PR 01120.045 South Carolina

A. PR 06-063 Accreditation for DNA testing laboratories in South Carolina Claimant-Bobby D~ A~ Deceased Number Holder-Bobby D~

DATE: February 2, 2006

1. SYLLABUS

A genetic testing facility accredited by the American Association of Blood Banks would be considered a qualified testing facility under The State laws of South Carolina, barring any court evidence to the contrary.

Any finding of paternity based on DNA test results is effective with the testing date.

2. OPINION

In this case, involving a child status determination using South Carolina (SC) intestacy law, you are considering the evidentiary impact of DNA test results and have asked the following questions:

What are the accreditation requirements for DNA testing laboratories under South Carolina intestacy law?

Does the DNA laboratory used in this case meet these requirements?

If the DNA evidence is acceptable under SC intestacy law, can the child be paid retroactively or prospectively from the date of the evidence?

We conclude that South Carolina has no specific accreditation requirements for DNA testing laboratories. If the laboratory is accredited by the American Association of Blood Banks, that accreditation should be sufficient to establish a presumption that the laboratory is "qualified" to conduct genetic tests. Therefore, the DNA evidence in this case should be acceptable for proof of paternity under the South Carolina intestacy law. Finally, because South Carolina inheritance law does not include retroactivity provisions, the child may be paid only prospectively from the date of the test that established paternity.

BACKGROUND

Bobby D~ A~ (Claimant) was born on January 19, 2004, to Katie A. A~. An application for child's benefits has been filed on the wage record of Bobby D~ (Wage Earner), a Title II disability beneficiary. The Wage Earner did not sign the child's birth certificate. Evidence to support the application includes reports that allege that the Wage Earner acknowledged paternity at birth and the results of a DNA test performed by Orchid GeneScreen at the Wage Earner's request. The Wage Earner, mother, and child provided samples and the test results, reported on July 19, 2004, showed a statistical probability of paternity of 99.99%.

DISCUSSION

South Carolina's parentage statute includes, among the evidence that is admissible at a hearing to determine paternity, "[r]esults of genetic tests as described in Section 20 7 954 from physicians, agencies, hospitals, laboratories, or other qualified testing facilities, properly verified to show the chain of custody of blood samples." S.C. CODE ANN. § 20-7-956(A)(1) (2005) (emphasis added). Section 20 7 954 explains that genetic "tests must be performed under the supervision of a qualified expert. In all cases, the court shall determine the number and the qualifications of experts, except that the parties may submit for the court's approval a written stipulation regarding experts and facilities to be used for testing." S.C. CODE ANN. § 20 7 954(A) (emphasis added).

As noted above, South Carolina focuses on whether a testing facility is "qualified" rather than on whether the facility is accredited. We have reviewed South Carolina statutes and have not found any specific requirements for accreditation of DNA testing facilities either in general or specifically related to intestacy issues. Moreover, we have not found any South Carolina statute or case indicating that accreditation of a testing facility establishes that the facility is a "qualified" testing facility. As § 20-7-954(a), above, intimates, the fact of whether a facility is "qualified" is a case-by-case determination, something the trier of fact would establish based on the parties' submissions. See, e.g., State v. Ford, 301 S.C. 485, 392 S.E.2d 781 (S.C. 1990) (finding DNA testing (print identification) admissible because the forensic laboratory technician who conducted DNA forensic testing qualified as an expert in forensic laboratory testing); South Carolina Dep't of Soc. Servs., 280 S.C. 485, 313 S.E.2d 45 (S.C. Ct. App. 1984) (deferring to the discretion of the trial judge regarding the qualification of a expert who performed genetic testing in a paternity case).

Nevertheless, accreditation by the American Association of Blood Banks (AABB) would likely establish a presumption that a testing facility is "qualified" and that genetic test results from an accredited facility are reliable to establish a presumption of paternity, absent evidence to the contrary. Statutes in many states establish that testing must be performed by a facility approved by an accreditation body designated by the United States Department of Health and Human Services (HHS). See, e.g., ALASKA STAT. § 25.20.050(d); CAL. FAM. CODE §§ 7551, 7552; COLO. REV. STAT. ANN. § 13-25-136(b); FLA. STAT. ANN. §§ 409.256(h), 742.12(1); HAW. REV. STAT. § 584-11(a)(2), (e); IOWA CODE §§ 252A.6A.1.c, 252F.3.6d; KAN. STAT. ANN. § 38-1119(d); MASS. GEN. LAW ANN. 209C § 17; NEB. REV. STAT. § 43-1414; N.M. STAT. § 40-11-12C; N.Y. FAM. CT. ACT LAW § 418(a), 532(a); N.Y. SOC. SERV. LAW § 111-k.2.(a); OR. REV. STAT. §109.251; S.D. CODIFIED LAWS § 34-14-25; TENN. CODE ANN. §§ 24-7-112(a)(3), 24-7-113(e)(3). Statutes in some states specifically mention the AABB as an acceptable accrediting organization. See, e.g., DEL. CODE ANN. 13 § 8-503(a); IDAHO CODE § 7-116(1); ME. REV. STAT. ANN. 19-A § 1610.1; MINN. STAT. § 257.62; MONT. CODE ANN. § 40-5-237(2); N.D. CENT. CODE § 14-20-27(503); OHIO REV. CODE ANN. § 3119.963(D); TEX. FAM.CODE ANN. § 160.503(a); UTAH CODE ANN. § 78-45g-503(1); WASH. REV. CODE § 26.26.410(1); WYO. STAT. ANN. § 14-2-703(a). The AABB is an accreditation organization recognized by HHS. See CLIA Program; Continued Approval of the American Association of Blood Banks for Deeming Authority, 69 Fed. Reg. 78,426 (Dec. 30, 2004); CLIA Program; Approval of the American Association of Blood Banks, 60 Fed. Reg. 37,660 (July 21, 1995).

