child’s benefits depends upon whether he could inherit property through intestate succession under the laws of Texas as the number holder’s child. See id.

Texas law provides five ways for a child to show that he has a right to inherit property from his purported biological father. See Tex. Prob. Code Ann. § 42(b)(1) (Vernon 2009). Specifically, the child must show one of the following: (1) he was born under the circumstances described in section 160.201 of the Texas Family Code; (2) a court found him to be the purported father’s child under chapter 160 of the Texas Family Code; (3) the purported father adopted him; (4) the purported father executed an acknowledgment of paternity; or (5) clear and convincing evidence establishes that the purported father was his biological father. See id.

The first, third, and fourth methods set forth in the Texas Probate Code are not relevant to the facts of this case. Dylan was not born under the circumstances described in section 160.201 of the Texas Family Code. The number holder neither adopted Dylan nor executed an acknowledgment of paternity. Thus, if Jennifer is to establish that Dylan had a right to paternal inheritance from the number holder, it must be under either the second or fifth method.

The second method is also not applicable because the genetic testing Jennifer provided is insufficient to establish that the number holder is Dylan’s father. No court found Dylan to be the number holder’s child, as provided in Chapter 160 of the Uniform Parentage Act of the Texas Family Code. See Tex. Fam. Code Ann. § 160.201 (2009) (father-child relationship is established between a man and a child by an adjudication of the man’s paternity). Despite the absence of a court order declaring paternity, the Commissioner does not require the child to obtain such an order to be eligible for child’s benefits. 20 C.F.R. § 405.355(b)(2). Instead, the Commissioner will apply the law that the state court would apply to determine the child’s paternity. See id.

In determining paternity under chapter 160 of the Texas Family Code, a Texas court will consider the results of genetic testing. See Tex. Fam. Code Ann. § 160.631 (Vernon 2009). A man is rebuttably identified as the father of a child if genetic testing reveals a 99 percent probability of paternity. See Tex. Fam. Code Ann. § 160.505(a) (Vernon 2009). When the man has died and cannot provide a specimen for genetic testing, the court may consider the results of genetic testing of the man’s parents. See Tex. Fam. Code Ann. § 160.508(a)(1) (Vernon 2009); see also Tipps v. Metropolitan Life Ins. Co., 768 F.Supp. 577, 579-580 (S.D. Tex. 1991) (after death of putative father, Texas court may draw inferences from grandparentage DNA testing to determine paternity).

Here, Dorothy, the purported paternal grandmother of Dylan, underwent the grandparentage DNA testing because the number holder is deceased. The purported paternal grandfather could not be tested, as his identity is not known. However, there is no explicit requirement under Texas law that both paternal grandparents participate in the DNA testing for the testing to be valid. Instead, the issue is whether DNA test results of the individuals who are available for testing satisfy the probability and admissibility provisions of the Texas Family Code. Because Dorothy’s grandparentage DNA test showed a 99.84 percent probability that one of her sons was Dylan’s biological father, the test results would satisfy the Texas Family Code threshold of a 99 percent probability of paternity if similar testing were to exclude Dorothy’s other sons as Dylan’s biological father.

Although the grandparentage DNA test results could satisfy the probability provisions of the Texas Family Code, the results do not satisfy the admissibility provisions because the test results were not notarized and did not follow the proper chain of custody guidelines. Under the Texas Family Code, genetic testing must satisfy certain requirements to be admissible. Tex. Fam. Code Ann. § 160.503 (Vernon 2009). First, the testing must take place in a laboratory accredited by the American Association of Blood Banks (AABB) or another satisfactory accrediting body. See Tex. Fam. Code Ann. § 160.503(a) (Vernon 2009). Second, a laboratory designee must sign the test report under penalty of perjury. See Tex. Fam. Code Ann. § 160.504(a) (Vernon 2009).

DNA testing in this case took place at the Identigene DNA Testing Center, a facility accredited through Forensic Quality Services-International (FQS-I). David, Ph.D., the laboratory director, signed the test report. However, the report is not notarized and the report states that the testing did not comply with chain-of-custody guidelines. Because the grandparentage DNA testing was not signed under penalty of perjury, it would not be admissible evidence in a Texas court to establish paternity. See Tex. Fam. Code Ann. § 160.504(a) (Vernon 2009). For this reason, the grandparentage DNA test does not satisfy the requirements of the Texas Family Code. Thus, Dylan would not be entitled to inherit from the number holder under the second method for determining paternal inheritance rights.

Dylan also cannot establish paternal inheritance rights under the fifth method, which requires he provide clear and convincing evidence that the number holder was his biological father. See Tex. Prob. Code Ann. § 42(b)(1) (Vernon 2009). The Texas Family Code defines “clear and convincing evidence” as “the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” Tex. Fam. Code Ann. § 101.007 (Vernon 2009). Although a Texas court will consider grandparentage DNA test results when deciding whether the evidence in a particular case is clear and convincing, the test must first be admissible in court. See T~, 768 F.Supp. at 479-480. As discussed above, Dorothy’s grandparentage DNA test report is not notarized or signed under penalty of perjury, and cannot satisfy the admissibility requirements under the Texas Family Code. The grandparentage DNA test report also is not clear and convincing evidence that the number holder is Dylan’s biological father because it does not rule out Dorothy’s other sons, Les and Payton, as Dylan’s biological father. Thus, DNA evidence is needed to rule out the number holder’s brothers as Dylan’s father. See Tex. Fam. Code § 160.505(c) (2009) (“if more than one man is identified by genetic testing as the possible father of the child, the court shall order each man to submit to further genetic testing to identify the genetic father”); Tex. Fam. Code § 160.508 (2009) (permits a court to order genetic testing of relatives, including brothers, when the alleged father is not available); Tex. Fam. Code § 160.631 (2009) (if a court finds that genetic testing does not identify or exclude a man as the father of a child, the results of genetic testing and other evidence are admissible to adjudicate the issue of paternity). Although Les and Payton made statements that they could not be Dylan’s biological father, we do not believe that these statements alone can eliminate the possibility that either could have fathered Dylan. Thus, Dylan or his mother have not established paternal inheritance rights under any of the five methods provided under the Texas Probate Code. For this reason, we cannot conclude that Dylan is the number holder’s child for child’s benefits purposes.

Michael McGaughran
Regional Chief Counsel

By: _____
James D. Sides
Assistant Regional Counsel

E. PR 09-143 Texas State Law Status of Child Based on Grandparent DNA Test (NH Terry M~, SSN ~) - REPLY

DATE: July 28, 2009

1. SYLLABUS

While Texas law does allow testing one paternal grandparent in order to establish a parent-child relationship, the results in this case do not meet the threshold of a 99 percent probability needed to establish a rebuttable presumption of paternity nor was the documentation of the test itself sufficient to be used as proof in a Texas court.

2. OPINION

You asked us to provide a legal opinion regarding whether, under Texas law, a deoxyribonucleic acid (DNA) test involving one purported paternal grandparent is sufficient to establish a parent-child relationship between the grandparent's deceased son and a child, when the DNA test report shows a 97.67 percent probability that the grandparent and child are related. It is our opinion that, under Texas law, a grandparentage DNA test involving one paternal grandparent may, in some instances, be sufficient evidence to establish that the child is the deceased son's biological child, provided that the grandparent's other sons can be ruled out as the child's father. However, the facts presented here are insufficient to establish the child's paternity because the DNA test did not meet the Texas Statutory requirements for genetic testing to establish paternity. A designee of the testing laboratory did not sign the DNA test report under penalty of perjury, the documentation is insufficient to establish a reliable chain of custody, and the probability of relationship is lower than Texas requires in order to create a presumption of paternity. In addition, while Texas law provides that paternity can be established through other clear and convincing evidence, the facts presented in this case do not constitute clear and convincing evidence.

According to the information you provided us, Terry, the number holder, died on January 29, 2003, while domiciled in San Antonio, Texas. Lashantae was born to Laquesha on March . Lashantae's birth certificate identifies no father. The number holder never married or lived with Laquesha, and did not provide support for Lashantae.

On April 3, 2008, Laquesha filed for child's benefits on the number holder's account on Lashantae's behalf, claiming that the number holder was Lashantae's father. The number holder's mother, Mary , provided a statement that the number holder told her he had children, but Mary did not know who the mothers were. Mary indicated that Laquesha told her at the number holder's wake that Lashantae was the number holder's daughter. Since the number holder did not acknowledge paternity, no court had found the number holder to be Lashantae's father, and Laquesha failed to provide clear and convincing evidence that the number holder was Lashantae's father, the Social Security Administration (agency) denied the April 2008 application for child's benefits.

On February 10, 2009, Laquesha filed a second application for child's benefits on the number holder's account on Lashantae's behalf. To support this application, Laquesha submitted a grandparentage DNA test report dated February 6, 2009. The grandparentage DNA test report showed a 97.67 percent probability that Mary was Lashantae's grandmother. This report was based on DNA testing of Laquesha, Lashantae, and Mary. Johnie M~, the number holder's father, is alive but was not tested.

To be eligible for child's insurance benefits on the account of an insured individual, a child must: (1) be that individual's child for purposes of the Social Security Act, (2) file for benefits, (3) be unmarried, (4) be either under the age of 18 or under age 19 and a full-time elementary or secondary school student, and (5) be dependent on the individual in question. See 42 U.S.C. § 402(d)(1)(A)-(C). In this case, Laquesha applied for benefits on Lashantae's behalf. Lashantae is unmarried and under the age of 18. The agency will consider Lashantae to have been dependent upon the number holder if Lashantae is the number holder's child. See 20 C.F.R. § 404.361(a). Thus, we next determine whether she is the number holder's child.

Under the Act, a child can establish a parent-child relationship with a number holder if the laws of the state in which the number holder was domiciled when he died allow the child to inherit from the number holder through intestate succession. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1), (b)(4). Thus, Lashantae's eligibility for child's benefits depends upon whether she could inherit property from the number holder through intestate succession. See id. Texas law controls because the number holder had his permanent home in Texas when he died.

The Texas Probate Code provides the framework for determining father-child relationships for inheritance purposes. Tex. Prob. Code § 42(b)(1) (2009). For purposes of inheritance, a child is the child of his biological father if: (1) she was born under circumstances described in Section 160.201 of the Family Code; (2) she was adjudicated to be the child of the father by court decree as provided by Chapter 160 of the Family Code; (3) she was adopted by the father; (4) the father executed an acknowledgement or like statement of paternity as provided by Subchapter D of Chapter 160 of the Family Code; or (5) clear and convincing evidence establishes that the purported father was the biological father of the child. Id. The third, and fourth methods set forth in the Texas Probate Code are not applicable in this case, as the number holder neither adopted Lashantae nor executed an acknowledgment of paternity. See id. Thus, for Laquesha to establish that Lashantae had a right to paternal inheritance from the number holder, it must be under the first, second, or fifth methods.

Under the first and second methods, if a court adjudicated Lashantae to be the number holder's child, she would be entitled to child's insurance benefits on the number holder's account. See Tex. Fam. Code § 160.201(3) (parent-child relationship is established between a man and a child by an adjudication of the man's paternity). Although we are unaware of an adjudication of paternity in this case, Social Security regulations provide that, if applicable state inheritance law requires a court determination of paternity, "we will not require that you obtain such a determination." 20 C.F.R. § 404.355(b)(2). Instead, the agency "decide[s a child's] paternity by using the standard of proof that the State court would use as the basis for a determination of paternity." Id.

In determining paternity under chapter 160 of the Texas Family Code, a Texas court will consider the results of genetic testing, provided the DNA testing and DNA test report meet specific requirements to establish reliability and authenticity. See Tex. Fam. Code §§ 160.503, 160.504, 160.631. First, the DNA testing must take place in a laboratory accredited by the American Association of Blood Banks, the American Society for Histocompatibility and Immunogenetics, or another accrediting body designated by the Secretary of the United States Department of Health and Human Services. See Tex. Fam. Code § 160.503(a). Second, a laboratory designee must sign the DNA test report under penalty of perjury. See Tex. Fam. Code § 160.504(a). Third, a reliable chain of custody must be established through testimony or documentation. See Tex. Fam. Code § 160.504(b). Documentation from the testing laboratory is sufficient to establish a reliable chain of custody that allows the results of genetic testing to be admissible without testimony if the documentation includes (1) the name and photograph of each individual whose specimens have been taken; (2) the name of each individual who collected the specimens; (3) the places in which the specimens were collected and the date of each collection; (4) the name of each individual who received the specimens in the testing laboratory; and (5) the dates the specimens were received. Id.

Under Texas law, if the DNA testing and DNA test report satisfy those requirements, and the testing reveals at least a 99 percent probability of paternity with a combined paternity index of at least 100 to 1, a man is rebuttably identified as the father of a child. See Tex. Fam. Code § 160.505(a). When the man has died and cannot provide a specimen for genetic testing, the court may consider the results of genetic testing of the man's parents. See Tex. Fam. Code § 160.508(a)(1); see also Tipps v. Metropolitan Life Ins. Co., 768 F.Supp. 577, 579-80 (S.D. Tex. 1991) (after death of purported father, Texas court may draw inferences from grandparentage DNA testing to determine paternity). The results of genetic testing can only be rebutted by other genetic tests. Tex. Fam. Code §§ 160.505(b); 160.631.

Here, Mary, the purported paternal grandmother of Lashantae, underwent grandparentage DNA testing because the number holder is deceased. Although the purported paternal grandfather was not tested, there is no explicit requirement under Texas law that both paternal grandparents must participate in DNA testing for the court to determine paternity. Rather, when a man is deceased, section 160.508 of the Texas Family Code allows DNA testing of his parents, brothers or sisters, any other children of the man and their mothers, and other relatives. Tex. Fam. Code § 160.508(a). Thus, we believe that a DNA test of only one purported grandparent may, in certain instances, be sufficient to establish a parent-child relationship with the deceased. In this case, however, the DNA testing and DNA test report did not satisfy Texas law requirements to establish reliability and authenticity. See Tex. Fam. Code §§ 160.503, 160.504, 160.631.

DNA testing in this case took place at Chromosomal Laboratories, a facility accredited by the American Association of Blood Banks. Stephanie , Ph.D., Assistant Paternity Laboratory Director, signed the DNA test report. However, Dr. H~ did not declare that she signed the report under penalty of perjury. Moreover, the DNA test report does not document the chain of custody. While the DNA test report identifies Lashantae, Mary, and Laquesha as individuals from whom specimens were taken, the report does not include photographs of these individuals, and does not identify each individual who collected the specimens. See Tex. Fam. Code § 160.504(b)(1)-(2). Nor does the DNA test report identify the places and dates the specimens were collected, the names of individuals who received the specimens in the testing laboratory, or the dates the laboratory received the specimens. See id. § 160.504(b)(3)-(5). Consequently, a Texas court would not consider the February 6, 2009 DNA test report as evidence of the number holder's paternity.

Furthermore, the DNA test report showed only a 97.67 percent probability that one of Mary's sons was Lashantae's biological father. Such probability is below the 99 percent probability threshold Texas requires in order to create a presumption of paternity. See Tex. Fam. Code § 160.505(a). Because the DNA test report does not satisfy the admissibility requirements and reveals a relationship probability below the threshold, Lashantae would not be entitled to inherit from the number holder under the first or second method for determining paternal inheritance rights.

Lashantae also cannot establish paternal inheritance rights under the fifth method, because the facts do not provide clear and convincing evidence that the number holder was Lashantae's biological father. See Tex. Prob. Code § 42(b)(1). The Texas Family Code defines "clear and convincing evidence" as "the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." Tex. Fam. Code § 101.007. Although a Texas court will consider grandparentage DNA test results when deciding whether the evidence in a particular case is clear and convincing, the test report must first be admissible in court. See T~, 768 F.Supp. at 479-80. As discussed above, the grandparentage DNA test report was not signed under penalty of perjury and did not properly document the chain of custody. Thus, the report fails to satisfy the admissibility requirements under the Texas Family Code. See Tex. Fam. Code § 160.504.

In addition, as discussed above, the 97.67 percent probability that one of Mary's sons was Lashantae's biological father is below the probability threshold the Texas requires in order to create a rebuttable presumption of paternity. See Tex. Fam. Code § 160.505(a). Thus, it is clear that the grandparentage DNA test report cannot constitute clear and convincing evidence that the number holder was Lashantae's biological father.

