PR 01120.037 North Dakota

A. PR 01-094 Retroactive Effect of Grandparent DNA Testing to Establish Paternity in North Dakota

DATE: November 29, 2000

1. SYLLABUS

After the NH's death, based on genetic testing of the NH's parents* indicating a 99.83 percent probability that they were the child's paternal grandparents, a North Dakota District Court issued an order finding that the NH was the child's father, and ordered the BC to be amended accordingly. Based on the court's order and the pertinent North Dakota statutes, the child's status as child of the NH dates back to her birth. The Long Beach Genetics, Inc., laboratory is properly accredited for paternity testing and the test results may be accepted as reliable.

*Note: Although the NH had three living brothers, there was no reason to believe that any of them might have fathered the child.

2. OPINION

You have requested our opinion as to when Tamika M. N~ (Tamika) acquired the status of being the "child" of deceased number holder (NH) Greg K. R~, SSN ~, for purposes of an award of child's insurance and lump-sum death benefits under Title II of the Social Security Act. For the reasons stated below, we believe Tamika would be considered the NH's child as of the date of her birth.

Facts. Based on your memorandum and the copies of documents you have provided, we find the relevant facts of this matter to be as follows. The NH died on August 10, 1999, while domiciled in North Dakota. Subsequently, on January 16, 2000, Tamika was born to Carrie A. N~ (Carrie), who was unmarried. The original birth certificate did not name a father.

In March 2000, the North Dakota Child Support Enforcement Division began actions to determine paternity of Tamika. The NH's parents, Sharon M. and Larry L. R~, voluntarily submitted samples. The Long Beach Genetics, Inc., laboratory testing report dated April 20, 2000, indicated a 99.83 percent probability the NH's parents, Sharon and Larry R~, were the paternal grandparents of Tamika. Although the NH had three living brothers, Carrie never dated them. Based on the test results, the District Court in Stutsman County, North Dakota, issued a "Findings of Fact, Conclusions of Law and Order for Judgment" on July 6, 2000, finding that the NH was Tamika's father and ordered the amendment of the birth certificate to show such. The birth certificate was amended per the court's order on July 10, 2000.

Discussion. As pertinent here, section 216(h)(2)(A) of the Social Security Act, 42 U.S.C. § 416(h) (2)(A), provides that an applicant for child's insurance benefits will be deemed a child of the deceased wage earner if she would be entitled to inherit under the intestacy laws of the state in which the wage earner was domiciled at the time of his death. Since the NH was living in North Dakota when he died, on August 10, 1999, North Dakota intestacy law applies.

North Dakota law of intestate succession provides that "an individual is the child of its natural parents regardless of the marital status of its parents. The parent and child relationship may be established under [the Uniform Parentage Act, chapters 14-17 of title 14, N.D. Cent. Code (1999)]." N.D. Cent. Code (N.D.C.C.) § 30.1-04-09(3). Under N.D.C.C. § 14-17-14(1), an "order of the court determining the existence or nonexistence of the parent and child relationship is determinative for all purposes." Thus, apparently the testing of NH's parents to establish paternity is sufficient because the Stutsman County District Court relied on such testing in determining the paternity of Tamika. Paragraph 2 of N.D.C.C. § 14-17-14 states that if the court's order varies from the child's birth certificate, "the court shall order that an amended birth registration be made under section 14-17-22," as was done here. In addition, "[t]he fact that the father and child relationship was declared after the child's birth may not be ascertainable from the amended birth registration . . . ." N.D.C.C. § 14-17-22(2). Thus, Tamika should be considered the NH's child as of the date of her birth.

In sum, based on the court's order regarding Tamika's paternity and the above-described statutes, we conclude that Tamika's status as the child of the NH dates back to her birth on January 16, 2000, even though the actual paternity determination was not made until April 20, 2000, and the court entered an order of paternity on July 6, 2000.