Courts in other states that have considered the admissibility of DNA testing also have indicated that accreditation of a facility by the AABB provides a basis for accepting test results from the facility, absent evidence undermining the reliability of the test results. See, e.g., Overby v. Flannery, 22 Va. App. 293, 469 S.E.2d 79 (1996) (accepting without discussion uncontroverted DNA test results conducted in accordance with accepted standards of the AABB); Fowler v. Napier, 663 N.E.2d 1197 (Ind. 1996) (holding that the trial court did nor abuse its discretion in allowing the testimony of an employee of GeneScreen and the DNA test results from GeneScreen); State v. Spencer, 663 So.2d 271 (La. 1995) (indicating that accreditation by the AABB provided evidence that a testing facility was properly qualified to provide DNA analysis); Kofford v. Flora, 744 P.2d 1343, 1356 (Utah 1987) (holding that before genetic test results can be admitted in a paternity trial, evidence must be produced that the particular tests were conducted as specified by the AABB or in an equally reliable manner, regardless of whether the laboratory conducting the test was AABB accredited).

Therefore, we believe a South Carolina court would find AABB accreditation sufficient for concluding Orchid GeneScreen is a testing facility "qualified" to perform genetic testing, absent evidence to the contrary. If such contradictory evidence were present, the South Carolina court would make an individualized determination of deference due the tests on the basis of all the evidence.

You have already determined that the Claimant would be recognized as Wage Earner's child pursuant to South Carolina intestacy law if the laboratory providing the DNA evidence was "qualified." South Carolina statutes provide that test results that show a statistical probability of paternity of ninety-five percent or higher creates a rebuttable presumption of the putative father's paternity. S.C. Code Ann. § 20-7-956. The DNA test results in this case exceed that percentage.

The remaining question is the date of entitlement. Under 20 C.F.R. § 404.621(a)(2), an applicant for child's benefits can receive benefits for up to six months immediately before the month in which the application is filed. However, no child is entitled to benefits for any period prior to satisfying all entitlement factors for child's benefits. See § 202(d)(1) of the Act; 42 U.S.C. 402(d)(1); 20 C.F.R. § 404.352(a). Child status is one of the entitlement factors. See § 202(d)(1) of the Act; 20 C.F.R. § 404.350(a)(1). An illegitimate child generally is not entitled to retroactive benefits because the illegitimate child must prove child status under state law and benefits are prospective from the event which conferred the inheritance rights. See POMS GN 00306.055A.3. However, if the state law granting inheritance rights to an illegitimate child makes those rights retroactive for some period prior to the act or event that confers those rights, such as when the child has been legitimated, then benefits would be retroactive. See POMS GN 00306.050. South Carolina does not have a retroactive provision, and South Carolina intestacy law confers only rights of intestate succession, not legitimacy. See S.C. CODE ANN. § 62-2-109. Only under certain circumstances will a child born to unmarried parents be considered legitimate. See S.C. CODE ANN. §§ 20-1-30, 20-1-40, 20-1-50, 20-1-60, 20-1-90. None of the circumstances listed in the statutes apply in this case. Thus, entitlement is based on the date paternity is effectively established. Our prior opinions concerning retroactive benefits for illegitimate children in South Carolina reached the same conclusion. See POMS PR 01115.045; Memorandum from OGC Region IV to A. Leon R~ "Genetic Testing and Retroactive Benefits, South Carolina, Deceased Number Holder - Romodia J. J~ Claimant - Robert A. W~" p. 2-3 (1/3/05), copy attached. Therefore, the appropriate date of entitlement would be July 2004, when the test results were published.

CONCLUSION

We conclude that a DNA testing laboratory accredited by the AABB would be considered a qualified testing facility by a South Carolina absent court evidence to the contrary. The testing facility used in the case, Orchid GeneScreen, is accredited by the AABB, and given the absence of contrary evidence, would be considered a qualified testing facility. Finally, Claimant is not entitled to benefits prior to July 2004, the date of the tests results.

Very truly yours,

Mary A. S~
Regional Chief Counsel

Brian C. H~
Assistant Regional Counsel

B. PR 06-041 Genetic Testing and Retroactive Benefits, South Carolina Deceased Number Holder - Romodia J. J~ Claimant - Robert A. W~

DATE: January 3, 2005

1. SYLLABUS

Under South Carolina law, use of DNA testing to establish a parent-child relationship does not confer inheritance rights retroactively. The relationship is only established from the date of the testing prospectively.