The only other evidence favorable to Laquesha's claim that the number holder was Lashantae's biological father consists of statements from Mary that the number holder told her he had children, and from Ms. J~ that the number holder once provided money for Lashantae. Since these statements would not instill a firm belief or conviction in a fact finder that the number holder was Lashantae's biological father, we do not believe that a Texas court would find these statements to constitute clear and convincing evidence. Here, the evidence is insufficient to establish paternal inheritance rights under the Texas Probate Code. Consequently, Laquesha cannot establish that the number holder is the child's father, and the agency should not consider Lashantae to be the number holder's child for Social Security purposes.

Michael McGaughran
Regional Chief Counsel

By: _____
Keith A. Garner
Assistant Regional Counsel

F. PR 08-020 Questions Relating to the Parent-Child Relationship and Eligibility for Child's Benefits on the Social Security Disability Claim of the Number Holder Under Texas State Law (NH Frederick J~ P~, SSN ~) - REPLY

DATE: November 8, 2007

1. SYLLABUS

Texas law provides that the mother of a child and a man claiming to be the biological father of the child may sign an acknowledgment of paternity with the intent to establish the man’s paternity. Such an acknowledgment meeting the criteria set forth in the Texas Family code is sufficient to establish a parent-child relationship.

2. OPINION

This memorandum is in response to your request for an opinion regarding whether a parent-child relationship has been established between the number holder, Frederickand and Jayvepher under Texas law, and if so, what date Jayvepher was entitled to child's benefits. In our opinion, the Social Security Administration (Agency) should consider Jayvepher' child for the purpose of receiving child's benefits. As such, Jayvepher is entitled to child's benefits beginning September 2005, the month Frederick applied for child's benefits on Jayvepher's behalf.

As we understand the facts, on August 24, 1991, Londa, also known as Londa, gave birth to Jayvepher. Londa was not married at the time of Jayvepher's birth, and she did not list anyone as Jayvepher's father on his birth certificate. At some point, Londa reported that Leonard was Jayvepher's father, but in December 1993, the 77th Judicial District Court of Limestone County, Texas found that paternity testing, performed in compliance with Section 13.02 of the Texas Family Code, showed by clear and convincing evidence that Leonard was not Jayvepher's father. According to Agency notes, Londa completed an application for Temporary Assistance for Needy Families (TANF) and food stamps in 1997, and she listed Jayvepher's possible fathers as Adollus H~ and Leslie J~ T~ on this application.

Frederick applied for disability insurance benefits (DIB) under Title II of the Social Security Act (Act) on November 6, 1998. Frederick did not list Jayvepher as his child on his application. On March 6, 2000, an Administrative Law Judge (ALJ) found that Frederick had been disabled since June 28, 1998.

Frederick had an ongoing relationship with Phylis G~, also known as Phylis G~ P~ (Ms. G~), who is Londa's mother. In an unsigned and undated statement, Frederick stated that he had intercourse with Ms. G~'s daughter, Londa, one weekend. He could not remember the date, but he reported that Londa was fifteen years old. On June 22, 2005, Frederick completed an acknowledgement of paternity in the State of Texas, declaring that he was Jayvepher's father. That same day, Mr. P~ and Londa completed an application for a new birth certificate based on parentage, requesting that the State list Mr. P~ as Jayvepher's father. Mr. P~ signed several statements with the Agency acknowledging that he was Jayvepher's biological father.

On September 16, 2005, when Jayvepher was 13 years old, Mr. P~ applied for child's insurance benefits on Jayvepher's behalf. On December 21, 2006, the 87th Judicial District Court in Leon County, Texas issued an Order Adjudicating Parentage in Case No. FL-06-353, declaring Mr. P~ to be Jayvepher's father. The Court stated that Mr. P~ had admitted to the paternity by pleading or in open court under oath, and the Court found that there was no reason to question Mr. P~' admission. The Court appointed Mr. P~ and Londa as joint managing conservators of Jayvepher, and the Court gave Mr. P~ the exclusive right to designate Jayvepher's primary residence, without regard to geographic location.

Pursuant to the Act, a child of an individual who receives old-age or disability benefits is entitled to child's insurance benefits if he (1) is the insured's child as defined in the Act; (2) has applied for such benefits; (3) is unmarried; (4) is under the age of eighteen; and (5) was dependent upon the insured at the time the insured filed the application for child's benefits. See 42 U.S.C. § 402(d)(1) (2007); 20 C.F.R. § 404.350 (2007). Here, Mr. P~ applied for child's benefits on behalf of Jayvepher, who is unmarried and under the age of eighteen. If the applicant for child's benefits is the insured's child as defined in section 216(e), the Agency considers the child dependent upon the insured for purposes of determining eligibility for child's benefits. See 20 C.F.R. § 404.361(a) (2007).

Section 216(e) of the Act defines the term child as including "the child or legally adopted child of an individual." 42 U.S.C. § 416(e) (2007). An applicant may show that he is the child of an insured number holder by presenting evidence establishing one of the following four circumstances:

  1. The applicant could inherit the insured's property as the insured's child under the law of intestate succession in the state where the insured was domiciled at the time the application was filed. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b) (2007);

  2. The insured individual and the mother of the child went through a marriage ceremony which resulted in a purported marriage between them that, except for a procedural defect, would have been a valid marriage. See 42 U.S.C. § 416(h)(2)(B); 20 C.F.R. § 404.355(a)(2);

  3. The insured individual acknowledged in writing that the applicant was his son, was decreed by a court to be the father, or was ordered to contribute to the support of the child (subject to certain time limitations). See 42 U.S.C. § 416(h)(3)(B)(i); 20 C.F.R. § 404.355(a)(3); or

  4. Evidence satisfactory to the Commissioner of Social Security shows that the insured is the child's father, and the insured was living with or contributing to the child's support at the time the child filed the application for benefits. See 42 U.S.C. § 416(h)(3)(B)(ii); 20 C.F.R. § 404.355(a)(4).

If the evidence establishes any of the above factual scenarios, the Agency considers the applicant the insured's child for purposes of entitlement to child's benefits. See 42 U.S.C. § 416(h)(3).

It is first necessary to consider whether the individual is the insured's child under the law of intestate succession. See 42 U.S.C. § 416(h)(2)(A). To determine the devolution of intestate personal property, the Act states that we must apply the law of the state in which the insured individual lived at the time the applicant filed the application. Id.; 20 C.F.R. § 404.355(b)(1), (3). Because Mr. P~ was domiciled in Texas in September 2005, when he applied for child's insurance benefits on Jayvepher's behalf, we must determine if Jayvepher could inherit Mr. P~' property under Texas law.

The Texas Probate Code specifies five methods for a child to show that he has a right to inherit property from his purported biological father. Tex. Prob. Code Ann. § 42(b)(1) (2007). Specifically, the child must show one of the following: (1) he was born under the circumstances described in section 160.201 of the Texas Family Code; (2) the purported father adopted him; (3) the purported father executed an acknowledgment of paternity; (4) a court found him to be the purported father's child; or (5) clear and convincing evidence establishes that the purported father was his biological father. Id.

In the instant case, Mr. P~ executed an acknowledgement of paternity on June 22, 2005, almost three months before Mr. P~ applied for child's insurance benefits on Jayvepher's behalf. See Tex. Prob. Code Ann. § 42(b); Tex. Fam. Code Ann. § 160.201(b). Texas law provides that the mother of a child and a man claiming to be the biological father of the child may sign an acknowledgment of paternity with the intent to establish the man's paternity. Tex. Fam. Code Ann. § 160.301 (2007). An acknowledgement of paternity must meet the following requirements:

  1. be in a record;

  2. be signed, or otherwise authenticated, under penalty of perjury by the mother and the man seeking to establish paternity;

  3. state that the child whose paternity is being acknowledged does not have a presumed father or has a presumed father whose full name is stated, and does not have another acknowledged or adjudicated father;

  4. state whether there has been genetic testing and, if so, that the acknowledging man's claim of paternity is consistent with the results of the testing; and

  5. state that the signatories understand that the acknowledgement is the equivalent of a judicial adjudication of the paternity of the child and that a challenge to the acknowledgment is permitted only under limited circumstances and is barred after four years.

Tex. Fam. Code Ann. § 160.302(a)(1)-(5) (2007).

Here, the acknowledgement of paternity meets the above requirements, as (1) it is in the record of the Bureau of Vital Statistics for the Texas Department of Health; (2) Mr. P~ and Ms. H~ signed the acknowledgement under penalty of perjury; (3) it states that Jayvepher does not have a presumed or other acknowledged or adjudicated father; (4) it states that genetic testing has not been performed; and (5) it states that the signatories understand that the acknowledgement is the equivalent of a judicial adjudication of the paternity of the child and that a challenge to the acknowledgment is permitted only under limited circumstances and is barred after four years. Because the acknowledgment of paternity met the requirements set forth under Texas law, Jayvepher has established that he can inherit from Mr. P~, and Mr. P~ has properly established that Jayvepher is his child under Texas intestate succession law. See Tex. Prob. Code Ann. § 42(b); Tex. Fam. Code Ann. § 160.201(b)(2).

Although the acknowledgement of paternity is sufficient alone, Texas law provides that Jayvepher can inherit from Mr. P~ because a court adjudicated Jayvepher to be Mr. P~' child. See Tex. Prob. Code Ann. § 42(b); Tex. Fam. Code Ann. § 160.201(b)(3). As stated above, in December 2006, the 87th Judicial District Court in Leon County, Texas issued an Order Adjudicating Parentage, which declared Mr. P~ to be Jayvepher's father. This Order Adjudicating Parentage satisfies the requirement in the Texas Family Code for an "adjudication of the man's paternity." Tex. Fam. Code Ann. § 160.201(b)(3). Because Jayvepher presented evidence establishing the first circumstance set forth under the Act - that he could inherit from Mr. P~ under Texas law - Jayvepher is considered Mr. P~' child for purposes of entitlement to child's benefits. See 42 U.S.C. § 416(h)(3). Thus, it is not necessary for us to determine whether Jayvepher presented evidence establishing the second, third, or fourth circumstances the Act provides for an applicant to show he is the child of an insured number holder. See 42 U.S.C. § 416(h)(2), (h)(3)(B); 20 C.F.R. § 404.355(a).

In sum, Jayvepher is entitled to child's benefits on Mr. P~' earnings record because he meets all of the requirements in the Act and regulations. See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350. Jayvepher is Mr. P~' child; Mr. P~ applied for child's benefits on Jayvepher's behalf; Jayvepher was unmarried; and he was under the age of eighteen. See 20 C.F.R. § 404.350(a). In addition, the Agency will consider Jayvepher to be dependent upon Mr. P~' because Jayvepher is Mr. P~' child. See 20 C.F.R. § 404.361(a).

You also asked what date Jayvepher is entitled to child's benefits. The Act and regulations provide that when an insured is living and the child's first month of entitlement is after September 1981, a child's entitlement to child's benefits begins with the first month throughout which the child meets all other requirements for entitlement. See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.352(a) (2007). As indicated above, these requirements include proof that the child: (1) is the number holder's child; (2) is dependent upon the number holder; (3) has applied for benefits; (4) is unmarried; and (5) is under the age of eighteen. See 20 C.F.R. § 404.350(a)(1)-(5). Here, Jayvepher met all requirements for entitlement in September 2005, the month Mr. P~ filed for child's benefits on Jayvepher's behalf. Thus, Jayvepher is entitled to child's benefits beginning in September 2005.

For the above reasons, we believe that Jayvepher is Mr. P~' child for the purpose of receiving child's benefits, and Jayvepher is entitled to child's benefits beginning in September 2005.

Tina M. Waddell
Regional Chief Counsel

By: _____
Anne L. Hamilton
Assistant Regional Counsel

G. PR 07-223 Mississippi Court Judgment as Evidence to Establish the Parent-Child Relationship and the Child's Inheritance Rights Under Texas Law (NH Larry SSN ~) -- REPLY

DATE: September 28, 2007

1. SYLLABUS

Under Texas law, a Mississippi court judgment, which acknowledges the DNA test results and finds the number holder to be the legal, biological father of the claimant, establishes the parent-child relationship and meets the requirements for intestate succession.

2. OPINION

You have asked us to provide a legal opinion regarding whether Kelsey may be entitled to Social Security survivor benefits on the earnings record of Larry , the deceased number holder (number holder). Specifically, you asked whether a Mississippi court judgment and/or the results of a deoxyribonucleic acid (DNA) test are sufficient evidence to establish the parent-child relationship between Kelsey and the number holder under Texas law. In our opinion, the Mississippi court judgment, which acknowledges the DNA test results and finds the number holder to be the legal, biological father of Kelsey, establishes the parent-child relationship under Texas law. Consequently, the Social Security Administration (the Agency) should treat Kelsey as the number holder's child. As such, she is entitled to apply for benefits on the number holder's Social Security record.

As we understand the facts, Kathy, now Kelsey, married Michael in 1978. Kathy and Michael separated in 1988, and they remained separated until they divorced. During the time she was separated from Michael, Kathy began a relationship with the number holder. Kathy and the number holder lived together from February 1991 through May 1991 and from February 1992 through May 1992, but they never married each other. On December 1, 1992, while separated but still legally married to Michael, Kathy gave birth to Kelsey. The birth certificate names Michael as Kelsey's father. Kathy and Michael divorced sometime in 1993 or 1994. Kathy married Tony in 1994. On February 12, 2006, the number holder died while domiciled in Texas. After the number holder's death, ReliaGene Technologies, Inc. (laboratory) tested DNA samples from Kathy , Kelsey, and the deceased number holder to determine if the number holder could be excluded as the biological father of Kelsey. On December 28, 2006, the laboratory issued a report that states the DNA test results do not exclude the number holder as the biological father of Kelsey. On March 7, 2007, the Chancery Court of Tishomingo County, Mississippi issued a judgment finding that the number holder was the legal, biological father of Kelsey, based on the DNA test results.

To determine whether an applicant is the child of a deceased wage earner for the purposes of the Social Security Act (Act), the Commissioner will apply the intestacy laws of the state in which the wage earner was domiciled at the time of his death. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b). If, under state law, a child could take intestate personal property as a number holder's child, she is considered the number holder's child for Social Security benefit purposes. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1). Thus, the establishment of a parent-child relationship for Social Security benefits purposes in this case depends on whether the applicant could inherit property through intestate succession as the child of the deceased wage earner.

Because the number holder was domiciled in Texas at the time of his death, the question is whether a Texas court would consider Kelsey to be the number holder's child for purposes of intestate succession. The Texas Probate Code specifies five methods by which a right to paternal inheritance may be established. These methods are as follows: 1) the child is born under circumstances described in section 160.201 of the Family Code; 2) the child is adjudicated to be the child of the father by court decree as provided by Chapter 160 of the Family Code; 3) the father adopted the child; 4) the father executed an acknowledgement or like statement of paternity as provided by Subchapter D, Chapter 160 of the Family Code; or 5) the child establishes by clear and convincing evidence that the purported father was the biological father of the child. See Tex. Prob. Code Ann. § 42(b)(1); Tex. Fam. Code Ann. §§ 160.201, 160.204. An action to establish paternity can be brought after the death of the alleged father. See In the Interest of A.S.L., 923 S.W.2d 814, 817-18 (Tex. App. - A~1996, no writ). Under the facts of this case, only the first and second methods are relevant to establish Kelsey's right to paternal inheritance.

Under the first and second methods of section 42(b)(1) of the Texas Probate Code, Kelsey is entitled to inherit property from the number holder if a court has determined she is the child of the number holder. See Tex. Prob. Code Ann. § 42(b)(1). Here, the Chancery Court of Tishomingo County, Mississippi has issued a judgment finding that the number holder is the legal, biological father of Kelsey, based on the DNA test results. Texas courts accord full faith and credit to judgments, decrees, or orders issued in another state (foreign judgments). Tex. Civ. Prac. & Rem. Code Ann. § 35.001 ("'foreign judgment' means a judgment, decree, or order of a court of the United States or of any other court that is entitled to full faith and credit in [Texas]"). In this case, the Chancery Clerk of Tishomingo County, Mississippi certified that the judgment establishing paternity between Kelsey and the number holder was a true and correct copy of the judgment of record. "In the absence of pleading and proof of the law of a sister state, it is presumed that the law of the state where the judgment was rendered is identical to the law of Texas." Stine v. Koga, 790 S.W.2d 412, 414 (Tex. App. - Beaumont 1990, writ dism'd by agr.). Thus, the Mississippi court judgment, adjudicating Kelsey to be the number holder's legal, biological child, establishes the parent-child relationship and meets the requirements for intestate succession under Texas law.

