In a case governed by North Carolina intestacy law, you asked whether the claimant
would be entitled to child's benefits, and whether those benefits would include retroactive
benefits, on the earnings record of the number holder where DNA test results showed
a 99.99% probability that the number holder was the claimant's father and the number
holder had acknowledged the claimant as his child in a notarized document.
Under North Carolina intestacy law, a court would conclude the claimant is the child
of the number holder, and the claimant would be entitled to retroactive benefits.
While the earliest date of entitlement under North Carolina law would be the date
of the DNA test results, we believe related federal provisions could date entitlement
from the date the number holder acknowledged in writing the claimant as his child.
On August 31, 2006, Claimant Michael M~ mother, Vonda L~, applied for auxiliary child's
benefits on Claimant's behalf on the earnings record of Edward M~, Jr., the number
holder (NH). NH was found disabled in 1994 and receives concurrent benefits. Claimant
was born on September 23, 2005. Although Claimant's birth certificate listed Junior
Joseph M~ as his father, Claimant's mother states Mr. M~ was not Claimant's biological
father. Because Claimant's mother failed to provide sufficient evidence to support
her claim that NH was Claimant's father, the Agency denied Claimant's application
on May 11, 2007.
On August 4, 2008, Claimant's mother submitted additional evidence to the Agency consisting
of (1) a signed and notarized Affidavit of Parentage for Child Born Out of Wedlock
dated March 13, 2008, in which NH acknowledged he is the natural father of Claimant;
and (2) DNA test results dated June 6, 2008, demonstrating a 99.99% probability that
NH is Claimant's biological father. We understand, from our discussion with Nicole
R~ that the Social Security Administration (SSA) considered this additional evidence
to be "new and material," within the meaning of 20 C.F.R. §§ 404.988 and 404.989,
and have reopened the claim to consider it in light of the new evidence.
To qualify for auxiliary child's benefits on the record of an individual entitled
to disability benefits, an applicant must be that individual's "child." See Social Security Act (Act) § 202(d), 42 U.S.C. § 402(d); 20 C.F.R. § 404.350(a)(1)
(2008). "Child" means an individual who is related to the insured person as a natural
child, legally adopted child, stepchild, grandchild, step grandchild, or equitably
adopted child. See Act § 216(e), 42 U.S.C. § 216(e); 20 C.F.R. § 404.354. Only the provisions relating
to a natural child apply to this claim.
An applicant can qualify as the insured person's natural child if, among other methods,
the applicant could inherit the insured person's personal property as his or her child
under the intestacy laws of the state where the insured has his permanent home when
the claim for child's benefits was filed. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b). Because NH was domiciled in North
Carolina at the time of the application, we look to North Carolina law.
An applicant who does not qualify as an insured individual's child under 216(h)(2),
but is the natural child of the insured individual, is deemed to be the insured individual's
child if the insured individual acknowledged in writing that the applicant is his
or her son or daughter. See Act § 216(h)(3); 20 C.F.R. § 404.355(a)(3).
For purposes of intestate succession in North Carolina, an illegitimate child is entitled
to take by, through, and from:
Any person who has been finally adjudged to be the father of such child pursuant to
the provisions of G.S. 49-1 through 49.9 or the provisions of G.S. 49-14 through G.S.
(2) Any person who has acknowledged himself during his own lifetime and the child's
lifetime to be the father of such child in a written instrument executed or acknowledged
before a certifying officer named in G.S. 52-10(b) and filed during his own lifetime
and the child's lifetime in the office of the clerk of superior court of the county
where either he or the child resides.
N.C. GEN. STAT. § 29-19(b) (2008). It is unclear whether either of these actions has
occurred in this case. There is no indication that NH has been adjudged to be Claimant's
father as required under subsection (b)(1). Additionally, although Claimant provided
a notarized affidavit in which NH acknowledged Claimant as his natural child, it is
unclear whether this document was filed with an appropriate clerk of superior court
as required under subsection (b)(2). However, where state law requires a court determination
of paternity, the Agency will not require that a child obtain such a determination
but will decide paternity by using the standard of proof that the state court would
use. 20 C.F.R. § 404.355(b)(2).
The only provision in subsection (b)(1) that is relevant to Claimant's claim is N.C.
GEN. STAT. ANN. § 49-14 (2008), which discusses civil actions to establish paternity.
Under North Carolina law, proof of paternity must be established by "clear, cogent,
and convincing evidence." N.C. GEN. STAT. ANN. § 49-14(b). "Clear, cogent and convincing
evidence describes an evidentiary standard stricter than a preponderance of the evidence,
but less stringent than proof beyond a reasonable doubt." Nash County Dep't of Soc.
Servs. v. Beamon, 485 S.E.2d 851, 852 (N.C. Ct. App. 1997). In deciding a paternity claim under §
49-14, a trial court has the duty "to determine whether evidence offered in a particular
case is clear, cogent, and convincing," and "it is within the court's discretion to
consider some, none or all of the evidence, and to determine the weight to place on
the testimony." Brown v. Smith, 526 S.E.2d 686, 687-88 (N.C. Ct. App. 2000) (quotations omitted).