2. OPINION

In considering this child's claim for survivor benefits, you asked whether, under South Carolina law, the father-illegitimate child relationship established by genetic testing allows for retroactive entitlement of the child, or whether the entitlement is effective only from the time the genetic evidence was produced. You indicated there appeared to be some inconsistency in the POMS on this point, and asked for clarification. Having considered the evidence presented and the applicable law, we believe SSA policy does not allow retroactive payment under South Carolina law.

FACTS

According to information made available to us, Robert A. W~ ("Claimant") was born to Christina D. W~ on May 13, 1997. The birth certificate does not show a father. Romodia J. J~, the deceased number holder ("DNH"), died on May 30, 2005, domiciled in South Carolina. Genetic testing performed on September 20, 2005, showed a 99.998% probability that the DNH was the father of the claimant.

Authority and Analysis

We presume based on the question presented, that Claimant qualifies for benefits as a child of the deceased insured. Therefore, we only address the question of retroactivity of benefits for a child in South Carolina born out of wedlock.

Under the heading, "What happens if I file after the first month in which I meet the requirements for benefits," the regulations provide that an applicant for child's benefits can receive benefits for up to six month immediately before the month in which he files his application. See 20 C.F.R. § 404.621(a)(2)(2005). Of course, if an event or status prerequisite to a claimant's entitlement (such as the claimant's birth or the insured individual's death or disability) occurs fewer than six months before the claimant's application, the date of that event (rather than the six-months) provides the earliest point of potential eligibility. A legitimate (or legitimated) child is considered to have established child status at his or her birth. See Social Security Ruling (SSR) 61-64, Legitimation Of Child By Intermarriage Of Parents (where SSA found a child born out of wedlock but legitimated by the marriage of his parents "becomes the legitimate child of the father and is considered to be legitimated from birth"), and POMS GN 00306.050A.3 ("a child legitimated after birth is considered to be legitimate from birth"). Consequently, a child who proves he is the legitimate child of an insured individual and satisfies all other entitlement factors will be entitled though the full retroactive period, and not just from the time at which he proves legitimacy. Agency practice for some illegitimate children, however, differs. If a child proves child status through a state right to intestate succession, Agency practice is that the act conferring the right (e.g., a DNA test) has effect only from the date of such act. See POMS GN 00306.055A(3). This difference only affects calculation of benefits. If the state law granting inheritance rights also confers legitimacy or inheritance rights equal to those of legitimate children, the child may avail himself of the right to retroactive benefits that is accorded to legitimate children.

You pointed out an inconsistency in the POMS. Specifically, GN 00306.625, which covers South Carolina intestacy laws, is not preceded by an "I." Provisions that confer inheritance rights but do not legitimate the child are preceded by an "I" in the state law entries. See POMS GN 0036.055(A)(1). However, as you note, our prior opinions indicate the child is not legitimized upon acquiring a right to inherit. See PR 01115.045.

We believe the South Carolina POMS on child-status determinations is properly read as setting out two distinct types of provisions--(1) the type of actions that establish child-status (see GN 00306.625A1 through A9) and (2) the types of evidence considered by adjudicators making child-status determinations (see GN 00306.625A10 & A11). The existence of any of the types of acceptable evidence found in paragraph A11 does not establish child-status; these are merely factors an adjudicator making one of the determinations described in paragraphs A2, A5, A7, or A8 would consider. Similarly, the factors found in paragraph A10, which create a rebuttable presumption of paternity, do not in and of themselves establish child status, because an adjudicator must still determine whether a presumption has been rebutted. We would distinguish from these types of evidence the factors found at A1 and A3 (a marriage), A6 (a signed acknowledgment), and A9 (a foreign adjudication). Proof of these factors establishes child-status, without the need for additional adjudication. Therefore, since we do not view paragraphs A10 or A11 as provisions that, by themselves, establish child status, we do not believe the existence or absence of an "I" determines the outcome in this case.

The South Carolina intestacy statute does not confer legitimacy, but only rights of intestate succession. See S.C. Code Ann. § 62-2-109. Thus, Claimant would still be illegitimate, though able to inherit. Agency practice is this case is to disallow retroactive benefits

Sincerely,

Mary A. S~
Regional Chief Counsel

Rollin M~
Assistant Regional Counsel

C. PR 05-237 Whether an oral acknowledgment can constitute clear and convincing evidence of paternity under South Carolina intestacy law.

DATE: August 31, 2005

1. SYLLABUS

A child born out of wedlock can inherit from and through his father under South Carolina law if paternity is established by an adjudication commenced either before or after the father's death. A standard of clear and convincing proof is required to be met in an adjudication commenced after the father's death stating that the NH told them on several occasions he was claimant's biological father. The NH's alleged oral acknowledgement to his parents would not satisfy the requirements for a verified, voluntary acknowledgement under South Carolina law, and therefore would not qualify as clear and convincing evidence. Under South Carolina law, if a child qualifies as the NH's child with inheritance rights, his entitlement to benefits would be effective as of the date paternity was established.

2. OPINION

QUESTION

You have asked whether an oral acknowledgement can be used as clear and convincing evidence under South Carolina intestacy law and Section 216(h)(2)(A) of the Social Security Act (Act), 42 U.S.C. § 416(h)(2)(A). Also, you asked whether there have been any changes in South Carolina law to make a child's inheritance rights effective before the evidence of paternity was secured.

