PR 01120.021 Louisiana

A. PR 10-098 Louisiana State Law Effective Date of Child Relationship (NH Frank C~, Jr.; SSN ~) – REPLY

DATE: May 25, 2010

1. SYLLABUS

In Louisiana, the effective date of a parent child relationship based on DNA testing and District Court Stipulated Judgment is the date the last piece of corroborative evidence is obtained.

2. OPINION

The purpose of this memorandum is to respond to your request for a legal opinion to determine the effective date of a child relationship to a living number holder (NH) under Louisiana state law. Specifically, you asked whether, under Louisiana law, the effective date of the child relationship was established prospectively from the date of the evidence establishing the child relationship or retroactively to the child’s birth. In our opinion, the effective date of the child relationship is the first full month throughout which the child met all the requirements for child’s insurance benefits on the NH’s record, which occurred on October 1, 2009.

BACKGROUND

As we understand the facts, Amanda J. H~ (Ms. H~) gave birth to Jasmine N. H~ (Jasmine) on October 11, 2006. In November 2007, the NH, Frank C~, Jr., filed an application for disability insurance benefits (DIB) under Title II of the Social Security Act (Act), which the Social Security Administration (agency) denied. In April 2008, the NH filed another application for DIB, which the agency approved on February 17, 2010. The NH’s date of entitlement was July 2008. In both of these applications, the NH listed three dependent children, none of whom included Jasmine.

In March 2010, Ms. H~ protectively filed, on Jasmine’s behalf, an application for child’s insurance benefits on the NH’s record. With this application, Ms. H~ submitted a deoxyribonucleic acid (DNA) test report dated September 18, 2009, which indicated a 99.99% probability that the NH was Jasmine’s biological father. In addition, Ms. H~ submitted a Stipulated Judgment from a Louisiana District Court in Evangeline Parish, finding that the NH was Jasmine’s biological, natural father, which the court signed on October 30, 2009. On March 17, 2010, the NH told an agency employee that he had acknowledged Jasmine as his child since September 18, 2009, the date of the DNA test report. In March 2010, the agency approved Ms. H~’s claim for child’s insurance benefits on Jasmine’s behalf.[1]

DISCUSSION

The Act provides that an individual’s child who is entitled to DIB shall be entitled to child’s insurance benefits for each month, beginning with the first month in which such child meets the criteria for child’s insurance benefits. See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.352(a)(2). If the child meets all of the requirements for entitlement to child’s insurance benefits before an application was filed, the child is entitled to receive benefits for up to 12 months immediately before the month in which the application was filed. See 20 C.F.R. § 404.621(a)(1). The benefits begin with the first month in the 12-month period in which she met all of the requirements for entitlement. See id.

As stated above, on October 30, 2009, the Louisiana District Court in Evangeline Parish issued a Stipulated Judgment that “ordered, adjudged, declared, and decreed” that the NH was Jasmine’s biological, natural father in a paternity proceeding that Ms. H~ filed against the NH. The Stipulated Judgment was based on the certified DNA report dated September 18, 2009, which indicated that the NH was Jasmine’s biological father by a 99.99% probability. The agency determined that Jasmine was entitled to child’s insurance benefits on the NH’s account under section 216(h)(3)(B) of the Act because a court had declared the NH to be Jasmine’s father. See 42 U.S.C. § 416(h)(3)(B)(i)(II). Section 202(d)(3) of the Act provides that any child who meets the tests in sections 216(h)(2) or (h)(3) shall be deemed to be such an individual’s legitimate child; thus, Jasmine is deemed to be the NH’s legitimate child. See 42 U.S.C. § 402(d)(3)(B). The Act provides that a court order declaring the NH to be the applicant’s father is deemed to have occurred on the first day of the month in which it actually occurred. See 42 U.S.C. § 416(h)(3)(C)(iii); 20 C.F.R. § 404.355(a)(3). Consequently, the Stipulated Judgment was deemed to have occurred on October 1, 2009.

You asked whether, under Louisiana law, the effective date of the child relationship was established prospectively from the date of the evidence establishing the child relationship or retroactively to the child’s birth. As noted above, the agency awarded child’s insurance benefits under section 216(h)(3)(B) of the Act, based on the October 2009 Stipulated Judgment.[2]

The effective date of the child relationship is the date that Jasmine first met all of the requirements for entitlement to child’s insurance benefits. See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.352(a)(2). Here, Jasmine met all of the requirements for entitlement to child’s insurance benefits on the date that Ms. H~ filed the application in March 2010. Thus, Jasmine may receive benefits for up to 12 months immediately before the month in which the application was filed. See 20 C.F.R. § 404.621(a)(1). Jasmine’s benefits should begin with the first month in the 12-month period in which she met all of the requirements for entitlement. See id. Based on Ms. H~’s March 2010 application, Jasmine first met all of the requirements for entitlement to child’s insurance benefits on October 1, 2009, the date the Stipulated Judgment was deemed to have occurred.

CONCLUSION

In summary, the Stipulated Judgment established the effective date of the child relationship. Thus, the agency should award child’s benefits to Jasmine effective October 1, 2009, the first full month covered by the application for benefits throughout which Jasmine met all of the requirements for entitlement.

Very Truly Yours

Michael M~

Regional Chief Counsel

By: ________________________

Anne L. H~

Assistant Regional Counsel

B. PR 08-157 Louisiana State Law - Child's Benefits Entitlement Based On DNA Tests Results Of Child And Paternal Grandparents After The Death Of The Father (NH Anthony J. R~, Jr.; SSN ~) - REPLY

DATE: July 24, 2008

1. SYLLABUS

Under Louisiana law, a child may present all relevant evidence to prove paternity, such as blood tests, an informal acknowledgment, and evidence showing cohabitation of the mother and father at the time of conception. In this case, the payee applicant submitted a certified DNA test report showing a 99.99% probability that the number holder's parents are the child's paternal grandparents along with statements showing that Sage's mother had represented the number holder was Sage's father; a Petition To Establish Filiation And For DNA Testing, in which Christy represents that the number holder was Sage's father; and statements showing that Plaintiff was separated from his wife and lived with Christy around the time Sage was conceived, which is evidence of cohabitation. It is sufficient to establish the parent-child relationship by the clear and convincing standard.

The relationship is established as of the date of the DNA test.

2. OPINION

This memorandum is in response to your request for a legal opinion on whether the evidence submitted in this case, consisting of a deoxyribonucleic acid (DNA) test report and written statements, establishes that Sage E. H~ is the child of Anthony J. R~, Jr., the number holder. If so, you asked whether Sage is entitled to child's benefits beginning from the date of the DNA testing or retroactive to the date of the number holder's death. Our opinion is that the evidence establishes that Sage is the number holder's child, and she is entitled to child's benefits on the number holder's account beginning on December 20, 2007, the date the DNA Test Report became available. Accordingly, Sage is not entitled to an award of benefits retroactive to the number holder's death on the number holder's account.

As we understand the facts, the number holder had a sister and no brothers. He married Shannon R~ on February 20, 1999. Christy H~, Sage's mother, lived with the number holder in 2005, when he was separated from Shannon. In December 2005, Christy told the number holder that she was pregnant with his child, but the number holder did not acknowledge he was the father. Christy moved out of the number holder's apartment in December 2005, but they stayed in contact with each other. On July 13, 2006, Christy gave birth to Sage. Sage's birth certificate does not name anybody as her father. Although the number holder did not admit he was the father, he agreed to take a DNA test to find out if he was Sage's biological father. On January 14, 2007, the number holder died before undergoing DNA testing. The number holder and Shannon were temporarily separated, but never divorced, and they were married at the time of the number holder's death. The number holder died while domiciled in Louisiana.

On January 23, 2008, Sandra H~, Sage's maternal grandmother, filed an application on Sage's behalf with the Social Security Administration (Agency) for child's benefits on the number holder's account. The record contains the following documents that provide information pertinent to Sage's application for child's benefits:

A statement from Christy stating that she met the number holder at a rehabilitation center in 2005. The number holder told her that he was separated from his wife and asked her to live with him in his apartment. They lived together in Metairie, Louisiana, for about six months. In December 2005, Christy found out she was pregnant, and she told the number holder about her pregnancy. The number holder was upset and asked her to get an abortion. Christy moved out of the apartment and moved in with her parents. Christy stayed in contact with the number holder. After Sage was born, Christy and the number holder spent Thanksgiving Day and Christmas together in 2006. The number holder died on January 14, 2007.

2) A statement from Herman H~, Christy's father, stating that the number holder and Christy lived together in Metairie, Louisiana, until they found out she was pregnant. Christy then moved in with them (Christy's parents). The number holder and Christy continued to see each other on weekends after Sage was born, and they had a good relationship. The number holder and Christy spent Thanksgiving Day and Christmas in 2006 with Christy's family. On two separate occasions, Herman asked the number holder to take responsibility for Sage's welfare.

3) An Affidavit of Verification and a Petition to Establish Filiation and for DNA Testing (Petition) filed by Christy in the 32nd Judicial District Court, Parish of Terrebonne, Louisiana. The Petition alleges that the number holder is Sage's father; the number holder died on January 14, 2007; and Anthony R~, Sr., and Lynne R~ are the number holder's biological parents. In the Petition, Christy requests the court to order the number holder's parents (Sage's alleged paternal grandparents) to submit to DNA testing to determine whether Sage is the number holder's biological child.

4) In affidavit regarding the results of DNA grandparentage testing of Christy H~, mother; Sage E. H~, child; Lynn M. R~, alleged paternal grandmother; and Anthony J. R~, alleged paternal grandfather. A DNA test report dated December 20, 2007, showing a 99.99% probability that the alleged paternal grandparents were Sage's biological grandparents.

5) A statement from Shannon R~, the number holder's widow, dated January 30, 2008, stating that the number holder denied he was Sage's father. Shannon also stated that for a period of two months, the number holder lived in an apartment by himself.

6) A statement from Bryant H~, number holder's friend, dated March 15, 2008, stating that the number holder lived with Christy for a short period. Bryant also stated that after Sage was born, Christy told him that Sage was the number holder's child.

7) On January 26, 2008, Christy filed with the Agency a statement stating that she did not want to be the payee, if Sage was entitled to child's benefits; and she requested the Agency to name Sandra H~ as Sage's representative payee.

Your request for a legal opinion asks whether the evidence is sufficient to establish that Sage is the number holder's child. Under the Social Security Act (Act), a child may be entitled to child's benefits on the earnings record of an insured person who has died. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a) (2008). The term "child" includes a natural child. 42 U.S.C. § 416(e)(1); 20 C.F.R. § 404.354. To be considered an insured person's child for purposes of the Act, the child must show one of the following: (1) she would be entitled to inherit property through intestate succession under the laws of the state in which the insured person was domiciled at the time of his death; or (2) her parents went through a marriage ceremony, but the marriage was invalid because of a legal impediment. 42 U.S.C. § 416(h)(2)(A)-(B); 20 C.F.R. § 404.355(b). A child who is not deemed to be the child of the insured person under 42 U.S.C. § 416(h)(2)(A)-(B) shall nevertheless be deemed to be the child of the insured person if: (1) before the insured person died, he acknowledged in writing that the child is his, was decreed by a court to be the child's parent, or was ordered by a court to provide child support because the child is his; or (2) satisfactory evidence shows that the insured person is the child's parent and was living with or contributing to the support of the child when the application for Social Security benefits was filed. 42 U.S.C. § 416(h)(3)(C)(i)-(ii); 20 C.F.R. § 404.355(a).

The evidence shows the number holder and Christy were never married. The number holder died on January 14, 2007, and he never acknowledged in writing that Sage is his child. Prior to his death, no court had decreed that the number holder is Sage's father. The number holder never lived with Sage, and the application does not contain any evidence indicating that he contributed money for Sage's support. Given these facts, to establish that she is the number holder's child for purposes of the Act, Sage must show that she would be entitled to inherit property from him through intestate succession under the laws of the state in which the number holder was domiciled at the time of his death. See 42 U.S.C. § 416(h)(2)(A)-(B); 20 C.F.R. § 404.355. In this case, Louisiana law applies because the number holder died in Jefferson Parish, Louisiana. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b).

