TN 71 (09-17)

PR 01115.049 Utah

A. PR 17-139 Determination of Eligibility for Surviving Child Benefits in Utah

Date: August 16, 2017

1. Syllabus

To inherit under Utah law, a child must establish paternity by clear and convincing evidence. In this case, the report of genetic testing and the birth certificate satisfy that standard. The report of genetic testing shows a probability of relatedness as full siblings of over 99% between the claimant and a child who was well established as the number holder’s (NH) child. This is compelling evidence that the NH is the claimant’s father. The claimant’s birth certificate lists the NH as his father. Under Utah law, where a child is born to an unmarried mother, a father’s name can only appear on the birth certificate by court order or by the written consent of the declarant father. In light of these requirements, it is likely the NH acknowledged paternity.

Under Utah law, the determination of the father-child relationship relates back to the child’s birth.

2. Opinion

Question Presented

You have asked whether T~ would be considered the child of NH C~ under Utah intestacy laws for purposes of establishing eligibility for survivor’s benefits based on a report of genetic testing. If so, you have also asked what date to use for eligibility since genetic testing occurred after the NH’s death.

Short Answer

To inherit under Utah law, a child must establish paternity by clear and convincing evidence. We believe the evidence provided is sufficient to satisfy that standard because:

(1) the report of genetic testing appears to satisfy certain statutory requirements for admissibility, and it shows a probability of relatedness as full siblings of over 99% between T~ and K~, who was born during the marriage of the NH to T~’s mother; and

(2) T~’s Utah birth certificate lists the NH as his father and, when a child is born to an unmarried mother, the NH’s name could have only been included by either a court adjudication or a voluntary acknowledgment of paternity. Lastly, under Utah law, the determination of the father-child relationship relates back to the child’s date of birth.

Background

The NH was domiciled in Utah when he died (also in Utah) in December 2016. He was divorced at the time of his death. The NH reported a previous marriage to D~, which lasted from June 1995 to July 1998. K~ was born during the marriage in March 1998; K~’s birth certificate names D~ as his mother and the NH as his father. When the NH applied for DIB in 2005, he identified K~ as his child.

The claimant, T~, was born in June 2007, after the couple’s divorce and after the NH’s 2005 application for DIB. T~’s Utah birth certificate names D~ as his mother and the NH as his father. D~ was not married at the time of T~’s birth.

In an effort to establish paternity, T~ submitted a January 2017 report of genetic testing showing a 99.9853% “probability of relatedness as full siblings” between T~[1] and K~.

Discussion

In determining the father-child relationship status for purposes of survivor’s benefits, the agency looks to the intestate succession laws of the state in which the NH was domiciled when he died. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b); POMS GN 00306.001(C)(1)(a). In this case, the NH died while domiciled in Utah. Utah’s probate code provides that for purposes of intestate succession, the parent and child relationship may be established pursuant to Utah’s Uniform Parentage Act (UPA). See Utah Code Ann. § 75-2-114(1) (West 2017), citing id. § 78B-15-201.

Under the Utah UPA, a father-child relationship may be established by an adjudication of paternity.[2] Id. § 78B-15-201(2)(c). The agency does not require an actual court adjudication, but will instead resolve the paternity question using the same standard a Utah court would apply. 20 C.F.R. § 404.355(b)(2). That means T~ must prove he is the NH’s child by clear and convincing evidence. See Utah Code Ann. § 78B-15-112 (standard of proof in a trial to determine paternity is clear and convincing evidence). Clear and convincing evidence “implies something more than the usual requirement of a preponderance, or greater weight, of the evidence; and something less than proof beyond a reasonable doubt.” Essential Botanical Farms, LC v. Kay, 270 P.3d 430, 438 (Utah 2011); see also Greener v. Greener, 212 P.2d 194, 205 (Utah 1949) (“[F]or a matter to be clear and convincing to a particular mind it must at least have reached the point where there remains no serious or substantial doubt as to the correctness of the conclusion.”).

Genetic testing can provide clear and convincing evidence of paternity. See Utah Code Ann. § 78B-15-505(1); State ex rel. S.H., 119 P.3d 309, 312 (Utah. Ct. App. 2005) (“Genetic testing is capable of determining paternity with a high percentage of accuracy and will generally satisfy any evidentiary standard employed by the court.”). However, under Utah’s UPA, genetic testing must meet certain standards to be admissible:

  • First, it must be of a type reasonably relied upon by experts in the field of genetic testing, and be performed in an accredited laboratory;

  • Second, the report of genetic testing must be signed by a laboratory designee under penalty of perjury; and

  • Third, where the laboratory provides documentation establishing a reliable chain of custody for the testing, the results are admissible without the need for testimony.

Utah Code Ann. §§ 78B-15-503, -504.

Here, the report of testing was done by LabCorp, which is accredited by the American Association of Blood Banks. See id. § 78B-15-503(1)(a);[3] Model UPA § 503 cmt. (2002) (“The accreditation requirement assures that the testing will ‘be of a type reasonably relied upon by experts in the field of genetic testing.’”). The report was also signed by a LabCorp designee under penalty of perjury. Finally, the lab documentation is also sufficient to establish a reliable chain of custody because it includes:

  1. 1) 

    The names, fingerprints, and photographs[4] of the individuals whose specimens were taken: T~ and K~;

  2. 2) 

    The name of the individuals who collected the specimens: K~;

  3. 3) 

    The place and date where the specimens were collected: a LabCorp address in Ogden, Utah, on January XX, 2017;

  4. 4) 

    The name of the individual who received the specimens in the testing lab: [illegible];

  5. 5) 

    The date the specimens were received: January XX, 2017.

Utah Code Ann. § 78B-15-504(2). Thus, the genetic testing report appears to meet the Utah UPA’s standards for admissibility.

Turning to the actual results of the testing, the lab reported that the sibling index for full versus half sibling is 6,786 to 1, for a “probability of relatedness” as full siblings of 99.9853%. This is insufficient to establish a presumption of paternity based on genetic testing under Utah’s UPA, which specifically limits the presumption to testing that shows a 99% probability of paternity (rather than mere relatedness). See id. § 78B-15-505(1). However, because K~ was born during the marriage of D~ and the NH, he is presumed to be the NH’s child. See id. § 78B-15-204(1)(a). Further, the NH acknowledged K~ as his child in his 2005 DIB application. Because K~’s relationship as the natural child of the NH is well established, the genetic test results are compelling evidence of the NH’s paternity of T~. See, e.g. id. § 78B-15-508 (providing for genetic testing of other family members, including “other children of the man and their mothers,” where a genetic-testing specimen is not available from the putative father).

T~’s birth certificate, which lists the NH as his father, further supports this conclusion. Under Utah law, where a child is born to an unmarried mother, a father’s name can only appear on the birth certificate by court order or by the written consent of the declarant father. See id. § 26-2-5(5)-(7). In light of these requirements, it is likely the NH acknowledged paternity.[5]

We believe that the genetic testing results and birth certificate provide clear and convincing evidence that the NH is T~’s father for purposes of Utah intestacy laws. In addition, under Utah law, this determination is retroactive to the date of the child’s birth since Utah does not distinguish between legitimate and illegitimate children. See, e.g., id. § 78B-15-202 (once paternity is established under the Utah UPA, the child has the same legal rights as a child born to parents who are married to each other, including the right to inherit through intestate succession).