ANSWER

For the reasons set forth below, it is our opinion that the oral acknowledgment(s) provided in this case would not provide a basis for establishing clear and convincing evidence of paternity under South Carolina intestacy law. In reference to the second question, there has not been in a change in South Carolina law to allow an illegitimate child with inheritance rights to be paid retroactively. Therefore, an illegitimate child's entitlement to benefits would be effective as of the date paternity is established.

BACKGROUND

According to your inquiry, number holder, James R. S~ (N/H) died on July 16, 2004. At the time of his death, he was domiciled in Mountville, South Carolina. On May 23, 2005, Trista J filed for benefits on behalf of her son, Nathaniel E. J~ (Claimant) on N/H's record. To support this claim, Claimant's mother submitted signed statements dated May 12, 2005 from N/H's alleged parents, Walter A. S~, Sr. and Julia D. S~, that N/H told them on several occasions he was Claimant's biological father.

DISCUSSION

1. Oral Acknowledgments

In determining whether an applicant is the child of an insured individual under the Act, the Commissioner shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which the insured individual was domiciled at the time of his death. See Section 216(h)(2)(A) of the Act. Applicants who according to such law would have the same status as a child relative to taking intestate personal property shall be deemed a child for purposes of the Act.

As N/H died domiciled in South Carolina, South Carolina law is the relevant law in this case. The South Carolina statute providing for the intestate inheritance rights is found at S.C. Code Ann. § 62-2-109 (2005). As relevant here, a child born out of wedlock can inherit from and through his father if paternity is established by an adjudication commenced either before the father's death or within the later of eight months after the death of the father or six months after the initial appointment of a personal representative of his estate. See S.C. Code Ann. § 62-2-109(2)(ii). A standard of "clear and convincing proof" is required to be met in an adjudication commenced after the father's death. See Id. Clear and convincing evidence is defined as "an intermediate standard of proof, more stringent than 'preponderance of the evidence' but less than 'beyond a reasonable doubt.'" Random House Webster's Pocket Legal Dictionary 43 (2nd ed. 1998).

In South Carolina, the evidence admissible at a hearing to determine paternity is outlined in S.C. Code Ann. § 20-7-956(A)(2005). Admissible evidence includes (1) the result of genetic tests, (2) refusal of a party to submit to a genetic or other ordered test (goes to the credibility of the party), (3) genetic tests resulting in a statistical probability of paternity of ninety-five percent or higher (creates a rebuttable presumption of the putative father's paternity), (4) a verified voluntary acknowledgment of paternity (creates a rebuttable presumption of the putative father's paternity except that a verified voluntary acknowledgment of paternity executed after January 1, 1998, creates a conclusive presumption of the putative father's paternity subject to the provisions of Section 20-7-958), (5) a foreign paternity determination whether established through administrative or judicial process (creates a conclusive presumption of paternity), (6) a birth certificate containing the signature of the mother and the putative father (creates a rebuttable presumption of paternity), (7) an expert's opinion concerning the time of conception (this evidence is admissible in the same manner as other expert testimony), (8) the testimony of a husband and wife as to any relevant matter, including marriage and parentage, and (9) any other relevant and competent evidence deemed admissible in the discretion of the court.

Since we are considering oral acknowledgments, we initially look to the section of statute covering verified voluntary acknowledgments. See S.C. Code Ann. § 20-7-956(A)(4). According to this section, "the person acknowledging paternity must be given the opportunity to seek legal advice prior to signing a verified voluntary acknowledgment. A verified voluntary acknowledgment must be made by a sworn document, signed by the person acknowledging paternity and witnessed by (1) that person's attorney, parent, or guardian or (2) a person eighteen years of age or older who is not related to the child and not employed or acting under the authority of the Department of Social Services. The witness must attach to the acknowledgment a written certification which specifies that prior to signing the acknowledgment, the provisions of the acknowledgment was discussed with the person acknowledging paternity and that, based upon this discussion, it is the witness' opinion that the acknowledgment is being given voluntarily and that it is not being obtained under duress or through coercion." Id.

Here, N/H did not sign any type of document that would be considered an acknowledgement of Claimant as his son. See Mitchell v. Hardwick, 374 S.E. 2d 691 (S.C. 1988) (A deed signed and recorded by the father that specifically acknowledged the parent-child relationship was proof of paternity.). N/H's alleged oral acknowledgement to his parents, Mr. and Mrs. Walter S~, would not satisfy the requirements for a verified, voluntary acknowledgment. See Pinckney v. Warren, 544, S.E. 620 (S.C. 2001).

In Pinckney, the Court found that the rules in Mitchell controlled even though family members did not contest paternity. Id. at 626. While Mitchell deals with the rules for obtaining retroactive benefits, the proof required to establish paternity is the same regardless if retroactivity is an issue. The Pinckney Court reasoned that "fraudulent assertions of paternity would be much less likely to succeed, or even to arise, where proof of paternity was established by either a court order issued prior to the father's death or by an instrument signed by the father." Id., citing, Lalli v. Lalli, 439 U.S. 259 (1978)(holding public policy supports a rule where paternity must be established by an order of filiation issued during the putative father's lifetime for an illegitimate child to recover as an heir at law).