Louisiana intestacy law provides that when a person dies without a valid will, "the undisposed property of the deceased devolves by operation of law in favor of his descendants, ascendants, and collaterals, by blood or by adoption, and in favor of his spouse not judicially separated from him." La. Civ. Code Ann. art. 880 (West 2008). Descendants include children. See La. Civ. Code Ann. art. 882. The comments following article 880 state that "[o]nce a relationship is proven by blood or adoption, the succession rights of such a relative are established without reference to the legitimacy of that relationship." La. Civ. Code Ann. art. 880, cmt. (c). Thus, if Sage can establish under the Louisiana Civil Code that she is the number holder's biological child, she would be entitled to inherit property from the number holder under Louisiana intestacy law and will be considered the number holder's child for purposes of the Act.

To determine whether an applicant is the child of an insured individual, the Agency will not apply any requirement "that an action to establish paternity must be taken within a specified period of time measured from the worker's death or the child's birth . . . ." 20 C.F.R. § 404.355(b)(2). The Agency also does not require the child to obtain a state court determination of paternity, but the Agency will decide the child's paternity based upon the standard of proof that the state court would use in determining paternity. Id. In Louisiana, if the child institutes the paternity action after the death of the alleged father, the child must prove paternity by clear and convincing evidence. La. Civ. Code Ann. art. 197. To meet the clear and convincing evidence standard of proof under Louisiana law, "the evidence, taken as a whole, must show that the facts sought to be proven are highly probable." Talley v. Stuckey, 560 So.2d 111, 112-113 (La. Ct. App. 1990).

Under Louisiana law, a child may present all relevant evidence to prove paternity, such as blood tests, an informal acknowledgment, and evidence showing cohabitation of the mother and father at the time of conception. La. Civ. Code Ann. art. 197, cmt. (c). A certified report of blood or tissue sampling that indicates by a ninety-nine and nine-tenths percentage point threshold probability that the alleged father is the father of the child creates a rebuttable presumption of paternity. La. Rev. Stat. Ann. § 9:397.3(B)(2)(b) (West 2008). Consistent with the provisions of La. Rev. Stat. Ann. § 9:397.3(B)(2)(b), Louisiana courts have noted that DNA tests performed on a deceased putative father's relatives can determine paternity posthumously. Succession of R~, 94-2229 (La. 5/22/95); 654 So.2d 682, 685; Pace v. State, Through Louisiana Employees Retirement System, 94-1027 (La.1/17/95); 648 So.2d 1302, 1309.

As mentioned above, the number holder never acknowledged that Sage is his child. In Louisiana, if a father does not acknowledge a child, the mother has the right to file a paternity suit to establish paternity, and either party to the paternity suit has the right to request a genetic test to determine if the alleged father is the child's biological father. La. Rev. Stat. Ann. § 9:392(A)(1) and (3) (West 2008). Accordingly, Christy (Sage's mother) filed a Petition to establish paternity, requesting a Louisiana district court to order the number holder's parents (Sage's alleged paternal grandparents) to submit to DNA testing to determine through DNA comparison whether Sage is the number holder's biological child.

"Relying on existing civil discovery rules" and court rulings "across the nation," Louisiana courts have recognized that DNA comparison of the putative paternal grandparents with that of a child may be performed to establish paternity. Pace, 94-1027; 648 So.2d at 1310. Because Louisiana courts have looked at other jurisdictions for guidance, it is noteworthy that New York courts have determined that "DNA comparison of the blood of the putative paternal grandparents with that of the [child] may be performed in an effort to provide 'clear and convincing evidence' [] that is required to establish paternity . . . ." Estate of Sandler, 612 N.Y.S.2d 756, 758 (N.Y. Sur., 1994); see also In re Santos, 768 N.Y.S.2d 272, 274 (N.Y. Sur., 2003) ("The state of technology for DNA testing . . . has advanced to the point that it can determine paternity to a 99-100 percent scientifically acceptable certainty, clearly meeting a 'clear and convincing' standard.").

Consistent with the requirements to establish paternity posthumously, Sandra submitted to the Agency a certified DNA test report showing a 99.99% probability that the number holder's parents are Sage's paternal grandparents. Additionally, Sandra submitted the following evidence, corroborating that Sage is the number holder's child: (1) statements showing that Sage's mother had represented the number holder was Sage's father; (2) a Petition To Establish Filiation And For DNA Testing, in which Christy represents that the number holder was Sage's father; and (3) statements showing that Plaintiff was separated from his wife and lived with Christy around the time Sage was conceived, which is evidence of cohabitation. We believe that under Louisiana law, there is clear and convincing evidence to prove that Sage is the number holder's child. As such, Sage would be entitled to inherit property from the number holder under Louisiana law and is entitled to child's benefits on his account.

Louisiana statutes and case law are silent on the issue of whether an act that grants inheritance rights under the state intestacy law operates prospectively from the date of the act or retroactively to the date of birth. However, the Social Security regulations provide that a claimant may receive benefits from the first month that she meets all the requirements for entitlement. 20 C.F.R. § 404.620(a)(1). Similarly, Agency policy provides that actions that confer inheritance rights operate only from the date of their occurrence. See Social Security Ruling 85-17, 1985 WL 56848 (SSA). Here, Sage met all requirements for entitlement to child's benefits on December 20, 2007, the date the DNA test report became available. Entitlement to child's benefits begins in the first month throughout which the child meets all the requirements of entitlement. See 20 C.F.R. § 404.352(a)(2). As a result, Sage is entitled to child's benefits effective January 1, 2008, the first full month after the DNA test report became available. Because Sage did not meet all the regulations requirements until December 20, 2007, and because actions that confer inheritance rights operate only from the date of their occurrence, she is not entitled to an award of benefits retroactive to the number holder's death on the number holder's account.

Traci B. D~
Regional Chief Counsel

By: ________________________
Ruben M~
Assistant Regional Counsel

C. PR 06-148 Effective Date of Act Granting Inheritance Rights in Louisiana (NH William O. J~, Sr., SSN ~) - REPLY

DATE: May 26, 2006

1. SYLLABUS

In Louisiana, in a case where the number holder admitted to a relationship with the claimant's mother, the man who was the mother's husband at the time denied paternity and a DNA test showed a 99.99% probability that the number holder is the child's father, the number holder is found to be the father of the claimant by a preponderance of the evidence.

The effective date of the relationship is July 16, 2002, the date of the DNA test and the first date in which the claimant met all requirements of entitlement.

2. OPINION

You asked us to provide a legal opinion regarding whether an act that grants inheritance rights under Louisiana intestacy law operates prospectively from the date of the act or retroactively to the date of the child's birth. Specifically, you requested our opinion regarding whether Janesha M. T~ (Janesha) is entitled to a retroactive award of child's benefits on the account of William O. J~, Sr. (the disabled number holder). Our opinion is this: (1) Janesha is entitled to child's benefits on the number holder's account; but (2) an act that grants inheritance rights under Louisiana intestacy law operates prospectively from the date of the act. Accordingly, Janesha is not entitled to a retroactive award of benefits on the number holder's account.

The number holder was born on June 13, 1944. In December 1994, he became entitled to Social Security disability benefits. Jonathan D. J~ was the only child listed on the number holder's application for disability insurance benefits. The information that we received indicates that at all times relevant to this legal opinion, the number holder had his permanent home in Louisiana.

Janesha was born on June 28, 1988. In December 1996, Mary T. T~ (Ms. T~) filed an application for child's benefits for Janesha on the number holder's account. Ms. T~ and the number holder were never married. Ms. T~ was married to Charles L~ T~ (Mr. T~) when Janesha was conceived and born. Janesha's birth certificate identified Mr. T~ as her father. In September 1998, because Ms. T~ failed to provide evidence that the number holder was Janesha's biological father, the Agency denied the December 1996 application for child's benefits. Ms. T~ later filed a request for reconsideration. The Agency also denied this request.

In July 2002, Ms. T~ filed a new claim for Janesha. This time, she provided three key pieces of evidence. First, she provided a deoxyribonucleic acid (DNA) test report dated July 16, 2002. The DNA test report showed a 99.999% probability that the number holder is Janesha's biological father. Second, Ms. T~ provided a copy of a 1989 judgment that awarded her a divorce from Mr. T~. This judgment did not list Janesha as a child of the marriage. Third, Ms. T~ provided a note that Mr. T~ allegedly wrote in July 2002. In this note, Mr. T~ reported two things: (1) he was in prison from February 1987 until November 1989 (i.e., during the

In August 2002, the number holder signed a statement for the Agency in which he admitted that he had a sexual relationship with Ms. T~ in 1987. He further admitted that after he reviewed the DNA test results, he became "willing to believe that Janesha . . . is [his] biological child." In December 2002, a Louisiana court decreed that the number holder is Janesha's father.

The Agency awarded child's benefits to Janesha effective August 2002, the first full month after the DNA test report became available. See 20 C.F.R. § 404.352(a)(2) (entitlement to child's benefits begins in the first month throughout which the child meets all to be considered an insured person's child for the purposes of the Social Security Act (the Act), the child must show one of the following: (1) she would be entitled to inherit property through intestate succession under the laws of the state in which the insured person had his permanent home when the application for Social Security benefits was filed; or (2) her parents went through a marriage ceremony, but the marriage was invalid because of a legal impediment. See 42 U.S.C. §§ 416(h)(2)(A)-(B). A child who is not deemed to be the child of the insured person under 42 U.S.C. §§ 416(h)(2)(A)-(B) shall nevertheless be deemed to be the child of the insured person if: (1) before the insured person's most recent period of disability began, he acknowledged in writing that the child is his, was decreed by a court to be the child's parent, or was ordered by a court to provide child support because the child is his; or (2) satisfactory evidence shows that the insured person is the child's parent and was living with or contributing to the support of the child when the application for Social Security benefits was filed. 42 U.S.C. §§ 416(h)(3)(B)(i)-(ii).

Here, the number holder and Ms. T~ were never married. Before December 1994, when the number holder's most recent period of disability began, he had not acknowledged in writing that Janesha is his child, and no court had decreed that he is her father. As we understand the facts, no court has ever ordered the number holder to pay child support for Janesha. The number holder apparently has never lived with Janesha or contributed to her support. Given these facts, to establish that she is the number holder's child for the purposes of the Act, Janesha must show that she would be entitled to inherit property from him through intestate succession. See 42 U.S.C. §§ 416(h)(2)(A)-(B); 20 C.F.R. § 404.355.

The number holder had his permanent home in Louisiana when Ms. T~ filed the application for child's benefits on behalf of Janesha. Thus, Louisiana law applies in this case. See id. Louisiana intestacy law provides that when a person dies without a valid will, his descendants may inherit property from him. See La. Civ. Code Ann. art. 880 (West 2006). "Descendants" include children. See La. Civ. Code Ann. art. 882 (West 2006).

In Louisiana, a "certified report of blood or tissue sampling which indicates by a ninety-nine and nine-tenths percentage point threshold probability that the alleged father is the father of the child creates a rebuttable presumption of paternity." La. Rev. Stat. Ann. § 397.3(B)(2)(b) (West 2006). As mentioned above, the DNA test results in this case show a 99.999% probability that the number holder is Janesha's father. Consequently, he is presumed to be her father under Louisiana law. Id. Ms. T~ was married to Mr. T~ when Janesha was conceived and born, but this does not nullify the presumption that the number holder is Janesha's biological father. In Louisiana, a child who enjoys legitimacy as to her legal father may also be the illegitimate child of her biological father. Smith v. Cole, 553 So.2d 847, 854-855 (La. 1989).

DNA test results, alone, are not sufficient to prove paternity in Louisiana. Simpson v. Stevenson, 852 So.2d 1093, 1096 (La. App. 2003). Louisiana courts have repeatedly found, however, that DNA test results, plus other corroborating evidence, are sufficient to establish paternity by a preponderance of the evidence. See, e.g., LeBlanc v. LeBlanc, 497 So.2d 1361, 1363-1364 (La. 1986) (evidence included a blood test, defendant's public acknowledgments that plaintiff was his daughter, and a photograph of plaintiff that defendant had in his car); Simpson, 852 So.2d at 1096-1097 (DNA testing yielded a probability of paternity of 99.9995%; mother testified that defendant was the child's father and that she had sexual relations only with defendant during the period of conception; defendant denied paternity, but admitted that he visited the mother during the time of conception, visited the child in the hospital twice, sent the child a card and gift for his first birthday, and later asked to see him); State Dept. of Social Services, Office of Family Support v. Gibson, 768 So.2d 714, 719-720 (La. App. 2000) (evidence included DNA testing that showed a 99.99997% probability of paternity, defendant's admission that he had sexual intercourse with the mother during the month of conception, and the mother's testimony that she had intercourse only with defendant during that month).

