TN 6 (01-06)

PR 01120.033 New Jersey

A. PR 06-032 Andrew R. H~ (child) Deceased Number Holder: Jesse J. S~ SSN ~ New Jersey State Law: DNA & Paternity

DATE: December 13, 2005

1. SYLLABUS

A New Jersey court order based on DNA testing of the alleged paternal grandfather of the claimant and showing a 99.82% probability that a son of the grandfather is the father of the claimant will create a rebuttable presumption of paternity by the deceased number holder provided that additional evidence is obtained which excludes any other son of the grandfather from being the claimant's parent.

If the presumption of paternity stands after the additional evidence is obtained, the parent-child relationship would be established with the date of the claimant's complaint to the New Jersey court.

2. OPINION

You have asked for this office's opinion regarding whether a parent-child relationship existed between Andrew R. H~ (“Andrew”) and Jesse J. S~, the deceased number holder (the “NH”) for purposes of entitlement to child's survivor benefits under Title II of the Social Security Act (the “Act”). For the reasons stated below, we conclude that the submitted New Jersey court order of paternity based on genetic testing might be sufficient to establish a parent-child relationship between Andrew and the NH under New Jersey intestacy and parentage laws. However, this office cannot make an ultimate determination as to Andrew's entitlement based on the submitted evidence. Additional evidence must be obtained, as discussed herein. Assuming the additional evidence is obtained, the Agency could defer to the court order of paternity under Gray v. Richardson, adopted by Social Security Ruling 83-37c. Lastly, should the Agency defer to the court order of paternity, then Andrew's entitlement to child's survivor benefits would begin April 2005, when a parent-child relationship was established for purposes of intestate succession under New Jersey laws.

SUMMARY OF THE FACTS

Andrew's birth certificate reveals that he was born on December 17, 2004, to Melissa A. H~. The birth certificate does not contain any information as to the father. The NH died on February 22, 2005. Melissa H~ filed an application on March 14, 2005 for benefits under Title II of the Social Security Act on Andrew's behalf as the surviving child of the insured NH (“child's survivor benefits”). That application was denied, and Melissa H~ did not appeal the application.

On September 26, 2005, Melissa H~ filed a second application for child's survivor benefits. The following information was submitted or obtained pursuant to this application:

A Civil Action Complaint against Jesse J. S~, the NH, for “Paternity Only,” filed on April 25, 2005 in the Superior Court of New Jersey, Chancery Division - Family Part for the County of Morris (the “Court”), Docket No. FD-14-598-05 by the Morris County Department of Human Services, Office of Temporary Assistance on behalf of Melissa H~. The Complaint indicated that the defendant's (the NH's) mailing address was c/o Susan M. J~, address, County of Middlesex. The Complaint further asked that any order of paternity be made retroactive to the filing date of the Complaint;

A June 29, 2005 Court Order for genetic testing. The Order states that “Defendant's mother, Susan M. J~, present and requesting genetic testing.”; A Chain of Custody document certifying that sample collection and testing for paternity evaluation was performed on Melissa H~, Andrew, and James S~, who is the alleged biological grandfather, on July 6, 2005. The document also contains a certification that the specimens were received at LabCorp on July 7, 2005, with no evidence of tampering; A LabCorp Relationship Report based on DNA analysis, certified on July 21, 2005, by the LabCorp Director, George C. M~, J.D., Ph.D., D(ABMG) concluding that (1) the alleged paternal grandfather, James S~, could not be excluded as the biological grandparent of Andrew, since they share genetic markers; and (2) using genetic markers found in the testing of the alleged biological grandfather, his biological son was estimated to have a probability of paternity of 99.82%, as compared to an untested, unrelated man; A Court Order dated September 16, 2005, establishing paternity between the NH and Andrew. The Order stated that “Susan J~ acknowledged that her son, Jesse J~, is the natural father of Andrew H~ based on the genetic test results.”; and,

A numident of the NH's account listing his parents as James S. S~ and Susan M. T~.

Additionally, a September 26, 2005 Report of Contact contains statements from Melissa H~ indicating that the NH did not provide support or contributions for Andrew, and, that after the NH came home from rehabilitation he was living with his mother and died two weeks later. Melissa H~ also alleged that the NH has a twin brother, believed to be identical.