While the statute says admissible evidence includes "any other relevant and competent evidence deemed admissible in the discretion of the court," we found no cases discussing what other types of evidence would establish clear and convincing evidence under this section of the statute. See S.C. Code Ann. § 20-7-956(A)(9). Clearly, one could establish paternity by clear and convincing evidence with evidence less convincing than that required to establish a presumption of paternity (such as verified, voluntary acknowledgment). But the stringent requirement for proof of acknowledgment in the statute, absent any indication of deference given lesser acknowledgments, leads us to believe that the scant evidence of oral acknowledgment offered in this case would not qualify as clear and convincing evidence. However, given the broad inclusion of "any other relevant and competent evidence" permitted by the statute, we cannot say that stronger evidence of oral acknowledgment may not suffice under other circumstances, especially when it is considered with other probative evidence.

2. Retroactivity

Under 20 C.F.R. § 404.621(a)(2) (2005), an applicant for child's benefits can receive benefits for up to six months immediately before the month in which he files his application. If a child proves he is the legitimate child of an insured individual and entitled to benefits, that entitlement will extend through the full retroactive period of his application (that is, from six months before the application or the child's birth, whichever occurs later), because a child is considered legitimate from birth. See, POMS GN 00306.050 and GN 306.085. On the other hand, an illegitimate child would not be entitled to retroactive benefits because an applicant is not entitled to benefits before he proves he meets all entitlement factors, and an illegitimate child has not proved child status (in this case, has not proved his ability to inherit a child's share of NH's intestate estate) until he meets the evidence requirements for proving that status under state law. So, "[a]n act/event conferring inheritance rights generally has effect only from the date of such act/event." POMS GN 00306.055A. The only exception to this policy is for cases where the state law granting inheritance rights on an illegitimate child also accords those rights for periods before the act or event that confers those rights, such as when the child has been legitimated (see, POMS GN 00306.050). You asked whether, if Claimant qualified as NH's child, the evidence would entitle Claimant to benefits before paternity was established. In essence, you asked whether Claimant might be entitled to retroactive benefits.

The South Carolina statute does not confer legitimation rights on an illegitimate child, but only rights of intestate succession. See S.C. Code Ann. § 62-2-109. The statute only allows an illegitimate child to inherit from and through his father when paternity is established by an adjudication commenced either before the father's death or within the later of eight months after the death of the father or six months after the initial appointment of a personal representative of his estate. Id. As Claimant would still be considered the illegitimate child of N/H, if Claimant qualified as N/H's child with inheritance rights, his entitlement to benefits would be effective as of the date paternity was established.

CONCLUSION

It is our opinion, that under South Carolina law the oral acknowledgement(s) offered in this case would not constitute clear and convincing proof of paternity. Consequently, Claimant would most likely not be considered the illegitimate child of N/H with entitlement to child insurance benefits. As the oral acknowledgment offered in this case would not be effective in establishing paternity, the issue of retroactivity is not relevant.

Very truly yours,

Mary A. S~
Regional Chief Counsel

Simone D. P~
Assistant Regional Counsel

D. PR 05-162 Sufficiency of DNA Testing Between Two Siblings for Establishing a Parent-Child Relationship between the Number Holder, Edward L. C~, and Alexander G. D~ under South Carolina Law

DATE: May 13, 2005

1. SYLLABUS

Under South Carolina law, DNA test results showing the claimant has a 99.2 percent probability of being the full sibling of a child already determined to be a child of the number holder is clear and convincing proof that the claimant is also the child of the number holder.

Since this is not a legitimating act in South Carolina, the relationship is established as of the date of the determining test.

2. OPINION

QUESTION

You asked whether Alexander G. D~ (Alexander) is entitled to benefits on the record of South Carolina (SC) resident Edward L. C~ (NH) on the basis of DNA testing of Adrianne R. D~ (Adrianne), who is already entitled to child's benefits on NH's record.

ANSWER

One can establish parent-child relationship on the basis of DNA testing between two siblings in SC when one of the siblings already qualifies as the NH's child under SC law, and a Social Security Administration (SSA) adjudicator could conclude that Alexander is entitled to benefits as NH's child.

BACKGROUND

On December 24, 2003, NH died while domiciled in SC. Owen D~ is the maternal grandfather of Alexander and Adrianne and has custody of both children. He applied for child's insurance benefits for Alexander on July 23, 20041 . The claim was denied on July 30, 2004 because Mr. D~ had not shown Alexander was NH's child. Mr. D~ requested reconsideration of this decision and submitted a November 14, 2002 court order from the Eighth Judicial Circuit of SC granting Mr. D~ custody of Alexander and Adrianne and finding Adrianne was NH's child based on NH's acknowledgment. In January 2005, Mr. D~ submitted the results from a DNA siblingship test performed on December 16, 2004 by DNA Diagnostics Center. This report, verified by Michael L. B~, Ph.D., reports that there is a 99.2% probability of full-siblingship between Alexander and Adrianne, and that there is a likelihood of 125 to 1 that they share the same biological father. This 125-to-1 ratio translates into a 99.2% probability that Adrianne's father is Alexander's father (125 ?? 126 = .992 = 99.2%). The record also includes copies of Alexander and Adrianne's birth certificates, neither of which lists a father. However, Adrianne is already receiving benefits as NH's child.

