PR 01120.048 Texas

A. PR 11-012 Texas Law – Use of Full Sibling Screening Report to Establish Child Relationship (NH Bobby C~, SSN ~) – REPLY

DATE: October 28, 2010

1. SYLLABUS

A DNA test that satisfies both the reliability and authenticity requirements under Texas law and shows a 99.97 probability that the claimant is the half- biological sibling of the number holder’s biological child is sufficient to establish the parent-child relationship. In this case, the DNA test results showing 99.97% probability that Kasey and Colton have the same biological father sufficiently establishes that the NH is also Colton’s father. Colton is entitled to Child’s benefits effective July 2009 based upon the results of his siblingship DNA test report. The provision of Texas law that allows an illegitimate child to inherit property from his father does not legitimate the child. Instead, it merely confers inheritance rights. In this case, the act that conferred inheritance rights to Colton was the DNA test report of July 31, 2009.

If a child meets all requirements before he files his application for child’s benefits based on the earnings record of a number holder not entitled to disability benefits, he may receive benefits up to 6 months immediately before the month in which he filed his application. In this case, even though Colton did not apply until September 17, 2009, he was entitled to benefits as of July 31, 2009, the date of the DNA test report. Thus, he is entitled to benefits effective July 2009, the first month his application covered in which he met all other requirements for entitlement

2. OPINION

This memorandum is in response to your request for a legal opinion on whether a siblingship deoxyribonucleic acid (DNA) test report establishes that Colton F~(Colton) is Bobby C~’s (number holder’s) child. If Colton is the number holder’s child, you asked what is the effective date of the parent-child relationship. In our opinion, the available evidence is sufficient under Texas law to establish that Colton is the number holder’s child. We also believe that the DNA report grants inheritance rights to Colton, but does not legitimate him. In our opinion, Colton is entitled to child’s benefits effective July 2009, based upon the results of his siblingship DNA test report. 20 C.F.R. § 404.352(a)(1) (2010); 20 C.F.R. § 404.621(a)(1) (2010).

As we understand the facts, the number holder was married to Kathy C~ (Kathy) from 1980 to 1993. The number holder and Kathy had a son, Kasey J. C~ (Kasey), who was born in 1985. A Social Security Numerical Identification query (NUMIDENT) on Kasey lists the number holder as Kasey’s father. Also, records from the Texas Department of State Health Services, Vital Statistics Unit, verifies that the number holder was Kasey’s father.

On August 2, 1997, Shalena R. F~ (Shalena) gave birth to her son, Colton. There is no evidence that documents a marital relationship between the number holder and Shalena. Colton’s birth certificate did not list a father. No evidence indicates that the number holder acknowledged Colton in writing or that a court issued an order declaring paternity or requiring the number holder to provide support for Colton.

On November 10, 2007, the number holder died while domiciled in Texas. On September 17, 2009, Shalena filed a claim for Social Security child’s insurance benefits on behalf of Colton on the number holder’s account. In support of her claim, Shalena provided a July 31, 2009, siblingship DNA report. Independent Forensics, an American Association of Blood Banks (AABB) accredited testing facility, conducted the DNA test with samples from Colton and Kasey. The DNA report indicates a combined sibling index of 3,402 to 1 and a 99.97% probability that Colton and Kasey have the same father. The report includes the following evidence to document the chain of custody of the DNA samples: (1) Colton’s and Kasey’s names and photographs; (2) the names of the phlebotomists who collected the specimens; (3) the places in which the specimens were collected and the date of each collection; (4) the name of the individual who received the specimens in the testing laboratory; and (5) the dates the specimens were received. P. W. B~, Ph.D., the laboratory director, certified the DNA analysis report.

To be entitled to child’s benefits on an insured number holder’s account, a child must:

(1) be the number holder’s child; (2) be dependent upon the number holder; (3) apply for benefits; (4) be unmarried; and (5) be under the age of 18. See 20 C.F.R. § 404.350(a)(1)-(5) (2010). Here, Shalena applied for benefits on Colton’s behalf. Colton is unmarried and under the age of 18. The agency will consider Colton to be dependent upon the number holder if Colton is the number holder’s natural child. See 20 C.F.R. § 404.361(a) (2010). Thus, the only remaining criterion Colton must establish is that he is the number holder’s natural child.