Lastly, another child, Ashlyn S. C~, has been deemed to be the NH's child for purposes of entitlement to child's survivor benefits, and is currently receiving benefits under the NH's account.

LEGAL ANALYSIS

1. Social Security Statutes and Regulations

A child of an individual who dies fully insured or currently insured under the Act is entitled to child's insurance benefits if he or she

(1) is the insured's child based upon a relationship as described by the Act and the Commissioner's regulations;

(2) has applied for such benefits;

(3) is unmarried;

(4) is under the age of 18; and,

(5) was dependent upon the insured individual at the time of the insured's death.

See 42 U.S.C. §§ 402(d)(1), 416(e); 20 C.F.R §§ 404.350(a), 404.355-404.365; see generally, POMS GN 00306.001A. If the child is the insured's natural child, then he or she is considered dependent upon the insured, thus satisfying the fifth requirement. See 20 C.F.R. § 404.361(a).

To be considered the insured's child for purposes of entitlement to child's survivor benefits in this matter, Andrew would need to show that he could inherit as the insured NH's son under state intestacy law where the insured was domiciled at the time of his death:

In determining whether an applicant is the child … of a fully or currently insured individual for purposes of this title, the Commissioner of Social Security shall apply such law as would be applied in determining the devolution of intestate personal property…, if such insured individual is dead, by the courts of the State in which he was domiciled a the time of his death….

42 U.S.C. § 416(h)(2)(A); see 20 C.F.R. § 404.355(a)(1), (b)(4); POMS GN 00306.001C.2.a., and GN 00306.055A.

Thus, for purposes of determining whether Andrew is the NH's surviving child, we must look to the intestacy laws of the State of New Jersey, which is where the NH was presumably domiciled when he died. Such presumption is based on the September 2005 Report of Contact, wherein Melissa H~ indicated that the NH was living with his mother when he died, and the April 2005 Complaint for Paternity, which indicated that the NH's mailing address was “care of” his mother Susan J~, who resided in Iselin, New Jersey. We recommend that the NH's death certificate or a death record be obtained to confirm that he was domiciled in the State of New Jersey at the time of his death, as such is ultimately determinative of the laws of the state we apply to determine Andrew's entitlement to child's survivor benefits.

2. New Jersey State Intestacy and Parentage Laws

Section 3B:5-10 of New Jersey Statutes Annotated (“N.J.Stat.Ann.”)(2004), Establishment of Parent-Child Relationship provides that

[i]f, for the purpose of intestate succession, a relationship of parent and child must be established to determine succession by, through or from an individual,… an individual is the child of the individual's parents regardless of the marital state of the individual's parents, and the parent and child relationship may be established as provided by the “New Jersey Parentage Act,” P.L. 1983 c.17 [N.J.Stat.Ann. §§ 9:17-38 et. seq.]....

The New Jersey Parentage Act states that a parent-child relationship between a child and the natural father may be established by an order of the court based on a blood test or genetic test that meets or exceeds the specific threshold probability as set forth in N.J.Stat.Ann. § 9:17-48 creating a rebuttable presumption of paternity. N.J.Stat.Ann. §§ 9:17-41(b), 9:17-48(d)(2), 9:17-52(c); see POMS GN 00306.565(2), (6). Subsection (i) of N.J.Stat.Ann. § 9:17-48 specifies that “[b]lood test or genetic test results indicating a 95% or greater probability that the alleged father is the father of the child shall create a presumption of paternity which may be rebutted only by clear and convincing evidence that the results of the test are not reliable in that particular case.”

Section 9:17-52, subsections (c) and (e), of N.J.Stat.Ann. additionally provides that evidence relating to paternity may include “[g]enetic or blood tests, weighed in accordance with the evidence, if available, of the statistical probability of the alleged father's paternity” and “[a]ll other evidence on behalf of any party, relevant to the issue of paternity of the child.”

3. The Parent-Child Relationship

In order for Andrew to inherit as the NH's son in the State of New Jersey, Andrew would need to establish a parent-child relationship in accordance with New Jersey intestacy and parentage law. See N.J.Stat.Ann. § 3B:5-10. Presumably, the first application for child's survivor benefits was denied due to the lack of evidence establishing a parent-child relationship between Andrew and the NH under New Jersey law.