In conclusion, Kelsey has established that she is entitled to inherit property from the number holder under Texas law. As such, she is entitled to apply for benefits on the number holder's account.

Tina M. Waddell
Regional Chief Counsel

By: _______________
Ruben Montemayor
Assistant Regional Counsel

H. PR 07-189 Texas State Law Effective Date of Child Relationship (NH Barnard , SSN ~) - REPLY

DATE: August 7, 2007

1. SYLLABUS

In Texas, DNA testing which satisfies the requirements of the Texas Family Code and shows a combined paternity index of 1,962,768 to 1 and a 99.99% probability that the number holder is the claimant's biological father is sufficient to establish a parent child relationship. We believe that a Texas court would find that the claimant is the number holder's child under chapter 160 of the Texas Family Code based on the DNA results.

Even if the court would not come to this conclusion, the DNA test results combined with the mother's statement that the number holder was the father, would qualify as clear and convincing evidence that the number holder is the biological father.

Since acts that grant inheritance rights to a child, but do not legitimate the child, have no retroactive effect in Texas; the relationship is established effective December 28, 2005, the date of the DNA test.

2. OPINION

You have asked us to provide a legal opinion regarding the significance of a notarized deoxyribonucleic acid (DNA) test report. Specifically, you have requested our opinion regarding whether Tony (Tony) is entitled to a retroactive award of child's benefits on the account of Barnard (the disabled number holder). Our opinion is that the available evidence is sufficient under Texas law to establish that Tony is the number holder's child. We also believe that acts that grant inheritance rights to a child, but do not legitimate the child, have no retroactive effect in Texas. Accordingly, we believe that Tony is not entitled to a retroactive award of child's benefits on the number holder's account. Instead, he is entitled to benefits as of December 28, 2005, the date of the DNA test report.

The number holder was born on August. In August 2001, he became entitled to Social Security disability benefits. According to the information that we received, the number holder did not list Tony on his application for disability insurance benefits. At all times relevant to this legal opinion, the number holder had his permanent home in Texas.

Josephine gave birth to Tony on March. She and the number holder reportedly were not married when Tony was conceived or born. The information that we received indicates that Tony's birth certificate does not identify a father.

In May 2006, Josephine filed an application for child's benefits on behalf of Tony on the number holder's account. She supported this application with a notarized DNA test report dated December 28, 2005. This report, which involves DNA samples from the number holder, Josephine, and Tony, shows a combined paternity index of 1,962,768 to 1 and a 99.99% probability that the number holder is Tony's biological father.

To be entitled to child's benefits on the account of an insured number holder, a child must: (1) be the number holder's child; (2) be dependent upon the number holder; (3) apply for benefits; (4) be unmarried; and (5) be under the age of 18. See 20 C.F.R. § 404.350(a) (1)-(5). Here, Josephine applied for benefits on behalf of Tony, who is unmarried and under the age of 18. The Agency will consider Tony to be dependent upon the number holder if he is the number holder's child. See 20 C.F.R. § 404.361(a).

To show that he is a number holder's child, a claimant must prove one of the following: (1) he is the number holder's natural child, and the number holder and the claimant's other parent participated in a ceremony that would have resulted in a valid marriage, except for a legal impediment; (2) he is the number holder's natural child and the number holder has acknowledged this in writing, a court has decreed the number holder to be the claimant's parent, or a court has ordered the number holder to contribute to the claimant's support because the claimant is the number holder's child; (3) the number holder is the claimant's natural parent and was either living with the claimant or contributing to his support at the time the claimant applied for benefits; or (4) the claimant could inherit property through intestate succession as the number holder's child. See 42 U.S.C. §§ 416(h)(2)(A)-(B), 416(h)(3); 20 C.F.R. § 404.355(a)(1)-(4).

Here, according to the information that we received, Tony has not proven the first three things mentioned above. First, the number holder and Josephine never participated in a marriage ceremony. Second, the number holder never acknowledged in writing that Tony was his natural child, no court ever decreed him to be Tony's parent, and no court ever ordered him to contribute to Tony's support. Third, the number holder was neither living with Tony nor contributing to his support when Josephine applied for benefits on Tony's behalf. Consequently, to prove that he is eligible for child's benefits on the number holder's account, Tony must show that he could inherit property through intestate succession as the number holder's child. Texas law controls because the number holder had his permanent home in Texas when Josephine applied for benefits on Tony's behalf. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1).

The Texas Probate Code specifies five methods for a child to show that he has a right to inherit property from his purported biological father. See Tex. Prob. Code Ann. § 42(b)(1) (Vernon 2007). Specifically, the child must show one of the following: (1) he was born under the circumstances described in section 160.201 of the Texas Family Code; (2) the purported father adopted him; (3) the purported father executed an acknowledgment of paternity; (4) a court found him to be the purported father's child under chapter 160 of the Texas Family Code; or (5) clear and convincing evidence establishes that the purported father was his biological father. See id.

The first, second, and third methods are not relevant in this case under the facts that you have presented. The fourth and fifth methods are, however, relevant. Thus, to establish that he has a right to inherit property from the number holder, Tony must do one of the remaining two things: (1) show that a Texas court would find him to be the number holder's child under chapter 160 of the Texas Family Code; or (2) provide clear and convincing evidence that the number holder was his biological father.

A Texas court will consider the results of genetic testing when adjudicating the paternity of a child under chapter 160 of the Texas Family Code. See Tex. Fam. Code Ann. §§ 160.505, 160.621, 160.631 (Vernon 2007). A man is rebuttably identified as the father of a child if genetic testing reveals a 99% probability of paternity and a combined paternity index of at least 100 to 1. See Tex. Fam. Code Ann. § 160.505(a) (Vernon 2007). Only the results of genetic testing may rebut the results of other genetic testing. See Tex. Fam. Code Ann. §§ 160.505(b), 160.631 (Vernon 2007).

Under the Texas Family Code, genetic testing must satisfy certain requirements. Tex. Fam. Code Ann. § 160.503 (Vernon 2007). For example, the testing must take place in a laboratory that has received accreditation from the American Association of Blood Banks (AABB) or another satisfactory accrediting body. See Tex. Fam. Code Ann. § 160.503(a) (Vernon 2007). A laboratory designee must sign the test report. See Tex. Fam. Code Ann. § 160.504(a) (Vernon 2007).

Here, the DNA testing took place at the Laboratory Corporation of America, an AABB-accredited facility. Cynthia J. T~, Ph.D., the laboratory's designee, signed the test report before a notary public and verified the interpretation of the results. Thus, the DNA testing satisfied the requirements of the Texas Family Code. As indicated above, this testing revealed a combined paternity index of 1,962,768 to 1 and a 99.99% probability that the number holder is Tony's biological father. No one presented further data to rebut these results. Consequently, we believe that a Texas court would find that Tony is the number holder's child under chapter 160 of the Texas Family Code.

Even if a Texas court would not rely solely on the DNA test results to find that the number holder was Tony's father, Tony could still show that he may inherit property from the number holder. He could do so by providing clear and convincing evidence that he is the number holder's biological child. See Tex. Prob. Code Ann. § 42(b)(1) (Vernon 2007). The Texas Family Code defines "clear and convincing evidence" as "the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." Tex. Fam. Code Ann. § 101.007 (Vernon 2007). A Texas court will consider DNA test results when deciding whether the evidence in a particular case is clear and convincing. See Tipps v. Metropolitan Life Ins. Co., 768 F.Supp. 577, 579-580 (S.D. Tex. 1991).

As suggested above, the evidence in this case includes the following: (1) Josephine's claim that Tony is the number holder's child; and (2) a DNA test report that shows a 99.99% probability that the number holder is Tony's biological father. We believe that a Texas court would view this as clear and convincing evidence and find that Tony is the number holder's child. As such, Tony may inherit property from the number holder under Texas intestacy law, and he is entitled to Social Security benefits on the number holder's account.

With respect to the first possible month of entitlement to benefits, Agency policy provides that acts that legitimate a child generally operate retroactively to the birth of the child. Social Security Ruling 85-17. Acts that merely confer inheritance rights, on the other hand, operate prospectively from the date of the act. Id. The provision of Texas law that allows an illegitimate child to inherit property from his father does not legitimate the child. See Tex. Prob. Code Ann. § 42(b)(1) (Vernon 2007). Instead, it merely confers inheritance rights. See id. In this case, the act that conferred inheritance rights to Tony was the DNA test report of December 28, 2005.

The child of a deceased number holder becomes entitled to benefits in the first month covered by his application in which he meets all requirements for entitlement. 20 C.F.R. § 404.352(a)(1). As indicated above, these requirements include proof that the child: (1) is the number holder's child; (2) is dependent upon the number holder; (3) has applied for benefits; (4) is unmarried; and (5) is under the age of 18. See 20 C.F.R. § 404.350(a)(1)-(5). Here, Tony met all requirements for entitlement on December 28, 2005, the date of the DNA test report. We therefore conclude that he became entitled to benefits as of that date. Because Tony did not meet all requirements for entitlement until December 28, 2005, and because actions that confer inheritance rights operate only from the date of their occurrence, he is not entitled to a retroactive award of benefits on the number holder's account.

Tina M. Waddell
Regional Chief Counsel

By: _______________
Eric D. Poole
Assistant Regional Counsel

I. PR 07-098 Texas State Law Presumption of Child Born More Than 287 Days After Death of Number Holder (NH Saleem , SSN ~) - REPLY

DATE: March 22, 2007

1. SYLLABUS

Under Texas law, a birth certificate for a child born 310 days after the number holder's death, listing the number holder's name as the claimant's father, does not constitute clear and convincing evidence to support the claim that the insured is the child's biological father

2. OPINION

You asked us to provide a legal opinion regarding whether a child born 310 days after the death of the purported father is a presumed legitimate child under Texas law. 15 After reviewing the facts and relevant law, our opinion is that the parent-child relationship has not been established between the number holder and the child under Texas law. As a result, the child is not entitled to receive survivor's benefits on the number holder's Social Security record.

As we understand the facts, Saleem , the number holder, was born on January. On October 3, 1985, the number holder married Ameena . On December, Ameena gave birth to Salman . The number holder and Ameena remained married until November 23, 2003, when the number holder died while living in Texas. In March 2004, Ameena filed an application for Social Security survivor benefits for herself and child Salman, on the number holder's Social Security record. On September 28, 2004, Ameena gave birth to Tabassum . The birth certificate lists the number holder as Tabassum's father. In April 2005, Ameena filed a survivor claim for Tabassum on the number holder's Social Security record. In March 2004, at the time Ameena filed her application for Social Security survivor benefits, she did not indicate that she was expecting another child. Tabassum was born 310 days after the number holder's death. The Social Security Administration (Agency) asked Ameena to submit statements or medical documentation regarding whether her pregnancy with Tabassum was normal. Ameena did not submit additional information to support her representation that Tabassum is the number holder's child.

A child may be eligible for Social Security survivor benefits if he or she is the child of an individual who died fully or currently insured. See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350 (2006). To determine whether an applicant is the child of a deceased wage earner for the purposes of the Social Security Act (the Act), the Commissioner will apply the intestacy laws of the state in which the wage earner had his permanent home when he died. 16 See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b). An applicant who would have the same status relative to taking intestate personal property as the deceased individual's child, according to such state law, shall be deemed a child of the insured individual for Social Security purposes. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b). Thus, the applicant's eligibility for Social Security benefits depends on whether the applicant could inherit property through intestate succession as the child of the deceased wage earner.

Here, Texas law controls because the number holder had his permanent home in Texas when he died. The Texas Probate Code (Probate Code) provides two methods to establish paternity for heirship purposes, "presumed paternity and paternity found by clear and convincing evidence in the probate court." See In Re Estate of C~, 993 S.W.2d 311, 318 (Tex. App. - San Antonio, 1999, no writ). Under the presumed paternity method, the Probate Code states that a child is the child of his biological father if the father-child relationship is established under the Texas Family Code (Family Code). See Tex. Prob. Code Ann. § 42(b) (Vernon 2006). Under the Family Code, an effective acknowledgment of paternity by the man establishes the father-child relationship between a man and a child, unless the acknowledgment has been rescinded or successfully challenged; by the man's adoption of the child; by an adjudication of the man's paternity; by the man's consenting to assisted reproduction by his wife, which resulted in the birth of the child; or by an "unrebutted presumption" of the man's paternity of the child. See Tex. Fam. Code Ann. § 160.201(b) (Vernon 2006).

In this case, Tabassum was born 310 days after the number holder's death. As a result, the number holder could not possibly have acknowledged paternity or adopted Tabassum prior to his death. Further, no evidence shows that a court has established the parent-child relationship between the number holder and Tabassum or that Tabassum was born as a result of assisted reproduction. Thus, under the Family Code, only an "unrebutted presumption" can establish the father-child relationship between the number holder and Tabassum, showing that the number holder is Tabassum's father. See Tex. Fam. Code Ann. § 160.201(b).

The Family Code provides the following methods to establish a presumption of paternity:

(a) a man is presumed to be the father of a child if:

(1) he is married to the mother of the child and the child is born during the marriage;

(2) he is married to the mother of the child and the child is born before the 301st day after the date the marriage is terminated by death, annulment, declaration of invalidity, or divorce;

(3) he married the mother of the child before the birth of the child in apparent compliance with law, even if the attempted marriage is or could be declared invalid, and the child is born during the invalid marriage or before the 301st day after the date the marriage is terminated by death, annulment, declaration of invalidity, or divorce;

(4) he married the mother of the child after the birth of the child in apparent compliance with law, regardless of whether the marriage is or could be declared invalid, he voluntarily asserted his paternity of the child, and:

(A) the assertion is in a record filed with the bureau of vital statistics;

(B) he voluntarily names himself as the child's father on the child's birth certificate; or

(C) he promised in a record to support the child as his own; or

(5) during the first two years of the child's life, he continuously resided in the household in which the child resided and he represented to others that the child was his own.

See Tex. Fam. Code Ann. § 160.204(a).

Here, the marriage between the number holder and Ameena terminated by death, and Tabassum was born 310 days after the number holder's death. As a result, the Family Code does not presume that the number holder is Tabassum's father and does not establish the father-child relationship between the deceased number holder and Tabassum.

Under the clear and convincing evidence method, the Probate Code states that a person, not presumed to be the biological child of a decedent, may petition the probate court for a determination of the right of inheritance. See Tex. Prob. Code Ann. § 42(b)(1). If the probate court finds by clear and convincing evidence that the purported father was the biological father of the child, the court treats the child as any other child of the decedent for the purpose of inheritance. See id. Texas courts have stated that the "clear and convincing standard is the degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be proved." See villery v. Solomon, 16 S.W.3d 106, 107 (Tex. App. - Houston (1st Dist.), 2000, no writ) (citing In the Interest of G.M., 596 S.W.2d 846, 847 (Tex. 1980)). 17

Here, the only evidence Ameena submitted to the Agency supporting the parent-child relationship between the number holder and Tabassum is a birth certificate, which lists the number holder as Tabassum's father. As noted above, Tabassum was born 310 days after the number holder's death. Texas law does not presume that the number holder is the father based on this evidence alone. The Agency has asked Ameena to submit additional evidence supporting her representation that Tabassum is the number holder's biological child, but Ameena has not complied with the Agency's request.

Texas law provides a method to develop evidence supporting the parent-child relationship between a deceased person and a child. Under Texas law, a court may order genetic testing to determine parentage of an individual. See Tex. Fam. Code Ann. § 160.501. The court may order genetic testing even when all individuals are not available. See Tex. Fam. Code Ann. § 160.508. Genetic testing results that show at least a 99 percent probability of paternity create a rebuttable presumption of paternity. See Tex. Fam. Code Ann. § 160.505(a), (b). Here, Ms. B~ did not present genetic testing results or any other evidence to the Agency to establish the parent-child relationship between Tabassum and the number holder. In our opinion, a birth certificate created 310 days after the number holder's death, listing the number holder's name as Tabassum's father, does not constitute clear and convincing evidence to support Ameena's representation that the number holder is Tabassum's biological father. Thus, the Agency cannot apply section 42(b) of the Texas Probate Code to establish inheritance rights between Tabassum and the number holder.

In conclusion, our opinion is that clear and convincing evidence does not support Ameena's representation that the number holder is Tabassum's father. Ameena has not otherwise established the parent-child relationship between the number holder and Tabassum under Texas law. As a result, Texas intestacy laws do not entitle Tabassum to inherit property from the number holder. Therefore, Tabassum is not entitled to receive survivor's benefits on the number holder's Social Security record.

