TN 12 (07-07)
PR 01120.008 Connecticut
A. PR 07-176 Establishing Parent-Child Relationship Under Connecticut State Laws Arnoldo S~, SSN ~
DATE: July 11, 2007
In a case in which the number holder died while domiciled in Connecticut, a DNA report showing a 99.999% probability that the deceased is the claimant's father combined with statements from the deceased mother admitting to the parentage would be sufficient to establish a parent-child relationship under that State's laws.
Additionally, since Connecticut law legitimates the child when paternity is established through adjudication, the parent-child relationship is retroactive to birth.
This Memorandum is in response to your request for an opinion concerning whether Breanna M. B~ can establish that she is entitled to Child's Insurance Benefits ("CIB") on the account of Arnoldo . Specifically, you asked whether a DNA test report is sufficient evidence to establish a parent-child relationship under Connecticut law. Assuming a relationship is established, you further asked for the effective date of that relationship for paying benefits. For the reasons stated below, we believe there is sufficient evidence to establish a parent-child relationship and that the child is entitled to benefits beginning in the month of her application.
The number holder, Arnoldo , died on February 11, 2007. At the time of his death, he was domiciled in the state of Connecticut. On January 23, 2007, the child claimant, Breanna M. B~, was born in Derby, Connecticut. The child's birth certificate does not identify a father. On February 21, 2007, Stacey B~, the child claimant's mother, filed an application for CIB on behalf of Breanna as the child of the number holder Arnoldo .
In a written statement, the child claimant's mother indicated that she met the number holder in January 2006, and started dating him about two to three weeks later. She stated that she lived with the number holder between April and July 2006. In a child relationship statement, the mother acknowledged that the number holder was never decreed by a court to be the child's parent, was never ordered by a court to contribute to the child's support, but did admit orally that he was the parent of the child. According to the file, the number holder was married at all relevant times to another woman, Sonia C~, and had at least one biological child, Nayomara. However, the number holder was not living with Sonia and Nayomara at the time of his death.
∖In support of her application, the child claimant's mother submitted a DNA test report which showed that the probability of the number holder being the child's father was 99.999%. The test was reported on April 5, 2007 by Accurate Exam Services Chromosomal Laboratories which is a company accredited by the American Association of Blood Banks. As further support for her application, the mother also submitted two letters from the number holder's mother. In the first letter, dated February 28, 2007, the number holder's mother stated that the number holder told her that he was with Stacey B~, the child's mother, for two months, but that he wanted a DNA test because he had been told that Stacey was with someone else before him. In the second letter, dated April 16, 2007, the number holder's mother noted the DNA results and welcomed the child claimant into her family stating that she could see a resemblance between the child claimant and the number holder.
The Social Security Act ("the Act") provides for the payment of insurance benefits to a child of a number holder who dies when fully or currently insured if the child has filed an application for CIB, is unmarried, under the age of 18, and was dependent upon the number holder at the time of death. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350 (2007); Programs Operations Manual System (POMS) RS 00203.001. Where, as here, a claimant's mother and putative father never married, the child claimant's status as the surviving child of the number holder is governed by either section 216(h)(3)(C) of the Act, 42 U.S.C. § 416 (h)(3)(C), or section 216(h)(2)(A) of the Act, 42 U.S.C. § 416(h)(2)(A). Under section 216(h)(3)(C) of the Act, the claimant can be deemed to be the deceased number holder's child upon proof that, prior to the number holder's death, one of the following conditions was met: (1) that the number holder acknowledged in writing that the claimant is his child; (2) that a court decreed the number holder to be the father of the child; (3) that the court ordered the number holder to contribute to the support of the child; or (4) that the number holder is the father and was living with or contributing to the child's support at the time of his death. In this case, we are aware of no evidence which satisfies any of the required conditions in section 216(h)(3)(C) of the Act.
To establish her status as the surviving child of the deceased number holder under section 216(h)(2)(A) of the Act, the child must show that she would be entitled to a child's share of the number holder's intestate personal property under the law 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(b)(4); POMS GN 00306.001.C. According to the record, the number holder was a resident of Connecticut at the time of his death, and there is no evidence suggesting that the number holder's domicile was other than Connecticut. We conclude that the number holder was domiciled in Connecticut at the time of his death and that Connecticut's law of intestate succession is applicable in determining the child's status as the descendant of the number holder for purposes of the Act. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355; POMS GN 00306.001.C.1.a.
For a person born out of wedlock to establish child status, Connecticut law provides that an individual is the child of her genetic parents regardless of marital status of such parents and that the father of a child born out of wedlock shall be considered a parent if: (1) the father and mother married after the child's birth, or (2) the father has been adjudicated the father of the child by a court of competent jurisdiction, or (3) the father has acknowledged under oath in writing that he is the father of the child, or (4) after the death of either the father or the child, paternity has been established by the Probate Court by clear and convincing evidence that the father has acknowledged in writing that he is the father of the child and has openly treated the child as his.