However, upon the second application for benefits, which was filed on September 26, 2005, additional evidence was submitted or obtained, including a Court Order establishing NH's paternity based on genetic testing. The testing was performed on DNA samples taken from Andrew, Melissa H~, and alleged paternal grandfather James S~. See M.A. v. Estate of A.C., 274 N.J. Super 245, 250-52, 643 A.2d 1047, 1049-50 (Ch. Div.1993)(DNA testing of decedent's heirs and their mother can provide conclusive evidence establishing whether decedent was biological father of the claimant). The conclusion of the DNA testing was that the biological son of the alleged biological grandfather, James S~, is estimated to have a 99.82% probability of paternity as compared to an untested, unrelated man. There appears to have been no challenge to the reliability of the DNA testing performed and the results certified by LabCorp in this particular case, or any allegation of fraud, duress or material mistake of fact with respect to the proceedings in this matter. See N.J.Stat.Ann. §§ 9:17-41(b), 9:17-48(d) & (i).

[i]f, for the purpose of intestate succession, a relationship of parent and child must be established to determine succession by, through or from an individual,… an individual is the child of the individual's parents regardless of the marital state of the individual's parents, and the parent and child relationship may be established as provided by the “New Jersey Parentage Act,” P.L. 1983 c.17 [N.J.Stat.Ann. §§ 9:17-38 et. seq.]....

The New Jersey Parentage Act states that a parent-child relationship between a child and the natural father may be established by an order of the court based on a blood test or genetic test that meets or exceeds the specific threshold probability as set forth in N.J.Stat.Ann. § 9:17-48 creating a rebuttable presumption of paternity. N.J.Stat.Ann. §§ 9:17-41(b), 9:17-48(d)(2), 9:17-52(c); see POMS GN 00306.565(2), (6). Subsection (i) of N.J.Stat.Ann. § 9:17-48 specifies that “[b]lood test or genetic test results indicating a 95% or greater probability that the alleged father is the father of the child shall create a presumption of paternity which may be rebutted only by clear and convincing evidence that the results of the test are not reliable in that particular case.”

Section 9:17-52, subsections (c) and (e), of N.J.Stat.Ann. additionally provides that evidence relating to paternity may include “[g]enetic or blood tests, weighed in accordance with the evidence, if available, of the statistical probability of the alleged father's paternity” and “[a]ll other evidence on behalf of any party, relevant to the issue of paternity of the child.”

3. The Parent-Child Relationship

In order for Andrew to inherit as the NH's son in the State of New Jersey, Andrew would need to establish a parent-child relationship in accordance with New Jersey intestacy and parentage law. See N.J.Stat.Ann. § 3B:5-10. Presumably, the first application for child's survivor benefits was denied due to the lack of evidence establishing a parent-child relationship between Andrew and the NH under New Jersey law.

However, upon the second application for benefits, which was filed on September 26, 2005, additional evidence was submitted or obtained, including a Court Order establishing NH's paternity based on genetic testing. The testing was performed on DNA samples taken from Andrew, Melissa H~, and alleged paternal grandfather James S~. See M. A. v. Estate of A. C., 274 N.J. Super 245, 250-52, 643 A.2d 1047, 1049-50 (Ch. Div.1993)(DNA testing of decedent's heirs and their mother can provide conclusive evidence establishing whether decedent was biological father of the claimant). The conclusion of the DNA testing was that the biological son of the alleged biological grandfather, James S~, is estimated to have a 99.82% probability of paternity as compared to an untested, unrelated man. There appears to have been no challenge to the reliability of the DNA testing performed and the results certified by LabCorp in this particular case, or any allegation of fraud, duress or material mistake of fact with respect to the proceedings in this matter. See N.J.Stat.Ann. §§ 9:17-41(b), 9:17-48(d) & (i).