Conclusion

The evidence provided is sufficient to establish that T~ is the NH’s child under Utah law, and that determination relates back to the time of T~’s birth.

B. PR 16-165 DNA based on relative other than deceased NH to establish paternity and possible retroactivity of benefits

Date: July 26, 2016

1. Syllabus

The number holder (NH) was domiciled in Utah when he died in September 2015; therefore, we look to the Utah intestacy law to determine the parent-child relationship. To inherit under Utah law, a child must establish paternity by clear and convincing evidence. Utah does not distinguish between legitimate and illegitimate children. The Utah intestacy statute provides that an individual is the child of their natural parents, regardless of marital status. Once paternity is established by clear and convincing evidence, the child has the same legal rights as a child born to parents who are married to each other, including the right to inherit through intestate succession. The claimant’s mother provided a DNA test report showing a 99.9% probability of relatedness between the claimant and the NH; but the report does not meet Utah’s standards for admissibility because the director did not sign under penalty of perjury and the report does not provide enough information to establish a reliable chain of custody. Even if these issues were corrected, the report would still not be clear and convincing evidence of paternity because the report gives a probability of “relatedness” rather than a probability of “paternity.” An admissible genetic testing report, combined with additional evidence, could rise to the level of clear and convincing evidence. Such evidence might include credible statements from witnesses explaining the relationship between the NH and the claimant, the NH and claimant’s mother, and circumstances related to the claimant’s conception and birth. Assuming the claimant can prove paternity, he will be considered the NH’s son from the time of birth.

2. Opinion

Questions Presented

You asked whether D~ would be considered the child of NH R~ under Utah intestacy laws based on genetic testing showing D~ is likely a blood relative. You also asked whether D~ could retroactively prove eligibility for benefits since genetic testing occurred after the NH’s death.

Short Answers

To inherit under Utah law, a child must establish paternity by clear and convincing evidence. Genetic testing results can satisfy this burden, but only when they meet certain standards. Since D~’s genetic testing report was not signed under penalty of perjury, does not establish a reliable chain of custody for the testing, and shows only a probability of “relatedness,” it cannot establish paternity. D~ and his mother could provide additional evidence about the genetic testing and the circumstances of D~’s conception and birth, but even this may not be enough to prove paternity under Utah law. Finally, assuming D~ could establish paternity, the agency would consider him the NH’s child from the time of birth.

Background

The NH was domiciled in Utah when he died in September 2015. His death certificate shows he was never married. It appears the NH never acknowledged having a son and did not list D~ as his child on his application for disability insurance benefits. Additionally, D~’s birth certificate does not list a father. In an effort to establish paternity, D~’s mother provided the field office with a report of genetic testing showing a 99.9% “probability of relatedness” between D~ and the NH’s father, R~. According to the report, the likelihood D~ is biologically related to R~ is 1,850 to one. The report was prepared in November 2015, almost two months after the NH’s death.

Discussion

The Report of Genetic Testing Does Not Prove Paternity

As relevant here, in determining the father-child relationship status for purposes of survivor’s benefits and a lump sum death payment, the agency looks to the intestate succession laws of the state the NH was domiciled in when he died. 42 U.S.C.A. § 416(h)(2)(A); 20 C.F.R. § 404.355(b); POMS GN 00306.001(C)(1)(a).

In this case, the NH died while domiciled in Utah. Utah’s probate code provides that for purposes of intestate succession, the parent and child relationship may be established pursuant to Utah’s Uniform Parentage Act (UPA). See Utah Code Ann. § 75-2-114(1) (West 2015), citing id. § 78B-15-201. As relevant here, D~ may establish a father-child relationship with the NH with an adjudication of paternity.[6] Id. § 78B-15-201(2)(c). The agency does not require an actual court adjudication, but it will resolve the paternity question using the same standard a Utah court would apply. 20 C.F.R. § 404.355(b)(2). That means D~ must prove he is the NH’s child by clear and convincing evidence. Utah Code Ann. § 78B-15-112 (standard of proof in a trial to determine paternity is clear and convincing evidence). An issue is proved by clear and convincing evidence when “there remains no serious or substantial doubt as to the correctness of the conclusion.” In re S.Y.T., 267 P.3d 930, 944 (Utah Ct. App. 2011) (quotation and citation omitted). This standard is greater than a preponderance of the evidence but less than evidence beyond a reasonable doubt. see also Evidence, Black’s Law Dictionary (10th ed. 2014).

One form of clear and convincing evidence is genetic testing. When testing shows a man has at least a 99% probability of paternity with a combined paternity index of at least 100 to one, the man is the presumptive father of the child. Utah Code Ann. § 78B-15-505(1). However, the genetic testing must meet certain standards to be admissible. First, the testing “must be of a type reasonably relied upon by experts in the field of genetic testing” and be performed in an accredited laboratory. Id. § 78B-15-503(1). Second, the report of genetic testing must be signed by a laboratory designee under penalty of perjury. Id. § 78B-15-504(1). Finally, the laboratory must provide documentation establishing a reliable chain of custody for the testing.[7] Id. § 78B-15-504(2). Without this information, the report of genetic testing is inadmissible unless further testimony is provided. Id. If all of these conditions are met, the court will accept the genetic testing report and issue an order establishing paternity. See id. § 78B-15-505(4).

Here, the genetic testing report provided by D~’s mother does not meet the Utah UPA’s standards for admissibility. First, although a laboratory director verified the testing results and signed the report, the director did not sign under penalty of perjury. Second, although the report shows that testing was administered at an accredited laboratory, it does not provide enough information to establish a reliable chain of custody. Thus, we do not think a Utah court would admit the genetic testing report.

Even if these admissibility issues were corrected, though, the report would still not be clear and convincing evidence of paternity because the report gives a probability of “relatedness” rather than a probability of paternity. It is possible that an admissible genetic testing report, combined with additional evidence, could rise to the level of clear and convincing evidence. Such evidence might include credible statements from witnesses explaining the relationship between the NH and D~, the NH and D~’s mother, and circumstances related to D~’s conception and birth. If the field office receives additional evidence, we recommend returning the case to us for further evaluation.[8]

If Paternity Is Established by Clear and Convincing Evidence, D~ Would Be Considered the NH’s Child from the Date of His Birth

Assuming D~ could establish paternity, you also asked whether there is “retroactivity” under state law. This question presumably references GN 00306.055(A)(3), which provides that, in the case of an illegitimate child, an act or event conferring inheritance rights generally has effect only from the date of such event. However, Utah does not distinguish between legitimate and illegitimate children. The Utah intestacy statute provides that an individual is the child of their natural parents, regardless of marital status. Utah Code Ann. § 75-2-114(a). Similarly, once paternity is established by clear and convincing evidence under the Utah UPA, the child has the same legal rights as a child born to parents who are married to each other, including the right to inherit through intestate succession. Id. § 78B-15-202. And when the court adjudicates paternity, it will order the Office of Vital Records to issue an amended birth certificate listing the child’s newly established father. Id. § 78B-15-622. This means an adjudication of paternity relates back to the date of the child’s birth.

Conclusion

The report of genetic testing provided by D~’s mother is not enough to prove D~ is the NH’s son under Utah law. The agency could consider additional evidence about the testing and the circumstances of D~’s conception and birth, but this still may not prove paternity by clear and convincing evidence. Lastly, assuming D~ can prove paternity, he will be considered the NH’s son from the time of birth.