A claimant proves that he is a number holder’s natural child if: (1) he could inherit property through intestate succession as the number holder’s natural child; (2) he is the number holder’s natural child, and the number holder and the claimant’s other parent participated in a ceremony that would have resulted in a valid marriage, except for a legal impediment; (3) he is the number holder’s natural child and the number holder has acknowledged this in writing, a court has decreed the number holder to be the claimant’s parent, or a court has ordered the number holder to contribute to the claimant’s support because the claimant is the number holder’s child; or (4) the number holder is the claimant’s natural parent and was either living with the claimant or contributing to his support at the time the claimant applied for benefits. See 42 U.S.C. §§ 416(h)(2)(A)-(B), 416(h)(3) (2010); 20 C.F.R. § 404.355(a)(1)-(4) (2010).

We have no information indicating that Shalena and the number holder were ever married. The number holder apparently never acknowledged Colton as his child, and no court decreed Colton to be his child or ordered him to pay child support. No evidence shows that Colton lived with the number holder or received support from him. In fact, the number holder died in 2007, and Shalena did not file for child’s benefits on his account until 2009. Thus, we conclude that Colton does not qualify as the number holder’s natural child under tests two, three, or four. Consequently, to prove that he is eligible for child’s benefits on the number holder’s account, Shalena must show under the first test that Colton could inherit property through intestate succession as the number holder’s child. Texas law controls because the number holder had his permanent home in Texas when he died. See 42 U.S.C. § 416(h)(2)(A) (2010); 20 C.F.R. §§ 404.355(a)(1), (b) (2010).

The Texas Probate Code provides the framework for determining father-child relationships for inheritance purposes. Tex. Prob. Code Ann. § 42(b)(1) (Vernon 2010). Under Texas law, a child is the child of his biological father if: (1) he was born under circumstances described in Section 160.201 of the Family Code [1] (2) a court adjudicated him to be the child of the father as provided by Chapter 160 of the Family Code; (3) the father adopted him; (4) the father executed an acknowledgement or like statement of paternity as provided by Subchapter D of Chapter 160 of the Family Code; or (5) clear and convincing evidence establishes that the purported father was the child’s biological father. Id. The third and fourth methods set out in the Texas Probate Code are not applicable in this case, as the number holder neither adopted Colton nor executed an acknowledgment of paternity. See id. Thus, Shalena must establish that Colton had a right to paternal inheritance from the number holder under the first, second, or fifth methods.

Under the first test, Section 160.204 of the Texas Family Code provides that the State will presume paternity in certain situations, which do not apply here. There is no evidence of any purported marital relationship at any time between Shalena and the number holder. There is no evidence suggesting that Colton lived with the number holder during the first two years of his life or that the number holder acknowledged Colton as his child. No court has found that the number holder is Colton’s father, and the number holder did not adopt Colton. There is no evidence suggesting that the number holder and Shalena were married or that Colton was conceived through assisted reproduction. Accordingly, the number holder cannot be Colton’s presumed father under the first method.

Under the second method of establishing a parent-child relationship, if a court adjudicated Colton to be the number holder’s child, he would be entitled to child’s insurance benefits on the number holder’s account. See Tex. Fam. Code Ann. § 160.201(b)(3) (Vernon 2010) (parent-child relationship is established between a man and a child by an adjudication of the man’s paternity). Although the evidence submitted indicates that Colton is a Plaintiff in a wrongful death action involving the number holder, the case is still pending in the state county court, and there is no indication that any court has ruled that Colton is the number holder’s child. We are also unaware of any other adjudication of paternity in this case. Nevertheless, Social Security regulations provide that, if applicable state inheritance law requires a court determination of paternity, “we will not require that you obtain such a determination.” 20 C.F.R. § 404.355(b)(2) (2010). Instead, the agency “decide[s a child’s] paternity by using the standard of proof that the State court would use as the basis for a determination of paternity.” Id.

Texas courts allow genetic DNA testing to establish paternity, provided the DNA testing and DNA test report meet specific reliability and authenticity requirements. See Tex. Fam. Code Ann. §§ 160.503, 160.504, 160.631 (Vernon 2010); see also In re Office of Atty. Gen., 276 S.W.3d 611, 615 (Tex.App. – Houston [1st Dist.] 2008). First, the DNA testing must take place in a laboratory accredited by the AABB, the American Society for Histocompatibility and Immunogenetics, or another accrediting body designated by the Secretary of the United States Department of Health and Human Services. See Tex. Fam. Code Ann. § 160.503(a) (2010). Second, a laboratory designee must sign the DNA test report under penalty of perjury. See Tex. Fam. Code Ann. § 160.504(a) (Vernon 2010). Third, the report must establish a reliable chain of custody through testimony or documentation. See Tex. Fam. Code Ann. § 160.504(b) (Vernon 2010). Documentation from the testing laboratory is sufficient to establish a reliable chain of custody that allows the results of genetic testing to be admissible without testimony if the documentation includes (1) the name and photograph of each individual whose specimens have been taken; (2) the name of each individual who collected the specimens; (3) the places in which the specimens were collected and the date of each collection; (4) the name of each individual who received the specimens in the testing laboratory; and (5) the dates the specimens were received. Id.