We are also confident that the Long Beach Genetics, Inc., laboratory is properly accredited for paternity testing and therefore the test results may be accepted as reliable. Aside from the fact that the State of South Dakota itself relied upon the test results in naming NH as Tamika's father, this laboratory has been accredited by the American Association of Blood Banks (AABB), which is the primary accreditor of parentage-testing laboratories. See State of Montana v. Weeks, 891 P.2d 477, 488 (Mont. 1995).

B. PR 00-091 Effective Date of Status as "Child" - North Dakota

DATE: May 4, 1999

1. SYLLABUS

Based on a court order of paternity based on genetic test results under the Uniform Parentage Act, the child would be considered the child of the NH under North Dakota law since birth. Also, the term "legitimated" no longer has any relevance in North Dakota when determining inheritance rights.

NOTE: The POMS changes suggested in this opinion are being made.

2. OPINION

On behalf of the Western Program Service Center (WPSC), you have requested our opinion as to when Cody J. B~ acquired the status of being the "child" of deceased wage earner Joel T. L~, SSN ~, for purposes of an award of child's insurance benefits under Title II of the Social Security Act. For the reasons stated below, we believe that under North Dakota law, Cody would be considered the child of Mr. L~ since his birth.

Based on the claims file, returned herewith, we find the pertinent facts of this matter to be as follows: Cody was born to Teri Sue B~ on December 9, 1996. Ms. B~ was unmarried at that time and no father was named on the birth certificate. On March 5, 1998, however, the Cass County, North Dakota, District Court issued an order of paternity, finding that Mr. L~ was the natural father of Cody, which was confirmed by paternity genetic testing results of 99.76%. The court further ordered that the state registrar of vital statistics prepare an amended birth registration consistent with the findings of the court, pursuant to N.D.C.C. § 14-17-22.

As you know, section 216(h)(2)(A) of the Social Security Act, 42 U.S.C. § 416(h)(2)(A), provides that an applicant for child's insurance benefits will be deemed a child of the deceased wage earner if he would be entitled to inherit under the intestacy laws of the state in which the wage earner was domiciled at the time of his death. Since Mr. L~ was living in North Dakota when he died, on July 15, 1996, North Dakota intestacy law applies.

As pertinent here, North Dakota law of intestate succession provides:

If, for purposes of intestate succession, a relationship of parent and child must be established to determine succession, by, through, or from a person:

* * *

3. [] The parent and child relationship may be established under chapter 14-17 [Uniform Parentage Act (UPA)].

N.D.C.C. § 30.1-04-09. In determining that Mr. L~ was Cody's father, the North Dakota court applied the provisions of the UPA.

Thus, Cody is "deemed a child of the wage earner" within the meaning of section 216(h)(2)(A).

The court's determination that Cody is the child of Mr. L~ under the UPA leads us to conclude his status as Mr. L~'s child relates back to Cody's birth. Specifically, if a court's order of paternity under the UPA "is at variance with the child's birth certificate, the court shall order that an amended birth registration be made under section 14-17-22." N.D.C.C. § 14-17-14. In addition, "[t]he fact that the father and child relationship was declared after the child's birth may not be ascertainable from the amended birth registration . . . ." N.D.C.C. § 14-17-22. From a legal standpoint, therefore, Cody has always been Mr. L~'s child, even though the actual paternity determination was not made until March 1998.

The WPSC has asked whether the court order "legitimated" Cody or only granted inheritance rights to him. Under North Dakota law, "[t]he parent and child relationship extends equally to every child and to every parent, regardless of the marital status of the parents." N.D.C.C. § 14-17-02; see also P.E. v. W.C., 552 N.W.2d 375, 377 (N.D. 1996) (noting that the UPA was designed to provide substantive legal equality for all children, regardless of the marital status of their parents) (citation omitted). Therefore, we believe the term "legitimated" no longer has any relevance in North Dakota when determining inheritance rights. Given that the POMS continues to make a distinction between "legitimate" and "illegitimate" children, POMS GN 00306.080 and GN 00306.085 should be amended to show that a "child" under the Act is legitimate from date of birth in North Dakota.


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PR 01120.037 - North Dakota - 09/26/2012
Batch run: 09/26/2012
Rev:09/26/2012