On January 25, 2006, you requested a legal opinion regarding: (1) the sufficiency
of DNA testing in establishing a parent-child relationship between Alfred H. III,
the number holder (NH), and Shaena L. W~ (Shaena) under the law of Virginia; (2) if
a parent-child relationship exists, the effective date of such relationship; and (3)
whether the presumption of legitimacy could be rebutted by DNA test results under
Virginia law and, if so, whether Shaena should continue to receive child's benefits
on the number holder's record.
We have reviewed the information that you provided and have researched the relevant
provisions of Virginia law as it pertains to paternity. We have also reviewed the
information that you provided and the relevant regulations to determine whether the
conditions for reopening have been met. Absent evidence of "fraud or similar fault"
or other condition permitting reopening after four years have elapsed, the 1994 favorable
determination finding that Shaena was entitled to benefits on the NH's record cannot
be reopened to terminate Shaena's benefits. We believe that further information is
required to determine whether the conditions for reopening after four years have been
met, and, if so, whether a parent-child relationship exists between the number holder
Based upon the information you provided to us, the following is a summary of the relevant
facts in this matter. The NH applied for disability insurance benefits (DIB) on October
15, 1991. Shaena L. W~ (Shaena), a minor child, was born on September 6, 1992. Shaena's
birth certificate indicates that Carletta W~ (Carletta) is her mother, but does not
identify a father. An application for a social security number for Shaena, completed
on November 19, 1992, indicates that Carletta W~ is her mother and that Marlone Y~
is her father. On July 6, 1994, Carletta filed an application for child's benefits
on behalf of Shaena on the account of the NH. On July 6, 1994, the NH completed a
Statement of Claimant (Form SSA-795) acknowledging Shaena W~ as his natural child.
In July 1994, Shaena became entitled to child's benefits on the account of the NH,
however, she did not start to receive benefits on the NH's account until May 1999.
An application for a social security number for Shaena, completed on January 16, 1996,
indicates that Carletta W~ is her mother and that Marlone Y~ is her father. On December
4, 1996, an application for a social security number was completed for Shaena, indicating
that Carletta W~ is her mother and that Alfred H~, the number holder, is her father.
On April 5, 2005, the NH applied for benefits for another child. At that time, he
stated that he believed Shaena had been removed from his record in 1999, and that
she had not received child's benefits since that time based upon the results of DNA
testing which had been performed in July 1999. The NH claimed that Shaena's mother,
Carletta, had been given a copy of a DNA report in July 1999 showing a 0.00% probability
of paternity, and that she had also been notified by the Division of Support Enforcement
for the Commonwealth of Virginia that Shaena was not his child. In support of his
claim that Shaena is not his child, the NH provided a Paternity Evaluation Report
(DNA test) dated July 14, 1999. However, the DNA test report is neither signed nor
authenticated. The DNA test report shows that the results were based on samples taken
from the NH, Carletta D. W~ and "Shanea" L. W~. The DNA test results indicate that
Alfred L. H~ III is not the biological father of "Shanea" L. W~.
In the materials which you provided to us, you also refer to a custody order, which
was not included in the materials which you provided to us. The materials which you
provided to us also include printouts from the Division of Support Enforcement for
the Commonwealth of Virginia dated December 15, 2005, which refer to receipt of "Blood
Test Results: 0.00%" in July 1999. "Shanea" W~ is listed as the "child" on the printouts.
The NH has not provided any documentation from the Division of Support Enforcement
indicating what, if any, action was taken as a result of the blood test results.
In your request, you asked whether the presumption of legitimacy could be rebutted
by DNA test results under Virginia law. However, there is no presumption of legitimacy
in this case. Ordinarily, under Virginia law, a presumption of legitimacy exists in
favor of a child born in wedlock. Wyatt v. Dep't of Social Srvcs., 397 S.E.2d 412, 415 (Va. App. 1990). To rebut the presumption of legitimacy, evidence
of non-paternity must be clear and convincing, namely, "strong, distinct, satisfactory
and conclusive." Id. In this case, you have not provided any information indicating that the NH and Shaena's
mother were ever married, so the presumption of a child born in wedlock does not apply.
Accordingly, the question is not whether there is sufficient evidence to rebut a presumption
of legitimacy, but whether the evidence, including the DNA test warrants reopening
of the prior determination awarding child's benefits to Shaena. If the conditions
for reopening are met, SSA should consider whether Shaena is the child of the NH pursuant
to § 216(h)(2) of the Social Security Act (Act).