DISCUSSION

In determining entitlement to surviving child's benefits, the Commissioner applies the inheritance laws of the state in which the insured had his permanent home when he died. See §216(h)(2)(A) of the Social Security Act (Act), 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1) (2004). Agency regulations further provide that if applicable state inheritance law requires a court determination of paternity, the Agency will not require a court 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) (2004).

For purposes of intestate succession in SC, a person is a child of the natural father if "the paternity is established by an adjudication . . . if commenced after his death, by clear and convincing proof." S.C. Code Ann. § 62-2-109(2)(ii). SC law regarding the admissibility and effect of DNA testing to determine paternity, S.C. Code Ann. § 20-7-956(3), provides that "test results which show a . . . statistical probability of paternity of ninety-five percent or higher creates a rebuttable presumption of the putative father's paternity." Although the statute is silent as to the weight to be given to DNA tests on siblings, there is no controlling caselaw precluding the use of such testing to establish paternity.

We believe an adjudicator could reasonably conclude, based on the facts you provided, that there is clear and convincing proof that NH Alexander's father. NH admitted during custody proceedings that he was Adrianne's father and the state court confirmed NH's paternity of Adrianne in its order court order dated November 14, 2002.2 Furthermore, the unrebutted DNA test results show a 99.2% that Alexander and Adrianne are full siblings and share the same biological father. We distinguish this case from one where a claimant proves he shares a father with a beneficiary who qualified as a child under section 216(h)(3) of the Act, since Adrianne has established her paternity under the appropriate state intestacy law, while a child who qualifies for benefits under §216(h)(3) of the Act might not be able to inherit as a child under state intestacy law. Moreover, we distinguish this case from instances where DNA siblingship tests which show relatedness, but not paternity, since SC law does not create a presumption of paternity based on DNA tests that show anything other than paternity. The following chain of reasoning leads us to conclude that Alexander could qualify as NH's child: § 216(h)(2)(A) of the Act requires SSA to apply the standards of proof a SC court would use to determine whether Alexander could inherit a child's share of NH's property through intestacy; SC would consider Adrianne to be NH's child; DNA tests showing a more than 95% probability that Alexander's father is Adrienne's father (that is, NH) establish a presumption, unrebutted under the facts presented, that NH is Alexander's father. Even if Alexander could not qualify for the SC presumption of paternity based on the DNA test results, one could still find the DNA test results and other evidence presented here provide clear and convincing proof that NH is Alexander's father. The Fourth Circuit held in Veeney ex rel. Strother v. Sullivan, 973 F.2d 326 (4th Cir. 1992), that there was clear and convincing evidence of paternity where DNA testing revealed that the child in question was the sibling of an acknowledged child of the putative father, had a genetic relationship to other male family members of the putative father, and probably had the same biological father as the acknowledged child. See id. at 328, 332.

Though we find support for a determination that Alexander could qualify as NH's child under SC law and § 216(h)(2)(A) of the Act, Alexander's ability to inherit from NH does not alter his status as an illegitimate child. Only under certain circumstances, not found in this case, will a child born to unmarried parents be legitimated. See generally S.C. Code Ann. §§ 20-1-30, 20-1-40, 20-1-60, 20-1-80. This conclusion affects the effective date of the parent-child relationship. As explained in POMS, where a state law confers inheritance rights based on an adjudication of paternity (but does not legitimate the child), and the law has no retroactive effect, the claimant's status as the nameholder's child is established effective with the date of the latest necessary piece of evidence (if more than one piece of evidence is needed to satisfy the applicable standard of proof). POMS GN 00306.055. Since, as stated above, South Carolina law confers inheritance rights based on an adjudication of paternity, but does not legitimate the child, and the DNA test was the latest necessary piece of evidence establishing paternity under South Carolina, the parent-child relationship is effective December 16, 2004, the date of the DNA test.

CONCLUSION

The DNA testing performed in this case between two siblings, one of whom is considered NH's child under SC law, can provide clear and convincing proof of a parent-child relationship between NH and the other sibling and can therefore provide a basis for concluding the second sibling is NH's "child" for purposes of the Act.

Mary A. S~
Regional Chief Counsel

By: _____________________
Brian S~
Assistant Regional Counsel

E. PR 03-121 Request for Legal Opinion Number Holder - Melvin W. J~, III SSN ~

DATE: April 22, 2003

1. SYLLABUS

DNA test results showing a 99.99 percent probability that the NH is the child claimant's father establish a rebuttable presumption of paternity under South Carolina law. Evidence from the man listed as father on the child's BC, and from the NH's relatives, supports this presumption and contradict any presumption established by the presence of the other man's name on the child's BC. The DNA and other evidence qualify as clear and convincing evidence of paternity, giving the child inheritance rights from the NH under South Carolina law. Because the statute does not confer legitimation rights on the child, but only inheritance rights, her entitlement is based upon the date of the DNA test report.

2. OPINION

You have requested our opinion as to whether there is sufficient evidence to entitle Caden B. H~ to benefits as the child of Melvin W. J~, III (NH), deceased. We conclude that the evidence presented is sufficient to entitle Caden to benefits; but entitlement would begin with the date paternity was established, not at birth.