C. PR 15-009 Validity of Genetic Testing on Paternal Grandmother, NH – James - Reply

DATE: October 3, 2014

1. SYLLABUS

Under Utah law, a genetic test may be used as clear and convincing evidence of paternity when it is a reliable report issued with results meeting the statute’s presumption of paternity. A reliable genetic test must be of a type reasonably relied upon by experts in the field of genetic testing and performed in a testing laboratory accredited by the American Association of Blood Banks or another accrediting body listed in the statute and may use a specimen consisting of a variety of bodily tissues or fluids. If a genetic testing specimen is not available from a man who may be the father of a child, for good cause and under extraordinary circumstances, the Court may order genetic testing of the parents of the man. The genetic test report must sufficiently demonstrate a reliable chain of custody to be admissible without testimony. The testing laboratory must provide documentation including names, photographs and fingerprints of the individuals whose specimens were taken, the places and dates of the collection, and the names of the individual who collected the specimens and received the specimens in the testing laboratory. If the genetic test complies with these requirements, a man is presumed to be the father of a child if genetic test results disclose the man has a probability of paternity of 99% or higher and a combined paternity index of at least 100.

In this case, the genetic test results do not meet the statutory requirements of eligibility under Utah law because it did not include documentation showing the chain of custody. Further, the lab could not confirm the identity of the individuals providing the specimens. Therefore, the results would not be admissible evidence of paternity.

2. OPINION

Issue Presented

You have requested a legal opinion on whether genetic testing performed on Diane (hereinafter “paternal grandmother”) the mother of deceased NH James (hereinafter “NH”) constitutes viable proof of a father-child relationship between the NH and his alleged child Ryan (hereinafter “the child”).

Short Answer

Initially, there is insufficient information to conclusively determine which state’s law should be applied to this analysis. However, based on available information, the NH was domiciled in either Utah or China at the time of his death. Under the laws applied for either jurisdiction, the genetic testing results from Affiliated Genetics do not establish a reliable chain of custody, and would not be admissible evidence of paternity.

Background

According to the information you provided, the child was allegedly born to the NH and Collett (hereinafter “mother”) in Millcreek Utah in 2004. The birth certificate listed the mother’s information, but provided no information about the child’s father. You stated that you have no information regarding the marital status of the NH and the mother, whether the child has inheritance rights from the NH, and whether the child was adopted by the NH. You indicated that the child’s birth certificate was never amended to show information regarding the father, and there was never a court order of support for the NH to support the child. On March XX, 2007, the NH died while teaching in China.

The mother made a previous application for surviving child’s benefits on September 28, 2007, which was denied for lack of relationship.

The mother filed this application on July XX, 2013. The mother provided a statement that she had not engaged in a sexual relationship with the NH’s brother. Also included in the application were test results from Affiliated Genetics dated July XX, 2013, showing that the mother, the alleged paternal grandmother, and the child underwent genetic testing. The genetic test reported a cumulative relationship index of 902.5909, and the probability that the alleged paternal grandmother was related to the child as a second-degree relative was 99.8893%.

Affiliated Genetics also provided a statement that noted that the collection of specimens for the genetic test “was not in compliance with established sample collection guidelines for a legally binding test,” and the results of the test cannot be considered legally admissible for use in a court of law. We contacted Affiliated Genetics to determine why the test was not in compliance, and a representative confirmed that they could not establish a chain of custody for the specimens as required for legally admissible tests.

DISCUSSION

1. Domicile

Domicile is the place where a person has his true, fixed, and permanent home to which he intends to return whenever away. POMS GN 00305.001(B)(2). The agency applies the law of the state where the NH was domiciled at the time of his death. 42 U.S.C. § 416(h)(2)(A)(2010); 20 C.F.R. 404.355(b)(4) (2010); POMS GN 00306.001(C)(2)(a)-(b). Pursuant to the POMS, if the NH was domiciled in a jurisdiction not defined in the Act as a State, the agency applies the law that the courts of District of Columbia (D.C.) would apply. See POMS GN 00305.001(A)(2)(b); 00306.001(C)(2)(b). The agency applies the version of the state’s law that is in effect when the child’s claim is adjudicated, unless the version in effect when the NH died would be more beneficial to the child. See POMS GN 00306.075(B)(2)(b).

The records that you provided indicate that the NH died while teaching in China, but he previously resided in Utah. There is no additional information regarding whether the NH intended to return to Utah as his true, fixed, and permanent home, even though he was living in China at the time of his death. Thus, the following analysis of this issue applies both the laws of the state of Utah, and the laws of D.C. Because under either jurisdiction’s law, no relationship can be established based on the genetic test results provided, there is no need to resolve the question of domicile at this time.

2. Validity of Genetic Testing Under Utah Law

The agency applies the intestate succession laws of the appropriate state to determine a child’s relationship to the NH. 42 U.S.C. § 416(h)(2)(A); POMS GN 00306.001(C)(1)(a). The Utah Uniform Probate Code provides that the parent and child relationship is established as provided in the Utah Uniform Parentage Act. Utah Code Ann. § 75-2-114(1) (2014). Under the Utah Uniform Parentage Act, the father-child relationship can be established in a number of ways. See Utah Code Ann. § 78B-15-201(2) (2008). As applicable here, the relationship can be established by an adjudication of paternity. Id. at § 78B-15-201(2)(c). Even though Utah law requires an actual adjudication of paternity, an adjudication is not required for Social Security purposes if paternity can be established using the standard of proof that a Utah court would apply. 20 C.F.R. § 404.355(b)(2). Under Utah law, the standard of proof in an adjudication of paternity is “by clear and convincing evidence.” Utah Code Ann. § 78B-15-112 (2008).

A genetic test may be used as clear and convincing evidence of paternity when it is a reliable report issued with results meeting the statute’s presumption of paternity. Utah Code Ann. §§ 78B-15-503 (2008), 78B-15-505 (2008). A reliable genetic test must be “of a type reasonably relied upon by experts in the field of genetic testing and performed in a testing laboratory accredited by . . . the American Association of Blood Banks” or another accrediting body listed in the statute, and may use a specimen consisting of a variety of bodily tissues or fluids. Id. at § 78B-15-503. If a genetic testing specimen is not available from a man who may be the father of a child, for good cause and under extraordinary circumstances, the Court may order genetic testing of the parents of the man. Id. at § 78B-15-508(1)(a).

The report of the genetic testing must sufficiently demonstrate a reliable chain of custody to be admissible without testimony. Utah Code Ann. § 78B-15-504 (2008). The testing laboratory must provide documentation including names, photographs and fingerprints of the individuals whose specimens were taken, the places and dates of the collection, and the names of the individuals who collected the specimens and received the specimens in the testing laboratory. See id. at § 78B-15-504(2)(a)-(f).

If the genetic test complies with these requirements, a man is presumed to be identified as the father of the child if the results disclose that the man has a probability of paternity of 99% or higher, and a combined paternity index of at least 100. Utah Code Ann. § 78B-15-505(1) (2008). Results meeting these two thresholds may be rebutted only by other genetic testing, which either excludes the man as the father of the child, or identifies another man as a possible father of the child (by also meeting the above requirements). Id. at § 78B-15-505(b); see also POMS GN 00306.645 (presumption of paternity created by genetic test yielding paternity index of at least 100). We note that this POMS provision does not accurately reflect current Utah law, which requires both a combined paternity index of at least 100 and at least a 99% probability of paternity. See Utah Code Ann. § 78B-15-505(a)-(b). The POMS refers only to the paternity index requirement. See POMS GN 00306.645. Further, we note that Utah statutes refer to the requirement for a “combined paternity index,” while the POMS only references “paternity index.” In addition, the POMS fails to note the statutes discussing chain of custody requirements. See id. We recommend that the POMS be updated to track the statutory language and reflect the current statutory requirements for a presumption based on genetic testing.