Under Texas law, if the DNA testing and DNA test report satisfy the reliability and authenticity requirements, and the testing reveals at least a 99% probability of paternity with a combined paternity index of at least 100 to 1, a man is rebuttably identified as the father of a child. See Tex. Fam. Code Ann. § 160.505(a) (Vernon 2010); see also In re Z.L.T., 124 S.W.3d 163, 164 n. 1 (Tex. 2003). A court may order testing of an alleged father or of an alleged father’s relatives, including parents, siblings, other children, and other relatives, when a specimen from an alleged father is not available. See Tex. Fam. Code § 160.508(a)(1) (Vernon 2010). The results of genetic testing can only be rebutted by other genetic tests. Tex. Fam. Code Ann. §§ 160.505(b); 160.631 (Vernon 2010).

Because the number holder is deceased, there was no genetic specimen available for testing to establish that the number holder was Colton’s father. Instead, Colton and Kasey provided samples for a siblingship DNA test. The DNA testing took place at Independent Forensics, an AABB-accredited facility. The testing facility documented the chain of custody with Colton’s and Kasey’s names and photographs. The facility identified the persons who collected the specimens, as well as the time and place that they collected the specimens. Finally, the facility documented the names of the individuals who received the specimens in the laboratory and the date they received the specimens. Dr. B~, the laboratory’s designee, signed the test report before a notary public and verified the interpretation of the results. The testing revealed a combined paternity index of 3,402 to 1 and a 99.97% probability that Colton and Kasey have the same biological father. Because the DNA test satisfies both the reliability and authenticity requirements under Texas law, we believe that the report satisfies Texas state law standards for establishing that the tested subjects are half- biological siblings.

Thus, we must determine who Kasey’s father is, so that we can identify whether the number holder is Colton’s father.[2] According to the information you provided, Kasey was born on March 10, 1985, during the marriage of the number holder and Kathy, Kasey’s mother. Both a NUMIDENT on Kasey’s account and information from the Texas Department of State Health Services document the father-child relationship between the number holder and Kasey. Under the Texas Uniform Parentage Act, an unrebutted presumption of a man’s paternity can establish a father-child relationship. Tex. Fam. Code Ann. § 160.201 (Vernon 2010). When a child is born during a period that the child’s mother is married to a man, the man is presumed to be the child’s father. Tex. Fam. Code Ann. § 160.204 (Vernon 2010). Because the number holder was married to Kasey’s mother when Kasey was born, the number holder is Kasey’s presumed father. Consequently, the DNA test results showing a 99.97% probability that Kasey and Colton have the same biological father sufficiently establishes that the number holder is also Colton’s father.

With respect to the first possible month of entitlement to benefits, the agency recognizes that state statutes that legitimate a child generally operate retroactively to the birth of the child. SSR 85-17. State statutes that merely confer inheritance rights, on the other hand, operate prospectively from the date of the act. Id. The provision of Texas law that allows an illegitimate child to inherit property from his father does not legitimate the child. See Tex. Prob. Code Ann. § 42(b)(1) (Vernon 2010). Instead, it merely confers inheritance rights. See id. In this case, the act that conferred inheritance rights to Colton was the DNA test report of July 31, 2009.

The child of a deceased number holder generally becomes entitled to benefits in the first month in which he meets all requirements for entitlement. 20 C.F.R. § 404.352(a)(1) (2010). As indicated above, these requirements include proof that the child: (1) is the number holder’s child; (2) is dependent upon the number holder; (3) has applied for benefits; (4) is unmarried; and (5) is under the age of 18. See 20 C.F.R. § 404.350(a)(1)-(5) (2010). However, if a child meets all requirements before he files his application for child’s benefits based on the earnings record of a number holder not entitled to disability benefits, he may receive benefits up to 6 months immediately before the month in which he filed his application. 20 C.F.R. § 404.621(a)(2) (2010). [3] The benefits begin with the first month in the 6-month period in which the child meets all the requirements for entitlement, except the requirement that he must have applied for benefits. 20 C.F.R. §§ 404.352(a)(1), 404.621(a)(2) (2010). In this case, even though Colton did not apply until September 17, 2009, he was entitled to benefits as of July 31, 2009, the date of the DNA test report. Thus, he is entitled to benefits effective July 2009, the first month his application covered in which he met all other requirements for entitlement