In this case, Ms. T~ filed her most recent application for child's benefits on behalf of Janesha on July 18, 2002. As suggested above, on or after that date, Ms. T~ provided the following evidence: (1) a DNA test report that showed a 99.999% probability that the number holder is Janesha's biological father; (2) a 1989 divorce decree that did not list Janesha as a child of Ms. T~'s marriage to Mr. T~; (3) a note that Mr. T~ purportedly wrote in July 2002, explaining that he was in prison when Janesha was conceived and born; (4) an August 2002 statement in which the number holder admitted that he and Ms. T~ had a sexual relationship in 1987 and that he is Janesha's father; and (5) a 2002 judgment in which a Louisiana court decreed that the number holder is Janesha's father. We believe that this evidence is sufficient to prove that Janesha is the number holder's child by a preponderance of the evidence. As such, she has the right to inherit property from him under Louisiana intestacy law, and she is entitled to Social Security benefits on his account.

Agency regulations provide that a claimant may receive benefits from the first month that she meets all requirements. 20 C.F.R. § 404.620(a)(1). Similarly, Agency policy provides that actions that confer inheritance rights operate only from the date of their occurrence. See Social Security Ruling 85-17. Here, Janesha met all requirements on July 16, 2002, the date of the DNA test report.

We therefore conclude that she became entitled to benefits as of that date. Because Janesha did not meet all requirements until July 16, 2002, and because actions that confer inheritance rights operate only from the date of their occurrence, she is not entitled to a retroactive award of benefits on the number holder's account.

Tina M. W~
Regional Chief Counsel

By: ___________________________
Eric D. P~
Assistant Regional Counsel

D. PR 01-127 REPLY - Entitlement To Child's Benefits Under Louisiana State Law Where Paternity Is Established By DNA - Wage Earner Walter W. S~

DATE: September 21, 2000

1. SYLLABUS

DNA tests were performed on the child claimant, his mother, and the deceased NH's parents. Since the DNA test results in this case have been properly certified by sworn affidavits, they are admissible evidence of paternity. Under Louisiana law, there is no accreditation requirement for testing laboratories. The DNA test results, showing a 99.467 percent probability of paternity, are not enough to establish paternity without other corroborating evidence of paternity. The record should be further developed to include detailed statements from the child's mother about her relationship with the NH, or statements from witnesses regarding his conduct toward the child. Under Louisiana law, inheritance rights in an estate vest as of the date the deceased died.

2. OPINION

This memorandum is to respond to your request for our opinion on whether or not a laboratory report is sufficient evidence to establish the relationship of the child, Ryan D. K~, to the number holder, Walter W. S~, under Louisiana State law or under federal law, as described by section 216(h)(2) of the Social Security Act. See 42 U.S.C. § 416(h)(2); 20 C.F.R. §§ 404.354-55 (1999). Specifically, three questions will be addressed in this opinion:

(1) Does Louisiana State law require a testing laboratory to be accredited by a regulatory agency in the industry or in government?

(2) Is a laboratory finding showing a 99.467 percent probability of paternity sufficient to establish filiation of the child?

(3) If inheritance rights are established under state law, when do they vest?

After reviewing the facts and relevant law, it is our opinion that Louisiana State law does not require accreditation for testing laboratories. Even so, to be admissible in court, test results must be certified by sworn affidavit. In this case, an affidavit was provided by the testing agency, the test was properly certified, and the results can be used to establish paternity. However, the Louisiana courts have held that a scientific test, by itself, does not constitute clear and convincing evidence of paternity. The courts require corroboration of test results with evidence such as testimony from the surviving spouse or testimony from unrelated credible witnesses.

The relevant facts in this case include the following. A DNA (deoxyribonucleic acid) paternity evaluation report was submitted as evidence of Ryan's paternity in a request for survivor's benefits based on Mr. S~'s earnings record. Ryan was born to Pamela A~ K~ on May 5, 1989 in Yellowstone County, Montana. Mr. S~ and Ms. K~ never married prior to Mr. S~'s death on March 11, 1995. No father's name was shown on the birth certificate at the time of Ryan's birth. There is no evidence that Mr. S~ ever acknowledged Ryan as his child, lived in the same household as the child, supported Ryan financially, or was declared by a court to be the father of Ryan.

In December, 1999, Ms. K~ filed for survivor's benefits for Ryan, claiming that Mr. S~ was Ryan's biological, or natural, father. Submitted with the application was a DNA paternity evaluation report dated October 5, 1999, which was prepared by Memorial Blood Centers of Minnesota, in Minneapolis, Minnesota. The report based its evaluation upon DNA samples from Ryan, Ms. K~, and Mr. S~'s parents, Dorothy and Jones M. S~. The report stated that the probability is 99.467 percent that Mr. S~ is Ryan's father, as compared to an untested, randomly chosen man of the Caucasian population.

The Social Security Act provides that one must apply State inheritance laws when determining if an applicant is a child for Social Security benefit eligibility purposes. See 42 U.S.C. §416(h)(2)(A). Under the revised regulations, a child's relationship to a number holder can now be established without the need for a court determination of paternity. The regulations provide that an insured's natural child may be eligible if he or she could inherit personal property under State inheritance laws if the insured died without a will. However, any State law which requires that an action be taken to establish paternity within a specified period of time after the insured's death or the child's birth will not be applied. See 20 C.F.R. § 404.355. Thus, in order to evaluate the evidence of paternity, the Agency will use the same standard of proof used by the Louisiana courts, but will not require a court determination of paternity.

As to your first question, Louisiana State law does not require testing laboratories to be accredited. Instead, to verify the chain of custody, the DNA test results must be certified by a sworn affidavit from the expert who conducted or supervised the test. See La. Rev. Stat. Ann. §9:397.3, subd. A (West 2000) (affidavit shall include affiant's name and qualifications; how test samples were obtained; who, how, when, and where samples were obtained; chain of custody from the time samples were obtained until the tests were completed; results and probability of paternity; and the procedures performed to obtain the test results); State v. Simien, 677 So.2d 1138, 1141 (La. App. 3rd Cir. 1996). Otherwise, the DNA test results are not admissible evidence and may be excluded by the court. See State v. Johnson, 651 So.2d 366, 368 (La. App. 2nd Cir. 1995). Since the Agency must use the same standard of proof required of the court, the DNA test results in this case are admissible only if the required affidavit is available. See 20 C.F.R. § 404.355. In this case, the DNA test results were properly certified by a sworn affidavit attested to by Jed B. G~, M.D., Memorial Blood Centers of Minnesota. Therefore, the DNA test results are admissible as evidence and can be considered in determining if Mr. S~ is Ryan's father.

You asked whether a 99.467 percent of paternity was sufficient to establish Ryan as Mr. S~'s child. Under Louisiana law, evidence of statistical probability of paternity established at 99.9 percent or more creates a rebuttable presumption of paternity. See La. Rev. Stat. Ann. §9:397.3 (West 2000); State v. Johnson, 753 So.2d 388, 390 (La. App. 1st Cir. 2000). A living putative father has thirty days after the test results are filed with the court to object, or the results will be held to be admissible evidence. See La. Rev. Stat. Ann. §9;397.3 subd. B (West 2000)/; State v. McCain, 637 So.2d 650, 652 (La. App. 2nd Cir. 1994). The Court has held that blood test results, admitted without objection, are prima facie proof of paternity. See Robinson v. Sims, 721 So.2d 90, 93 (La. App. 2nd Cir. 1998). Yet, if the alleged living parent does object to the test results, the courts have held that the test results alone were insufficient to prove paternity and must be supported by other objective evidence, such as testimony from credible witnesses. See State v. Givens, 616 So.2d 259, 261 (La. App. 2nd Cir. 1993)(affirming that scientific testing alone is not sufficient to prove paternity, but when supported by objective testimony it may establish proof of paternity).

However, when the alleged parent is deceased, the courts require corroboration of the DNA test results, in order to meet the clear and convincing standard of proof. See Guidry v. Mouton, 689 So.2d 621, 623 (La. App. 3rd Cir. 1997)(holding that DNA test results with trial and deposition testimony constituted clear and convincing evidence that plaintiff was the natural child of the deceased alleged father).

Although the laboratory report showing a 99.467 percent probability that Mr. S~ is Ryan's father does not create a presumption of paternity, it is persuasive. When combined with other evidence, it may fulfill the clear and convincing evidence standard. See Guidry v. Mouton, 689 So.2d at 622 - 623 (affirming that DNA test results of 99.44 percent, in combination with surviving parent's testimony regarding opportunity for sexual intimacy, constituted clear and convincing evidence). In fact, regardless of the test results, the courts have held that scientific test results alone do not establish paternity as envisioned under Louisiana law. See State v. Givens, 616 So.2d at 261. "Other corroborating evidence of paternity" in addition to the DNA test results is required. See State v. James, 689 So.2d 27, 29 (La. App. 3rd Cir. 1997); Landrum v. Matthews, 612 So.2d 854, 858 (La. App. 5th Cir. 1993). That corroboration can include an informal acknowledgment of paternity by the alleged father prior to death, or the testimony of the surviving parent. See Chatelain, 586 So.2d at 1379; Guidry v. Mouton, 689 So.2d at 621.

Under Louisiana law, if the deceased dies without a valid will the undisposed property passes by operation of law to descendants, ascendents, and collaterals, and a current spouse. See La. Civ. Code Ann. art. 880 (West 2000). When a relationship is established by blood or adoption, inheritance rights pass to such a relative regardless of the legitimacy of the relationship.

See La. Civ. Code Ann. art. 880 (West 2000 & Supp. 2000). In cases such as this one, where the alleged father is deceased, Louisiana law requires clear and convincing evidence to establish filiation/. See La. Civ. Code Ann. art. 209(B) (West 2000); Chatelain v. State, 586 So.2d 1373, 1378 (La. 1991); Hines v. Williams, 567 So.2d 1139, 1141 (La. App. 2nd Cir. 1990).

In this case, the child's mother, Ms. K~, named Mr. S~ as Ryan's father in the application for survivor's benefits. There is no evidence in the record that Mr. S~ ever lived with Ms. K~, visited Ryan, provided financial support for Ryan, or acknowledged verbally or in writing that Ryan was his child.

On June 16, 1995, Mr. S~'s parents, Dorothy and Jones S~, signed an affidavit stating that they "acknowledge that Ryan D. K~ is the son of Walter Wess S~." The S~s statements lack the type of details that the Courts have looked for in similar cases. See Guidry v. Mouton, 689 So.2d 621 at 622. The courts look for the specifics of the couple's relationship because such specificity gave the surviving parent's claims of paternity credibility. See Landrum v. Matthews 612 So.2d 854 at 856 (holding that testimony of mother regarding time of conception and frequency of intercourse, in combination with DNA test results was sufficient to establish paternity). Here, Ms. K~'s and the S~'s statements are too general to give their claims the credibility required by the court. Therefore, an adjudicator would need more specific information regarding the relationship between the couple. For example, testimony from Ms. K~ would be sufficient if she expanded her original statements with details about her relationship with Mr. S~. Also, any potential unrelated witnesses should be contacted because Louisiana courts have considered abundant testimony from credible witnesses to accumulate clear and convincing weight. See Succession of Stevenson, 492 So.2d 100, 102 (La. App. 1st Cir. 1986)(citing corroboration by witnesses assisted in satisfying burden of proving paternity by clear and convincing evidence).

You asked if Ryan's inheritance rights are established, when would they vest in Mr. S~'s estate? Under Louisiana State law, inheritance rights in an estate vest as of the date the deceased died. See La. Civ. Code Ann. art. 935 (West 2000).

In light of the foregoing discussion, it is our opinion that under Louisiana State law there is no accreditation requirement for testing laboratories. Since, the DNA test results in this case have been properly certified, the results are admissible evidence and can be used to establish the Ryan's inheritance rights. Further, even though the laboratory found a 99.467 percent probability that Mr. S~ was Ryan's father, those results alone are not enough to establish paternity. The record should be further developed to include detailed statements from Ms. K~ about her relationship with Mr. S~, or statements from witnesses regarding Mr. S~'s conduct toward Ryan. That additional information in combination with properly certified laboratory results would provide clear and convincing evidence of Ryan's paternity. Thus, establishing Ryan's inheritance rights in Mr. S~'s estate. The inheritance rights would have vested on the date of Mr. S~'s death.