Here, the genetic test results do not meet the statutory requirements for reliability under Utah law. Affiliated Genetics, the testing laboratory, was accredited by the American Association of Blood Banks. The test report reflected that there was a cumulative relationship index of 902.5909, and that there was a 99.8893% probability that the paternal grandmother was related to the child as a second-degree relative. However, the test results indicated that the collection of specimens “was not in compliance with established sample collection guidelines for a legally binding test,” and did not include documentation showing chain of custody as required under Utah law. Utah Code Ann. § 78B-15-504(2)(a)-(f). Further, Affiliated Genetics stated that they could not confirm the identity of the individuals providing the specimens. See id. at § 78B-15-504(2)(a). Thus, the report of genetic testing does not establish a reliable chain of custody, and is not of a type reasonably relied upon by experts in the field of genetic testing. See id. at §§ 78B-15-503; 78B-15-504.

3. Validity of Genetic Testing Under D.C. Law

The D.C. child inheritance statute provides that children may inherit from their mother or their father if parenthood has been established. D.C. Code § 19-316 (2014). Under D.C. law, a father-child relationship is established by an adjudication of a man’s parentage. D.C. Code § 16-909 (2013); POMS GN 00306.450. We note that this POMS provision does not accurately reflect current D.C. law, which has been substantially revised. See POMS GN 00306.450(1)(b); D.C. Code § 16-909 (2013) (noting that D.C. Law 18-33 § 3(d) (2008) removed the language requiring preponderance of the evidence). We recommend that the POMS be updated to reflect the current statutory requirements. As noted above, even though D.C. law requires an actual adjudication of paternity, an adjudication is not required for Social Security purposes if paternity can be established under the standard of proof D.C. courts would apply. 20 C.F.R. § 404.355(b)(2). If there is no presumption of paternity established through marriage or a written statement from the putative father acknowledging paternity, a conclusive presumption of parentage can be created upon a result of a genetic test and an affidavit from a laboratory generally acknowledged as reliable by accreditation bodies designated by the Secretary of the U.S. Department of Health and Human Services. Id. at § 16-909(b-1)(1). The test must indicate a 99% probability that the putative father is the father of the child. Id.; D.C. Code § 16-909.01(a)(2) (2009).

When a genetic test result indicates a 99% probability that the putative father is the father of the child, and the test result is of the type generally acknowledged as reliable by an accreditation body, there is a conclusive presumption of paternity upon submission of the result and a certifying affidavit from the laboratory. D.C. Code § 16-2343.01(e)(1) (2009). Test results may be admissible, and competent evidence of the chain of custody of the test specimens is established through certified documentation. Id. at § 16-2343.01(a)(1)-(2); POMS GN 00306.450(4)(c). It is unclear under D.C. law whether the Court would accept genetic testing on the putative paternal grandparents when a specimen from the putative father is unavailable, but it seems likely that courts would accept such evidence since parenthood determinations may be made subsequent to the death of a putative father. See D.C. Code § 19-316 (1981).

Here, the genetic test results do not meet the statutory requirements for reliability under D.C. law. Affiliated genetics did not provide a certifying affidavit, and in fact provided a letter stating that the collection of specimens “was not in compliance with established sample collection guidelines for a legally binding test.” Further, Affiliated Genetics stated that it did not confirm the identity of those providing specimens. Thus, there was no competent evidence of the chain of custody of the test specimens as required under D.C. law. See D.C. Code § 16-2343.01(a)(2).

CONCLUSION

Under both Utah and D.C. law, genetic testing results must be reliable. See Utah Code Ann. § 78B-15-503 (2008), D.C. Code § 16-2343.01(e)(1) (2008). Test results are only admissible in evidence when a reliable chain of custody has been established. Utah Code Ann. § 78B-15-504 (2008); D.C. Code § 16-2343.01(a)(2) (2008). Here, though the genetic testing was performed in an accredited laboratory, no reliable chain of custody was established, and the test would not be reasonably relied upon to establish paternity in the courts of either jurisdiction.

John Jay Lee
Regional Chief Counsel

By: Keeya Jeffrey
Assistant Regional Counsel

D. PR 06-185 Relationship of Child to NH in Utah (NH Roger D~)

DATE: July 5, 2006

1. SYLLABUS

Under Utah law, the number holder is presumed to be the claimant's father because the child was born within 300 days after the marriage of the number holder and the claimant's mother was terminated by divorce.

If the relationship could not be presumed as a byproduct of the marriage, the number holder would still be determined to be the father because genetic testing resulted in a paternity index of at least 100 to 1.

2. OPINION

Issue

You have requested an opinion concerning whether Halston S~ ("Halston"), a minor child, can be entitled to child's benefits on the record of his alleged father, number holder ("NH") Roger D~.

Short Answer

Under Utah law, the NH is presumed to be Halston's father because Halston was born within 300 days after the marriage of the NH and Halston's mother was terminated by divorce. Furthermore, the NH is presumed to be Halton's father because genetic testing resulted in a paternity index of at least 100 to 1. (We note that POMS GN 00306.645(3)(b) incorrectly lists the 150 to 1 standard, which was changed in May 2005.) Therefore, Halston qualifies for child's benefits on the NH's account.

BACKGROUND

The available facts in this case indicate that Halston was born in Utah, in February 1998. Halston's natural mother, Shirley E. A~ ("Shirley"), did not list a father's name on the birth certificate and explained that she gave the child the last name "S~" to match her other children's last names. Shirley alleged that she and the NH were married in May 1997, and that the child was conceived during the marriage. Shirley and the NH divorced on September 26, 1997, prior to Halston's birth.

The NH was awarded Title II disability insurance benefits as of March 2004. The NH did not list any dependents on his application, and never acknowledged the child or provided support. Shirley filed for auxiliary child's benefits on Halston's behalf on March 21, 2006.

Genetic paternity testing results revealed a combined paternity index of 37,017 to 1, indicating the NH's probability of paternity was 99.99 percent. These results were presented to the court with an issuance of a "Notice of Results of Genetic Testing." The court's "Results of Genetic Testing" order stated that under Utah law, a man is presumed to be the natural father of a child if genetic testing results indicate a probability of paternity of at least 99 percent and a paternity index of at least 100 to 1.

The information you provided included Halston's birth certificate, a copy of the "Results of Genetic Testing," a copy of a final divorce decree between Shirley and the NH dated September XX, 1997, and a Report of Contact completed on March 21, 2006, explaining the facts of this case. The information provided did not contain documentation to verify the date of the marriage between Shirley and the NH or the NH's domicile at the time of Halston's application for child's benefits in March 2006.

Federal Law

To be entitled to child's benefits on the account of a wage earner who is receiving disability insurance benefits, a child must meet the regulatory definition of "child," be dependent upon the wage earner, file an application, be unmarried, and be under age 18. 42 U.S.C. § 402(d)(1) (2000); 20 C.F.R. § 404.350(a) (2005).