NH died February 2, 2001 domiciled in South Carolina. Caden's mother filed for benefits on his behalf in June 2002 with a protective date in April 2002. She submitted a copy of DNA testing indicating a 99.99 percent probability that NH was Caden's father; but the copy was not notarized. She also submitted a short-form birth certificate for Caden listing John B. H~ as the father. Caden's mother stated that H~ was not the father, but was merely at the hospital with her when Caden was born. She first stated that NH had not provided for the child because he was not sure that he was the father. She later stated that he had provided support to her and Caden. Statements from three of NH's relatives were submitted indicating that NH had acknowledged Caden as his child and had provided support to Caden and his mother. Caden's mother later provided a written statement from H~ indicating that he was not Caden's father, along with a long-form birth certificate for Caden and a notarized copy of the DNA testing report. This information was submitted in June 2002 and was notarized in May 2002. GeneScreen, a testing laboratory in Dallas, Texas, conducted the testing. Copies of these documents were not provided to OGC.

For purposes of intestate succession in South Carolina, a person is a child of the natural father if “the paternity is established by an adjudication … if commenced after his death, by clear and convincing proof.” S.C. Code Ann. § 62-2-109(2)(ii) (2001). South Carolina law regarding the admissibility and effect of genetic testing to determine paternity, S.C. Code Ann. § 20-7-956 (2001), provides that “test results which show a … statistical probability of paternity of ninety-five percent or higher creates a rebuttable presumption of the putative father's paternity.” Thus, the blood test results establish a rebuttable presumption that NH is Caden's father.

In this case, however, the presence of another man's name on Caden's birth certificate seems to contradict the test results. H~' name on the certificate can create a presumption of the existence of a written acknowledgement or court order of paternity. See GN ATL00306.120; see also S.C. Code Ann. §20-7-956(3) (2001) (evidence establishing a presumption of paternity includes DNA testing, a verified acknowledgement of paternity, a birth certificate containing the signature of the mother and the putative father, or a foreign paternity determination). Because the birth certificate was not sent to us, we do not know what information is on the certificate or who signed the certificate. However, here, Caden and his mother are not attempting to establish that H~ is Caden's father so these provisions have limited applicability. Moreover, the presumptions described above are rebuttable. Evidence from H~ and from NH's relatives support the presumption established by the DNA testing and contradict any presumption established by the presence of H~' name on Caden's birth certificate, especially in light of H~' statement denying paternity. The DNA and other evidence of paternity would seem to qualify as “clear and convincing.” It is therefore our opinion that Caden could inherit from the NH under South Carolina law. However, Caden's ability to inherit from the NH does not alter his status as an illegitimate child. Only under certain circumstances, not found in this case, will a child born to unmarried parents be legitimated. See generally, S.C. Code Ann §§ 20-1-30, 20-1-40, 20-1-60, 20-1-80 (2001). None of these circumstances apply here.

Because the statute does not confer legitimation rights on Caden, but only rights of intestate succession, her entitlement is based upon the date that paternity was effectively established. In this case, paternity would have been established by the date of the report of DNA testing.

Very truly yours,

Mary A. S~
Regional Chief Counsel

Laurie G. R~
Assistant Regional Counsel

F. PR 02-068 NH: Eric C. B~ ~ Claimant: Erica C. B~ Acceptability of DNA Testing of Putative Paternal Grandparents as Evidence of Paternity

DATE: April 8, 2002

1. SYLLABUS

Under South Carolina law, the results of genetic tests performed on the NH's parents, showing a 99.98% probability of grandparentage, create a presumption that the child is the NH's child. This presumption can be rebutted by a preponderance of the evidence. There has been no evidence in this case to contradict the allegations of paternity. Therefore, unless the NH had a brother whom SSA suspects might be the child's father, the child can inherit from the NH under South Carolina law. Because the statute does not confer legitimation status on the child, but only inheritance rights, her entitlement is established as of the date of the report of DNA testing.

2. OPINION

You have asked whether DNA test results from the parents of the deceased number holder (NH), Eric C. B~, are sufficient to prove his paternity of Erica C. B~ (Erica), and, if so, the date of entitlement. Applying South Carolina law, we conclude that the results of genetic tests performed the NH's parents create a presumption that Erica is the NH's child, but that this presumption can be rebutted by a preponderance of the evidence.

On July 20, 1995, the NH died, domiciled in South Carolina. Mary M~, the mother of Erica B~, applied for child's insurance benefits in February 1996, and the claim was denied on March 5, 1996 based upon a finding that Ms. M~ had not established that Erica was the child of the NH. Ms. M~ did not appeal this decision. In August 1998, Odell B~, Erica's putative paternal grandmother, filed a new application for benefits on Erica's behalf. Because no new evidence of paternity was submitted with this application, it was dismissed. Ms. B~ filed a third application for child's insurance benefits in June 2001 with a protective filing date of April 5, 2001. With this application, Ms. B~ presented new evidence consisting of a "DNA Grandparentage Report" performed on May 16, 2001 by DNA Diagnostics Center. This report, verified by Susannie C. L~, Ph.D., the Center's Associate Director, reports that there is a 99.98 percent probability that Odell M. B~ and Charles B~, the parents of the NH, are the grandparents of Erica C. B~. Ms. B~ also provided a copy of Erica's birth certificate, which does not list a father, and a statement from Mary S. M~ that the NH "always made sure I got to the doctor on time and made sure that I had all the things that I need at home."