E. PR 01-126 REPLY - Entitlement to Child's Benefits Under Louisiana Law - (NH) Ricky O~, SSN ~

DATE: September 21, 2000

1. SYLLABUS

Under new Social Security regulations, SSA will not require a claimant to obtain a court determination of paternity that is required under State intestacy law, and will not apply any State law requirement that an action to establish paternity be taken within a specified period of time. Under Louisiana case law, informal acknowledgment of paternity must be of a continuous, habitual, and unequivocal nature, and of sufficient frequency that there can be little doubt that the alleged father truly believed himself to be the father of the child. The courts have generally indicated what evidence a claimant would need to introduce in order to prove (by the clear and convincing standard) informal acknowledgment of paternity under Louisiana law. In this case, the evidence supporting informal acknowledgment does not meet the clear and convincing standard.

Under Louisiana law, inheritance rights vest at the moment of death. Regardless of when those rights are later asserted, the acquisition of the inheritance rights relates back to the moment of death.

2. OPINION

This is in response to your legal opinion request asking our office to address the following issues:

(1) Whether the Social Security Administration (the Agency) can disregard Louisiana state time limits to establish paternity of Christian M. L~; (2) Whether the evidence provided by relatives is sufficient to establish that Ricky O~ informally acknowledged Christian as required by Louisiana law; and (3) Whether the inheritance rights, if established, are prospective under Louisiana state law. In our opinion, the Louisiana statutory time limits for establishing paternity can be disregarded. It is also our opinion that there is not enough credible evidence to establish that Ricky O~ informally acknowledged Christian. Finally, it is our opinion that the inheritance rights vest at death.

Ricky O~ died on July 5, 1998, while domiciled in Louisiana. The natural mother of Christian, G. L~, filed an application for child insurance benefits on behalf of Christian on April 26, 2000. Christian was born on July 15, 1998, ten days after Mr. O~'s death. Ms. L~ alleges that Mr. O~ informally acknowledged Christian, and she has submitted statements of his relatives supporting her allegation. This evidence is discussed in depth below.

Under the Social Security Act (the Act), one of the ways of determining that a child is the child of an insured worker is to determine whether the child could inherit intestate property under the laws of the state where the worker was domiciled at the time of his death. Section 216 (h)(2)(A) of the Act, 42 U.S.C.A. § 416 (h)(2)(A). At the time of his death, Mr. O~ was domiciled in the state of Louisiana. Thus, for Christian to establish eligibility for survivor's benefits, Ms. L~ must establish that Christian would be eligible to inherit from Mr. O~'s intestate estate under Louisiana State law. See 20 C.F.R. § 404.355 (a)(1) and (b)(4).

One way to do this is to establish filiation/. There is no evidence that Ms. L~ instituted a civil proceeding on behalf of Christian to establish filiation as required by Louisiana statute. See La. Civ. Code Ann. Art. 209 (West 1999). However, the failure to institute a civil proceeding within the required time frame, as specified under Article 209, does not bar the Agency from considering whether the deceased informally acknowledged his paternity. Social Security regulations state that if an applicable state inheritance law requires a court determination of paternity, the Agency will not require a claimant to obtain such a determination, but rather, will decide paternity based upon the standard of proof the State court would have used. See 20 C.F.R. § 404.355(b)(2). This Social Security regulation also indicates that the Agency will not apply any state law requirement mandating that an action to establish paternity be taken within a specified period of time. Id. This regulation should be applied to any application pending before the Agency on or after its effective date of November 27, 1998. Generally, the law in effect at the time of an administrative determination is controlling, even if it has been amended during the pendency of a proceeding. See Hampton v. Bowen, 785 F.2d 1308, 1310 (5th Cir. 1986) citing Central Freight Lines v. U.S., 669 F.2d 1063, 1069 (5th Cir. 1982). See also 2 Am. Jur. 2d Administrative Law § 384 (1994).

Louisiana law on intestate succession provides that the undisposed property of the deceased is inherited by his descendants, ascendants, and collaterals, by blood or by adoption, and by his spouse not judicially separated from him. La. Civ. Code Ann. Art. 880 (West 1999). The comment following this article states that, once a relationship is proven by blood or adoption, the succession rights of such a relative are established without reference to the legitimacy of that relationship. La. Civ. Code Ann. Art. 880 Comment c (West 1999). Further, inheritance rights vest immediately upon the death of the deceased. La. Civ. Code Ann. Art. 940 (West 1999). Thus, if Ms. L~ can establish that Christian is Mr. O~'s child under Louisiana filiation law, the child would be entitled to inherit through intestate succession and would be considered Mr. O~'s child for the purpose of the Act.

Under Louisiana law, in order to establish filiation, a child who does not enjoy legitimate filiation or who has not been filiated by the initiative of the parent by legitimation or by acknowledgment under Article 203 must institute a proceeding under Article 209.@ See La. Civ. Code Ann. Art. 209 (West 1999).

Because Christian does not enjoy legitimate filiation and was not filiated by the initiative of the parent, we must look to Article 209 to determine if Ms. L~ has established that Christian is Mr. O~'s child. Section B of Article 209 states the following:

A child not entitled to legitimate filiation nor filiated by the initiative of the parent by legitimation or by acknowledgment under Article 203 must prove filiation as to an alleged deceased parent by clear and convincing evidence... La. Civ. Code Ann. Art.209 (West 1999).

Here, Ms. L~ seeks to prove Christian's filiation to Mr. O~ by showing that he was informally acknowledged by the deceased. Informal acknowledgment is not specifically defined or authorized by the Louisiana Civil Code. Instead, it is a product of Louisiana case law and is included as proof of filiation in the comment to Article 209. See Succession of Matte, 346 So.2d 1345, 1349 (La. App. 3rd Cir. 1977); La. Civ. Code Ann. Art. 209 cmt. b (West 1999).

Under Louisiana case law, informal acknowledgment of paternity must be of a continuous, habitual, and unequivocal nature, and of sufficient frequency that there can be little doubt that the alleged father truly believed himself to be the father of the child. See Thomas v. Smith, 463 So.2d 971, 975 (La. App. 3rd Cir. 1985) . Moreover, to prove filiation by clear and convincing evidence, the putative father's actions must be of such frequency that the trier of fact is convinced that paternity is >highly probable, i.e., much more probable than its nonexistence. See Sudwisher v. Estate of Hoffpauir, 705 So.2d 724, 732 (La. 1997). The determination of whether there has been informal acknowledgment by, or sufficient proof of filiation to, the alleged parent is a factual determination that must be made by reference to the record as a whole. See Matte, 346 So.2d at 1350.

The courts in Louisiana have generally indicated what evidence a claimant would need to introduce in order to prove (by the clear and convincing standard) informal acknowledgment of paternity under Article 209. Evidence which can be considered could include, but is not limited to: the father rearing the child in his home, giving the child his surname, holding the child out in the community as his own, giving gifts to the child, causing the education of the child, and acknowledging paternity in formal writings or in public and private conversations. See Estate of Hoffpauir, 705 So.2d at 731.

Louisiana courts are reluctant to recognize informal acknowledgment for purposes of filiation unless the father has recognized the child as his own, unequivocally, and on several occasions. Id. For example, in a 1985 Louisiana case, plaintiffs proved informal acknowledgment by clear and convincing evidence after calling twenty-one witnesses for their side at trial, submitting three favorable depositions in support of their case, introducing birth certificates and a marriage certificate all purporting to indicate that the plaintiffs were informally acknowledged by the deceased. See Succession of Henry C~ B~, 472 So.2d 578, 582-84 (La. 1985).

Although this matter concerns informal acknowledgment under Louisiana law, we note that Louisiana statutory law expressly provides other means of proving filiation:

(b) Proof of filiation may include, but is not limited to :

Informal acknowledgment; scientific test results; acknowledgment in a testament; and proof that the alleged parents lived in a state of concubinage at the time of conception . . ."

La. Civ. Code Ann. art. 209 (West 1999). Informal acknowledgment is merely one method of proving filiation. See Matter of Thomas, 450 So.2d 1048 (La. App. 1st Cir. 1984), writ den., 457 So.2d 1192 (La. 1984). If Ms. L~ presents scientific test results, i.e., DNA, demonstrating Christian's filiation to Mr. O~ or proof that she lived with Mr. O~ at the time of her conception, she may be able to prove filiation by these means. However, when the alleged parent is deceased, the courts require corroboration of the DNA test results, in order to meet the clear and convincing standard of proof. See Guidry v. Mouton, 689 So.2d 621, 623 (La. App. 3rd Cir. 1997)(holding that DNA test results with trial and deposition testimony constituted clear and convincing evidence that plaintiff was the natural child of the deceased alleged father).

In this case, we believe the evidence supporting informal acknowledgment does not meet the clear and convincing standard. Statements from the child's paternal grandmother, Cecelia O~, and aunt, Krystal O~, indicate that Mr. O~ told them on one occasion that Gabrielle L~ was pregnant with his child, and that Mr. O~ seemed happy. Although Christian was not born until after Mr. O~'s death, there is no other evidence of an "unequivocal" acknowledgement. Since Christian's birth, Ms. L~ and Christian have apparently moved in with Cecelia O~. However, during the pregnancy, Ms. L~ lived with her parents, while Mr. O~ lived alone.

Based upon our review of Louisiana law and the facts of this case, it is our opinion that Ms. L~ has not shown by clear and convincing evidence that Mr. O~ informally acknowledged Christian as his child. Although Mr. O~ presumably was happy that Ms. L~ was pregnant, this does not meet the clear and convincing standard. Therefore, under Louisiana law, Christain would not be entitled to inherit from Mr. O~'s intestate estate, and would not be entitled to surviving child benefits.

If Ms. L~ is able to produce additional evidence that would meet the clear and convincing burden, you asked if Christian's inheritance rights would be prospective or retroactive. Social Security regulations state that when the insured is deceased, child's benefits begin with the first month covered by the application in which all other requirements for entitlement are met. 20 C.F.R. § 404.352. Where, as here, the application was filed after the first month in which the requirements for benefits were met, Christian could be entitled to receive benefits for up to six months immediately before the month in which the application was filed. Benefits would begin with the first month in that six-month period in which all requirements for eligibility were met. 20 C.F.R. § 404.621(a)(ii). The only issue affecting date of entitlement involves the date when Christian would first be considered Mr. O~'s child under the Act.

A child who establishes filiation to a decedent by clear and convincing evidence is entitled to inheritance rights. Under Louisiana law, inheritance rights vest at the moment of death. La. Civ. Code Ann. Art. 935 & Art. 954 (West 2000). Regardless of when those rights are later asserted, the acquisition of the inheritance rights relates back to the moment of death. La. Civ. Code Ann. Art. 954, Comment (a) (West 2000). Thus, Christian's right to inherit from Mr. O~'s intestate estate would have vested at the moment of death on July 5, 1998. Because of this, Christian's relationship to Mr. O~ would be proven pursuant to § 216(h)(2)(A) of the Act as of the date of Mr. O~'s death, at the latest. In our opinion, because Christian could fall within the definition of Mr. O~'s child under the Act as of the date of his death, the date of entitlement should be the full six months retroactivity from the filing date of the application. Again, this assumes that Ms. L~ is able to produce additional evidence of Mr. O~'s informal acknowledgment, or demonstrates his paternity through another means such as DNA testing.

Based on the foregoing discussion, it is our conclusion that Ms. L~ has not met her evidentiary burden of proving Christian's relationship to Ricky O~ by informal acknowledgment under Louisiana law.

F. PR 01-113 Use of a Louisiana District Court Paternity Judgment and Disregarding Louisiana State Law Time Limits to Establish Child Relationship (NH James C~, SSN ~)

DATE: January 23, 2001

1. SYLLABUS

A Louisiana Judgment of Paternity issued after the NH's death, stating that the he was the father of the two child claimants, establishes inheritance rights for both children as of the date of the NH's death. The court determination was based on DNA test results using a blood sample taken from the NH during his lifetime, showing a 99.9% probability of paternity, and oral testimony.

NOTE: The opinion states that DNA test results showing a 99.9% probability of paternity creates a rebuttable presumption of paternity. This presumption only applies during the alleged father's lifetime.

2. OPINION

This is in response to your request for a legal opinion addressing the following issues:

(1) Can the Louisiana Family Court Judgment of Paternity issued after the putative father's death be used to establish eligibility for surviving child benefits under the Social Security Act (the Act)?

(2) Because the application for surviving child benefits was filed more than one year after the putative father's death, can the Social Security Administration (SSA) disregard Louisiana State law time limits?