Tina M. Waddell
Regional Chief Counsel

By: _______________
Ruben Montemayor
Assistant Regional Counsel

J. PR 07-044 Texas State Law Use of Grandparentage Screening Report to Establish Child Relationship (NH Joel , SSN ~) - REPLY

DATE: January 10, 2007

1. SYLLABUS

In Texas, in a case where the number holder has died and cannot provide a specimen for genetic testing, the court will consider the results of genetic testing of his parents showing a 99.99 percent probability that they are the child's grandparents.

The parent-child relationship is established as of the date of the DNA testing.

2. OPINION

You asked us to provide a legal opinion regarding the significance of a notarized grandparentage deoxyribonucleic acid (DNA) test report. Specifically, you asked whether such a report is sufficient under Texas law to establish that Phoenix (Phoenix) is the child of Joel (the deceased number holder). You also requested our opinion regarding whether acts that grant inheritance rights to a child, but do not legitimate the child, have retroactive effect in Texas. Our opinion is that the available evidence is sufficient under Texas law to establish that Phoenix is the number holder's child. We also believe that acts that grant inheritance rights to a child, but do not legitimate the child, have no retroactive effect in Texas. Accordingly, we believe that Phoenix is entitled to benefits as of December 22, 2005, the date of the grandparentage DNA test report.

The number holder was born on January, to Donna , formerly known as Donna M~) and Johnny M~ (Mr. M~). According to the information we received, the number holder was the only child of Donna and Johnny. The number holder died in an automobile accident on August 6, 2004. His permanent home was in Texas.

Phoenix was born on March. His birth certificate identifies Ermelinda as his mother. It does not identify his father. Ermelinda and the number holder were never married.

In March 2005, Ermelinda filed an application for child's benefits on behalf of Phoenix on the number holder's account. She claimed that the number holder was Phoenix's father, but that the number holder never knew this. Ermelinda reportedly did not learn that she was pregnant until shortly after the number holder's death. She provided statements and letters from several people (including her mother and sister and the number holder's mother and brother) to support her claim that the number holder was Phoenix's father. Nonetheless, because Ermelinda failed to provide clear and convincing evidence that the number holder was Phoenix's father, the Agency denied the March 2005 application for child's benefits.

In January 2006, Ermelinda filed a second application for child's benefits on behalf of Phoenix on the number holder's account. She supported this application with a notarized grandparentage DNA test report dated December 22, 2005. This report shows that the number holder's biological parents, Donna and Johnny, cannot be excluded as Phoenix's biological grandparents. Indeed, the report shows a 99.99% probability that Donna and Johnny are Phoenix's biological grandparents.

To be entitled to child's benefits on the account of an insured number holder, a child must:

(1) be the number holder's child; (2) be dependent upon the number holder; (3) apply for benefits; (4) be unmarried; and (5) be under the age of 18. See 20 C.F.R. § 404.350(a)(1)-(5). Here, Donna applied for benefits on behalf of Phoenix, who is unmarried and under the age of 18. The Agency will consider Phoenix to be dependent upon the number holder if he is the number holder's child. See 20 C.F.R. § 404.361(a).

To determine whether an applicant is the child of a deceased number holder, the Commissioner will apply the intestacy laws of the state in which the number holder had his permanent home. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b). Thus, Phoenix's eligibility for child's benefits depends upon whether he could inherit property through intestate succession as the number holder's child. See id. Texas law controls because the number holder had his permanent home in Texas when he died.

Texas law provides five ways for a child to show that he has a right to inherit property from his purported biological father. See Tex. Prob. Code Ann. § 42(b)(1) (Vernon 2007). Specifically, the child must show one of the following: (1) he was born under the circumstances described in section 160.201 of the Texas Family Code; (2) the purported father adopted him; (3) the purported father executed an acknowledgment of paternity; (4) a court found him to be the purported father's child under chapter 160 of the Texas Family Code; or (5) clear and convincing evidence establishes that the purported father was his biological father. See id.

Here, Phoenix was not born under the circumstances described in section 160.201 of the Texas Family Code. The number holder neither adopted Phoenix nor executed an acknowledgment of paternity. No court found Phoenix to be the number holder's child, but if state law requires a court determination of paternity, the Commissioner will not require the child to obtain such a determination. 20 C.F.R. § 405.355(b)(2). Instead, the Commissioner will apply the law that the state court would apply to determine the child's paternity. See id. Thus, to establish that he has a right to inherit property from the number holder, Phoenix must do one of the remaining two things: (1) show that a Texas court would find him to be the number holder's child under chapter 160 of the Texas Family Code; or (2) provide clear and convincing evidence that the number holder was his biological father.

A Texas court will consider the results of genetic testing when adjudicating the paternity of a child under chapter 160 of the Texas Family Code. See Tex. Fam. Code Ann. § 160.631 (Vernon 2007). A man is rebuttably identified as the father of a child if genetic testing reveals a 99% probability of paternity. See Tex. Fam. Code Ann. § 160.505(a) (Vernon 2007). When the man has died and cannot provide a specimen for genetic testing, the court may consider the results of genetic testing of the man's parents. See Tex. Fam. Code Ann. § 160.508(a)(1) (Vernon 2007); see also Tipps v. Metropolitan Life Ins. Co., 768 F.Supp. 577, 579-580 (S.D. Tex. 1991) (after death of putative father, Texas court may draw inferences from grandparentage DNA testing to determine paternity). Only the results of genetic testing may rebut the results of other genetic testing. See Tex. Fam. Code Ann. §§ 160.505(b), 160.631 (Vernon 2007).

Under the Texas Family Code, genetic testing must satisfy certain requirements. Tex. Fam. Code Ann. § 160.503 (Vernon 2007). For example, the testing must take place in a laboratory that has received accreditation from the American Association of Blood Banks (AABB) or another satisfactory accrediting body. See Tex. Fam. Code Ann. § 160.503(a) (Vernon 2007). A laboratory designee must sign the test report. See Tex. Fam. Code Ann. § 160.504(a) (Vernon 2007).

According to the information we received, the grandparentage DNA testing in this case took place at Genetica DNA Laboratories, Inc., an AABB-accredited facility. Maria , Ph.D., the laboratory's designee, signed the test report before a notary public and verified the interpretation of the results. Thus, the grandparentage DNA testing satisfied the requirements of the Texas Family Code. No one presented further DNA testing to rebut the results of the grandparentage DNA testing. We therefore believe that a Texas court would view the grandparentage DNA test report as convincing evidence that the number holder was Phoenix's father.

Even if a Texas court would not rely solely on the grandparentage DNA test report to find that the number holder was Phoenix's father, Phoenix could still show that he may inherit property from the number holder. He could do so by providing clear and convincing evidence that he is the number holder's biological child. See Tex. Prob. Code Ann. § 42(b)(1) (Vernon 2007). The Texas Family Code defines "clear and convincing evidence" as "the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." Tex. Fam. Code Ann. § 101.007 (Vernon 2007). A Texas court will consider grandparentage DNA test results when deciding whether the evidence in a particular case is clear and convincing. See Tipps, 768 F.Supp. at 479-480.

As mentioned above, the evidence in this case includes the following: (1) a divorce petition and a letter that indicate that the number holder was the only child born to Donna and Johnny; (2) a DNA test report that shows a 99.99% probability that Donna and Johnny are Phoenix's biological grandparents; (3) statements from Ermelinda that identify the number holder as Phoenix's father; and (4) a statement from Ermelinda's mother and letters from Ermelinda's sister, Johnny's brother, and Donna, all of which support Ermelinda's claim that Phoenix is the number holder's child. We believe that a Texas court would view all of this as clear and convincing evidence and find that Phoenix is the number holder's child. As such, Phoenix may inherit property from the number holder under Texas intestacy law, and he is entitled to Social Security benefits on the number holder's account.

With respect to the first possible month of entitlement to benefits, Agency policy provides that acts that legitimate a child generally operate retroactively to the birth of the child. Social Security Ruling 85-17. Acts that merely confer inheritance rights, on the other hand, operate prospectively from the date of the act. Id. n this case, the act that conferred inheritance rights to Phoenix was the grandparentage DNA test report of December 22, 2005.

The child of a deceased number holder becomes entitled to benefits in the first month covered by his application in which he meets all requirements for entitlement. 20 C.F.R. § 404.352(a)(1). As indicated above, these requirements include proof that the child: (1) is the number holder's child; (2) is dependent upon the number holder; (3) has applied for benefits; (4) is unmarried; and (5) is under the age of 18. See 20 C.F.R. § 404.350(a)(1)-(5). Here, Phoenix met all requirements for entitlement on December 22, 2005, the date of the grandparentage DNA test report. We therefore conclude that he became entitled to benefits as of that date. Because Phoenix did not meet all requirements for entitlement until December 22, 2005, and because actions that confer inheritance rights operate only from the date of their occurrence, he is not entitled to a retroactive award of benefits on the number holder's account.

Tina M. Waddell
Regional Chief Counsel

By: _______________
Eric D. Poole
Assistant Regional Counsel

K. PR 06-249 Texas Law Using DNA Testing to Establish Child Relationship -- (NH Lee E~, SSN ~)--REPLY

DATE: March 22, 2002

1. SYLLABUS

In Texas, DNA testing showing that there is a 99.2 % probability that the deceased number holder's parents are the claimant's grandparents is clear and convincing evidence sufficient to establish a parent-child relationship between the deceased and the child provided that possible parentage by male siblings of the deceased can be ruled out.

Since DNA testing does not legitimize the child under Texas law, the relationship is established effective with the date of the DNA test.

2. OPINION

You have requested an opinion regarding whether a DNA testing report is sufficient to establish that Joshua (Joshua) is the child of the wage earner. In our opinion, under Texas law, Joshua has established that he is entitled to inherit from the wage earner if parentage by the wage earner's two brothers can be eliminated as a possibility. If inheritance is established, Joshua meets the requirement for entitlement to benefits on the wage earner's record.

As we understand the facts, the wage earner, Lee, died April 9, 1995, in Texas. Joshua was born in Round Rock, Texas, on December. His mother, Jennifer, was not married to the wage earner. She filed the present application for child's benefits on behalf of Joshua in March 2001. The wage earner had one or more brothers.

Jennifer submitted a DNA report dated March 15, 2001, showing a 99.2 percent probability that the wage earner's parents are Joshua's grandparents. The report is from the DNA Diagnostic Center. Testing was performed on Joshua and the parents of the deceased wage earner, who had two brothers. The DNA testing report states:

The alleged grandparents, Joyce and Walter, are not excluded as the biological grandparents of the child named Joshua. Based on testing reports obtained from analyses of 9 different DNA probes, the probability of grandparentage is 99.2%. This probability of grandparentage is calculated by comparing to an untested, random individual of the North American Caucasian population (assumes prior probability equals .50).

The report was sworn to and subscribed before a notary public.

As you know, the Social Security Act provides that in determining whether an applicant is the child of an insured individual, the Commissioner shall apply 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); 20 C.F.R. ' 404.355 (2001). Thus, eligibility for Social Security benefits depends on whether the child would inherit under the law of intestate succession in the state where the decedent was domiciled. Under the Commissioner's regulations, a natural child of the insured is considered to be dependent upon the insured when there is no issue of adoption by another individual. 20 C.F.R. ' 404.361. In this case, Texas law controls because the wage earner was domiciled in Texas at the time of his death.

The Texas Probate Code specifies five methods by which a right to paternal inheritance may be established. Tex. Prob. Code Ann. ' 42(b)(1) (Vernon 1999). One method is to obtain a court decree as provided in Chapter 160 (Determination of Parentage) of the Texas Family Code. The Texas Family Code provides that the effect of an order declaring that an alleged parent is the biological parent of the child is to confirm or create the parent-child relationship between parent and child for all purposes. Tex. Fam. Code Ann. ' 160.203, superseding § 160.006(b), by Act of June 14, 2001, Tex. Sess. Law. Serv. 821 (West 2001).

In the instant case, no court decree has been obtained. However, the Social Security Administration (SSA) will not apply a state inheritance law requirement that a court determination of paternity must be obtained or a requirement that paternity must be established before the worker's death. Paternity will be decided using the standard of proof that the state court would use. 20 C.F.R. ' 404.355(b)(2) (2001). The DNA Paternity Evaluation Report is evidence that would be considered by a Texas Court. The Texas Family Code provides:

If the parentage tests show the possibility of an alleged father's paternity and that at least 99 percent of the male population is excluded from the possibility of being the father, evidence of these facts constitutes a prima facie showing of an alleged father's paternity, and the party opposing the establishment of the alleged father's paternity has the burden of proving that the alleged father is not the father of the child.

Tex. Fam. Code Ann. ' 160.110(b) (Vernon 1999).

Testing of the deceased wage earner resulted in a conclusion that the wage earner's parents were not excluded as being Joshua's grandparents. The probability of grandparentage was 99.2 percent. The test results meet the statutory standard.

Using the clear and convincing evidence standard, DNA testing of grandparents has been used to support a finding of paternity. Tipps v. Metropolitan Life Insurance Co., 768 F.Supp. 577, 579-580 (S.D.Tx. 1991). The court described DNA testing as a well-established and accepted method of determining paternity. Id. at 579. Thus, we believe a Texas court would find that Joshua has shown that he is the child of the wage earner if it ruled out the possibility that one of the wage earner's brothers could have fathered Joshua. Therefore, you should eliminate parentage by the wage earner's brothers prior to awarding benefits.

With respect to the first possible month of entitlement, SSA policy provides that an act that gives inheritance rights is generally effective only from the date of that act, while an act that legitimates generally is effective retroactive to the birth of the child. See Social Security Ruling 85-17. Although Texas law allows an illegitimate child to inherit from his father once paternity is established, the law does not legitimate the child but merely establishes the parent-child relationship, pursuant to which the child receives inheritance rights. See Tex. Prob. Code Ann. ' 42(b)(1) (Vernon 1999).

Social Security regulations provide that a claimant may receive benefits from the first month he meets all the requirements. 20 C.F.R. § 404.620(a)(1). We believe that Joshua may receive benefits beginning March 15, 2001.

Tina M. Waddell
Regional Chief Counsel

By: _______________
Brenda Liess
Assistant Regional Counsel

L. PR 05-232 Texas State Law Use of Full Sibling Screening Report to Establish Child Relationship (NH Sidney, SSN ~) - REPLY

DATE: August 25, 2005

1. SYLLABUS

Under Texas law, a Full Sibling Screening Report which does not show the results in a percentage of probability or include combined paternity index information is not sufficient to establish the child's relationship to the number holder.

2. OPINION

You have requested an opinion regarding whether a sibling screening report is sufficient to establish Tekedra's status as a child of the wage earner under Texas state law. In our opinion, under Texas law, the sibling screening report is not sufficient to establish that Tekedra is the wage earner's child.

As we understand the facts, the wage earner resides in Texas and receives Title II retirement benefits based on a May 2002 application. On his application for benefits, the wage earner listed two children, Tyra (born in July ), whose entitlement was based on the wage earner's acknowledgement of Tyra as his child (as was later proven by a 1991 DNA test performed as part of child support documentation), and Sidney (born in March 1985), the wage earner's natural, legitimate child.

Tekedra was born in Beaumont, Texas on February. In July 2004, Sandra , who alleges, but has not proven, that she is Tekedra's legal guardian, filed a claim for Tekedra. Sandra reported that Tekedra's mother lives with, but is not married to, the wage earner. She also stated that Tekedra's mother told her that the wage earner is Tekedra's father. Tekedra's birth certificate shows no father, and the wage earner has not acknowledged Tekedra or provided any support for her. The claim was denied because no evidence of relationship was provided.

In September 2004, Sandra filed a request for reconsideration of the denial decision. She provided a Sibling Screening Report from the Genquest DNA Analysis Laboratory as evidence of Tekedra's relationship to the wage earner. Testing was performed on Tekedra, Tyra, and Mary, but not on the wage earner. Sandra stated that the wage earner is unwilling to provide a sample for genetic testing, although this claim has not been corroborated. Testing of Theresa, Tyra, and Tekedra resulted in a conclusion that Tekedra and Tyra are 110.7 times more likely to be siblings as compared to an untested, unrelated person of the African-American population and that they are likely to be biologically related as full siblings (sharing both a common mother and father). The report was signed by Elmer, Ph.D., on September 16, 2004.