The 99.82% estimated probability of paternity meets the 95% or greater probability threshold required by the New Jersey Parentage Act on the establishment of a parent-child relationship. See N.J.Stat.Ann. § 9:17-48(i). Nevertheless, there is still the issue of proof as to whether the NH is actually the biological son of James S~. While the NH's numident lists James S. S~ as the NH's father, this should be confirmed by obtaining the NH's birth certificate. The numident further identifies Susan M. T~ as the NH's mother. Hence, additional evidence should be obtained establishing whether the NH is the biological son of Susan M. J~ who, according to Court Orders, requested genetic testing, and later, acknowledged that her son, purportedly the NH, was the natural father of Andrew based on the genetic test results. Again, the NH's birth certificate would be useful.

Moreover, the genetic test results deduce that any biological son of James S~ had the estimated 99.82% probability of paternity of Andrew. Thus, additional evidence is needed to exclude the possibility that Andrew is the natural child of any other biological son of James S~. With regard to the later, Melissa H~ has alleged that the NH has a twin brother believed to be identical. Further inquiry of this information is required. If such person exists, genetic test results would not exclude the possibility that the NH's twin brother, or any other brother, could be the biological father of Andrew.

Accordingly, further development in this matter is needed on the issues of whether the NH is the biological son of Susan M. J~ and, more importantly, James S~, and whether James S~ has any other biological sons. This office suggests first obtaining the NH's long-form birth certificate, which might contain information on the NH's biological mother, father, and any children born previously or concurrently, such as a twin brother. You may also attempt to gather the information by speaking directly to James S~ and/or Susan J~, and asking if the NH had any brothers fathered by James S~.

Given additional evidence establishing that the NH is the biological son of James S~, and excluding the NH's brothers, if any, as possible fathers of Andrew, the Court's September 16, 2005 Order could establish a parent-child relationship between the NH and Andrew under the New Jersey Parentage Act for the purpose of intestate succession in the State of New Jersey. Conversely, the lack of such evidence, and/or evidence of the existence of the NH's identical twin or other biological son of James S~ could amount to a rebuttal of the presumption of the NH's paternity of Andrew determined by the Court in its September 16, 2005 Order. See N.J.Stat.Ann.§§ 9:17-41(b), 9:17-48(d)(2), 9:17-52(c).

The New Jersey Parentage Act further provides for the amendment of a child's birth record upon the court's request so that it is consistent with the findings or the court, or upon the court's order if the order regarding the parent-child relationship is at variance with the child's birth certificate. N.J.Stat.Ann.§§ 9:17-53(b), 9:17-59(a). Andrew's birth certificate contains no information as to the father. While such fact may not be especially relevant to the issue of entitlement of benefits under the Act, we suggest ascertaining whether Andrew's birth certificate was amended to include the NH as the father. If so, the amended birth certificate should be obtained.

4. Effect of the State Court Order

The Commissioner is not necessarily bound by the decision of the State trial court in a proceeding to which she was not a party. See Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973); POMS GN 003.06.001C.3. However, the Gray decision, adopted as Social Security Ruling ("SSR") 83-37c, provides that the Commissioner is not free to ignore an adjudication of a State trial court where the following prerequisites are found:

an issue in a claim for Social Security benefits previously has been determined by the State court of competent jurisdiction;

this issue was genuinely contested before the State court by parties with opposing interests;

the issue falls within the general category of domestic relations law; and

the resolution by the State trial court is consistent with the law enunciated by the highest court in the State.

474 F.2d at 1373; SSR 83-37c.

Prongs one and three of SSR 83-37c were met insofar as a court of competent jurisdiction has made a determination on the issues of parent-child relationship and paternity under New Jersey intestacy and parentage laws, which relate to a claim for benefits under the Act, as discussed above.

As for the second prerequisite, the Sixth Circuit in Gray placed emphasis on the contested proceeding therein, noting its importance in determining whether the Commissioner was bound by a State court decision. See 474 F.2d at 1373. Assuming additional evidence establishes the NH was the biological son of Susan J~ and James S~, it appears that the issue of NH's paternity was genuinely contested by a person with opposing interests. For instance, one opposing interest may be Andrew's inheritance rights as an alleged biological grandson of Ms. J~'s estate.