CONN. GEN. STAT. § 45a-438(b). Under Social Security Regulations, however, a claimant is not required to obtain an adjudication of paternity, but rather, the Agency may decide paternity using the standard of proof that the state court would use as the basis for a paternity determination. 20 C.F.R. § 404.355(b)(2); POMS 00306.440.B.3. Connecticut courts determine paternity based on a "fair preponderance" of the evidence. Palomba v. Gray, 543 A.2d 1331, 1334 (Conn. 1988).
With respect to DNA testing, Connecticut law provides:
In any proceeding in which the question of paternity is at issue, the results of such genetic tests … shall constitute a rebuttable presumption that the putative father is the father of the child if the results of such tests indicate a ninety-nine per cent or greater probability that he is the father of the child, provided the petitioner has presented evidence that sexual intercourse occurred between the mother and the putative father during the period of time in which the child was conceived.
CONN. GEN. STAT. § 46b-168(b). Connecticut courts appear to have endorsed the use of genetic testing evidence for purposes of adjudicating paternity where the purported father is deceased. See, e.g., Brancato v. Moriscato, No. CV 030472496S, 2003 WL 1090596 at *1 (Conn. Super. Feb. 27, 2003); Lach v. Welch, Civil. No. FA 93-0063955, 1994 WL 271518 at *7 (Conn. Super. June 13, 1994).
Here, claimant submitted a DNA test report dated April 5, 2007, which was based on DNA samples taken from the child claimant, her mother, and the number holder after his death. The report states that there is a statistical probability of 99.999% that the deceased number holder is the claimant's father. Thus, the DNA testing exceeds the statutory requirement for the presumption of paternity in Connecticut. CONN. GEN. STAT. § 46b-168(b). Additionally, the mother submitted evidence of sexual intercourse, namely written statements that she was involved in a dating relationship with the number holder during the relevant time. See Palumba, 543 A.2d at 1334 (Conn. 1988) (stating that such evidence need only consist of statements from the mother). While the child claimant's mother did not specifically state that she had sexual intercourse with the number holder, we presume she could provide a statement to that effect. Accordingly, we believe that results from the DNA test along with inferences from other evidence, in the absence of contradictory evidence, constitutes sufficient evidence to establish a parent-child relationship under Connecticut law.
With respect to the effective date of the parent-child relationship and retroactive benefits, an applicant for child's benefits can receive benefits for up to six months immediately before the month in which the application is filed. 20 C.F.R. § 404.621(a)(2). However, no child is entitled to benefits for any period prior to satisfying all entitlement factors for child's benefits. See § 202(d)(1) of the Act; 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.352(a). Child status is one of the entitlement factors. See § 202(d)(1) of the Act; 20 C.F.R. § 404.350(a)(1). If the child is the legitimate child of the insured individual and entitled to benefits, the period of entitlement will include the full retroactive period of the application (six months prior to the application or the child's birth, whichever occurs later). See POMS GN 00306.050 and GN 00306.085. An out-of-wedlock child generally is not entitled to retroactive benefits because the out-of-wedlock child must prove child status under state law and because benefits are prospective from the event which conferred the inheritance rights. See POMS GN 00306.055.A.3. The only exception to this is in cases where the state law granting inheritance rights to an illegitimate child makes those rights retroactive for periods before the act or event, such as when the child has been legitimated. See POMS GN 00306.050 and GN 00306.085. This exception occurs under Connecticut law.
Connecticut law legitimates the child when paternity is established through adjudication. See CONN. GEN. STAT. § 45a-438(b); POMS GN 00306.440. In discussing children born out-of-wedlock, Connecticut law states that an "individual is the child of his genetic parents, regardless of marital status of such parents." CONN. GEN. STAT. § 45a-438(b). As referenced in the notes of POMS GN 00306.440, a 1995 amendment to the Connecticut statute removed language which limited legitimization to an out-of-wedlock child whose parents later intermarry. Therefore, we conclude that under Connecticut law the child claimant would be considered a legitimate child of the number holder making her eligible for benefits from the date of her birth on January 23, 2007, even though the actual DNA testing did not occur until April 5, 2007. See POMS 00306.085. The child claimant cannot collect benefits from the day of her birth, however, because the number holder did not die until the following month. Thus, even though the child-parent relationship was established at birth, the child claimant can only receive benefits from the time of the number holder's death which was on February 11, 2007. See 20 C.F.R. §§ 404.350; 404.352. Since the child claimant's application was filed in the same month that the number holder died, she is entitled to benefits as of February 2007, and can receive no applicable retroactive benefits.
We believe that the Connecticut courts would find that the child claimant could inherit from the deceased number holder as his child under Connecticut intestacy statute. Therefore, we believe that the child qualifies as the number holder's child for purposes of entitlement to CIB. Entitlement would begin from February 2007, the month of the child claimant's application and the number holder's death, with no applicable retroactive benefits.