The wage earner was married to Verna from 1957 to 1972 and to Theresa from 1982 to 2000. Those marriages ended in divorce. In November 2003, Mary , Tekedra's mother, filed an application for her daughter, Neykeyahma, whose natural father is not the wage earner. The application was for benefits as a stepchild on the wage earner's record. Mary alleged that she and the wage earner entered into a common law marriage in July 2003 and, therefore, that Neykeyahma is the wage earner's stepchild. The wage earner denied the marriage and refused to cooperate in completing forms to establish a common law marriage. Neykeyahma's application was denied, as a common law marriage and resulting stepchild relationship could not be established. On the application for Neykeyahma, Mary did not list Tekedra as the wage earner's child.

The Social Security Act provides that in determining whether an applicant is the child of an insured individual, the Commissioner shall apply 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 application for benefits. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355. The wage earner is domiciled in Texas. Accordingly, Texas law controls.

The Texas Probate Code specifies five methods by which a right to paternal inheritance may be established. Tex. Prob. Code Ann. § 42(b)(1) (Vernon 2004). These methods are: 1) the child is born under circumstances described by Section 160.201 of the Family Code (which cites to Section 160.204 - child born during a marriage or within 300 days after it, attempted or invalid marriage or father continuously lived with child the first two years and represented to others that the child was his own); 2) the child is adjudicated to be the child of the father by court decree as provided by Chapter 160 of the Family Code; 3) the child was adopted by the father; 4) the father executed an acknowledgement or like statement of paternity as provided by Subchapter D., Chapter 160 of the Family Code; or 5) the child establishes by clear and convincing evidence that the purported father was the biological father of the child. Tex. Prob. Code Ann. § 42(b)(1); Tex. Fam. Code Ann. §§ 160.201, 160.204.

In the instant case, no court decree has been obtained. However, the Social Security Administration will not apply a state inheritance law requirement that a court determination of paternity must be obtained or a requirement that paternity must be established before a worker's death. Paternity will be decided using the standard of proof that the state court would use. 20 C.F.R. ' 404.355(b)(2) (2004). The paternity of a child may be established during the lifetime of the father by a preponderance of the evidence. Tex. Fam. Code § 105.005. "Preponderance of the evidence" means the greater weight and degree of credible testimony. Upjohn Co. v. Freeman, 847 S.W.2d 589, 591 (Tex. App.-Dallas 1992, writ denied).

In 2001, Texas became the first state to adopt the Uniform Parentage Act. Tex. Fam. Code Ann. Chapter 160 (Uniform Parentage Act) (Acts 2001, 77th Leg., ch. 821 (effective June 14, 2001)). The Uniform Parentage Act governs every determination of parentage in Texas. Tex. Fam. Code Ann. § 160.103(a). The Uniform Parentage Act provides for, and focuses on, genetic testing. A report of a genetic testing expert is generally admissible as evidence of the truth of the facts asserted in the report. Tex. Fam. Code Ann. § 160.621. A court may order testing of an alleged father. Tex. Fam. Code Ann. § 160.502. A court may order genetic testing of relatives, including brothers and sisters, when a specimen from an alleged father is not available. Tex. Fam. Code Ann. § 160.508.

The results of genetic tests may be used to identify the father of a child. Tex. Fam. Code Ann. §§ 160.505, 160.631. A man is rebuttably identified as the father of a child if testing reveals at least a 99 percent probability of paternity and a combined paternity index of at least100 to 1. Tex. Fam. Code Ann. § 160.505(a). The results of genetic testing can only be rebutted by other genetic tests. Tex. Fam. Code Ann. §§ 160.505(b); 160.631. The Uniform Paternity Act provides that "[i]f the court finds that genetic testing under Section 160.505 does not identify or exclude a man as the father of a child, the court may not dismiss the proceeding. In that event, the results of genetic testing and other evidence are admissible to adjudicate the issue of paternity." Tex. Fam. Code Ann. § 160.631(e).

Here, the wage earner has allegedly refused to provide a sample for genetic testing. There is, however, no evidence of this refusal other than Sandra's statement, nor is there evidence as to whether a court ordered him to submit to testing and, if so, whether he refused to comply. We also note that the wage earner provided a genetic sample in 1991, to establish his parentage of Tyra. If the wage earner's current cooperation cannot be secured, it may be possible to obtain the 1992 evidence, for comparison with Tekedra's DNA.

DNA testing in 2001 established a 99.92 percent probability that the wage earner is Tyra's father; thus, a finding that Tekedra is Tyra's full sibling would establish that the wage earner is also Tekedra's father. The DNA report provided with your request for our opinion shows that Theresa, Tyra, and Tekedra were tested on September 8, 2004. The report shows that Tyra and Tekedra are 110.7 times more likely to be siblings as compared to an untested, unrelated person of the African-American population. The report also states that Tyra and Tekedra are "likely to be biologically related as full siblings (sharing both a common mother and father)." It is not clear whether the statement that they are "likely" related as full siblings is tied to the previous sentence that they are 110.7 times more likely to be siblings as compared to untested persons. Accordingly, we requested clarification of the statement, which you provided (see copy of email message attached). The laboratory contact reported that sibling screening reports do not produce numbers in percentage terms. She stated that the statement that they are "110.7 times more likely to be siblings" applies to full siblingship. However, the contact was the laboratory's office manager, and the statement was not in writing.

As stated above, a man is rebuttably identified as the father of a child if testing reveals at least a 99 percent probability of paternity and a combined paternity index of 100 to 1. Tex. Fam. Code Ann. § 160.505(a). The test report provided in this case is not stated in percentage terms. It is possible that "110.7 times more likely" correlates with a percentage of over 99 percent, based on 110.7 times to 1 representing 110.7 out of 111.7. The Texas statute, however, specifies a requirement for a percentage probability, and we believe that it would not be appropriate to make such a mathematical assumption. In addition, the report contains no information as to a combined paternity index, and the statue specifically requires a combined paternity index of at least 100 to 1. Accordingly, we do not believe that the screening report alone is sufficient to establish that Tekedra is the wage earner's child.

Beyond the screening report, which is ambiguous in its findings, there is very little evidence regarding Tekedra's relationship to the wage earner. Sandra, who alleges but has not proven, that she is Tekedra's guardian, stated that Theresa told her that the wage earner is Tekedra's father. Mary's statement has not been obtained to verify Sandra's report. There is also no evidence of attempted contact with the wage earner to determine whether he denies or acknowledges Tekedra as his child. Also, Tekedra was born in 1988, while the wage earner was married to his second wife, and there is no documentation as to Mary's relationship with the wage earner during that time. In addition, both the wage earner and Mary have filed previous applications referencing children of the wage earner, but not including Tekedra. In essence, beyond than the screening report, only Sandra, an unrelated person, has alleged that Tekedra is the wage earner's child.

As the screening report does not satisfy the statutory standards, and the other evidence is scant, we do not believe that a Texas court would find that the preponderance of the evidence shows that Tekedra is the wage earner's child. We recommend that the field office attempt to corroborate Sandra's claim to be Tekedra's guardian to determine if she is a proper applicant on Tekedra's behalf and if her various statements are credible. We further recommend that the field office attempt to contact Tekedra's mother and the wage earner, to determine whether either or both of them corroborate Sandra's statements as to Tekedra's parentage. We also suggest that the field office confirm that the wage earner refused to provide a genetic sample and attempt to obtain a comparison of the wage earner's 1991 DNA sample with Tekedra's DNA sample. Finally, we recommend that the field office obtain written clarification from the laboratory as to the findings from the sibling screening report, to ascertain whether the laboratory's findings can accurately be stated in terms that satisfy the statutory standards.

Tina M. Waddell
Regional Chief Counsel

By: ___________________________
Brenda Liess
Assistant Regional Counsel

M. PR 05-182 Texas State Law Use of Grandparentage Screening Report to Establish Child Relationship (NH Brian , SSN ~) - REPLY

DATE: June 23, 2005

1. SYLLABUS

Under Texas law, DNA testing of the claimant and the deceased number holder's parents showing a 99.99% probability that the deceased's parents are the claimant's grandparents will be sufficient to rebuttably establish a parent-child relationship provided that development ruling out possible parentage by any sibling of the number holder is obtained.

The relationship is effective with the date of the DNA test.

2. OPINION

You have requested an opinion regarding whether DNA testing of the wage earner's parents is sufficient to establish status as a child of the wage earner under Texas state law. You also inquired as to the first possible month of entitlement. In our opinion, contingent upon the field office obtaining additional evidence to confirm that the individuals tested were the wage earner's parents and that the wage earner had no brothers who could potentially be Selina's father, the grandparentage screening report is sufficient to entitle Selina as the wage earner's child. She can be entitled as of February 18, 2005.

As we understand the facts, Selina was born in San Diego, California, on March. Selina's mother, Deshaun, was not married to the wage earner. Selina's birth certificate shows Samuel , a person with whom Deshaun had a relationship when Selina was born, as Selina's father.

The wage earner received Title II disability benefits from October 1994 until his death on March 9, 1995, in Texas. On his application for benefits, the wage earner listed only one child, Britney . The wage earner's mother, however, informed the field office that the wage earner mentioned a possible daughter in California. His father wrote a letter to Deshaun in which he states that the wage earner told him about Selina.

Deshaun filed an application for child's benefits on behalf of Selina on February 22, 2005. As evidence of Selina's relationship to the wage earner, Deshaun submitted a February 18, 2005, DNA test report. The report is from Genetica DNA Laboratories, Inc., and is signed by Maria, Ph.D., Assistant Laboratory Director. Testing was performed on Deshaun, Selina, and the assumed parents of the wage earner. Dr. Z~ offered the following interpretation of the test results:

The alleged paternal grandparents, Shirley and Bennie, cannot be excluded as the biological paternal grandparents of the child, Selina . Based on testing results obtained from analyses of 15 different DNA probes, the probability of grandparentage is 99.99%. This probability of grandparentage is calculated by comparing to an untested, unrelated couple of the North American Black population (assumes prior probability equals .50).

Dr. Z~'s written report was sworn to and subscribed before a notary public.

As you know, the Social Security Act provides that in determining whether an applicant is the child of an insured individual, the Commissioner shall apply 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); 20 C.F.R. § 404.355. Thus, eligibility for Social Security benefits depends on whether the child would inherit under the law of intestate succession in the state where the decedent was domiciled. Under the Commissioner's regulations, a natural child of the insured is considered to be dependent upon the insured when there is no issue of adoption by another individual. 20 C.F.R. § 404.361.

In this case, Texas law controls because the wage earner was domiciled in Texas at the time of his death. The Texas Probate Code specifies five methods by which a right to paternal inheritance may be established. Tex. Prob. Code Ann. § 42(b)(1) (Vernon 2004). These methods are: 1) The child is born under circumstances described by Section 160.201 of the Family Code (which cited to Section 160.204 - child born during a marriage or within 300 days after it, attempted or invalid marriage or father continuously lived with child the first two years and represented to others that the child was his own); 2) The child is adjudicated to be the child of the father by court decree as provided by Chapter 160 of the Family Code; 3) The child was adopted by the father; 4) The father executed an acknowledgement or like statement of paternity as provided by Subchapter D., Chapter 160 of the Family Code; or 5) The child establishes by clear and convincing evidence that the purported father was the biological father of the child. Tex. Prob. Code Ann. § 42(b)(1); Tex. Fam. Code Ann. §§ 160.201, 160.204. The first four methods do not apply as there has been no adjudication, adoption, or acknowledgement, and the circumstances surrounding the presumption of paternity in Section 160.204 of the Family Code do not exist in this case. Thus, only the fifth method, clear and convincing evidence, would remain.

However, one method is to obtain a court decree as provided in Chapter 160 (Determination of Parentage) of the Texas Family Code. The Texas Family Code provides that the effect of an order declaring that an alleged parent is the biological parent of the child is to confirm or create the parent-child relationship between the parent and child for all purposes. Tex. Fam. Code Ann. § 160.203, superseding § 160.006(b), by Act of June 14, 2001, Tex. Sess. Law. Serv. 821 (West 2004). In the instant case, no court decree has been obtained. However, the Social Security Administration (SSA) need not apply a state inheritance law requirement that a court determination of paternity must be obtained or a requirement that an action to establish paternity must have been started or completed before the worker's death. If applicable state law requires a court determination of paternity, SSA will decide paternity by using the standard of proof that the state court would use. 20 C.F.R. § 404.355(b)(2).

In 2001, Texas became the first state to adopt the Uniform Parentage Act. Tex. Fam. Code Ann. Chapter 160 (Uniform Parentage Act) (Acts 2001, 77th Leg., ch. 821 (effective June 14, 2001)). The Uniform Parentage Act governs every determination of parentage in Texas. Tex. Fam. Code Ann. § 160.103(a). The Uniform Parentage Act provides for, and focuses on, genetic testing. A report of a genetic testing expert is generally admissible as evidence of the truth of the facts asserted in the report. Tex. Fam. Code Ann. § 160.621. The Uniform Parentage Act expressly provides that a court may order genetic testing of relatives, including parents, when an alleged father is not available. Tex. Fam. Code Ann. § 160.508 (genetic testing when all individuals not available). Here, the wage earner is deceased and is, therefore, not available for testing.

The results of genetic tests may be used to identify the father of a child. Tex. Fam. Code Ann. §§ 160.505, 160.631. A man is rebuttably identified as the father of a child if testing reveals at least a 99 percent probability of paternity and a combined paternity index of 100 to 1. Tex. Fam. Code Ann. § 160.505(a). The results of genetic testing can only be rebutted by other genetic tests. Tex. Fam. Code Ann. §§ 160.505(b); 160.631. The Uniform Paternity Act provides that "If the court finds that genetic testing under Section 160.505 does not identify or exclude a man as the father of a child, the court may not dismiss the proceeding. In that event, the results of genetic testing and other evidence are admissible to adjudicate the issue of paternity." Tex. Fam. Code Ann. § 160.631(e).

In this case, genetic testing of the deceased wage earner's parents resulted in a conclusion that the wage earner's parents could not be excluded as being Selina's grandparents. The probability of grandparentage is 99.99%. The test report is based on the assumption that the individuals tested were in fact the parents of the wage earner. The case file does not contain any evidence suggesting that the individuals tested were not the parents of the wage earner, or that there were any brothers of the wage earner who could have been Selina's father. The field office should obtain evidence, such as a birth certificate, an affidavit or letter from the mother or any brothers as to the relationship to the wage earner. Absent evidence raising doubt in these areas, we believe that the test results suffice to establish that Selina is the wage earner's child.

With respect to the first month of entitlement, SSA policy provides that an act that gives inheritance rights is generally effective only from the date of that act, while an act that legitimates generally is effective retroactive to the birth of the child. See Social Security Ruling 85-17. Although Texas law allows an illegitimate child to inherit from the father once paternity is established, the law does not legitimate the child but, merely establishes the parent-child relationship, pursuant to which the child receives inheritance rights. See Tex. Prob. Code Ann. § 42(b)(1) (Vernon 2004).

Social Security regulations provide that a claimant who files an application for benefits may receive benefits no earlier than the first month she meets all the requirements. 20 C.F.R. § 404.620(a)(1). We believe that Selina would be considered as having met the requirements for entitlement when she established inheritance rights based on the DNA test results dated February 18, 2005.

Tina M. Waddell
Regional Chief Counsel

By: ___________________________
Brenda Liess
Assistant Regional Counsel

N. PR 04-045 Texas Law Status of Posthumous Child (on the Earnings Record of Carlos., SSN ~) - REPLY

DATE: December 15, 2003

1. SYLLABUS

Where the purported father (the deceased NH) lived with a pregnant mother but died prior to the child claimant's birth, the NH's actions would not give rise to a presumption that he is the child's biological father under Texas law. Moreover, there is not clear and convincing evidence that the NH was the child's father.

2. OPINION

You have evidence that a purported father/deceased wage earner (DWE) took a pregnant mother into his home but died prior to the claimant-child's birth. You requested our opinion as to whether this evidence could give rise to a presumption under Texas law that the DWE is the biological father of the child. Your request is premised upon the understanding that in Texas a man is presumed to be the biological father of a child if, before the child reaches the age of majority, he receives the child into his home and openly holds out the child as his biological child. If no presumption exists, you asked whether there was otherwise clear and convincing evidence that the DWE was the child's father. In our opinion, the DWE's actions would not give rise to a presumption that he is the biological father of the child under Texas law. We also believe that there is not clear and convincing evidence, as currently developed, that the DWE was the child's biological father.