North Carolina has established presumptions of paternity based on genetic testing.
N.C. GEN. STAT. ANN. § 49-14(f) states:
When a determination of paternity is pending in a IV-D case, the court shall enter
a temporary order for child support upon motion and showing of clear, cogent, and
convincing evidence of paternity. For purposes of this subsection, the results of
blood or genetic tests shall constitute clear, cogent, and convincing evidence of
paternity if the tests show that the probability of the alleged parent's parentage
is ninety-seven percent (97%) or higher. If paternity is not thereafter established,
then the putative father shall be reimbursed the full amount of temporary support
paid under the order.
In addition, N.C. GEN. STAT. ANN. § 8-50.1(b1)(4) states:
If the experts conclude that the genetic tests show that the alleged parent is not
excluded and that the probability of the alleged parent's parentage is ninety-seven
percent (97%) or higher, the alleged parent is presumed to be the parent and this
evidence shall be admitted. This presumption may be rebutted only by clear, cogent,
and convincing evidence.
In this case, the DNA test results show a 99.99% probability that NH is Claimant's
biological father. As a result, the DNA evidence would create a presumption of paternity
under section 8-50.1(b1)(4). See Program Operations Manual System (POMS) GN 00306.580.4.d. This presumption may only be rebutted by "clear, cogent, and convincing evidence."
Id. Although someone other than NH is listed as Claimant's father on the birth certificate,
this fact alone does not appear sufficient to rebut the presumption that NH is Claimant's
father, especially where NH has also acknowledged Claimant as his child. See State ex rel. Miller v. Hinton, 556 S.E.2d 636 (N.C. App. 2001) (although another man was listed as the father on
the birth certificate, court ordered defendant to pay child support where DNA testing
showed a 99.62% probability that defendant was the biological father of the child).
Regarding the effective date of the parent-child relationship between NH and Claimant,
POMS GN 00306.055A.3 provides that an act/event conferring inheritance rights generally has effect only
from the date of such act/event. For purposes of showing Claimant is NH's child under
North Carolina's intestacy law, the DNA testing conducted in June 2008 was the act/event
creating the presumption that Claimant is NH's natural child. POMS GN 00306.580.4d. However, because NH acknowledged in writing that Claimant was his natural child
in March 2008, this acknowledgment appears sufficient to establish Claimant's entitlement
to child's benefits under section 216(h)(3) of the Act. See 216(h)(3); 20 C.F.R. § 404.355(a)(3); POMS GN 00306B.1. As a result, it appears that
Claimant can be paid benefits from March 2008, the earlier of the two events demonstrating
a parent-child relationship between NH and Claimant.
You asked whether a precedent opinion in a claim involving survivor's benefits would
allow for Claimant to receive benefits retroactively twelve months prior to the date
he originally filed his application in August 2006. We do not believe this precedent
opinion is applicable to a claim for auxiliary benefits. POMS PR 01120.036A North Carolina (PR 06-324, Sept. 19, 2006) explains that any judgment entered under
North Carolina's paternity statute establishing the decedent as the father of a child
shall be entered nunc pro tunc ("now for then") to the day preceding the date of the
father's death. See N.C. GEN. STAT. ANN. § 49-14(c); see also N.C. GEN. STAT. ANN. § 29.19(b)(1) (stating inheritance rights may be established
based on an adjudication under § 49-14). Because a North Carolina paternity judgment
in a case where the putative father has died has a retroactive effect back to the
day preceding the death of the father, a parent-child relationship could be established
as of that date, rather than the date of the DNA testing or submission of other clear
and convincing evidence of paternity. See POMS PR 01120.036A. As a result, DNA testing could be used in a claim for survivor's benefits to establish
a parent-child relationship retroactively back to the day before the death of the
deceased father or six months before the date of the application, whichever is the
most recent. See id.; POMS GN 00306.580.5.
However, POMS PR 01120.036A does not apply to a claim for auxiliary benefits because the event required for retroactive
effect of a paternity judgment, the death of the father, has not occurred. Because
NH is living, the Claimant's act of applying for benefits cannot be the most recent
event under POMS PR 01120.036A. As a result, we see no reason to deviate from general rule outlined in POMS GN 00306.055A.3 that an act/event conferring inheritance rights has effect only from the date of
We believe a North Carolina court would conclude Claimant is the child of NH under
North Carolina intestacy law. Therefore, we believe Claimant is NH's child for the
purposes of auxiliary child's benefits. Moreover, Claimant has presented sufficient
evidence to establish he would be deemed NH's natural child under section 216(h)(3)
of the Act. As a result, we believe the effective date of the relationship between
Claimant and NH would be March 2008, the month NH acknowledged Claimant in writing.
Mary A. S~
Regional Chief Counsel
Joseph P. P~, III
Assistant Regional Counsel