Michael M~
Regional Chief Counsel

By: _______________
James D. S~
Assistant Regional Counsel

B. PR 07-189 Texas State Law Effective Date of Child Relationship (NH Barnard B~, SSN ~) - REPLY

DATE: August 7, 2007

1. SYLLABUS

In Texas, DNA testing which satisfies the requirements of the Texas Family Code and shows a combined paternity index of 1,962,768 to 1 and a 99.99% probability that the number holder is the claimant's biological father is sufficient to establish a parent child relationship. We believe that a Texas court would find that the claimant is the number holder's child under chapter 160 of the Texas Family Code based on the DNA results.

Even if the court would not come to this conclusion, the DNA test results combined with the mother's statement that the number holder was the father, would qualify as clear and convincing evidence that the number holder is the biological father.

Since acts that grant inheritance rights to a child, but do not legitimate the child, have no retroactive effect in Texas; the relationship is established effective December 28, 2005, the date of the DNA test.

2. OPINION

You have asked us to provide a legal opinion regarding the significance of a notarized deoxyribonucleic acid (DNA) test report. Specifically, you have requested our opinion regarding whether Tony J. K~ (Tony) is entitled to a retroactive award of child's benefits on the account of Barnard B~ (the disabled number holder). Our opinion is that the available evidence is sufficient under Texas law to establish that Tony is the number holder's child. We also believe that acts that grant inheritance rights to a child, but do not legitimate the child, have no retroactive effect in Texas. Accordingly, we believe that Tony is not entitled to a retroactive award of child's benefits on the number holder's account. Instead, he is entitled to benefits as of December 28, 2005, the date of the DNA test report.

The number holder was born on August 15, 1963. In August 2001, he became entitled to Social Security disability benefits. According to the information that we received, the number holder did not list Tony on his application for disability insurance benefits. At all times relevant to this legal opinion, the number holder had his permanent home in Texas.

Josephine J. K~ gave birth to Tony on March 30, 2001. She and the number holder reportedly were not married when Tony was conceived or born. The information that we received indicates that Tony's birth certificate does not identify a father.

In May 2006, Ms. K~ filed an application for child's benefits on behalf of Tony on the number holder's account. She supported this application with a notarized DNA test report dated December 28, 2005. This report, which involves DNA samples from the number holder, Ms. K~, and Tony, shows a combined paternity index of 1,962,768 to 1 and a 99.99% probability that the number holder is Tony's biological father.

To be entitled to child's benefits on the account of an insured number holder, a child must: (1) be the number holder's child; (2) be dependent upon the number holder; (3) apply for benefits; (4) be unmarried; and (5) be under the age of 18. See 20 C.F.R. § 404.350(a) (1)-(5). Here, Ms. K~ applied for benefits on behalf of Tony, who is unmarried and under the age of 18. The Agency will consider Tony to be dependent upon the number holder if he is the number holder's child. See 20 C.F.R. § 404.361(a).

To show that he is a number holder's child, a claimant must prove one of the following: (1) he is the number holder's natural child, and the number holder and the claimant's other parent participated in a ceremony that would have resulted in a valid marriage, except for a legal impediment; (2) he is the number holder's natural child and the number holder has acknowledged this in writing, a court has decreed the number holder to be the claimant's parent, or a court has ordered the number holder to contribute to the claimant's support because the claimant is the number holder's child; (3) the number holder is the claimant's natural parent and was either living with the claimant or contributing to his support at the time the claimant applied for benefits; or (4) the claimant could inherit property through intestate succession as the number holder's child. See 42 U.S.C. §§ 416(h)(2)(A)-(B), 416(h)(3); 20 C.F.R. § 404.355(a)(1)-(4).

Here, according to the information that we received, Tony has not proven the first three things mentioned above. First, the number holder and Ms. K~ never participated in a marriage ceremony. Second, the number holder never acknowledged in writing that Tony was his natural child, no court ever decreed him to be Tony's parent, and no court ever ordered him to contribute to Tony's support. Third, the number holder was neither living with Tony nor contributing to his support when Ms. K~ applied for benefits on Tony's behalf. Consequently, to prove that he is eligible for child's benefits on the number holder's account, Tony must show that he could inherit property through intestate succession as the number holder's child. Texas law controls because the number holder had his permanent home in Texas when Ms. K~ applied for benefits on Tony's behalf. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1).