As we understand the facts, Carlos, (the DWE) was domiciled in Texas. The DWE died fully insured on January 16, 1999. On September 16, 1999, Monica filed a claim for surviving child's insurance benefits on behalf of her daughter, Megan. Monica claimed that Megan, born on August 9, 1999, was the DWE's child. Monica and the DWE were never married. There is evidence that for about three months before the DWE's death, while Monica was pregnant, she and the DWE lived together in an "unofficial homeless shelter," as described by the owner of the shelter. At the time of the DWE's death, they had bought nothing for Megan and made no arrangements for her care once she was born, and they apparently did not have room for themselves and a child in their space at the shelter. It appears that Monica lived in close quarters with other men at the shelter, including the DWE's brother. During the initial application for benefits, the only people to state that the DWE admitted paternity were Monica's father and grandmother. Upon reconsideration, the DWE's brother and the owner of the shelter stated that the DWE claimed that the DWE was the father of Monica's child.

In determining whether an applicant is the child of an insured individual, the Commissioner shall apply 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); 20 C.F.R. § 404.355(b). Therefore, we must apply Texas law. According to a previous version of section 151.002 of the Texas Family Code (the Code), a man was presumed to be the biological father of a child if, before the child reached the age of majority, he received the child into his home and openly held out the child as his biological child. This version of the Code is reflected in POMS GN 00306.640B.5 (Texas Intestacy Laws). However, effective September 1, 1999, the Code was amended and the presumption of paternity based upon receiving the child into the home was removed. Tex. Fam. Code Ann. § 151.002 (Vernon Supp. 1999), as amended by 1999 Tex. Sess. Law Serv. Ch. 556.18 According to the Social Security regulations, we apply the law in effect at the date of the Commissioner's decision or at the date of the DWE's death, whichever benefits the child. 20 C.F.R. § 404.355(b)(4). In the instant case, the DWE died on January 16, 1999, before the Code was amended, and the Commissioner's decision occurred after the amendment. Because the relevant time periods for consideration fall before and after the September 1, 1999, amendment to the Code, we will consider both versions.

Texas Code before September 1, 1999

In Texas prior to September 1, 1999, a man was presumed to be the biological father of a child if, before the child reached the age of majority, the man received the child into his home and openly held out the child as his biological child. Tex. Fam. Code Ann. § 151.002(a)(5) (Vernon 1996). Texas jurisprudence contains no guidance interpreting the Code as it would pertain to a putative father's receiving a pregnant mother/unborn child into a home. However, looking at the plain language of section 151 of the Code, other provisions in the Code, and Texas case law, we do not believe Texas courts would interpret receiving a pregnant mother into a home as receiving a child into a home prior to September 1, 1999.

First, the plain language of section 151.002(a)(5) did not include unborn children. Section 151.002(a)(5) provided that before a child reaches the age of majority, the father must receive the child into his home and openly hold out the child as his biological child. Tex. Fam. Code Ann. § 151.002(a)(5) (Vernon 1996). The Code unambiguously provided that the father must receive (and openly hold out as one's own) a child, not an unborn child. The qualifying language "before the child reaches the age of majority" further supports the conclusion that the child must be born. When necessary to qualify the birth status of a child under section 151.002, the legislature used language that clearly specified whether the child was born or unborn. See Id. at § 151.002(a)(1) ("child is born"); Id. at § 151.002(a)(2) ("before the child's birth"); Id. at § 151.002(a)(3) ("after the child's birth"). In Quantum Chemical Corp. v. Toennies, 47 S.W.3d 473, 479 (Tex. 2001), the Texas Supreme Court recognized the basic rule of statutory construction that it enforces the plain meaning of an unambiguous statute. See also Tex. Gov't Code Ann. § 311.011(a) (Vernon 1998) (words shall be read in context and construed according to rules of grammar and common usage); Tex. Gov't Code Ann. § 312.002(a) (Vernon 1998) (words shall be given their ordinary meaning).19

Second, none of the definitions of the term "child" found elsewhere within the Code explicitly or implicitly included an unborn child. See Tex. Fam. Code Ann. § 101.003(a) (Vernon 1996) (child means a person under 18 years of age who is not or has not been married or who has not had the disabilities of minority removed for general purposes); Tex. Fam. Code Ann. § 154.301(2) (Vernon 1996) (child is a son or daughter of any age); Tex. Fam. Code Ann. § 159.101(1) (Vernon Supp. 1998) (child is an individual, whether over or under the age of majority, who is owed or entitled to support from a parent). To the contrary, when necessary to include unborn children or fetuses within a provision of the Code, the legislature specifically used the term "unborn child" or "fetus." See Tex. Fam. Code Ann. § 161.006(b) (Vernon 1996) (abortion means the intentional expulsion of a human fetus); Tex. Fam. Code Ann. § 161.102(b) (Vernon 1996) (suit for termination before birth shall be styled "In the Interest of an Unborn Child"). In fact, section 161.102(b) also provides that after the child's birth, the style shall be changed to conform to section 102.008 of the Code. Once a child is born, section 102.008(a) provides that a suit for adoption shall be styled "In the interest of a child." Tex. Fam. Code Ann. § 102.008(a) (Vernon 1996). 20 ]

Thus, we believe the reference to receiving a child into a father's home cannot be construed to include bringing a pregnant mother or unborn child into the purported father's home based upon the Code in existence prior to September 1, 1999. Accordingly, it is our opinion that receiving a pregnant mother into a man's home would not alone give rise to the presumption of paternity under Tex. Fam. Code Ann. § 151.002(a)(5) (Vernon 1996).

Texas Code after September 1, 1999

Effective September 1, 1999, the Code was amended and the presumption of paternity based upon receiving the child into the home and openly holding the child out as the man's biological child was removed from the statute. Tex. Fam. Code Ann. § 151.002 (Vernon Supp. 1999), as amended by 1999 Tex. Sess. Law Serv. Ch. 556. Since then, a man is presumed to be the biological father of a child if, under a variety of circumstances, the father and mother were married or attempted to marry. Id.; Tex. Fam. Code Ann. § 160.204 (Vernon 2002). As we understand the facts, the DWE and Ms. C~ were never married and never attempted to marry. Accordingly, there can be no presumption of paternity based upon the Code after September 1, 1999.

Clear and Convincing Evidence of Paternity

Assuming Megan could not be presumed to be the DWE's child, you also asked us whether there is clear and convincing evidence that the DWE was Megan's father. Under the Texas Probate Code, a child may inherit from a purported father if a court finds by clear and convincing evidence that the purported father was the biological father of the child. Tex. Prob. Code Ann. § 42(b) (Vernon 2003). The clear and convincing evidence standard is the degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. Villery v. solomon, 16 S.W.3d 106, 107 (Tex. App.-Houston (1 Dist.) 2000); Tex. Fam. Code Ann. § 101.007 (Vernon 2002). The kinds of acts that would lead to such a firm belief might include demonstration of concern for the child, giving money to support the child, public acknowledgment of the child as one's own, offering to change the child's surname to one's own, and identifying the child as one's own in an obituary. See V~, 16 S.W.3d at 107-108.

We believe the evidence as it currently exists would not meet the clear and convincing standard. According to the file, the only people to originally state that the DWE admitted paternity were Monica's father and grandmother. Upon reconsideration, the DWE's brother and the owner of the shelter stated that the DWE claimed that the DWE was the father of Monica' child. However, there was no other evidence of acknowledgement of the child. The DWE had not paid for any pre-natal care and had not made any arrangements for care of the child once she was born. There is no record of a demonstration of concern for the child. There is no evidence that the DWE had other children who could submit to DNA testing to compare to Megan's DNA. We believe such a deficient record does not produce a firm belief or conviction that the DWE was the biological father of Megan. Further evidence of paternity would need to be developed before clear and convincing evidence exists to show that the DWE was Megan's biological father. 21

Tina M. Waddell
Regional Chief Counsel

By: ___________________________
Robert T. Bowman
Assistant Regional Counsel

O. PR 04-006 Using DNA Siblingship Test to Establish Parent - Child Relationship - (NH Jacob B. B~, SSN ~) - REPLY

DATE: September 24, 2003

1. SYLLABUS

A DNA siblingship test report showing a 97.6 percent probability of half-siblingship between the child claimant and the NH's alleged son does not establish by clear and convincing evidence that the NH is the child's biological father under Texas law. The DNA test shows only a 97.6 percent of probability of siblingship, and a 41 to 1 chance that the child and the NH's son share the same biological father, not who the father might be. The DNA test results are below the statutory standard under Texas law, which is 99 percent of probability. Moreover, the record does not contain objective evidence that would independently support the assertion of paternity.

2. OPINION

You have requested an opinion regarding whether a DNA Siblingship Test Report showing a 97.6 percent probability of half-siblingship can constitute clear and convincing evidence under Texas state law of the paternity of Jacob, number holder (NH), for Stephen, III (the child). In our opinion, the siblingship test does not establish by clear and convincing evidence that Jacob is the child's biological father. Therefore, the child does not meet the requirement for entitlement to benefits on the NH's record.

You also asked whether a Texas DNA statute that creates a rebuttable presumption in favor of paternity is applicable in this instance of siblingship DNA testing. In fact, the rebuttable presumption doctrine created under the Texas DNA statute does not apply to the facts in this case.

As we understand the facts, NH received retirement benefits from September 1977 until his death on November 11, 1992, in Texas. In 1986 and 1987, Karen, the child's mother, lived with a boyfriend, Stephen, in NH's home. Karen claims that while she lived with NH, that she had sexual relations with him. As a result, Karen alleges she became pregnant by NH, and on December 27, 1987, she gave birth to his child. NH was divorced from his wife on November 23, 1978.

The child's birth certificate lists Stephen as the father. However, a DNA test dated December 26, 2000, shows that Stephen is not the biological father of the child.

In 2001, a son of NH, Joseph, took a DNA Siblingship Test. The test report, dated December 29, 2001, showed that there is a 97.6 percent probability that he and the child are brothers, and that there is a 41 to 1 chance that they share the same biological father. Joseph's Texas birth certificate purportedly shows that he was born on October, to Dollie and Jacob.

In relevant part, the DNA test report noted in the interpretation section:

DNA testing was done to determine siblingship of alleged siblings, Stephen and Joseph. Based on testing results obtained from analyses of 5 different DNA probes, the probability of half-siblingship is 97.6%. The likelihood that they share the same biological father is 41 to 1.

The report was sworn to and subscribed before a notary public.

To determine whether an applicant is the child of an insured individual, the Social Security Act provides that the Commissioner shall apply such law as would be applied to determine 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); 20 C.F.R. § 404.355 (2003). Thus, eligibility for Social Security benefits depends on whether the child would inherit under the law of intestate succession in the state where the deceased NH was domiciled. In this case, Texas law controls because the wage earner was domiciled in Texas at the time of his death.

The Social Security Administration (SSA) will not apply a state inheritance law requirement that a court determination of paternity must be obtained or a requirement that paternity must be established before the worker's death. 20 C.F.R. § 404.355(b)(2). However, SSA will determine a child's paternity by using the same standard of proof that the state court would use. Id. In Texas the courts use the clear and convincing evidence 22 standard to determine if a purported father is the biological father of the child. If paternity is established by clear and convincing evidence, the child is treated as any other child of the decedent for purposes of inheritance. Id.

The DNA Siblingship Test Report is evidence that would be considered by a court. Prudential Insurance Co. Of America v. Moorhead, 916 F.2d 261, 264-265 (5th Cir. 1990) (observing that the advent of DNA testing has alleviated many of the serious problems of proof inherent in paternity adjudications). The Texas Family Code provides that if a genetic test shows that an alleged father has at least a 99 percent probability of paternity, the man is rebuttably the father of the child. Tex. Fam. Code Ann. § 160.505(a)(1) (Vernon 2003).

Due to NH's death, testing of NH was not possible. His acknowledged son, Joseph, consented to a DNA test to determine if he and the child were biologically related. The test report showed that there was a probability of 97.6 percent that the child and Joseph were half-siblings that share the same father. However, given the State requirement that the parentage test must show at least a 99 percent probability of an alleged father's paternity, the test result does not meet the statutory standard or raise the statutory presumption.

However, inquiry as to paternity may continue even though DNA test results do not meet the statutory standard. In cases where tests fail to exclude the alleged father, courts have the latitude to consider DNA test results in conjunction with other evidence to determine if there is clear and convincing evidence to establish the paternity of a child. Tex. Fam. Code Ann. § 160.631(e) (Vernon 2003); see also In Interest of B.M.N., 570 S.W.2d 493, 501 (Tex.Civ.App. - Texarkana 1978). Typically, the other evidence relied on by Texas courts consists of objective evidence that independently corroborates the biological relationship in question. For example, Texas courts have admitted birth certificates and baptismal records with the deceased listed as the father, prior statements by the alleged father bearing on the relationship with the child, photographs taken over a period of years of the child and father in family settings, affidavits from third parties attesting to statements or events relating to the parent-child relationship, evidence of resemblance of the child to the alleged parent, and evidence of periods of conception and gestation. In the Interest of A.S.L., a Child, 923 S.W.2d 814, 818-819 (Tex.Civ.App. - A~ 1996); In Interest of B.M.N., 570 S.W.2d at 501; see also Tipps v. Metropolitan Life Insurance Co., 768 F.Supp. 577, 579-580 (S.D.Tx. 1991).

In the instant case, the DNA test report shows only a 97.6 percent of probability of siblingship, and a 41 to 1 chance that the child and Joseph share the same biological father, not who the father might be. Given that the DNA test results are below the statutory standard, NH is neither established nor eliminated as the biological father of the child. Additionally, the record does not contain objective evidence that would independently support the assertion that NH is the child's biological father. Given the lack of corroboration of other evidence, a Texas court would not consider the DNA test results alone to constitute clear and convincing evidence.

Therefore, it is our opinion that the child may not receive benefits based on the DNA Siblingship Test Report without further development of the factual record.

Tina M. Waddell
Regional Chief Counsel

By: ___________________________
James A. Garrett
Assistant Regional Counsel

P. PR 03-144 Entitlement to Child's Benefits Under Texas Law Based on DNA Testing of Siblings of the Deceased Wage Earner (Kenneth, SSN ~) - REPLY

DATE: June 10, 2003

1. SYLLABUS

The Texas Uniform Parentage Act expressly provides that a court may order genetic testing of relatives when an alleged father is not available, to make a posthumous determination of whether the purported father was a child's biological father. In this case, testing of the deceased NH's relatives resulted in a conclusion that there is a 99.99% probability of grandparentage, and at least 99.99% of the population was excluded from the possibility of being the biological grandparents of the child. Thus, assuming that SSA is satisfied that no brother of the NH is the father, there is clear and convincing evidence establishing that the child is the NH's child.

2. OPINION

You have requested an opinion regarding whether Brandi is entitled to child's benefits based on the earnings record of Kenneth (deceased wage earner). Specifically, the issue is whether DNA testing of the deceased wage earner's siblings would satisfy Texas intestacy law. In our opinion, under Texas law, if the wage earner's brother(s) can be excluded as the possible father, Brandi has established that she is entitled to inherit from the wage earner and, therefore, meets the requirements for entitlement to benefits on the wage earner's record. Benefits could be paid starting with the six-month period prior to the filing of the January 27, 1999, application. However, as explained below, this conclusion is premised on there being evidence that is satisfactory to you that no brother of the wage earner is the father.

Kenneth died on September 2, 1990. Brandi was born in Dallas, Texas, on November. Brandi's mother, Myra, filed a third application for child's benefits on behalf of her daughter on January 27, 1999.

Two prior applications had been denied. An application filed on July 12, 1993, was denied at the initial level on September 4, 1993, and at the reconsideration level on December 8, 1993. A hearing was requested on January 28, 1994. At a hearing on February 7, 1995, the Administrative Law Judge (ALJ) considered a 1994 DNA Paternity Evaluation Laboratory Report, but found that it was not persuasive. The ALJ concluded that the evidence did not establish a parent-child relationship between Brandi H~ and Kenneth, and that the child was not dependent upon the wage earner. The Appeals Council denied the request for review, and the ALJ's May 24, 1995, decision became the final decision of the Commissioner. A second application was filed on May 20, 1996. Reconsideration was requested on October 20, 1996. The request for reconsideration was dismissed on July 8, 1997, because the issues, facts, and individuals were the same as the previous claim. The third application was filed on January 27, 1999. This is the current application.