A determination may be reopened within 12 months for any reason, within four years
for good cause, and at any time if it was obtained by fraud or similar fault. 20 C.F.R.
§ 404.988 (2005); POMS GN
04060.005, DI 27505.001. It was not until April 2005, more than four years after Shaena became entitled to
benefits on the NH's record, that the NH submitted the DNA test report to SSA, claimed
that Shaena's mother had been given a copy of the DNA test report in July 1999, and
informed SSA that it was his understanding that Shaena had been removed from his record
in 1999. Because more than four years have elapsed since the date of the notice of
initial determination, SSA can only reopen the determination if one of the conditions
for reopening "at any time" is met, such as "fraud or similar fault." 20 C.F.R. §
"Fraud" exists when a person either (1) makes or causes to be made with intent to
defraud, a false statement or misrepresentation of a material fact for use in determining
rights to Social Security benefits; or (2) with intent to defraud, conceals or fails
to disclose a material fact for use in determining rights to Social Security benefits.
POMS GN 04020.010 A.1. "Generally, in civil matters (reopening initial determinations . . .) there must
be a preponderance of evidence to prove the existence of fraud. In criminal matters
(prosecution), the evidence must show beyond a reasonable doubt that fraud exists.
Thus, in a particular case, it is possible that a determination is reopened . . .
based on a finding that fraud exists, and in the same case, it is also determined
that fraud does not exist for prosecution purposes." POMS GN 04020.010 B.2.
"Similar fault" exists when a person either (1) knowingly makes an incorrect or incomplete
statement that is material to the determination; or (2) knowingly conceals information
that is material to the determination, however, fraudulent intent is not required.
§ 205(u); POMS GN
04020.010 A.2. "A 'similar fault' finding can be made only if there is reason to believe, based
on a preponderance of the evidence, that the person committing the fault knew that
the evidence provided was false or incomplete. A 'similar fault' finding cannot be
based on speculation or suspicion." Social Security Ruling 00-02p (Titles II and XVI:
Evaluation of Claims Involving the Issue of "Similar Fault" in the Providing of Evidence).
"'Similar fault' differs from 'fraud' in that fraud (but not similar fault) includes
an element of intent to defraud." Id.
The evidence submitted in this case consists of an unsigned, unauthenticated DNA test
which refers to a child named "Shanea" L. W~, not Shaena L. W~ (see n.3, supra); printouts from the Division of Support Enforcement for the Commonwealth of Virginia,
which refer to the receipt of "Blood Test Results: 0.00%" for a child named Shanea
W~; and the NH's unsubstantiated statements that Shaena's mother, Carletta, had been
given a copy of the DNA test report in July 1999, and had been informed by the Division
of Support Enforcement for the Commonwealth of Virginia that Shaena was not his child.
Based upon this inconclusive and unsubstantiated information, we do not believe that
the conditions for reopening "at any time" for "fraud or similar fault" have been
met. Therefore, we believe that SSA should conduct further investigation to obtain
to a signed, authenticated copy of the DNA test report, verification that "Shaena"
L. W~ was the subject of the DNA test performed in July 1999, and documentation from
the Division of Support Enforcement indicating what, if any, action was taken as a
result of the blood test results. Absent evidence of "fraud or similar fault" or other
condition permitting reopening after four years have elapsed, the favorable determination
cannot be reopened to terminate Shaena's benefits. If upon further investigation,
SSA believes that the conditions for reopening "at any time" have been met, SSA should
consider whether Shaena is the child of the NH pursuant to § 216(h)(2) of the Act.
The Commissioner's regulations provide that an individual is entitled to child's benefits
on the earnings record of an insured person who is entitled to DIB if the individual:
(1) is the insured person's child; (2) is dependent on the insured; (3) applies for
child's benefits; (4) is unmarried; and (5) is under age 18, is 18 years old or older
and has a disability that began before age 22, or is 18 years or older and qualifies
for benefits as a full-time student. 20 C.F.R. § 404.350(a)(1) (5) (2005). An individual
can satisfy the first requirement for entitlement to child's benefits mentioned above
by showing that she could inherit a child's share of the insured's personal property
if the insured were to die without leaving a will. 20 C.F.R. § 404.355(a)(1), (b)(1)
(2005). The Social Security Act provides that, in determining whether an applicant
is the child of an insured individual, the Commissioner will apply the inheritance
law of the state in which the insured individual was domiciled at the time the application
was filed or, if the insured individual is dead, of the state in which the insured
individual was domiciled at the time of his death. Section 216(h)(2)(A); 20 C.F.R.