Here, Ms. J~ requested, and the Court ordered, genetic testing, which involved samples taken from the NH's father, James S~. Following DNA analysis, Ms. J~ acknowledged that her son, the NH, is the natural father of Andrew based on the genetic test results. This acknowledgment is contained in the Court's September 16, 2005 Order. Further, as discussed, there has been no challenge to the reliability of the DNA testing, or any actual allegation of fraud, duress or material mistake of fact with respect to the proceedings in this matter.

Regarding the last prerequisite, it appears that the Court's Order establishing paternity is not inconsistent with New Jersey laws on intestacy and parentage so long as the additional evidence is consistent with the Order. See N.J.Stat.Ann. § 9:17-53(a). In fact, the New Jersey Supreme Court concluded in Fazilat v. Feldstein that an accurate determination of paternity under the New Jersey Parentage Act is in a child's best interest, as it not only establishes the child's legitimacy and contributes to his or mental well-being, but it may also entitle a child to certain rights, including Social Security, Veteran's or pension benefits. 180 N.J. 74, 87-88, 848 A.2d 761, 768-69 (2004)(citing M.A. v. Estate of A.C., 274 N.J. Super at 255-56, 643 A.2d at 1052-53)(other citations omitted). If the additional evidence is not consistent with the Court Order, however, the Order would not be accurate and, thus, not harmonious with New Jersey law.

Accordingly, the Agency could defer to the Court's September 16, 2005 Order establishing the NH's paternity and a parent-child relationship between Andrew and the NH, provided additional evidence has been obtained and supports the Order, as discussed above. Assuming the Court Order establishes a parent-child relationship between the NH and Andrew and, therefore, Andrew's right to inherit as the NH's child, under New Jersey parentage and intestacy laws, Andrew should be entitled to child's survivor benefits as the insured NH's child for purposes of under the Act. See 42 U.S.C. §§ 402(d)(1), 416(h)(2)(A); 20 C.F.R. §§ 404.350(a), 404.355(a)(1).

DATE OF ENTITLEMENT

You also inquired as to what would be the appropriate date of entitlement, assuming Andrew is entitled to benefits under the NH's account. Entitlement to child's benefits, if the insured is deceased, begins the first month covered by the application in which all other requirements for entitlement are also met. See 20 C.F.R. § 404.352(a). Furthermore, children filing for survivors' benefits may receive retroactive benefits on the record of the deceased number holder for up to six months beginning with the first month in which all requirements are met. 20 C.F.R. § 404.621(a)(1)(ii).

An initial application for child's survivor benefits was filed in March 2005, and was denied without further appeal. A second application was filed in September 2005.

Under the New Jersey Parentage Act, the judgment or order of the court or a Certificate of Parentage determining the existence (or nonexistence) of the parent and child relationship is determinative for all purposes. N.J.Stat.Ann. § 9:17-53(a). Assuming the Agency defers to the Court Order of paternity here, a parent-child relationship was established between Andrew and the NH under the New Jersey Parentage Act. Such relationship conferred on Andrew inheritance rights as the NH's child under New Jersey intestacy law. The Court's Order also had the effect of granting Melissa H~'s April 25, 2005 Civil Action Complaint seeking an order of paternity. Because the Complaint also provided that any order of paternity be made retroactive to the filing date of the Complaint, this office deems the effective date of Andrew's inheritance rights to be April 25, 2005, the filing date of the Complaint. See POMS GN 00306.055A.3 (an act/event conferring inheritance rights has effect only from the date of such act/event).

Accordingly, if the Court Order is accepted, April 2005 would be the first month in which all the requirements for entitlement under 20 C.F.R. § 404.350 are met for purposes of entitlement to child's survivor benefits retroactive to the period of the September 2005 application. See 20 C.F.R. § 404.621(a)(1)(ii). Thus, if the Agency defers to the Court Order, the date of Andrew's entitlement would be April 2005.

CONCLUSION

Genetic test results here may be sufficient under New Jersey intestacy and parentage laws to deem Andrew the NH's child for purposes of entitlement to child's survivor benefits under the Act. However, further development, as discussed, is needed. Assuming Andrew is entitled to benefits, the earliest date of entitlement would be April 2005.

Very truly yours,

BARBARA L. S~


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PR 01120.033 - New Jersey - 05/10/2011
Batch run: 05/10/2011
Rev:05/10/2011