In determining the relationship of a child to a NH, the applicable law is the law of the state where the NH was domiciled when the child filed his application for benefits. POMS GN 00306.001(2)(a). Specifically, the Agency looks to that state's law to determine whether the child would be considered the child of the NH for purposes of the distribution of intestate personal property. POMS GN 00306.001(1)(a); 20 C.F.R. § 404.355. Thus, assuming the NH was domiciled in Utah at the time of Halston's application, Utah intestacy law determines whether Halston was legally the NH's "child" for purposes of entitlement to child benefits on the NH's account.

Utah State Law

Utah law provides that "[a] man is presumed to be the father of a child if . . . he and the mother of the child were married to each other and the child is born within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a decree of separation." Utah Code Ann. §§ 78-45g-204(1)(b); see id. § 78-45g-102(20) ("'Presumed father' means a man who, by operation of law under Section 78-45g-204, is recognized as the father of a child until that status is rebutted or confirmed as set forth in this chapter."). Moreover, a presumption of paternity arises under Utah law if genetic testing results in a paternity index of at least 100 to 1. Id. § 78-45g-505.

DISCUSSION

To be entitled to child's benefits on the account of a wage earner who is receiving disability insurance benefits, a child must meet the regulatory definition of "child," be dependent upon the wage earner, file an application, be unmarried, and be under age 18. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a).

The first prong of the analysis rests on whether Halston meets the regulatory definition of "child." A natural child of the wage earner meets the regulatory definition of child. 20 C.F.R. § 404.355. In determining a child's relationship to a NH in Utah, the Agency applies Utah law to determine whether the child would be considered the NH's child for purposes of the distribution of intestate personal property. POMS GN 00306.001(1)(a); 20 C.F.R. § 404.355; see also Utah Code Ann. § 75-2-114(1) (for purposes of intestate succession, a parent child relationship may be established as provided in the Utah Uniform Parentage Act).

Under Utah law, a presumption of paternity arises if the NH and the child's mother were "married to each other and the child [was] born within 300 days after the marriage [was] terminated . . . by divorce." Utah Code Ann. § 78-45g-204(1)(b); see also POMS GN 00306.020(A)(1). Based on the facts you provided, Halston was born in February 1998, less than 300 days after Shirley and the NH divorced in September 1997. The NH is, therefore, Halston's presumed natural father.

The presumption of paternity also applies based on the genetic testing results you provided. Pursuant to Utah Code Ann. § 78-45g-505, a man is presumed to be the natural father of a child if genetic testing results in a paternity index of at least 100 to 1. Here, genetic testing in January 2006 revealed a paternity index of 37,017 to 1, which clearly surpassed the 100 to 1 standard.

Halston, therefore, meets the regulatory definition of "child." See 20 C.F.R. § 404.350(a); Utah Code Ann. §§ 78-45g-204(1)(b) (presumption of paternity arises when the child is born within 300 days after divorce); 78-45g-505 (presumption of paternity based on genetic testing results); § 78-45g-102(20) (definition of "presumed father"); POMS GN 0306.645(2)(a),(3); see also POMS GN 00306.001(C)(4) (if a son or daughter is a "child" for purposes of the Social Security Act, the father or mother is a "parent" for purposes of that law").

Second, to be entitled to child's benefits, Halston must be "dependent" upon the NH. A natural child of the insured NH is deemed dependent upon him. 20 C.F.R. § 404.361(a); POMS GN 00306.010. As discussed above, a presumption of paternity applied, and you did not indicate that the NH rebutted that presumption. Thus, Halston is dependent on the NH, satisfying the second prong. See 20 C.F.R. § 404.350(a).

Halston also meets the remaining prongs of the analysis because he filed an application for benefits (via Shirley on March 21, 2006), he is unmarried, and he is under 18 years of age (DOB February 1998). See 20 C.F.R. § 404.350(a). Therefore, Halston satisfied all of the requirements for entitlement to child's benefits on the NH's account.

CONCLUSION

Accordingly, we conclude that based on the presumption of paternity, Halston is the "child" of the NH under Utah law. Furthermore, we conclude that Halston satisfies all of the remaining requirements for entitlement to auxiliary child's benefits on the NH's account.

Deana R. E~-L~

Regional Chief Counsel, Region VIII
By Alexess D. R~
Assistant Regional Counsel

E. PR 00-095 Establishing Paternity by Genetic Testing in Utah

DATE: January 7, 2000

1. SYLLABUS

Under Utah law effective 7/1/97, a man is presumed to be the natural father of a child if genetic testing results in a "paternity index" of a least 150 so long as the testing meets certain reliability standards. The University of Utah DNA Diagnostic Laboratory has been accredited for paternity testing by the American Association of Blood Banks. Therefore, test results from that laboratory may be accepted as reliable. Paternity established as a result of genetic test results meeting the threshold index of at least 150 legitimate the child from birth.

2. OPINION

This memorandum addresses three virtually identical requests for opinions regarding the use of genetic testing to establish paternity in Utah. Specifically, you have asked whether genetic test results that appear to establish the number holders (NHs) as the fathers of children who have applied for child's benefits meet the requirements of Utah law, and if so, whether the children were "legitimate" from birth. As discussed below, we believe the answer to both of your questions is "yes" in each of the three cases.

Facts. Based on the information you have provided, the facts of these three situations appear to be as follows.

Alex H. L~, alleged child of NH Troy R. T~. Alex (a female) was born May XX, 1991, to Kelly P. W~. At the time of her birth, her mother was unmarried and the father apparently was not named on the birth certificate. Accordingly, she was given her mother's surname.

In March 1995, the NH was found eligible for disability benefits as of January 1995. The NH died June XX, 1999, while domiciled in Utah. Following his death, genetic testing by the University of Utah DNA Diagnostic Laboratory (hereafter, DNA Lab) established a paternity index of 12,543, which meant there was a 99.992 percent probability that the NH was Alex's father. Based on these test results, on August XX, 1999, the Utah Bureau of Vital Records amended Alex's birth certificate to show the NH as her father.

Morgan R. M~, alleged child of NH Reg D. W~. Morgan (a male) was born October XX, 1996, to Sherri L. M~ B~. The mother apparently was not married at the time of Morgan's conception or birth, and the father was not named on the birth certificate. The NH died April XX, 1998, while domiciled in Utah. He was married and had a natural legitimate child who received survivor benefits until March 1999. Genetic testing by the DNA Lab in March 1999 established a paternity index of 1393, which meant there was a 99.928 percent probability that the NH was Morgan's father. Apparently the mother did not use this information to amend Morgan's birth certificate to show the NH as his father.

Bryson T. H~, alleged child of NH Collin M. F~. Bryson (a male) was born May XX, 1999, to Ariane D. H~. The mother apparently was not married at the time of Bryson's conception or birth, and the father was not named on the birth certificate. The NH died July XX, 1999, while domiciled in Utah; he had never married. Genetic testing by the DNA Lab in September 1999 established a paternity index of 565,564, which meant there was a 99.9998 percent probability that the NH was Morgan's father. Apparently the mother did not use this information to amend Bryson's birth certificate to show the NH as his father.

Discussion. Under a Utah statute that became effective July 1, 1997, a man is presumed to be the natural father of a child if genetic testing results in a "paternity index" of at least 150 so long as the testing meets certain reliability standards. The presumption may be rebutted only by a second similarly reliable test that results in an exclusion. UTAH CODE ANNOTATED (UCA) § 78-45a-10.