(3) What is the date of entitlement, if any?

(4) Whether SSA should reopen the June 1999 application for surviving child benefits.

After reviewing the facts and relevant law, it is our opinion that the Louisiana Judgment of Paternity stating that Mr. C~ was the father of James and Jacqueline C~ established inheritance rights for both children. SSA should accept the paternity findings set out in the Louisiana Judgment of Paternity because it meets the prerequisites established by federal law. The issue of disregarding state law time limits is not relevant to this case, as the state law time limits were met. Regarding the date of entitlement, James and Jacqueline acquired inheritance rights as of the date of Mr. C~'s death. Therefore, their relationship to Mr. C~ was proven as of that date. The June 1999 application should be reopened, and benefits paid to James and Jacqueline from the date of their births. If the prior application is not reopened, the date of entitlement should be six months retroactive from the date of the December 1999 application.

Mr. C~ died on October 18, 1998, while domiciled in Louisiana. James and Jacqueline C~, twins, were born to Claire J~ on May 4, 1999. In June 1999, Ms. J~ filed an application with SSA for surviving child benefits based on Mr. C~'s earnings record on behalf of her children James and Jacqueline C~. This application was denied because of lack of evidence establishing the children's relationship to Mr. C~ under the Act. A new claim was filed in December 1999. New evidence was provided by Ms. J~ that included an October 1999 Judgment of Paternity establishing that Mr. C~ was James' and Jacqueline's father. A November 1999 court decree changed the twins' names to show the last name as C~, and the birth certificates were amended to show the name change and to add Mr. C~ as father.

Ms. J~ stated that she had been married but was divorced in 1993 or 1994. Both she and Mr. C~ were divorced at the time of the children's conception. She also stated that Mr. C~ had no brothers. Additionally, the blood sample used for the DNA testing was actually from Mr. C~. When he died, the police department had custody of a blood sample. Pursuant to a court order, that sample was delivered to the physical possession of DNA Diagnostic Center of Fairfield, Ohio and retained in a frozen state for use in the anticipated paternity test. Appropriate documentation regarding the chain of custody of Mr. C~'s blood sample is included in the claim file.

The DNA test results for James showed a 99.96% probability that Mr. C~ was his biological father. Test results for Jacqueline showed a 99.99% probability that Mr. C~ was her biological father. Records from the testing facility, DNA Diagnostic Center, include verifications from the technician collecting the samples regarding identification of the tested individuals, collection and packaging procedures, and chain of custody. Moreover, the "DNA Parentage Test Report" for each child included a sworn verification that the testing procedures and interpretation were done in accordance with the American Association of Blood Banks' guidelines.

In addition, SSA contacted David M~, attorney for Kathy R. C~, Mr. C~'s ex-wife. Kathy R~ C~ was the succession representative for Mr. C~'s estate and is the mother of William and John C~, Mr. C~'s natural, legitimate children. Mr. M~ was present at the state court hearing on this matter and represented the interests of Mr. C~'s estate. Mr. M~ stated that paternity was established based on DNA evidence indicating a 99.9% probability that Mr. C~ was the biological father of James and Jacqueline. Mr. M~ further observed that Kathy R. C~ was aware of the evidence in the case and had expressed no interest in opposing the decision, as there was overwhelming evidence in support of it.

Here, Ms. J~ seeks to prove James and Jacqueline's relationship to Mr. C~ by using the state court judgment of paternity. In order to determine whether an applicant is the child of an insured individual, the Commissioner will apply the law of the state of the insured's domicile at the time of his death. Applicants who according to such law would have inherited intestate property as a child of the insured will be deemed the child of the insured for the purposes of this section. 42 U.S.C. § 216 (h)(2)(A). At the time of his death, Mr. C~ was domiciled in the state of Louisiana. Thus, for James and Jacqueline to establish eligibility for survivor's benefits, they must establish that they would be eligible to inherit from Mr. C~'s intestate estate under Louisiana law. 20 C.F.R. § 404.355 (a)(1) and (b)(4).

Moreover, under recently amended regulations, SSA will not apply any state law requirement that an action to establish paternity must be taken within a specified period of time from the worker's death or the child's birth, or that an action to establish paternity must have been started or completed before the worker's death. Also, if applicable state law requires a court determination of paternity, SSA will not require an applicant to obtain such a determination but will decide paternity using the standard of proof that the state court would have used. See 20 C.F.R. § 404.355(b)(2).

Louisiana law on intestate succession provides that the undisposed property of the deceased devolves by operation of law in favor of his descendants, ascendants, and collaterals, by blood or by adoption, and in favor of his spouse not judicially separated from him. La. Civ. Code Ann. art. 880 (West 2000). The comment following this article states that, "once a relationship is proven by blood or adoption, the succession rights of such a relative are established without reference to the legitimacy of that relationship." La. Civ. Code Ann. art. 880 Comment c (West 2000). Further, inheritance rights vest immediately upon the death of the deceased. La. Civ. Code Ann. art. 940 (West 2000).

Under Louisiana law, "in order to establish filiation, a child who does not enjoy legitimate filiation or who has not been filiated by the initiative of the parent by legitimation or by acknowledgment under Article 203 must institute a proceeding under Article 209." La. Civ. Code Ann. Art 208 (West 2000). Because James and Jacqueline do not enjoy legitimate filiation and were not filiated by the initiative of the parent, we must look to Article 209 to determine if they have established their relationship to Mr. C~. The pertinent part of Article 209 states the following:

B. A child not entitled to legitimate filiation nor filiated by the initiative of the parent by legitimation or by acknowledgment under Article 203 must prove filiation as to an alleged deceased parent by clear and convincing evidence in a civil proceeding instituted by the child or on his behalf within the time limit provided in this article.

C. The proceeding required by this article must be brought within one year of the death of the alleged parent or within nineteen years of the child's birth, whichever first occurs. This time limitation shall run against all persons, including minors and interdicts. If the proceeding is not timely instituted, the child may not thereafter establish his filiation, except for the sole purpose of establishing the right to recover damages under Article 2315. A proceeding for that purpose may be brought within one year of the death of the alleged parent and may be cumulated with the action to recover damages.

La. Civ. Code Ann. art. 209 (West 2000).

Here, in compliance with Articles 203 and 209 of the Louisiana Civil Code, Ms. J~ instituted a proceeding in Louisiana state court to establish James and Jacqueline's relationship to Mr. C~.

On October 12, 1999, less than one year after Mr. C~'s death, a Louisiana family court issued a Judgment of Paternity. That judgment named Mr. C~ as the father of James and Jacqueline. The paternity judgment was based on oral testimony and DNA evidence that established a 99.9% likelihood that Mr. C~ was James and Jacqueline's biological father. Ms. J~ was present at the hearing and represented by an attorney, Marcus T. F~. Mr. M~ was also present on behalf of Mr. C~'s estate.

You asked whether this court judgment could be used to establish eligibility for surviving child benefits for James and Jacqueline. To determine if SSA is bound by a state court paternity judgment, we consider the criteria required by Social Security Ruling (SSR) 83-37c, which adopted the holding in Gray v. Richardson, 474 F.2d 1370, 1373 (6th Cir. 1973). Although the Commissioner is not bound by the decision of a state trial court, the Commissioner will follow the order when the following prerequisites are met: 1) an issue in a claim for Social Security benefits has been previously determined by a state court of competent jurisdiction; 2) the issue was genuinely contested before the state court by parties with opposing interests; 3) the issue falls within the general category of domestic relations law; and 4) the resolution by the state trial court is consistent with the law enunciated by the highest court in the state. See SSR 83-37c.

Here, all four prerequisites have been met. The state court determined that Mr. C~ is James' and Jacqueline's biological father, and that is the sole issue in their claim for surviving child benefits. The Family Court of Baton Rouge Parish is a court of competent jurisdiction, and the issues involved are domestic relations matters. See La. Const. Art. 5, §16. Moreover, this matter was genuinely contested before the state court. Mr. M~, the attorney for Kathy R. C~, as succession representative of Mr. C~ and natural tutrix of William and John C~, was present at the hearing and represented the interests of Mr. C~'s estate. The estate representative would clearly have an opposing interest to potential additional claims on the estate. Further, when Mr. M~ was contacted, he indicated that Kathy R. C~ was aware of the evidence in the case and did not oppose the paternity determination due to the overwhelming evidence.

Finally, the holding of the state trial court appears to be consistent with the law as enunciated by the highest court of the State of Louisiana. The Louisiana Supreme Court has held that a clear and convincing evidence standard applies when an individual is attempting to prove filiation after the death of the putative parent. See Sudwisher v. Estate of Hoffpauir, 705 So. 2d 724, 730 (La. 1997). Simply stated, this standard requires that the evidence, taken as a whole, must show that the facts sought to be proven are "highly probable." See Chatelain v. State, 586 So. 2d 1373, 1378 (La. 1991)(holding that a higher standard of proof is required when the alleged parent is deceased because of the danger of fraud); Hines v. Williams, 567 So. 2d 1139, 1141 (La. App. 2d Cir. 1990)(requiring illegitimate children to prove filiation to a deceased parent by clear and convincing evidence to protect families from spurious claims).

Scientific testing alone is insufficient to prove filiation in Louisiana without "other corroborating evidence of paternity." State Dept. of Social Services v. Passant, 698 So. 2d 27, 30 (La. App. 3d Cir. 1997); Landrum v. Matthews, 612 So. 2d 854, 858 (La. App. 1st Cir. 1992). Valid DNA test results combined with other credible evidence may satisfy the clear and convincing standard.

See Sudwisher, 705 So. 2d at 732. See also Guidry v. Mouton, 689 So. 2d 621, 622-623 (La. App. 3d Cir. 1997)(holding that DNA test results with trial and deposition testimony constituted clear and convincing evidence). Other credible evidence can include informal acknowledgment of paternity by the alleged parent prior to death or the testimony of a surviving parent. See Chatelain, 586 So. 2d at 1379; Guidry, 689 So. 2d at 622-623.

Here, the DNA test results established by 99.9% probability that Mr. C~ was James and Jacqueline's biological father. Louisiana statutory law provides that a certified report of blood or tissue samples that indicates a 99.9% or higher probability of paternity creates a rebuttable presumption of paternity. La. Rev. Stat. Ann. § 9:397.3(B)(2)(b)(West 2000). The DNA test results were properly certified by the testing facility and were correctly admitted into evidence by the trial court. See La. Rev. Stat. Ann. §9:397.3, subd. A (West 2000)(affidavit shall include affiant's name and qualifications; how test samples were obtained; who, how, when, and where samples were obtained; chain of custody from the time the samples were obtained until the tests were completed; results and probability of paternity; and the procedures performed to obtain the test results); See also State v. C. Simien, 677 So. 2d 1138, 1141 (La. App. 3rd Cir. 1996). In addition to the DNA testing, the state court heard oral testimony. Thus, it is our opinion that the state trial court's Judgment of Paternity was consistent with the law as enunciated by the Louisiana Supreme Court. Thus, the fourth prerequisite of SSR 83-37c was met, and SSA can accept the state court determination of paternity.

Next, you asked whether SSA could disregard state law time limits because the application for surviving child benefits was filed more than one year after Mr. C~'s death. Mr. C~ died on October 18, 1998. The Judgment of Paternity was issued on October 12, 1999, less than one year after Mr. C~'s death. Thus, the state law time limits were met. The date relevant for the statute of limitations is the date on which the action was filed, not the date it was adjudicated. See La. Civ. Code Ann. art. 203 and art. 209 (West 2000). Because the final order was issued less than one year after Mr. C~'s death, it is apparent that Ms. J~ filed an action under Article 203 of the Louisiana Civil Code within one year of Mr. C~'s death.

You also asked about James and Jacqueline's date of entitlement if filiation is established under Louisiana law. Social Security regulations state that when the insured is deceased, child's benefits begin with the first month covered by the application in which all other requirements for entitlement are met. 20 C.F.R. § 404.352. Where, as here, the application was filed after the first month in which the requirements for benefits were met, James and Jacqueline may receive benefits for up to six months immediately before the month in which the application was filed. Benefits will begin with the first month in that six-month period in which all requirements for eligibility were met. 20 C.F.R. § 404.621(a)(ii). Because James and Jacqueline met all other requirements on the date of the application and for the previous six months, the only issue affecting date of entitlement involves the date when they were first considered C~'s "children" under the Act. In other words, on what date was James and Jacqueline's relationship to Mr. C~ proven pursuant to § 216(h)(2)(A) of the Act?