S.C. Code Ann. § 62-2-109(2)(ii) (2001) provides that, for purposes of intestate succession, a person is a child of the natural father if "the paternity is established by an adjudication if commenced after his death, by clear and convincing proof."

South Carolina law regarding the admissibility and effect of genetic testing to determine paternity, S.C. Code Ann. § 20-7-956 (2001) provides that "test results which show a statistical probability of paternity of ninety-five percent or higher creates a rebuttable presumption of the putative father's paternity." The statute is silent as to the weight to be given to genetic testing of grandparents or other relatives. Although we find no caselaw discussing the statute in the context of genetic testing of a putative father's parents, it is our opinion that the grandparents' genetic test results may be considered along with the other evidence of the NH's paternity.

In this case, there has been no evidence presented that would contradict the allegations of paternity. The genetic testing demonstrated a 99.98 percent probability of grand-paternity, and there have been additional, corroborating statements entered into the record. Unless the NH had a brother whom SSA suspects might be Erica's father, this evidence would seem to qualify as "clear and convincing." It is therefore our opinion that Erica could inherit from the NH under South Carolina law. However, Erica's ability to inherit from the NH does not alter her status as an illegitimate child. Only under certain circumstances, not found in this case, will a child born to unmarried parents be legitimated. See generally, S.C. Code Ann §§ 20-1-30, 20-1-40, 20-1-60, 20-1-80 (2001).

With respect to the month of Erica's entitlement, because the statute does not confer legitimation rights on Erica, but only rights of intestate succession, her entitlement is based upon the date that paternity was effectively established. In this case, paternity would have been established by the date of the report of DNA testing, May 16, 2001.

Very truly yours,

Mary A. S~
Regional Chief Counsel

By: Michael S. F~
Assistant Regional Counsel

G. PR 89-008 - State Law on Legitimation and Inheritance Rights - Ronald E. H~ - AN ~

DATE: August 15, 1989

1. SYLLABUS

It is the policy of the Social Security Administration that intestacy statutes create a new legal status - that of "heir" and that the new status for purposes of Social Security benefits comes into existence on the date the relevant legal events occur and, thus, entitlement to benefits are retroactive to that date.

(H~, Ronald E. - SSN ~ - CCIV [J~] - to ARC, Progs., Atl., 08/15/89)

2. OPINION

You have requested our opinion regarding the correct application of the South Carolina intestacy law, i.e., Section 62-2-109 of the Code of Law of South Carolina, in determining a child claimant's rights under the Social Security Act. You specifically wanted to know whether the Secretary is barred from hearing an action to establish paternity under the intestacy statute in view of the fact that the statute of limitations for bringing such an action had run. You also wanted to know whether the child's entitlement to benefits became effective from the date of adjudication or from the date the application for benefits was filed.

According to the file, the wage earner, Ronald E. H~, died on December 19, 1987, domiciled in South Carolina. Catherine M~, on August 31, 1988, filed an application for child's insurance benefits on behalf of her daughter, Katerina R. M~, on the wage earner's record, claiming that she was the child of the wage earner. On September 1, 1988, the Administration determined that the child claimant was the child of the wage earner and granted her benefits. Cheryl H~, the insured's widow, contested the award and the finding by the Secretary claiming that the Secretary was barred hearing the action since it was heard after the six-month statute of limitation had run. With regard to your first inquiry, it is our opinion and that of the Office of the General Counsel that this is a federal policy issue which will have to be addressed by Central Office. Joe M~, Section Chief for Retirement, Survivors, and Disability Programs Branch, Office of the General Counsel, recommends that you contact your central office policy component for a resolution of this issue.

With regard to the second inquiry, it is our opinion that the child claimant is entitled to retroactive benefits only to the date of adjudication. In a May 27, 1985, memorandum, we concluded that intestacy statutes create a new legal status - that of "heir" and that the new status for the purposes of Social Security benefits, comes into existence on the date the relevant legal event occurs. See, B~, Frank - SSN ~ - RAIV [J~] — to Dir., Ins.Progs.Br., Atl. 05/22/85 (copy attached).

Section 202(d)(1) of the Act, 42 U.S.C. §402(d)(1), provides for benefits only for the months in which the child claimant meets all the requirements. Consequently, benefits can only be paid retroactively from the date of adjudication forward.


Footnotes:

[1]

SSA denied Mr. D~'s previous, January 16, 2004, application for benefits for Alexander on February 6, 2004.

[2]

The court's paternity determination would seem to be due some deference under Social Security Ruling (SSR) 83-37c. Through this SSR, SSA adopted as national policy the rationale from Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973). In Gray, the Sixth Circuit held the Commissioner is not free to ignore a state court determination on a domestic relations issue when the state court had jurisdiction over the issue, the issue was genuinely contested by parties with opposing interests, and the decision was consistent with the law set forth by the highest court in the state. Since NH was present and represented before the state court and since the order reveals no inconsistency with SC law, SSA would not be free to ignore the court's conclusion that NH was Adrianne's father.


To Link to this section - Use this URL:
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PR 01120.045 - South Carolina - 05/10/2011
Batch run: 05/10/2011
Rev:05/10/2011