The term "paternity index" is defined in the State of California Family Code in the following way:

"Paternity index" means the commonly accepted indicator used for denoting the existence of paternity. It expresses the relative strength of the test results for and against paternity. The paternity index, computed using results of various paternity tests following accepted statistical principles, shall be in accordance with the method of expression accepted at the International Conference on Parentage Testing at Airlie House, Virginia, May 1982, sponsored by the American Association of Blood Banks.

CAL. FAM. CODE § 7555 (West 1999). Under this scheme, a paternity index of 100 is the equivalent of a 99.0 percent "probability of paternity." The index increases exponentially from that point. For example, a paternity index of 178 means a probability of paternity of 99.4, an index of 1359 means a probability of 99.93 percent, and an index of 50,000 means a probability of 99.998 percent. See Christopher L. Blakesley, Scientific Testing and Proof of Paternity: Some Controversy and Key Issues for Family Law Counsel, 57 La. L. Rev. 379, 386 (1997); "Paternity Test Question and Answer," found on the website for the University of Utah DNA Diagnostic Lab (http://medstat. med. utah.edu/dnadx/).

In each of the cases you have presented, the paternity index and probability of paternity are more than sufficient to establish a presumption that the NH is the child's father. See, e.g., Child Support Enforcement Agency v. Doe, 963 P.2d 1135, 1139 (Haw. App. 1998) (finding that a report indicating a paternity index of 643 and a probability of paternity of 99.84 percent established a presumption of paternity); see also POMS PR 01029.010, PR 93-001 "Use of Genetic Testing to Establish Parent-Child Relationship Posthumously in South Dakota - REGION VIII (stating, without reference to a paternity index, that a 99.99 percent probability of paternity was sufficient to establish "clear and convincing" proof of paternity under South Dakota law); Memorandum, Questionable Child Relationship - Lord Mansfield's Rule - Utah, CC VIII (P~) to RC, SSA, Nov. 30, 1994 (noting that a paternity index of 1637 meant a probability of paternity of 99.93 and advising that the genetic evidence established that the deceased wage earner was the father of the child who had applied for benefits) (copy attached).

We are also confident that the University of Utah DNA Diagnostic Laboratory has been properly accredited for paternity testing and therefore the test results may be accepted as reliable. Aside from the fact that the State of Utah itself relied upon the test results in naming Troy T~ as Alex's father on his amended birth certificate, this laboratory has been accredited by the American Association of Blood Banks (AABB), which is the primary accreditor of parentage-testing laboratories. See State of Montana v. Weeks, 891 P.2d 477, 488 (Mont. 1995).

Finally, we agree with your conclusion that the evidence in each case is sufficient to establish paternity as of the date of the child's birth, since the evidence permits the amendment of each child's birth certificate to name the NH as the father, whether or not the amendment was actually made.

F. PR 00-047 Questionable Child Relationship - Lord Mansfield's Rule

DATE: December 20, 1994

1. SYLLABUS

Under Utah law, the presumption of legitimacy of a child born during a marriage may be overcome by proof beyond a reasonable doubt, but is subject to the Lord Mansfield rule. Certain nontraditional evidence, such as blood test results, is capable of conclusively rebutting the presumption of legitimacy. Nothing in Lord Mansfield's rule prohibits the introduction of blood test or tissue typing test results, or testimony from witnesses other than the putative parents, on the issue of paternity.

In the subject case, the presumption of legitimacy is successfully rebutted by DNA tests showing a 99.93% probability of paternity for the NH; semen tests after the husband's vasectomy; and third-party statements. The remaining question is whether the child qualifies as the child of the NH (the alleged biological father) under Utah law. The genetic test results in this case meet the requirement of Utah law that a child born "out of wedlock" is a child of the father if paternity is established by clear and convincing proof after the father's death.

2. OPINION

You have requested our opinion as to whether Cassandra M~ qualifies as the child of deceased wage earner Robert S~ for purposes of establishing her eligibility to receive child's benefits under Title II of the Social Security Act ("the Act"), in light of the fact that Cassandra was born during the marriage of Pamela and Randy M~. For the reasons discussed below, we believe that she qualifies for such benefits.

Based on your memorandum and the copies of documents you provided, we find the facts of this situation to be as follows. On February XX, 1990, Cassandra was born to Pamela M~, who was married to Randy M~. The couple separated in April 1990, and a decree of divorce was entered on July XX, 1990. From August 1990 to August 1993, Pamela and Cassandra lived with Robert S~.

On February XX, 1994, Robert died in a mine accident in Price, Utah. Pamela filed an application for child's insurance benefits on behalf of Cassandra in April 1994, alleging that Robert was Cassandra's father. In support of her claim, she submitted the results of March 1994 "DNA typing for Paternity Testing [] performed on blood samples" from Cassandra, Pamela, and Robert. The "Interpretation" section of the report of the testing states: "Robert W. S~ cannot be excluded as being the father of Cassandra Ann M~. The Probability of Paternity for Robert W. S~, based on this data . . . is 99.93%."

Pamela subsequently submitted the results of an August 1994 analysis of Randy M~'s semen, which showed that he had no sperm (apparently as a result of a vasectomy in 1984 [9] ). The physician conducting the analysis concluded that Randy could not father any children. Also submitted in support of the claim were statements from friends and family members indicating that Robert had acknowledged his paternity of Cassandra; an Easter card stating "Hi, Granddaughter!", which Robert's mother sent to Cassandra; and a statement from Randy asserting that as a result of the DNA testing he "now know[s] Cassandra is the daughter of Robert S~." Finally, the Findings of Fact relating to the M~'s divorce decree were amended in July 1994 to specify that Randy was not Cassandra's natural father.

Under Utah law, there is a presumption that if a child is born during a marriage, as Cassandra was, she is the child of the husband. Utah Code Ann. (UCA) S 30-1-17.2(2); see POMS S GN 00306.020A.1 (11-90). Thus, initially there is a presumption that Cassandra is Randy M~'s biological child. While this presumption of legitimacy may be overcome by proof beyond a reasonable doubt, Utah law also holds that "the form of proof admissible to rebut the presumption is limited," one of the limits being Lord Mansfield's rule. State ex rel. J.W.F., 799 P.2d 710, 713 (Utah 1990). As stated by the Utah Supreme Court, "the rule is that 'spouses themselves may not give testimony which would tend to illegitimatize the child. [T]he proof of such facts where necessary [must] come from other sources."' Id. at 713-14 (quoting Lopes v. Lopes, 518 P.2d 687, 689 (Utah 1974)); see POMS S GN 00306.025A.1 (11-90). [10] Thus, proof that Cassandra is the daughter of Robert S~ must come from sources other than Pamela and Randy M~. Id.