Generally, in a claim for surviving child benefits, the earliest point at which the applicant would be eligible for benefits was the date of insured's death. However, because James and Jacqueline were born after Mr. C~'s death, their earliest date of entitlement would be their dates of birth. As earlier discussed, a child who establishes filiation to a decedent by clear and convincing evidence is entitled to inheritance rights. James and Jacqueline have established the right to inherit from Mr. C~'s intestate estate. Under Louisiana law, inheritance rights vest at the moment of death. La. Civ. Code Ann. art. 935 & art. 954 (West 2000). Regardless of when those rights are later asserted, the acquisition of the inheritance rights relates back to the moment of death. La. Civ. Code Ann. art. 954, Comment (a) (West 2000). Moreover, an unborn child is considered a natural person for whatever relates to its interests from the moment of conception. La. Civ. Code Ann. art. 26 (West 2000). James and Jacqueline acquired the same rights of any natural person upon their conception, and their right to inherit from Mr. C~'s intestate estate vested at the moment of Mr. C~'s death. However, James and Jacqueline's inheritance rights could not be asserted unless and until they were born alive. See Id. Because of this, James and Jacqueline's relationship to C~ was established pursuant to §216(h)(2)(A) of the Act on the date of C~'s death. In our opinion, because James and Jacqueline could have fallen within the definition of "child" under the Act as of the date of C~'s death, their date of entitlement should be the full six months retroactivity from the December 1999 filing date of the application unless SSA determines it is proper to reopen the prior application.

Ms. J~ previously filed an application for benefits in June 1999.

That application was denied on July 19, 1999. The Commissioner's regulations provide that a determination may be reopened (1) within twelve months of the date of the notice of the initial determination for any reason and (2) within four years of the date of the notice of the initial determination for good cause. See 20 C.F.R. § 404.988 (2000). The term "initial determination" is defined as the determination SSA makes about a claimant's entitlement or continuing entitlement to benefits or about any other matter. See 20 C.F.R. § 404.900. Thus, the denial notice issued on the June 1999 application would be considered the initial determination for that claim.

It is our opinion that the prior application should be reopened.

Simple fairness indicates that SSA should reopen the prior application. First, SSA did not fully and fairly develop the record before denying Ms. J~'s first application. When Ms. J~'s first application was denied for insufficient evidence on July 19, 1999, she had already informed SSA that she was in the process of obtaining DNA test results and would be seeking a court order. The record shows that the DNA testing was performed on June 23, 1999. However, instead of waiting on further and sufficient development of the evidence, SSA denied her application. SSA regulations require that a claimant be given additional time to obtain evidence where the delay is due to the failure to timely receive evidence from another source. See 20 C.F.R. § 404.705 (2000).

Moreover, the DNA testing report was issued on July 6, 1999. This evidence was, therefore, in existence prior to the initial denial. The DNA testing, even without the subsequent court order, would likely have changed the outcome of the claim. This fact alone provides "good cause" for reopening the prior application. SSA will find good cause to reopen a determination if new and material evidence is furnished. See 20 C.F.R. § 404.988. Evidence is new and material if it shows facts that would result in a conclusion different from that originally reached had the new evidence been introduced or available at the time of the original determination. See POMS GN 04010.030(A). Under Louisiana law, scientific testing, when coupled with other testimony, can be used to prove paternity by clear and convincing evidence. See La. Civil Code Ann. art. 209, Comment c (West 2000). Clearly, good cause exists for SSA to reopen the prior application. If the prior application is reopened, James and Jacqueline would be entitled to retroactive benefits for up to six months from the date of the first application. However, in this case, the retroactive benefits are limited to the children's dates of birth.

Based on the foregoing discussion, it is our conclusion that Mr. C~'s relationship to James and Jacqueline was established by the Louisiana court order. Further, the state law time limits were met in this case. Unless the June 1999 application is reopened, the date of entitlement for James and Jacqueline should be six months prior to the protective filing date of the application.

G. PR 01-096 Use of a Louisiana District Court Paternity Judgment Issued More Than One Year After the Death of the Purported Father and Based on DNA Testing to Establish Child Relationship — Wage Earner Garland W. C~, SSN ~

DATE: January 9, 2001

1. SYLLABUS

SSA can disregard the Louisiana State law time limits in this case. The District Court judgment issued after the NH's death, combined with properly certified DNA test results on the child's mother, the child, and another child entitled on the NH's record, and the child's mother's statements about her relationship with the NH, satisfy the clear and convincing evidence standard necessary to establish paternity under Louisiana law. Under Louisiana law, inheritance rights vest at the moment of death, regardless of when those rights are later asserted.

2. OPINION

The purpose of this memorandum is to respond to your request for our opinion on whether a Louisiana District Court Judgment of Paternity issued more than one year after the death of the purported father and based on Deoxyribonucleic Acid (DNA) testing is acceptable to establish a presumption of paternity. Specifically, you asked the following questions:

(1) Is the Social Security Administration (SSA) bound by the September 1999 Louisiana District Court Judgement of Paternity?

(2) If SSA is bound by the Judgment issued more than one year after the alleged father's death, can SSA disregard Louisiana State law time limits?

(3) Does a DNA test report based on blood testing of other than the wage earner establish a presumption of paternity?

(4) Does the laboratory that performed the DNA analysis meet the accreditation requirements of state law?

(5) What is the date of entitlement, if any?

After reviewing the facts and relevant law, it is our opinion that SSA can disregard the Louisiana state law time limits, but SSA is not bound by the September 1999 District Court Judgment. Even so, the District Court Judgment combined with properly certified DNA test results and Felicia S~' statements satisfy the clear and convincing evidence standard necessary to establish paternity. The date of entitlement for Kadijah S~ would be retroactive a full six months before the October 1999 filing date.

Garland W. C~, the wage earner and Kadijah S~' purported father, died on October 22, 1997, while domiciled in Louisiana. Mr. C~ was legally married to Ursula C~ at the time of his death. Mr. C~ had filed a disability claim in October 1996 listing his three natural legitimate children born during his marriage to Ursula C~ as his children. He also included Demetrius S~, a child born to Felicia S~ on July 30, 1991, as his child.

Following Mr. C~'s death in October 1997, Ms. S~ alleged Mr. C~ is Kadijah's biological father and filed an application for survivor's benefits on behalf of Kadijah, who was born on October 22, 1994. Ms. S~ was not married at the time of Kadijah's conception or birth. The October 1997 claim was denied because Ms. S~ was unable to furnish evidence of paternity. Ms. S~ filed another application for Kadijah in October 1999, and submitted a September 1999 Louisiana District Court Judgement of Paternity declaring Mr. C~ as Kadijah's father. Ms. S~' attorney, Melissa A. C~, reported that the paternity judgement was based on a July 1999 DNA testing report showing a 99.99 percent probability that the parties sampled were first degree relatives. The samples used were from Ms. S~, Kadijah, and Demetrius S~, who was born to Felicia S~ on July 30, 1991, and approved for benefits as a surviving child of Mr. C~ using a September 1995 child support order to establish his relationship to Mr. C~.

To be considered the insured person's natural child for purposes of entitlement to Social Security benefits under section 216(h)(2) of the Social Security Act (the Act) one of the following conditions must be met: (1) The child would be entitled to inherit through intestate succession under the laws of the state in which the insured person was domiciled when he died; or (2) the parents of the child went through a marriage ceremony which did not create a valid marriage because of a legal impediment. See Social Security Act § 216(h)(2); 42 U.S.C. § 416(h)(2)(A) and (B). An applicant who is not deemed to be the child of the insured under section 216(h)(2) of the Act shall nevertheless be deemed to be the child of the insured under section 216(h)(3) of the Act if: (1) Prior to his death, the insured person acknowledged the child in writing, had been decreed by a court to be the father of the child, or had been ordered to contribute to the support of the child because of paternity; or (2) the insured person is shown by satisfactory evidence to be the father of the child and was living with the child or contributing to the child's support at the time such insured individual died. See Social Security Act § 216(h)(3); 42 U.S.C. § 416(h)(3)(C)(i) and (ii).

It is undisputed that Mr. C~ and Ms. S~ never attempted marriage.

Ms. S~ has not furnished any evidence that Mr. C~ acknowledged Kadijah in writing, had been decreed by a court to be Kadijah's father, or had been ordered to contribute to Kadijah's support prior to his death in October 1997. In addition, it is undisputed that Mr. C~ did not live with Kadijah or contribute to her support. Thus, the only possible avenue to establish Kadijah as Mr. C~'s child for purposes of the Act is by showing that Kadijah would be entitled to inherit through intestate succession under the laws of Louisiana, the state in which Mr. C~ was domiciled at the time of his death. See Social Security Act § 216(h)(2); 20 C.F.R. § 404.355(a)(1) and (b)(4) (2000).

Under recently amended regulations, SSA will not apply any state law requirement that an action to establish paternity must be taken within a specified period of time from the worker's death or the child's birth, or that an action to establish paternity must have been started or completed before the worker's death. See 20 C.F.R. § 404.355(b)(2). Also, if applicable state law requires a court determination of paternity, SSA will not require an applicant to obtain such a determination but will decide paternity using the standard of proof that the state court would have used. See id.

The Louisiana law on intestate succession provides that the undisposed property of the deceased devolves by operation of law in favor of his descendants, ascendants, and collaterals, by blood or by adoption, and in favor of his spouse not judicially separated from him. See La. Civ. Code Ann. art. 880 (West 2000).

In addition, the comment following this article states that, "once a relationship is proven by blood or adoption, the succession rights of such a relative are established without reference to the legitimacy of that relationship." La. Civ. Code Ann. art. 880 comment c (West 2000). Thus, if Ms. S~ can establish that Kadijah is Mr. C~'s child under Louisiana law, Kadijah would be entitled to inherit through intestate succession in Louisiana and would be considered Mr. C~'s child for purposes of the Act.

Under Louisiana law, "in order to establish filiation/, a child who does not enjoy legitimate filiation or who has not been filiated by the initiative of the parent by legitimation or by acknowledgment under Article 203/ must institute a proceeding under Article 209." La. Civ. Code Ann. art. 208 (West 2000). Since Kadijah does not enjoy legitimate filiation and was not filiated by the initiative of the parent by legitimation or by acknowledgment under Article 203, we must look to Article 209 of the Louisiana Civil Code to determine if Ms. S~ properly established that Kadijah is Mr. C~'s child under Louisiana law. The pertinent part of Article 209 states,

B. A child not entitled to legitimate filiation nor filiated by the initiative of the parent by legitimation or by acknowledgment under Article 203 must prove filiation as to an alleged deceased parent by clear and convincing evidence in a civil proceeding instituted by the child or on his behalf within the time limit provided in this article.

C. The proceeding required by this article must be brought within one year of the death of the alleged parent or within nineteen years of the child's birth, whichever first occurs. This time limitation shall run against all persons, including minors and interdicts. If the proceeding is not timely instituted, the child may not thereafter establish his filiation, except for the sole purpose of establishing the right to recover damages under Article 2315. A proceeding for that purpose may be brought within one year of the death of the alleged parent and may be cumulated with the action to recover damages.

La. Civ. Code Ann. art. 209 (West 2000).

Here, Ms. S~ seeks to prove Kadijah's filiation to Mr. C~ with a September 1999 District Court Judgment, which was issued almost 2 years after Mr. C~'s death. You asked if this judgment is binding on SSA and if SSA can disregard the Louisiana State law time limits discussed in Article 209.

Review of the Judgement of Paternity reveals this action initially came before the 26th Judicial District Court, Webster Parish, Louisiana on September 22, 1998, which complied with Article 209 because it was instituted within one year of Mr. C~'s death in October 1997./ Article 209 requires initiation of the action within one year of the alleged parent's death, but does not require that the Court issue a decision within one year of the alleged parent's death. As a result, the September 1999 District Court Judgment in an action originally initiated in September 1998 satisfied the time limits in Article 209.

Even if the action had not been brought within one year of Mr. C~'s death in October 1997, the amended Social Security regulations effective November 27, 1998, state that the agency will not apply a state's inheritance law requirement that an action to establish paternity must be taken within a specified period of time measured from the wage earner's death or the child's birth. See 20 C.F.R. § 404.355(b)(2). Since Ms. S~ filed an application for Kadijah in October 1999 after the new regulations became effective in November 1998, the time limits can be disregarded for purposes of the October 1999 application. See Hampton v. Bowen, 785 F.2d 1308, 1310 (5th Cir. 1986)(citing Central Freight Lines v. U.S., 669 F.2d 1063, 1069 (5th Cir. 1982))(the law in effect at the time of an administrative determination is controlling, even if it has been amended during the pendency of the proceeding).