§ 404.355(b)(1). Because the NH was domiciled in Virginia at the time the application
was filed, Virginia intestacy law applies.
Regarding the second requirement that must be satisfied in order to qualify for child's
benefits, an individual will be considered dependent on the insured person if the
individual is the insured person's natural child. 20 C.F.R. § 404.361(a) (2005). A
natural child is a child who is born to the parent, i.e., a biological child. See POMS GN 00306.010 A.1.
Under Virginia law, a child born out of wedlock may inherit from a decedent's estate
based upon a showing that the decedent is the father of the child. Va. Code Ann. §
64.1-5.1. Evidence that a man is the father of a child born out of wedlock shall be
clear and convincing and may include, among other things, a claim by the man that
the child is his on any statement, tax return or other document filed and signed by
him with any local, state or federal government or any agency thereof; or the results
of scientifically reliable genetic tests, including DNA test results weighted with
all the evidence. Va. Code Ann. § 64.1-5.2 (4), (7). Accordingly, should SSA determine
that the conditions for reopening "at any time" have been met, SSA must determine
whether there is clear and convincing evidence that the NH is Shaena's father. The
evidence that must be considered includes Shaena's birth certificate which does not
identify a father; the applications for a social security number which identify Marlone
Y~ as her father in November 1992 and January 1996, and the NH as her father in December
1996; the Statement of Claimant (Form SSA-795) which the NH completed on July 6, 1994,
acknowledging Shaena W~ as his natural child; the unsigned, unauthenticated DNA report
which has thus far been submitted; and any additional information obtained upon further
investigation, including, but not limited to, DNA evidence which would support the
NH's claim that he is not Shaena's biological father and/or any information obtained
from the Division of Support Enforcement indicating what, if any, action it took upon
receipt of the blood test results.
Virginia law does not give controlling weight to scientifically reliable genetic tests,
including DNA tests, but considers such test results as one piece of evidence related
to paternity. Va. Code Ann. § 64.1-5.2 (7). However, Virginia's domestic relations
statute, which relates to proceedings to determine parentage, specifically provides
that the parent and child relationship between a child and a man may be established
by scientifically reliable genetic tests, including blood tests, which affirm at least
a ninety-eight percent probability of paternity. Va. Code Ann. § 20-49-1 (A) (1).
While this provision is not controlling, it suggests that a medical test establishing
the impossibility of paternity with one-hundred percent accuracy would be given significant
weight. This interpretation is consistent with the section of Virginia's domestic
relations statute which pertains to relief from a legal determination of paternity.
The Virginia domestic relations statute provides in relevant part:
An individual may file a petition for relief and, except as provided herein, the court
may set aside a final judgment, court order, administrative order, obligation to pay
child support or any legal determination of paternity if a scientifically reliable
genetic test performed in accordance with this chapter (see n.5, supra) establishes the exclusion of the individual named as a father in the legal determination.
A court shall not grant relief from determination of paternity if the individual named
as father (i) acknowledged paternity knowing he was not the father, (ii) adopted the
child, or (iii) knew that the child was conceived through artificial insemination.
Va. Code Ann. § 20-49-10.
Therefore, if SSA obtains a signed and sworn copy of the DNA test report prepared
by a duly qualified expert, and verifies that the DNA test report pertains to "Shaena",
a reviewing court would likely determine that non-paternity was established by clear
and convincing evidence notwithstanding any contradictory evidence.
For the reasons stated above, we believe that SSA should seek additional information
to determine whether the conditions for reopening "at any time" have been met and,
if so, whether the additional information along with all of the other evidence would
establish a parent-child relationship or the absence thereof under Virginia law. Unless
"fraud or similar fault" is shown to exist or another condition permitting reopening
after more than four years can be established, Shaena's benefits should be continued.
Shaena's benefits should also be continued if, upon reopening, a parent-child relationship
is found to exist under Virginia law.
Donna L. C~
Regional Chief Counsel
Beverly H. Z~
Assistant Regional Counsel