Significantly, the court further noted in J.W.F. that "the legislature has not abrogated Lord Mansfield's rule, but has specified that certain nontraditional evidence is capable of conclusively rebutting the presumption of legitimacy." 799 F.2d at 714. One of these types of evidence is the results of a blood test. Id. (citing UCA S 78-25-21 [11] ); see also Teece v. Teece, 715 P.2d 106, 107 (Utah 1986); Hales v. Hales, 656 P.2d 423, 424 (Utah 1982). In this case, we believe that a Utah court would find the presumption of Cassandra's legitimacy, i.e., that Randy M~ was her biological father, has been effectively rebutted, in light of the DNA and semen testing and the third-party statements. See J.W.F., 799 F.2d at 714; see also Teece, 715 P.2d at 107 ("Nothing in [Lord Mansfield's rule] . . . prohibits the introduction of the results of blood or tissue typing tests or of testimony from witnesses other than the putative parents on the issue of paternity."); cf. Luke ex rel. Luke v. Bowen, 868 F.2d 974, 978-979 (8th Cir. 1989) (finding evidence of the alleged father's vasectomy and lack of sperm in his semen sample supported the Secretary's conclusion that he was not the father). Indeed, it may be inferred from the amendment of the divorce decree to exclude Cassandra as a child of Randy that a State court made such a finding.

Thus, based on our conclusion that the presumption that Cassandra's status as the legitimate child of Randy M~ has been successfully rebutted, the remaining question is whether she qualifies as the child of Robert S~ under Utah law. As you know, under section 216(h)(2)(A) of the Act, 42 U.S.C.A. S 416(h)(2)(A), an applicant for child's insurance benefits will be deemed a child of the deceased wage earner if she would be entitled to inherit under the intestacy laws of the state in which the wage earner was domiciled at the time of his death. Since Robert was living in Utah when he died, the question, therefore, is whether Cassandra could inherit from him under Utah intestacy law.

Utah law of intestate succession provides that a child born "out of wedlock" is "a child of the father" if the "paternity is established . . . by clear and convincing proof" after the father's death. [12] UCA S 75-2-109(2)(b). The Utah Supreme Court has stated that clear and convincing proof "implies something more than the usual requirement of a preponderance, or greater weight, of the evidence; and something less than proof beyond a reasonable doubt." Child v. Child, 332 P.2d 981, 986 (Utah 1958); see also Greener v. Greener, 212 P.2d 194, 204-05 (Utah 1949) ("for a matter to be clear and convincing to a particular mind it must at least have reached the point where there remains no serious or substantial doubt as to the correctness of the conclusion").

We believe that a Utah court would find the evidence in the file to be "clear and convincing proof" that Robert S~ was Cassandra's father. See Memorandum, Questionable Child Relationship—Utah, CC VIII (P~) to RC, SSA, April 8, 1993. Significantly, there is no conflicting evidence on this issue. Cf. Memorandum, Inheritance Rights of an Illegitimate Child under Utah Probate Code, RA VIII (Swope) to RC, SSA, Dec. 1, 1980 (recommending further development where the father of the deceased wage earner disputed the alleged paternity). Most persuasive are the genetic test results showing a combined "Paternity Index" of 1637. Under UCA S 78-45a-10(3), "[a] man is presumed to be the natural father of a child if genetic testing results in a paternity index of at least 100. A presumption under this subsection may be rebutted in an appropriate action only by clear and convincing evidence." [13] We also note that the Utah Supreme Court, in addressing the effect of another type of blood testing, stated that a probability of paternity "figure in the range above 95 percent may be translated for the factfinder into language . . . such as 'paternity is very likely."' Kofford v. Flora, 744 P.2d 1343, 1353-54 (Utah 1987). Here, of course, the probability that Robert S~ fathered Cassandra is 99.93 percent.

In sum, we believe Cassandra M~ is eligible to receive Title II benefits as the child of Robert S~.

Frank V. S~ III

Acting Chief Counsel, Region VIII

By: Carol S. P~

Assistant Regional Counsel

G. PR 00-007 Establishing Paternity by Genetic Testing in Utah

DATE: January 7, 2000

1. SYLLABUS

Under a Utah statute that became effective July 1, 1997, a man is presumed to be the natural father of a child if genetic testing results in a "paternity index" of at least 150, so long as the testing meets certain reliability standards. The presumption may be rebutted only by a second similarly reliable test that results in an exclusion. A paternity index of 100 is the equivalent of a 99.0 percent "probability of paternity." The index increases exponentially from that point. For example, a paternity index of 178 means a probability of 99.93 percent, and an index of 50,000 means a probability of 99.998 percent. NOTE: The date of the 1994 Region VIII opinion referred to in the last paragraph of this opinion ("Questionable Child Relationship- Lord Mansfield's Rule- Utah"), was December 20, 1994, rather than November 30, 1994. That opinion is located separately on the CD-ROM database.

2. OPINION

This memorandum addresses three virtually identical requests for opinions regarding the use of genetic testing to establish paternity in Utah. Specifically, you have asked whether genetic test results that appear to establish the number holders (NHs) as the fathers of children who have applied for child's benefits meet the requirements of Utah law, and if so, whether the children were "legitimate" from birth. As discussed below, we believe the answer to both of your questions is "yes" in each of the three cases.

Facts. Based on the information you have provided, the facts of these three situations appear to be as follows.

Alex H. L~, alleged child of NH Troy R. T~. A. (a female) was born May XX, 1991, to Kelly P. W~. At the time of her birth, her mother was unmarried and the father apparently was not named on the birth certificate. Accordingly, she was given her mother's surname.

In March 1995, the NH was found eligible for disability benefits as of January 1995. The NH died June XX, 1999, while domiciled in Utah. Following his death, genetic testing by the University of Utah DNA Diagnostic Laboratory (hereafter, DNA Lab) established a paternity index of 12,543, which meant there was a 99.992 percent probability that the NH was Alex's father. Based on these test results, on August 25, 1999, the Utah Bureau of Vital Records amended Alex's birth certificate to show the NH as her father.

Morgan R. M~, alleged child of NH Reg D. Wilson. M~ (a male) was born October XX, 1996, to Sherri L. M. B~. The mother apparently was not married at the time of M~'s conception or birth, and the father was not named on the birth certificate. The NH died April XX, 1998, while domiciled in Utah. He was married and had a natural legitimate child who received survivor benefits until March 1999. Genetic testing by the DNA Lab in March 1999 established a paternity index of 1393, which meant there was a 99.928 percent probability that the NH was Morgan's father. Apparently the mother did not use this information to amend M~'s birth certificate to show the NH as his father.

Bryson T. H~, alleged child of NH Collin M. F. B~ (a male) was born May XX, 1999, to Ariane D. H~.

The mother apparently was not married at the time of B~'s conception or birth, and the father was not named on the birth certificate. The NH died July XX, 1999, while domiciled in Utah; he had never married. Genetic testing by the DNA Lab in September 1999 established a paternity index of 565,564, which meant there was a 99.9998 percent probability that the NH was M~'s father. Apparently the mother did not use this information to amend B~'s birth certificate to show the NH as his father.

Discussion. Under a Utah statute that became effective July 1, 1997, a man is presumed to be the natural father of a child if genetic testing results in a "paternity index" of at least 150 so long as the testing meets certain reliability standards. The presumption may be rebutted only by a second similarly reliable test that results in an exclusion. UTAH CODE ANNOTATED (UCA) § 78-45a-10.

The term "paternity index" is defined in the State of California Family Code in the following way:

"Paternity index" means the commonly accepted indicator used for denoting the existence of paternity. It expresses the relative strength of the test results for and against paternity. The paternity index, computed using results of various paternity tests following accepted statistical principles, shall be in accordance with the method of expression accepted at the International Conference on Parentage Testing at Airlie House, Virginia, May 1982, sponsored by the American Association of Blood Banks.