The current application involves a matter that was previously ruled upon by an ALJ, after a hearing. The Social Security Act provides that, “The findings and decision of the Commissioner of Social Security after a hearings Brandi be binding upon all individuals who were parties to such a hearing.” 42 U.S.C. § 405(g). If further review is not requested, a determination or decision generally becomes administratively final and binding. See 20 C.F.R. § 404.987 (2002). The denials of the prior applications are administratively final and cannot be reopened. The denial of the 1993 application cannot be reopened because more than four years have elapsed and there is no issue of fraud or similar fault. See 20 C.F.R. § 404.988(c). The denial of the 1996 application cannot be reopened because over twelve months elapsed and good cause has not been established. See 20 C.F.R. § 404.988(b). The regulations provide that we will not find good cause to reopen based only on a change of legal interpretation or administrative ruling. 20 C.F.R. § 404.989(b).

Apart from the issues of administrative finality and reopening, there is an additional issue as to whether the doctrines of res judicata and collateral estoppel would preclude any further consideration of the issue of paternity with respect to the current application. Although the issues frequently arise at the same time, the regulations governing res judicata and collateral estoppel are distinct from the regulations governing administrative finality and reopening.

The regulations provide that the doctrine of res judicata applies when there has been a previous determination or decision on the same facts and on the same issue or issues, and the previous determination has become final. 20 C.F.R. § 404.957(c)(1). The doctrine of collateral estoppel applies when the same issue has already been decided under a different title of the Act. 20 C.F.R. § 404.950(f). Under SSA policy res judicata may be applied if the same parties, facts, and issues are involved in both the prior and subsequent claims. See 20 C.F.R. § 404.957(c)(1); Social Security Ruling (SSR) 91-5p (1991); Acquiescence Ruling 98-3(6) (1998).

Even if a prior denial of an application for child's benefits cannot be reopened, the doctrine of res judicata does not preclude consideration of a second application for child's benefits if new and material evidence were submitted. Because the facts would not be the same, a child could be entitled to benefits as a decedent's child based on a second application. See SSR 86-16a (1986) (Finality of decision - New and Material Evidence of Paternity- Res Judicata). In the current application, however, no new and material evidence has been presented. The ALJ considered the DNA test results in the May 24, 1995, decision. Nevertheless, neither res judicata nor collateral estoppel precludes consideration of the current application for child's benefits, because the issues are not the same as in the prior decision. The issues are not the same because, as discussed below, there have been significant changes in the regulations and Texas law.

In Kasey v. Sullivan, 3 F.3d 75, 78 (4th Cir. 1993), the Court of Appeals held that, “The ALJ, in the instant case, correctly stated that the doctrine of res judicata-a doctrine distinct from the Secretary's rules of administrative finality and the reopening of claims-was inapplicable to Kasey's 1990 claim for benefits in light of the change in the regulations governing claims of mental impairments.”

The Hearings, Appeals and Litigation Law (H~EX) Manual provides:

Effect of a Subsequent Change in Statute, Regulation or Policy Interpretation on Applicability of Res Judicata

The ALJ may not use res judicata as the basis for dismissing an RH [Request for Hearing] based on a current application when there has been a change in a statute, regulation, ruling or legal precedent which was applied in reaching the final determination or decision on the prior application. A new adjudicative standard exists and the issues cannot be considered the same as the issues in the prior case. The ALJ must issue a decision.

Brandi I-2-4-40F (Res Judicata). H~EX also notes:

Although a change in the regulations precludes an ALJ from dismissing a request for hearing on the basis of res judicata, it does not change the rules on administrative finality. Payment of the claim would be based on the current application alone, unless the conditions for reopening an earlier claim are met.

Brandi I-2-4-40F (Res Judicata).

In summary, neither res judicata nor collateral estoppel can be applied to preclude consideration of the current application for child's benefits. The issues are not the same as the issues under the prior applications, because there have been significant changes in the regulations and, also, Texas state law. See 20 C.F.R § 404.957(c)(1) (res judicata applies when previous decision involves the same issue or issues). As will be outlined below, the regulations related to determining who is an insured's natural child were amended in 1998, and Texas adopted the Uniform Parentage Act in 2001.

With respect to the current application, there is conflicting evidence. Brandi's mother and the deceased wage earner never married each other. The deceased wage earner is not listed on Brandi's birth certificate. The evidence of record includes two statements that indicate that the wage earner verbally acknowledged that Brandi was his daughter. Marilyn, the child's maternal grandmother, reported in a signed child relationship statement that the wage earner told her that he was Brandi's father. Johnnie , the wage earner's brother, also reported that the wage earner acknowledged that he was Brandi's father. Johnnie also stated that the wage earner was the father.

A 1994 Paternity Evaluation Laboratory Report (the lab report) was submitted. The lab report is from GeneScreen Laboratory Director Robert , Ph.D. Testing was performed on the mother, child, and three siblings of the deceased wage earner, but not the deceased wage earner. Testing of these five individuals resulted in a conclusion that there was a 99.99% probability of grandparentage. There was a combined grandparentage index of 15,211. The lab report provided:

The alleged grandparents cannot be excluded as the biological grandparents of the child, BRANDI . Based on the testing results shown below, the probability of grandparentage is 99.99% as compared to an untested random couple of the North American Black population. (Prior Probability = 0.50). At least 99.99% of couples of the North American Black population are excluded from the possibility of being the biological grandparents of the child.

The lab report noted that the DNA patterns were determined from three siblings of the deceased alleged father. The lab report was sworn to and subscribed before a notary public.

The Social Security Act provides that in determining whether an applicant is the child of an insured individual, the Commissioner’s H~ apply 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); 20 C.F.R. § 404.355. Thus, as pertinent, eligibility for Social Security benefits depends on whether the child would inherit under the law of intestate succession in the state where the decedent was domiciled. The deceased wage earner was domiciled in Texas. Accordingly, Texas law controls.

Under SSA regulations, SSA will apply the version of state law in effect at the time the final decision on the application for benefits is made. If the child does not qualify under that version of state law, earlier versions will be considered, if applicable. See 20 C.F.R. § 404.355(b)(4). SSA will not apply a state law requirement that a court determination of paternity be obtained or a requirement that paternity be established before the worker's death. Paternity will be decided using the standard of proof that the state court would use. See 20 C.F.R. § 404.355(b)(2). This regulation became effective November 27, 1998, and accordingly is applicable to claims filed on or after November 27, 1998, or pending on that date. See Hampton v. Bowen, 785 F.2d 1308, 1310 (5th Cir. 1986) (new laws apply to pending cases unless manifest injustice would result or there is a statutory directive or legislative history to the contrary). Thus, the regulation that became effective in November 1998 is applicable to the January 27, 1999, application.

The Texas Probate Code specifies five methods by which a right to paternal inheritance may be established. Tex. Prob. Code Ann. § 42(b)(1) (West 2002). Three of the methods have no relevance to the facts of the current application. One remaining method is in effect if the child is adjudicated to be the child of the father as provided by Chapter 160 (Uniform Parentage Act) of the Texas Family Code. Id. Alternatively, the Texas Probate Code also provides:

A person claiming to be a biological child of the decedent, who is not otherwise presumed to be a child of the decedent, or claiming inheritance through a biological child of the decedent, who is not otherwise presumed to be a child of the decedent, may petition the probate court for a determination of right of inheritance. If the court finds by clear and convincing evidence that the purported father was the biological father of the child, the child is treated as any other child of the decedent for the purpose of inheritance Tex. Prob. Code Ann. § 42(b)(1). A child may rely upon any of the five methods enumerated in § 42(b)(1) to show his/her right to inherit from the biological father. See e.g., Matherson v. Pope, 852 S.W.2d 285, 288 (Tex. App. 1993, writ denied).

In the instant case, no court decree has been obtained. However, as stated, SSA will not apply a state inheritance law requirement that a court determination of paternity must be obtained or a requirement that paternity must be established before the worker's death. Paternity will be decided using the standard of proof that the state court would use. See 20 C.F.R. § 404.355(b)(2). The lab report is evidence that would be considered by a Texas court. Tex. Fam. Code Ann. § 160.621(a) (West 2002). The Texas Family Code provides that a verified written report of a genetic testing expert is generally admissible as evidence of the truth of the facts asserted in the matters it contains. Id. It is noted that the lab report is from a laboratory that is accredited by the American Association of Blood Banks (AABB). See Tex. Fam. Code. Ann. § 160.503 (Requirements for Genetic Testing).

The wage earner is deceased and could not be tested. Brandi, her mother, and three of the wage earner's siblings were tested (sisters, Josephine and Bettye , and the wage earner's brother Johnnie ). Texas courts have considered tests performed on a deceased putative father's relatives in order to determine paternity posthumously. A 1991 district court case involved a claim on behalf of an alleged daughter for benefits under a life insurance policy belonging to a deceased federal worker. Tipps v. Metropolitan Life Ins. Co., 768 F.Supp. 577, 577-579 (S.D. Tex. 1991). Texas State law controlled with respect to familial relations. Id. at 579. The court indicated that under Texas law an action to establish paternity could be maintained after the death of the father. Id. A parent-child relationship could be established by showing that the alleged father was the biological father. The court noted that clear and convincing evidence was that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, but there was no requirement that the evidence be unequivocal or undisputed. Id. at 579-580. The court explained that because there was no genetic material from the deceased alleged father, the biological relationship would have to be determined by inference. Id. at 580. The deceased worker's parents provided blood samples. The court concluded that the DNA fingerprinting evidence, in conjunction with the other evidence, established by clear and convincing evidence that the deceased worker was not the biological father. See id.

A 1996 case held that an action to establish paternity under Texas Family Code, Chapter 160, could be brought after the death of the alleged father. In the Interest of A.S.L., 923 S.W.2d 814, 817-818 (Tex. App. 1996, no writ). The court in A.S.L. explained that the trend in modern law was to accord children born out of wedlock the same legal status as other children, and to deprive a child of the opportunity to establish parentage would be contradictory of this trend. Id. at 817. A clear and convincing evidence standard is applicable to an action to establish paternity after the death of the alleged father. Id. at 818. The court noted that § 42 of the Probate Code also accorded a biological child of the decedent an opportunity to establish by clear and convincing evidence that the decedent was the father. Id.

In 2001, Texas became the first state to adopt the Uniform Parentage Act. Tex. Fam. Code Ann. Chapter 160 (Uniform Parentage Act) (Acts 2001, 77th Leg., ch. 821 (effective June 14, 2001)). The Uniform Parentage Act governs every determination of parentage in Texas. Tex. Fam. Code Ann. § 160.103(a). A father-child relationship may be established by an adjudication of the man's paternity. Tex. Fam. Code Ann. § 160.201(b). The Uniform Parentage Act provides for, and focuses on, genetic testing. A report of a genetic testing expert is generally admissible as evidence of the truth of the facts asserted in the report. Tex. Fam. Code Ann. § 160.621. The Uniform Parentage Act expressly provides that a court may order genetic testing of relatives, including brothers and sisters, when an alleged father is not available. Tex. Fam. Code Ann. § 160.508 (genetic testing when all individuals not available). The Uniform Parentage Act also permits a court to order genetic testing of a deceased individual. Tex. Fam. Code Ann. § 160.509 (deceased individual).

The results of genetic tests may be used to identify the father of a child. Tex. Fam. Code Ann. §§ 160.505, 160.631. The results of genetic testing can only be rebutted by other genetic tests. Tex. Fam. Code Ann. §§ 160.505(b); 160.631. The Uniform Paternity Act provides that “If the court finds that genetic testing under Section 160.505 does not identify or exclude a man as the father of a child, the court may not dismiss the proceeding. In that event, the results of genetic testing and other evidence are admissible to adjudicate the issue of paternity.” Tex. Fam. Code Ann. § 160.631(e).

Thus, under the Uniform Parentage Act, a Texas court would order additional testing if genetic testing identified more than one man as the possible father. Tex. Fam. Code Ann. § 160.505(c). If a court found that genetic testing did not identify or exclude a man as the father, the court would not dismiss the action and would consider the results of genetic testing and other evidence to adjudicate the issue of paternity. Tex. Fam. Code Ann. § 160.631(e). Therefore, under the Uniform Parentage Act, a Texas court would order additional testing to exclude a brother as a possible father, and also consider additional evidence if testing could not exclude a brother as the father. However, under Texas law, there is more than one method through which a child may establish a right to paternal inheritance. Tex. Prob. Code. Ann. § 42(b)(1). A child has a right to inheritance if the probate court “finds by clear and convincing evidence that the purported father was the biological father of the child.” Id. In a 2000 case, a Texas Court of Appeals upheld a determination that a child had established a right to paternal inheritance by clear and convincing evidence, even though the DNA report did not indicate that the decedent was the father. Villery v. Solomon , 16 S.W.3d 106, 109-110 (Tex. App. 2000). The Court of Appeals noted that the DNA tests were not conclusive and explained that the trial court was the sole judge of the credibility of the witnesses and the weight to be given to the testimony. Id. at 110.

Thus, tests performed on the relatives of an alleged father and other evidence may be considered in order to make a posthumous determination of whether the purported father was the biological father of the child. In the instant case, testing of the deceased wage earner's relatives resulted in a conclusion that there is a 99.99% probability of grandparentage, and at least 99.99% of the population was excluded from the possibility of being the biological grandparents of the child. Based on the conclusion contained in the lab report, it logically follows that a son of the biological grandparents is Brandi's father. Although the lab report does not expressly reference the wage earner by name, the report does exclude over 99% of the population, and does not exclude sons of the alleged grandparents as being the Brandi's father. The lab report does indicate that the “DNA patterns were determined from three siblings of the deceased alleged father.”

As noted in Tipps, the determination of paternity must be made by inference when genetic material cannot be obtained from a deceased alleged father. See T~, 768 F.Supp. at 580. Clear and convincing evidence is defined as “the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” Tex. Fam. Code Ann. § 101.007. There is no requirement that the evidence be unequivocal or undisputed. See T~, 768 F.Supp. at 580. The Paternity Evaluation Laboratory Report does not rule out the theoretical possibility that a brother of the wage earner could be the father. The signed child relationship statement from Johnnie indicates that the wage earner was Brandi's father. The child's mother, of course, contends that the wage earner is Brandi's father. On the issue of credibility, it is noted that Johnnie was one of the siblings (“alleged uncle”) who voluntarily submitted to DNA testing as part of the 1994 Paternity Evaluation.

There is clear and convincing evidence that either the wage earner or a brother of the wage earner is the father. There is no indication or allegation that a brother of the wage earner is the father. Assuming that you are satisfied that no brother of the wage earner is the father, we believe that there is clear and convincing evidence establishing that Brandi is the wage earner's child.

With respect to the first possible month of entitlement, benefits not based on disability may only be paid retroactively for up to a maximum of six months prior to the application. See 20 C.F.R. § 404.621(a)(1)(ii). Although DNA testing was performed in 1994, the first possible month of entitlement would be six months prior to January 1999 application. Although prior applications were filed in 1993 and 1996, benefits can only be paid based on the current application. The denials of the prior applications are administratively final and cannot be reopened. Because the regulations were amended in 1998, and Texas law has changed, the doctrine of res judicata does not bar consideration of the current application. See K~, 3 F.3d at 77-80 (given changes in regulations, doctrine of res judicata inapplicable, but plaintiff failed to establish any exceptions to the rules of administrative finality).

In conclusion, Brandi is entitled to child's benefits assuming that it is established that Johnnie S~, or another brother of the wage earner, is not the father. If established, child's benefits for Brandi would begin with the six-month period prior to the filing of the January 1999 application.

Tina M. Waddell
Regional Chief Counsel

By: ___________________________
Kendall M. Rees
Assistant Regional Counsel

Q. PR 03-108 Texas Law Using Y Chromosome DNA Kinship Evaluation Report for Child Relationship (NH Jerome) REPLY SSN ~

DATE: March 17, 2003

1. SYLLABUS

A Y Chromosome DNA Kinship Evaluation Report stating that, based on DNA samples from the child claimant and the NH's brother, the NH cannot be excluded as the child's biological father or other paternal relative does not meet the “clear and convincing evidence” requirement of Texas intestacy law.

2. OPINION

You have requested an opinion regarding whether a Y Chromosome DNA Kinship Evaluation Report can be considered clear and convincing evidence under Texas State law to establish that the number holder (NH) Jerome is the biological father of Bradrick (Bradrick). In our opinion, under Texas law, there is not clear and convincing evidence that Bradrick is the child of the deceased wage earner. Therefore, he is not entitled to benefits.