To determine if SSA is bound by the court's holding in September 1999 that Mr. C~ is Kadijah's natural and biological father, we consider the criteria required by Social Security Ruling (SSR) 83-37c, which adopted the holding in a Sixth Circuit case. See Gray v. Richardson, 474 F.2d 1370, 1373 (6th Cir. 1973). Although the Commissioner is not bound by the decision of a state trial court, the Commissioner will follow the order of a state tribunal when the following prerequisites are met: 1) an issue in a claim for Social Security benefits previously has been determined by a state court of competent jurisdiction; 2) the issue was genuinely contested before the state court by parties with opposing interests; 3) the issue falls within the general category of domestic relations law; and 4) the resolution by the state trial court is consistent with the law enunciated by the highest court in the state. See SSR 83-37c.

The first and third prerequisites were satisfied. The state court determined that Mr. C~ is Kadijah's natural and biological father and that is the sole issue in Ms. S~' claim for survivor's benefits on behalf of Kadijah. The 26th Judicial District Court, Webster Parish, Louisiana is a court of competent jurisdiction. See La. Const. Art. 5, § 16.

 

The second prerequisite, i.e., that the issue was genuinely contested, was not satisfied. The District Court order of September 27, 1999, indicates that the Court made its decision without a hearing. For obvious reasons, Mr. C~, who was listed as the defendant, was not present to contest the issue. Although information in the file indicates Mr. C~'s family did not believe Kadijah was Mr. C~'s child, the file does not show that any member of Mr. C~'s family, such as his parents or widow, was aware of the paternity action or contested it. Because there were no apparent opposing parties to Ms. S~' petition, the issue was not genuinely contested.

We do not have enough information to determine if the holding of the District Court is consistent with the law as enunciated by the highest court of the State of Louisiana. The Louisiana Supreme Court has noted that the burden of proving filiation or paternity in Louisiana is by clear and convincing evidence when the alleged parent of an illegitimate child is deceased. See Sudwisher v. Estate of Hoffpauir, 705 So.2d 724, 730 (La. 1997). Simply stated, this standard requires that the evidence, taken as a whole, must show that the facts sought to be proven are highly probable." See Chatelain v. State, 586 So.2d 1373, 1378 (La. 1991)(logical that a higher standard of proof required for filiation and legitimation when not presented until after the death of the alleged parent because replete with danger of fraud); Hines v. Williams, 567 So.2d 1139, 1141 (La. App. 2nd Cir. 1990)(illegitimates required to prove filiation to an alleged deceased parent by clear and convincing evidence to protect individuals and families from potentially spurious claims brought at a time when the putative father cannot defend himself against paternity allegations).

The District Court did not identify the evidence used to make its determination in the one page copy of the Judgment of Paternity in the SSA file. Since we do not have a complete copy of the court file from the Webster Parish Courthouse, we do not know what evidence was used by the Court to make the Judgment of Paternity. Melissa A. C~, the staff attorney for the Louisiana Department of Social Services who represented Ms. S~ before the Court, stated from memory that the Judgment was based on DNA evidence and statements from two persons. Although the SSA file contains DNA tests results, the file lacks statements from the two persons Ms. C~ indicated assisted the Court in its decision, including a statement from Mr. C~'s brother-in-law (name not provided) and another individual whose name Ms. C~ could not remember. Apparently, Ms. S~ has not provided a copy of the court file, although Ms. C~ indicated a copy was available at the Webster Parish Courthouse. Thus, we are unable to determine if the District Court's holding was consistent with the clear and convincing evidence standard enunciated by the Louisiana Supreme Court.

Based on the foregoing discussion, we believe that the District Courts determination that Mr. C~ is Kadijah's father is not binding on the Commissioner because the issue was not genuinely contested before the District Court by parties with opposing interests. In addition, the SSA file does not contain enough evidence to determine if the District Court's decision was based on clear and convincing evidence, the burden of proof recognized by the Louisiana Supreme Court when the alleged parent of an illegitimate child is deceased.

Next, you asked if the July 1999 DNA test report based on blood testing of other than the wage earner establishes a presumption of paternity. The SSA file contains a July 8, 1999, Sibling Study from Fairfax Identity Laboratories showing that DNA was extracted from Ms. S~, Kadijah, and Demetrius S~. Ms. S~ is the mother of both Kadijah and Demetrius. Demetrius was approved for benefits as Mr. C~'s surviving child based on Mr. C~'s acknowledgment that Demetrius was his child and a September 1995 child support order. No scientific testing was done to establish that Demetrius was Mr. C~'s child. Even so, the Sibling Study establishes a 99.99 percent probability that Demetrius and Kadijah are related as first degree relatives, or it is very probable that Demetrius and Kadijah have the same biological father.

Louisiana statutory law provides that a certified report of blood or tissue samples that indicates a 99.9 percent or higher probability of paternity creates a rebuttable presumption of paternity. See La. Rev. Stat. Ann. § 9:397.3(B)(2)(b)(West 2000). This statute does not preclude testing of individuals other than the wager earner, or siblings, but this statute contemplates that the putative father is alive and present to rebut the presumption. See La. Rev. Stat. Ann. § 9:397.3. Even so, the Louisiana Supreme Court allowed DNA testing of collateral parties and considered whether such tests results met the clear and convincing evidence standard in a case where an individual sought to establish her relationship to a decedent during a succession proceeding. See Sudwisher, 705 So.2d at 729, 732./ Thus, we conclude that Louisiana courts would not reject the July 1999 DNA test report simply because it was based on blood testing of other than the wage earner.

Scientific tests alone are insufficient to prove paternity in Louisiana without other corroborating evidence of paternity in addition to the DNA test result. See State Dept. of Social Services v. Passant, 698 So.2d 27, 30 (La. App. 3rd Cir. 1997); Landrum v. Matthews, 612 So.2d 854, 858 (La. App. 1st Cir. 1992).

Valid DNA test results combined with other credible evidence may satisfy the clear and convincing evidence standard necessary to establish paternity when the alleged father is deceased. See Sudwisher, 705 So.2d at 732; Guidry v. Mouton, 689 So. 621, 622-623 (La. App. 3rd Cir. 1997)(holding that DNA test results with trial and deposition testimony constituted clear and convincing evidence). Other credible evidence can include informal acknowledgment of paternity by the alleged father prior to death, or the testimony of the surviving parent. See Chatelain, 586 So.2d at 1379; Guidry, 689 So.2d at 622-623.

Ms. S~ named Mr. C~ as Kadijah's father in the application for survivor's benefits. Ms. S~ stated that she dated Mr. C~ for nine years until about a year before he died. Ms. S~ acknowledged that Mr. C~ was married to Ursula C~ the entire time Ms. S~ dated Mr. C~, but indicated that Mr. C~ would visit her before he went home from work. Ms. S~ reported that Mr. C~ spent nights at the home he shared with this wife. Ms. S~ related that Mr. C~'s parents never acknowledged that Mr. C~ was Kadijah's father.

Ms. S~' comments provide the type of details that Louisiana courts have looked for in similar cases. See Guidry, 689 So.2d at 623 (affirming that DNA test results combined with surviving parent's testimony regarding opportunity for sexual intimacy constituted clear and convincing evidence); Landrum v. Matthews, 612 So.2d 854 at 856 (holding that testimony of mother regarding time of conception and frequency of intercourse in combination with DNA test results was sufficient to establish paternity). The courts have looked for the specifics of the couple's relationship, including the frequency of sexual relations, to give credibility to the surviving parent's claim of paternity. See Guidry, 689 So.2d at 623; Suire v. Robison, 511 So.2d 35, 36-37 (La. App. 3rd Cir. 1987)(medical evidence showed child was conceived prior to mother's sexual encounter with alleged father). Here, Ms. S~ supplied sufficient testimony concerning the specifics of the couple's relationship, including the frequency of contact and opportunity for sexual intimacy, to give her claim the credibility required by Louisiana courts.

With respect to your question regarding accreditation of the laboratory that performed the DNA analysis, Louisiana law does not require testing laboratories to be accredited. Instead, to verify the chain of custody, the DNA test results must be certified by a sworn affidavit from the laboratory expert who conducted or supervised the test. See La. Rev. Stat. Ann. §9:397.3(A) (West 2000) (affidavit shall include affiant's name and qualifications; how test samples were obtained; who, how, when, and where samples were obtained; chain of custody from the time samples were obtained until the tests were completed; results and probability of paternity; and the procedures performed to obtain the test results); State v. C. Simien, 677 So.2d 1138, 1141 (La. App. 3rd Cir. 1996). Otherwise, the DNA test results are not admissible evidence and may be excluded by the court. See State Dept. of Social Services v. White, 651 So.2d 366, 368-369 (La. App. 2nd Cir. 1995). Since the Agency is acting as the state court would in this case, we believe that DNA test results should only be considered if the required affidavits are provided by the testing laboratory. See 20 C.F.R. § 404.355.

The affidavits in file from Amanda C. S~, Sherrie L. C~, and Sumera K~ of Fairfax Identity Laboratories satisfy Louisiana's requirements.

You also inquired about the effective date of entitlement to any benefits. Social Security regulations state that when the insured is deceased, child's benefits begin with the first month covered by the application in which all other requirements for entitlement are met. See 20 C.F.R. § 404.352(a)(1). As discussed earlier, a child who establishes filiation to a decedent by clear and convincing evidence is entitled to inheritance rights. Under Louisiana law, inheritance rights vest at the moment of death. See La. Civ. Code Ann. art. 935 & art. 954 (West 2000). Regardless of when those rights are later asserted, the acquisition of the inheritance rights relates back to the moment of death. See La. Civ. Code Ann. art. 954 comment a (West 2000). Thus, Kadijah's right to inherit from Mr. C~'s intestate estate vested at the moment of Mr. C~'s death. Because of this, Kadijah's relationship to Mr. C~ was proven pursuant to section 216(h)(2)(A) of the Act as of the date of Mr. C~'s death, at the latest. Kadijah satisfied the definition of Mr. C~'s "child" under the Act as of the date of Mr. C~'s death in October 1997. As a result, the date of entitlement for Kadijah would be the full retroactive life of the October 1999 application, or retroactive a full six months before the October 1999 filing date. See 20 C.F.R. § 404.621.

In light of the foregoing discussion, it is our opinion that SSA can disregard the Louisiana state law time limits, but SSA is not bound by the September 1999 District Court Judgment. Nonetheless, the District Court Judgment combined with properly certified DNA test results and Felicia S~' statements satisfy the clear and convincing evidence standard necessary to establish paternity. The date of entitlement would be retroactive a full six months before the October 1999 filing date.

H. PR 01-069 REPLY — Entitlement to Child's Benefits Under Louisiana Law Where State Time Limits Have Not Been Met - NH James W. B~, SSN~

DATE: September 18, 2000

1. SYLLABUS

Because of the recently revised Social Security regulations, Louisiana State time limits on establishing paternity may be disregarded in this case. However, the evidence in this case does not prove by clear and convincing evidence that the NH informally acknowledged paternity of the child. While the NH exhibited some behavior indicating his paternity of the child, he was not listed as the child's father on the BC, did not make any written acknowledgment of paternity, and provided no financial support. Under Louisiana case law, informal acknowledgment must be of a continuous, habitual, and unequivocal nature and be of sufficient frequency that there can be little doubt that the alleged father truly believed himself to be the child's father.

Under Louisiana law, inheritance rights vest at the moment of death regardless of when those rights are later asserted.

2. OPINION

This is in response to your request for a legal opinion addressing the following issues:

1) Whether the Social Security Administration (SSA) can disregard Louisiana state time limits to establish the paternity of Taylor J. M~ (Taylor) if the requirements for informal acknowledgment under Louisiana law were met.

2) Whether statements provided by relatives and friends are sufficient under Louisiana law to establish that James W. B~ informally acknowledged Taylor as his child through oral statements and by his actions.

3) If the requirements of informal acknowledgment are met, what would be Taylor's date of entitlement?

You have requested this opinion for the purpose of determining Taylor's eligibility for surviving child's benefits on Mr. B~'s earnings record. Louisiana state time limits can be disregarded.

However, in our opinion, the evidence does not show by clear and convincing proof that Mr. B~ informally acknowledged paternity of Taylor as required by Louisiana law.