CAL. FAM. CODE § 7555 (West 1999). Under this scheme, a paternity index of 100 is the equivalent of a 99.0 percent "probability of paternity." The index increases exponentially from that point. For example, a paternity index of 178 means a probability of paternity of 99.4, an index of 1359 means a probability of 99.93 percent, and an index of 50,000 means a probability of 99.998 percent. See Christopher L. Blakesley, Scientific Testing and Proof of Paternity: Some Controversy and Key Issues for Family Law Counsel, 57 La. L. Rev. 379, 386 (1997); "Paternity Test Question and Answer," found on the website for the University of Utah DNA Diagnostic Lab (http://medstat. med. utah.edu/dnadx/).

In each of the cases you have presented, the paternity index and probability of paternity are more than sufficient to establish a presumption that the NH is the child's father. See, e.g., Child Support Enforcement Agency v. Doe, 963 P.2d 1135, 1139 (Haw. App. 1998) (finding that a report indicating a paternity index of 643 and a probability of paternity of 99.84 percent established a presumption of paternity) ; see also POMS PR 01029.010, PR 93-001 "Use of Genetic Testing to Establish Parent-Child Relationship Posthumously in South Dakota - REGION VIII (stating, without reference to a paternity index, that a 99.99 percent probability of paternity was sufficient to establish "clear and convincing" proof of paternity under South Dakota law); Memorandum, Questionable Child Relationship - Lord Mansfield's Rule - Utah, CC VIII (P~) to RC, SSA, Nov. 30, 1994 (noting that a paternity index of 1637 meant a probability of paternity of 99.93 and advising that the genetic evidence established that the deceased wage earner was the father of the child who had applied for benefits) (copy attached).

We are also confident that the University of Utah DNA Diagnostic Laboratory has been properly accredited for paternity testing and therefore the test results may be accepted as reliable. Aside from the fact that the State of Utah itself relied upon the test results in naming Troy T~ as Alex's father on his amended birth certificate, this laboratory has been accredited by the American Association of Blood Banks (AABB), which is the primary accreditor of parentage-testing laboratories. See State of Montana v. Weeks, 891 P.2d 477, 488 (Mont. 1995).

Finally, we agree with your conclusion that the evidence in each case is sufficient to establish paternity as of the date of the child's birth, since the evidence permits the amendment of each child's birth certificate to name the NH as the father, whether or not the amendment was actually made.


Footnotes:

[1]

. While the spelling used on the birth certificate is “T~,” the genetic testing documents refer to “T1~.” We do not believe this discrepancy is meaningful.

[2]

. Under the Utah UPA, a father-child relationship may also be established in other ways, but those means of establishing paternity do not appear applicable based on the facts presented. See generally Utah Code Ann. §§ 78B-15-201, -204.

[3]

. See also AABB Accredited Relationship (DNA) Testing Facilities, http://www.aabb.org/sa/facilities/Pages/RTestAccrFac.aspx (last visited Aug. 16, 2017).

[4]

. It appears that photographs were included in the documentation; however, because the documents were faxed, the photo images are not discernable.

[5]

. We also note that the father’s consent must be done through a declaration form published by the state registrar, and should be filed with the state registrar’s office. See Utah Code Ann. § 26-2-5(5)-(8). Although T~ did not submit a declaration of paternity from the NH declaring that he is T~’s father, such a copy, if it does exist, would alone be sufficient proof that the NH is T~’s father. See id. § 78B-15-201(2)(b); see also id. §§ 78B-15-301 to -313 (“Voluntary Declaration of Paternity Act”); 42 U.S.C. § 416(h)(3)(C)(i)(I).

[6]

. Under the Utah UPA, a father-child relationship may be established in other ways (such as a presumption based on marriage or an acknowledgment of paternity). These are not applicable given the facts presented. See generally Utah Code Ann. §§ 78B-15-201, -204.

[7]

. The following information establishes a reliable chain of custody under the Utah UPA: the names and photographs of the individuals whose specimens were taken; the names of the individuals who collected the specimens; the places and dates the specimens were collected; the names of the individuals who received the specimens in the testing laboratory; the dates the specimens were received; and the fingerprints of the individuals whose specimens were taken. Utah Code Ann. § 78B-15-504(2).

[8]

. . . The model UPA provides that, where genetic testing fails to identify a man as the child’s father, the court will consider “the results of genetic testing, and other evidence.” UPA § 631(3) (Nat’l Conference of Comm’rs on Unif. State Laws 2002). It is notable that Utah’s version of the UPA deviates from this model language, stating that if genetic testing fails to identify a man as the child’s father, the court will “order further testing.” Utah Code Ann. § 78B-15-617(3). We considered whether this deviation reflects a legislative intent to preclude courts from considering evidence other than genetic testing. While we found no legislative history or case law explaining or interpreting this provision, we do not think it should be read to preclude a court from considering the totality of evidence—particularly in a case where, as here, additional genetic testing is unlikely to definitively resolve the paternity question.

[9]

. Randy attempted to have the vasectomy reversed in 1985, after his marriage to Pamela. However, as his physician noted at that time, the probability of Pamela becoming pregnant was low.

[10]

. In 1989, we advised OHA (with a copy to SSA/AIPB, Region VIII) of our belief that "the adoption by the Utah Supreme Court in 1983 of Rule 601 of the Utah Rules of Evidence, and the subsequent revision in 1984 of Utah Code Ann. S 78-24-2, ha[d] the effect of displacing the decisions of the Utah Supreme Court applying Lord Mansfield's Rule in Utah." Memorandum, Claim for Child's Insurance Benefits—Application of Lord Mansfield's Rule in Utah, CC VIII (Blair) to OHA/SSA (ALJ Henry M. P~), June 23, 1989. We also noted, however, that neither the Utah Supreme Court nor the Utah Court of Appeals had "addressed this precise issue." Id. Subsequently, in October 1990, the Utah Supreme Court reaffirmed in the J.W.F. case that Lord Mansfield's Rule is still part of Utah common law. 799 P.2d at 713-14. Interestingly enough, in a Report & Recommendation issued in 1992, a United States Magistrate Judge for the District of Utah strongly criticized this rule and declined to apply it in the case that was the subject of the above-referenced memorandum. In re Survivors' Benefits of John L. Bickerstaff v. Sullivan, No. 91-C-1206S, Report & Recommendation at 7-9, adopted by district court (D. Utah July 17, 1992).

[11]

. This statute provides: The results of [blood] tests shall be received in evidence where the conclusion of all examiners, as disclosed by the tests, is that the alleged father is not the actual father of the child, and the question of paternity shall be so resolved. . . . If the examiners conclude that the blood tests show the possibility of the alleged father's paternity, admission of this evidence is within the discretion of the court, depending upon the infrequency of the blood type. UCA S 78-25-21. J.W.F. involved the exclusion of the presumed father as the actual father based on blood tests and the fact that the child was "partly of African ancestry whereas the presumed parents [were] both of Anglo-Saxon ancestry." 799 P.2d at 714.

[12]

. In this case, of course, Cassandra was not born "out of wedlock," since her mother was married at the time of her birth. However, we believe that the rebuttal of the presumption of legitimacy effectively brings her within the meaning of UCA S 75-2-109(2)(b).

[13]

. . . This statute is contained in Utah's Uniform Act on Paternity.


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1501115049
PR 01115.049 - Utah - 09/06/2017
Batch run: 09/06/2017
Rev:09/06/2017