Bradrick died on August 6, 1988, in Houston, Texas. Bradrick was born on August. The Texas birth certificate shows no father. Bradrick's mother, Beverly , filed several applications for child's benefits on behalf of her son. All were denied due to a lack of sufficient evidence to establish that Bradrick was Jerome's child. In March 2002, Beverly submitted a Y Chromosome DNA Kinship Evaluation Report.1 The report, dated March 4, 2002, is from the Identigene laboratory and is signed by Laura Ph.D., DNA Laboratory Director. Testing was performed on Bradrick and Jerome's brother, Danny. In her written report, which was sworn to and subscribed before a notary public, Dr. G~ offered the following interpretation:

“The DNA samples from Bradrick and Danny have the same profile at each of the Y-Chromosome DNA loci tested. Based on these results, and on the assumption that Danny is the brother of Jerome cannot be excluded as the biological father, or other paternal relative, of the child, Bradrick. This Y-chromosome haplotype has not previously been observed in the database of 458 blacks.”

The Social Security Act provides that in determining whether an applicant is the child of an insured individual, the Commissioner shall apply 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. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355 (2002). Thus, as pertinent, eligibility for Social Security benefits depends on whether the child would inherit under the law of intestate succession in the state where the decedent was domiciled at the time of his death.

In this case, Texas law controls because Jerome was domiciled in Texas at the time of his death. Under the Social Security Administration regulations, paternity will be decided using the standard of proof that the state court would use. See 20 C.F.R. § 404.355(b)(2) (2002). The Texas Probate Code specifies five methods by which a right to paternal inheritance may be established. See Tex. Prob. Code Ann. § 42(b)(1) (West 2001). Those methods are: 1. The child is born under circumstances described by Section 160.201 of the Family Code; 2. The child is adjudicated to be the child of the father by court decree as provided by Chapter 160 of the Family code; 3. The child was adopted by his father; 4. The father executed an acknowledgment or like statement of paternity as provided by Subchapter D., Chapter 160 of the Family Code; or 5. The child establishes by clear and convincing evidence that the purported father was the biological father of the child. See § 42(b)(1) supra. Based on the facts recited in your inquiry, Bradrick does not qualify under the first four of those methods. Thus, the method remaining is whether he can establish paternity by clear and convincing evidence. See § 42(b)(1) supra; see also In the Interest of A.S.L., 923 S.W.2d 814, 818 (Tex. App. 1996, no writ) (a child who is not otherwise presumed to be the child of the decedent must establish paternity by the “clear and convincing evidence” standard). In the A.S.L. case, the court was persuaded by the evidence (a birth certificate that listed the child's surname as the surname of the alleged father, the mother's introduction of a series of photographs of the child with the alleged father, the mother's testimony that the child and alleged father maintained a relationship throughout the alleged father's life, and four affidavits that were provided describing occasions when the alleged father paid the mother money for the child's care or referred to the child as his child) and held that such evidence was legally sufficient to sustain an action for paternity. Id. at 818.

The courts in Texas have stated that clear and convincing evidence is that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, but that there is no requirement that the evidence be unequivocal or undisputed. See Tipps v. Metropolitan Life Insurance Co., 768 F.Supp. 577, 577-79 (S.D. Tex. 1991). The court in Tipps went on to explain that because there was no genetic material from the deceased alleged father, the biological relationship would have to be determined by inference. Id. at 580. In that case, DNA fingerprinting tests were conducted using blood samples from the parents of the alleged father, as well as a maternal sibling of the purported child. The DNA tests showed that the alleged father was not the biological father of the child. Based on the DNA test results, the Court ruled that there was clear and convincing evidence that the deceased alleged father was not the child's father. Id. Thus, tests performed on relatives of an alleged father have been relied upon in order to make a posthumous determination of paternity.

Therefore, in the case under review, the Y Chromosome DNA Kinship Evaluation Report (the DNA report) is evidence that would be considered by a Texas Court. The Texas Family Code provides that a “verified written report of a parentage testing expert is admissible at the trial as evidence of the truth of the matters it contains.” Tex. Fam. Code Ann. § 160.109(b) (West 2001). Texas does not have other specific accreditation requirements. However, we note that the DNA report is from a laboratory that is accredited by the American Association of Blood Banks (AABB).

Jerome is deceased and could not be tested. His brother, Danny, was tested. The case file does not contain any evidence suggesting that Danny was not Bradrick's brother. The Texas Family Code states that “if a genetic testing specimen for good cause and under circumstances the court considers to be just is not available from a man who may be the father of a child, a court may order the following individuals to submit specimens for genetic testing: (2) any brothers or sisters of the man.” Tex. Fam. Code Ann. § 160.508(a) (West 2001). Consequently, Texas courts have considered DNA tests performed on a deceased putative father's relatives in order to determine paternity posthumously. See Manuel v. Spector, 712 S.W.2d 219, 222-23 (Tex. App. 1986, no writ); see also Leal v. Moreno, 733 S.W.2d 322, 323-24 (Tex. App. 1987, no writ).

Based on Danny's testing, Dr. G~ opined that “Jerome could not be excluded as the biological father or other paternal relative, of the child, Bradrick .” The Texas Family Code provides:

If the parentage tests show the possibility of an alleged father's paternity and that at least 99 percent of the male population is excluded from the possibility of being the father, evidence of these facts constitutes a prima facie showing of an alleged father's paternity, and the party opposing the establishment of the alleged father's paternity has the burden of proving that the alleged father is not the father of the child.

Tex. Fam. Code Ann. § 160.110(b) (West 2001).

The DNA report showed that Bradrick and Danny matched in all six regions of DNA loci tested. However, Dr. G~ did not discuss the probability of paternity in the form of a percentage of exclusion of others of the alleged father's race. Instead, she merely stated that Bradrick could not be ruled out as Bradrick's father or other paternal relative. Thus, Danny's test results are not conclusive and cannot, considered alone, be clear and convincing evidence that Jerome is Bradrick's father under Texas law.

In our opinion, because he has not satisfied the requirements of either state or federal law, Bradrick is not entitled to benefits based on the DNA report of Danny .

Tina M. Waddell
Regional Chief Counsel

By:____________________________
Katauna J. King
Assistant Regional Counsel


Footnotes:

[1]

HHSC oversees the Texas health and human services system. http://www.hhsc.state.tx.us/about_hhsc/index.shtml (last searched on November 4, 2013).

[2]

The name is illegible, but it appears to be Laura.

[3]

Ashley states that she commenced proceedings to have court ordered child support for Karson, but she does not state when she commenced those proceedings. The only evidence that indicate Ashley may have commenced proceedings to establish child support for Karson is the Attorney General of Texas, Child Support Division, form tiled “Verification of Child Support Income,” that Ashley signed on November 23, 2009.

[4]

The laboratory that performed the DNA Y chromosome testing explains on its website that Y chromosome testing involves looking at “short tandem repeat” (STR) segments of DNA on the Y chromosome to determine whether two males could be related through paternal bloodlines. See http://chromosomal-labs.http://dnaconsultants.com/glossarycom/library/library.html/ychromosomeandpaternity (accessed March 8, 2011) and (accessed March 8, 2011). However, the test cannot distinguish a specific relationship between males who belong to the same paternal line. Id.; see also Memorandum from the Office of the Regional Chief Counsel, Region VII, to the Acting Regional Commissioner, regarding Missouri law using a DNA Y Chromosome Report to establish a child relationship (NH Lawrence K~ dated October 26, 2010).

[5]

The laboratory that performed the single grandparentage DNA test explains on its website that a grandparentage DNA test determines the statistical probability that an adult is the grandparent of a child. See http://www.gtldna.com/grandparentage.html (accessed March 8, 2011).

[6]

We are aware that Maria had two sons, the number holder and Llamil. However, we do know whether she had any additional sons.

[7]

In addition to the process provided in 42 U.S.C. § 416(h)(2)(A), the Act provides two other processes for establishing a parent-child relationship, but they are inapplicable to the instant situation. First, the number holder, prior to his death, did not acknowledge Armando in writing, and no court decreed him to be Armando’s father or ordered him to contribute to Armando’s support. See 42 U.S.C. § 416(h)(3)(C)(i). Second, the number holder did not live with or contribute to Armando’s support at the time of the number holder’s death. See id. at 416(h)(3)(C)(ii).

[8]

Under section 160.201 of the Texas Family Code, a father-child relationship exists if: (1) an unrebutted presumption of paternity arises in a marriage; (2) the man acknowledges his paternity; (3) a court adjudicates the man’s paternity; (4) the man adopts the child; or (5) the man consents to assisted reproduction and his wife gives birth. See Tex. Fam. Code § 160.201(b)(1)-(5). Armando does not meet the methods described in (1), (2), (4), or (5) because he was not born under any of those circumstances. See Tex. Fam. Code § 160.201(b)(1)-(5).

[9]

First, the DNA testing must take place in a laboratory accredited by the American Association of Blood Banks, the American Society for Histocompatibility and Immunogenetics, or another accrediting body designated by the Secretary of the United States Department of Health and Human Services. See Tex. Fam. Code § 160.503(a). Second, a laboratory designee must sign the DNA test report under penalty of perjury. See Tex. Fam. Code § 160.504(a). Third, a reliable chain of custody must be established through testimony or documentation. See Tex. Fam. Code § 160.504(b).

[10]

The laboratory is accredited by the American Association of Blood Banks, and Vince, Ph.D., the vice president and chief technical officer, certified the DNA analysis report. The report included the following evidence to satisfactorily document the chain of custody of the DNA samples: (1) Llamil J~’s and Armando’s names and photographs; (2) the names of the phlebotomists who collected the specimens; (3) the places in which the specimens were collected and the date of each collection; (4) the name of the individual who received the specimens in the testing laboratory; and (5) the dates the specimens were received.

[11]

We have addressed the issue regarding the use of a DNA Y Chromosome Report to establish a child relationship between a number holder and a child under Texas law and reached a similar conclusion. See Memorandum from the Office of the Regional Chief Counsel to the Regional Commissioner, regarding Texas law using a DNA Y Chromosome Kinship Evaluation Report to establish a child relationship (NH Jerome R~ dated March 17, 2003).

[12]

As noted, it is not clear whether Maria had additional sons other than the number holder and Llamil.

[13]

Under the first method for establishing a parent-child relationship, Section 160.201 of the Texas Family Code provides that a father-child relationship is established if there in an unrebutted presumption of paternity under section 160.204 of the Texas Family Code. Situations where there is an unrebutted presumption of paternity includes where a child is born during a marriage or within 300 days after the marriage terminated by death, annulment, declaration of invalidity, or divorce. Tex. Fam. Code Ann. § 160.204(a). They also include instances where a purported father married a child’s mother after the child’s birth in apparent compliance with the law. Id. Paternity is also presumed under section 160.204 of the Texas Family Code where, during the first two years of the child’s life, the purported father resided continuously with the child and represented to others that he was the father, as well as instances where the purported father acknowledged paternity, a court adjudicated paternity, or the father adopted the child. Id. Finally, section 160.201 provides that a child can establish a father-child relationship if the man had consented to assisted reproduction of his wife that resulted in the birth of the child. Tex. Fam. Code Ann. § 160.201(b)(5).

[14]

Under Social Security Ruling (SSR) 06-02p, we would not need to review Kasey’s relationship to the number holder if we had previously determined that he met the federal definition of a child in 42 U.S.C. § 416(h)(3) and there was no reason to question that determination. Although the NUMIDENT records the number holder as Kasey’s father, it does not appear we have ever identified Kasey as the number holder’s child for purposes of receiving survivor or auxillary benefits. Accordingly, we must review his relationship to the number holder under state law.

[15]

The Social Security Administration's policy is to question the natural legitimate status of a child, when a child is born more than 287 days after the death of the mother's husband. See Program Operations Manual System (POMS) section GN 00306.020(B)(5) (2006). In such case, the field office must develop the issue and submit the case to the Regional Chief Counsel for a legal opinion. Id.

[16]

Here, Tabassum cannot establish eligibility for benefits under the provisions of section 216(h)(3)(C)(i) of the Act, which provides that a child may be eligible for benefits if the insured individual, before his death: (1) had acknowledged in writing that the child was his or her son or daughter; (2) had been decreed by a court to be the mother or father of the child; or (3) had been ordered by a court to contribute to the support of the child. See 42 U.S.C. § 416(h)(3)(C)(i). Tabassum likewise cannot establish eligibility under subpart 216(h)(3)(C)(ii), which allows an award of child's benefits if evidence satisfactory to the Commissioner shows the insured individual was the child's father, and the insured individual was living with or contributing to the support of the child at the time the insured individual died. See 42 U.S.C. § 416(h)(3)(C)(ii). Accordingly, the provisions of section 216(h)(2)(A) of the Act apply.

[17]

The Agency will not require a person to obtain a court determination of paternity but will decide the paternity issue by using the standard of proof that the state court would use as the basis for a determination of paternity. See 20 C.F.R. § 404.355(b)(2).

[18]

The 1999 amendment also removed the presumption of paternity based upon a man consenting to be named as the child’s father on the child’s birth certificate without attempting to marry the mother. Additional changes to the Code were made in 2001. See Tex. Fam. Code Ann. § 160.204 (Vernon 2002). This Office is currently drafting a revision to POMS GN 00306.640 which will reflect the relevant changes to the Code.

[19]

Although we our guided by Texas law, we note that Supreme Court precedent supports our conclusion that the plain meaning of the term “child” would not include an unborn child. In Burns v. Alcala, 420 U.S. 575 (1975), a group of pregnant mothers from Iowa argued that their unborn children should be considered dependent children and thus entitled to Aid to Families with Dependent Children benefits. The Court concluded that the term “child” did not include unborn children in part because the ordinary meaning of the word “child” does not include an unborn child who did not have an existence separate from its mother. B~, 520 U.S. at 580-581.

[20]

Although we are concerned with the interpretation of the term “child,” we note that Texas courts have refused to construe the term “individual” to include an unborn fetus. See e.g. Sosebee v. Hillcrest Baptist Medical Center, 8 S.W.3d 427, 431-432 (Tex. App.-Waco 1999, writ denied). Recently, the Texas legislature passed the Prenatal Protection Act. As a result, for the first time, the Texas legislature defined an “individual” to include an unborn child at every stage of gestation from fertilization until birth. See Prenatal Protection Act, 78th Leg., 2003 Tex. Sess. Law Serv. Ch. 822. However, the effective date for the changes is September 1, 2003; the changes are not retroactive. See id. Further, the Act only amended the Texas Wrongful Death statute and the Penal Code. See id.; Texas Civ. Prac. & Rem. Code Ann. § 71.001(3) and (4) (Vernon Supp. 2003); Texas Penal Code Ann. § 1.07(a)(26) (Vernon Supp. 2003). The changes did not affect the Family Code. As a result, it is clear that the term “child” in the Texas Family Code as it existed prior to September 1, 1999, could not be interpreted to include an unborn child.

[21]

Assuming Megan does not qualify as the DWE’s child under 42 U.S.C. § 416(h)(2), we note that Megan may be deemed the DWE’s child if the requirements of 42 U.S.C. § 416(h)(3)(C) are met. You have already advised us that you do not believe the requirements are met. Certainly, the requirements of 42 U.S.C. § 416(h)(3)(C)(i) are not met. However, we believe further development of the record is warranted to determine whether Megan could qualify as the DWE’s child under 42 U.S.C. § 416(h)(3)(C)(ii). Under section 416(h)(3)(C)(ii), a child may be deemed to be the insured individual’s child if there is evidence satisfactory to the Commissioner to show that the insured individual is the child’s father, and the insured individual was living with or contributing to the support of the mother while she was pregnant with the child and the father died prior to the child’s birth. See Wagner v. Finch, 413 F.2d 267, 268-269 (5th Cir. 1969); Social Security Ruling 68-22; POMS GN 00306.006. We suggest that the additional evidence developed in consideration of the clear and convincing evidence analysis above be considered in relation to section 416(h)(3)(C)(ii) as well.

[22]

"Clear and convincing evidence" means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. Tex. Fam. Code Ann. § 101.007 (Vernon 2003); Hellman v. Kincy, 632 S.W.2d 216, 218 (Tex.App.--Fort Worth 1982, no writ).


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1501115048
PR 01115.048 - Texas - 02/24/2014
Batch run: 02/24/2014
Rev:02/24/2014