Constance C~ filed an application with a protective filing date of June 1999, on behalf of her son, Taylor, alleging that Mr. B~ was Taylor's biological father. Taylor was born on July 11, 1993, in Louisiana. Mr. B~ died on August 8, 1997 while domiciled in Louisiana. At the time of Taylor's conception, Ms. C~ and Mr. B~ were living together. Ms. C~ and Mr. B~ were never married, and there were no court orders of paternity or child support against Mr. B~. Ms. C~ has furnished no written acknowledgment of Taylor's paternity from Mr. B~. Ms. C~ stated Mr. B~ was not contributing to Taylor's support at the time of his death, but alleged, without providing documentation, that Mr. B~ had taken financial responsibility for the hospital bills at the time of birth. Ms. C~ indicated that she was unmarried at the time of Taylor's birth. The space for father's name is blank on Taylor's birth certificate.

As evidence of Mr. B~'s informal acknowledgment of Taylor, Ms. C~ submitted statements from Mr. B~'s family members. These individuals explained the context within which Mr. B~ described his relationship with Taylor. Those statements include information from Mr. B~'s grandmother, Dorothy F~, his mother, Linda B~, and his aunt, Bonnie K~. Both Ms. B~ and Ms. K~ stated that Mr. B~ and Ms. C~ were living together at the time Taylor was conceived and that Mr. B~ acknowledged that Taylor was his child. However, there was no specific information provided about the nature of that acknowledgment. Ms. F~ stated that Mr. B~ and Ms. C~ lived together in an apartment on her property during pregnancy and shortly after Taylor was born. She further stated that Mr. B~ had offered financial support to Ms. C~, but she refused. Mr. B~ never pursued custody or visitation. After separating from Mr. B~, Ms. C~ changed Taylor's name to Taylor J. M~ from Adam J. B~.

Based on this evidence, the Field Office determined that Mr. B~ had informally acknowledged Taylor as his child. In evaluating this claim, SSA applied Louisiana law regarding the establishment of inheritance rights for out-of-wedlock children through proof of informal acknowledgment of paternity by the decedent. However, our review of the evidence in this claim indicates that the standards for informal acknowledgement were not met here, and Taylor has not proven his relationship to Mr. B~.

In order to determine whether an applicant is the child of an insured individual, the Commissioner will apply the law of the state of the insured's domicile at the time of his death. Applicants who according to such law would have inherited intestate property as a child of the insured will be deemed the child of the insured for purposes of the section. See 42 U.S.C. § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1). At the time of his death, Mr. B~ was domiciled in Louisiana. Thus, for Taylor to establish eligibility for survivor's benefits, he must prove that he would be eligible to inherit from B~'s intestate estate under Louisiana law. See 20 C.F.R. § 404.355 (a)(1) and (b)(4).

Moreover, under recently amended regulations, SSA will not apply any state law requirement that an action to establish paternity must be taken within a specified period of time from the worker's death or the child's birth, or that an action to establish paternity must have been started or completed before the worker's death. Also, if applicable state law requires a court determination of paternity, SSA will not require an applicant to obtain such a determination but will decide paternity using the standard of proof that the state court would have used. See 20 C.F.R. § 404.355(b)(2).

Louisiana law on intestate succession provides that the undisposed property of the deceased is inherited by his descendants, ascendants, and collaterals, by blood or by adoption, and in favor of his spouse not judicially separated from him. La. Civ. Code Ann. Art. 880 (West 2000). A comment following this article states that, "once a relationship is proven by blood or adoption, the succession rights of such a relative are established without reference to the legitimacy of that relationship." La. Civ. Code Ann. Art. 880 Comment c (West 2000). Further, inheritance rights vest immediately upon the death of the deceased. La. Civ. Code Ann. Art. 940 (West 2000). Thus, if Taylor can establish that he is Mr. B~'s child under Louisiana filiation law, he would be entitled to inherit through intestate succession and would be considered Mr. B~'s child for the purpose of the Act.

Under Louisiana law, "in order to establish filiation, a child who does not enjoy legitimate filiation or who has not been filiated by the initiative of the parent by legitimation or by acknowledgment under Article 203 must institute a proceeding under Article 209." La. Civ. Code Ann. Art. 208 (West 2000). Because Taylor does not enjoy legitimate filiation and was not filiated by the initiative of the parent, we must look to Article 209 to determine if Taylor has established that he is Mr. B~'s child. The pertinent part of Article 209 states the following:

B. A child not entitled to legitimate filiation nor filiated by the initiative of the parent by legitimation or by acknowledgment under Article 203 must prove filiation as to an alleged deceased parent by clear and convincing evidence in a civil proceeding instituted by the child or on his behalf within the time limit provided in this article.

C. The proceeding required by this article must be brought within one year of the death of the alleged parent or within nineteen years of the child's birth, whichever first occurs. This time limitation shall run against all persons, including minors and interdicts. If the proceeding is not timely instituted, the child may not thereafter establish his filiation, except for the sole purpose of establishing the right to recover damages under Article 2315. A proceeding for that purpose may be brought within one year of the death of the alleged parent and may be cumulated with the action to recover damages.

La. Civ. Code Ann. Art. 209 (West 2000).

Taylor seeks to prove his filiation to Mr. B~ by showing that Mr. B~ informally acknowledged him. Informal acknowledgment is not specifically defined or authorized by the Louisiana Civil Code. Instead, it is a product of Louisiana case law and is included as "proof of filiation" in the comment to Article 209. See Succession of Matte, 346 So.2d 1345, 1349 (La. App. 3rd Cir. 1977); La. Civ. Code Ann. Art. 209 cmt. b (West 2000).

First, because Taylor's application was filed more than one year after Mr. B~'s death, you asked whether the Louisiana statutory time limits set out in Article 209(C) above can be disregarded in establishing Taylor's entitlement to Social Security benefits. The time limits can be disregarded to establish Taylor's eligibility for benefits if the requirements for informal acknowledgment are met. Additionally, the state law requiring the institution of a court proceeding can be disregarded. Recently amended Social Security regulations state that SSA will not apply any state law requirement that an action to establish paternity must be taken within a specified period of time or that a court proceeding must be instituted. 20 C.F.R. § 404.355(b)(2). This amended regulation should be applied to any application pending before the agency on or after its effective date of November 27, 1998. Generally, the law in effect at the time of a final administrative determination is controlling, even if it has been amended during the pendency of a proceeding. See Hampton v. Bowen, 785 F.2d 1308, 1310 (5th Cir. 1986) citing Central Freight Lines v. U.S., 669 F.2d 1063, 1069 (5th Cir. 1982). See also 2 Am. Jur. 2d Administrative Law § 384 (1994). Accordingly, the Louisiana state time limits and court proceeding requirement can be disregarded.

Next, we will provide guidance on whether the statements provided by relatives and friends were sufficient to establish that Mr. B~ informally acknowledged his paternity of Taylor as required by Louisiana law. Under Louisiana case law, informal acknowledgment of paternity must be of a continuous, habitual, and unequivocal nature and be of sufficient frequency that there can be little doubt that the alleged father truly believed himself to be the father of the child. See Thomas v. Smith, 463 So.2d 971, 975 (La. App. 3rd Cir. 1985). Moreover, to prove filiation by clear and convincing evidence, the putative father's actions "must be of such frequency that the trier of fact is convinced that paternity is 'highly probable,' i.e., much more probable than its nonexistence." See Sudwisher v. Estate of Hoffpauir, 705 So.2d 724, 732 (La. 1997). The determination of whether there has been informal acknowledgment by or sufficient proof of filiation to the alleged parent is a factual determination that must be made by reference to the record as a whole. See Matte, 346 So.2d at 1350.

Courts in Louisiana have generally indicated what evidence a claimant would need to introduce in order to prove informal acknowledgment of paternity by clear and convincing evidence as required by Article 209. Relevant evidence of informal acknowledgment includes but is not limited to the following: the father rearing the child in his home, living with the mother in his home at the time the child was conceived, giving the child his surname, holding the child out in the community as his own, giving gifts to the child, causing the education of the child, naming the child in his will, and acknowledging paternity in formal writings or in public and private conversations. See Sudwisher, 705 So.2d at 731; Jenkins v. Long Term Care Managers, 758 So.2d 863, 865 (La. App. 2000) citing Chatelain v. State Dept. of Transportation, 586 So.2d 1373, 1379 (La. 1991).

Louisiana courts are reluctant to recognize an informal acknowledgment for purposes of filiation unless the father has recognized the child as his own unequivocally and on several occasions. Id. For example, in a 1985 Louisiana Supreme Court case, the plaintiffs proved informal acknowledgment by clear and convincing evidence after calling twenty-one witnesses for their side at trial, submitting three favorable depositions in support of their case, introducing birth certificates and a marriage certificate all purporting to indicate that the plaintiffs were informally acknowledged by the deceased.See Succession of Henry C~ B~, 472 So.2d 578, 582-584 (La. 1985). Similarly, in another case, the court held that informal acknowledgment was established by clear and convincing evidence with the following proof: 1) the father repeatedly and readily acknowledged to the children that he was their father; 2) he repeatedly and readily acknowledged the same to other members of the community; 3) he arranged for them to purchase school supplies and have their shoes repaired at his expense; 4) he supplied other of their needs and sent cards and messages on holidays and special occasions; 5) he consulted an attorney with a view to providing for them in event of his death; 6) the mother testified that she and the alleged father had an exclusive sexual relationship at the time of the children's conceptions; and 7) the children were named as surviving children of the alleged father in his obituary. See Thomas v. Smith, 463 So.2d 971, 975 (La. App. 1985)

In this case, the evidence provided does not meet the standard of clear and convincing proof. Mr. B~ was not listed as Taylor's father on his birth certificate. Mr. B~ did not make any written acknowledgment of Taylor's paternity either formally or informally. Despite the fact that Mr. B~ and Ms. C~ lived together until shortly after Taylor was born, there is no proof that Mr. B~ provided financial support for Taylor. Although there is an allegation that Mr. B~ paid a portion of the hospital bills, no proof has been provided to substantiate that allegation. Mr. B~ did not provide financial support for Taylor after he and Ms. C~ separated.

The statements contained in the record show that Mr. B~ exhibited some behavior indicating his paternity of Taylor. Mr. B~'s grandmother stated that he kept the pictures of Taylor sent to him by Ms. C~. Also, Mr. B~'s mother and aunt believed that Taylor was his child. However, those actions and beliefs do not show continuous and habitual acknowledgment as required by Louisiana law. Based on the evidence provided, it is our opinion that Taylor has not shown by clear and convincing proof that he was informally acknowledged by Mr. B~.

Third, you asked about Taylor's date of entitlement if filiation were established under Louisiana law. Social Security regulations state that when the insured is deceased, child's benefits begin with the first month covered by the application in which all other requirements for entitlement are met. 20 C.F.R. § 404.352 (1999); 20 C.F.R. § 404.621(a)(ii)(1999). Assuming Taylor met all other requirements on the date of his application and for the previous six months, the only issue affecting date of entitlement would be the date when Taylor could have first been considered Mr. B~'s "child" under the Act. Under Louisiana law, inheritance rights vest at the moment of death regardless of when those rights are later asserted. La. Civ. Code Ann. Art. 935 & Art. 954 (West 2000). Thus, if Taylor established his right to inherit from Mr. B~ under Louisiana law, those rights would vest at the moment of Mr. B~'s death.

Based on our review of Louisiana law and the facts of this case, it is our conclusion that Taylor has not shown by clear and convincing evidence that Mr. B~ informally acknowledged Taylor as his child. Therefore, Taylor would not be entitled to surviving child benefits.


Footnotes:

[1]

Your opinion only asked for clarification of the effective date of the child relationship. Since you did not request a determination whether the evidence was sufficient to establish that Jasmine was the NH’s child, we do not offer an opinion as to whether the agency’s determination that Jasmine was entitled to child’s insurance benefits on the NH’s record was correct.

[2]

We note that the U.S. Supreme Court held that the time reference that refers to the NH’s entitlement to DIB benefits that is contained in section 216(h)(3)(B) is unconstitutional because it violates the Equal Protection Clause. See Jimenez v. Weinberger, 417 U.S. 628 (1974); Social Security Ruling (SSR) 75-4c, 1975 WL 12112.


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1501120021
PR 01120.021 - Louisiana - 07/30/2010
Batch run: 11/29/2012
Rev:07/30/2010