The Texas Probate Code specifies five methods for a child to show that he has a right to inherit property from his purported biological father. See Tex. Prob. Code Ann. § 42(b)(1) (Vernon 2007). Specifically, the child must show one of the following: (1) he was born under the circumstances described in section 160.201 of the Texas Family Code; (2) the purported father adopted him; (3) the purported father executed an acknowledgment of paternity; (4) a court found him to be the purported father's child under chapter 160 of the Texas Family Code; or (5) clear and convincing evidence establishes that the purported father was his biological father. See id.

The first, second, and third methods are not relevant in this case under the facts that you have presented. The fourth and fifth methods are, however, relevant. Thus, to establish that he has a right to inherit property from the number holder, Tony must do one of the remaining two things: (1) show that a Texas court would find him to be the number holder's child under chapter 160 of the Texas Family Code; or (2) provide clear and convincing evidence that the number holder was his biological father.

A Texas court will consider the results of genetic testing when adjudicating the paternity of a child under chapter 160 of the Texas Family Code. See Tex. Fam. Code Ann. §§ 160.505, 160.621, 160.631 (Vernon 2007). A man is rebuttably identified as the father of a child if genetic testing reveals a 99% probability of paternity and a combined paternity index of at least 100 to 1. See Tex. Fam. Code Ann. § 160.505(a) (Vernon 2007). Only the results of genetic testing may rebut the results of other genetic testing. See Tex. Fam. Code Ann. §§ 160.505(b), 160.631 (Vernon 2007).

Under the Texas Family Code, genetic testing must satisfy certain requirements. Tex. Fam. Code Ann. § 160.503 (Vernon 2007). For example, the testing must take place in a laboratory that has received accreditation from the American Association of Blood Banks (AABB) or another satisfactory accrediting body. See Tex. Fam. Code Ann. § 160.503(a) (Vernon 2007). A laboratory designee must sign the test report. See Tex. Fam. Code Ann. § 160.504(a) (Vernon 2007).

Here, the DNA testing took place at the Laboratory Corporation of America, an AABB-accredited facility. Cynthia J. T~, Ph.D., the laboratory's designee, signed the test report before a notary public and verified the interpretation of the results. Thus, the DNA testing satisfied the requirements of the Texas Family Code. As indicated above, this testing revealed a combined paternity index of 1,962,768 to 1 and a 99.99% probability that the number holder is Tony's biological father. No one presented further data to rebut these results. Consequently, we believe that a Texas court would find that Tony is the number holder's child under chapter 160 of the Texas Family Code.

Even if a Texas court would not rely solely on the DNA test results to find that the number holder was Tony's father, Tony could still show that he may inherit property from the number holder. He could do so by providing clear and convincing evidence that he is the number holder's biological child. See Tex. Prob. Code Ann. § 42(b)(1) (Vernon 2007). The Texas Family Code defines "clear and convincing evidence" as "the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." Tex. Fam. Code Ann. § 101.007 (Vernon 2007). A Texas court will consider DNA test results when deciding whether the evidence in a particular case is clear and convincing. See Tipps v. Metropolitan Life Ins. Co., 768 F.Supp. 577, 579-580 (S.D. Tex. 1991).

As suggested above, the evidence in this case includes the following: (1) Ms. K~'s claim that Tony is the number holder's child; and (2) a DNA test report that shows a 99.99% probability that the number holder is Tony's biological father. We believe that a Texas court would view this as clear and convincing evidence and find that Tony is the number holder's child. As such, Tony may inherit property from the number holder under Texas intestacy law, and he is entitled to Social Security benefits on the number holder's account.

With respect to the first possible month of entitlement to benefits, Agency policy provides that acts that legitimate a child generally operate retroactively to the birth of the child. Social Security Ruling 85-17. Acts that merely confer inheritance rights, on the other hand, operate prospectively from the date of the act. Id. The provision of Texas law that allows an illegitimate child to inherit property from his father does not legitimate the child. See Tex. Prob. Code Ann. § 42(b)(1) (Vernon 2007). Instead, it merely confers inheritance rights. See id. In this case, the act that conferred inheritance rights to Tony was the DNA test report of December 28, 2005.

The child of a deceased number holder becomes entitled to benefits in the first month covered by his application in which he meets all requirements for entitlement. 20 C.F.R. § 404.352(a)(1). As indicated above, these requirements include proof that the child: (1) is the number holder's child; (2) is dependent upon the number holder; (3) has applied for benefits; (4) is unmarried; and (5) is under the age of 18. See 20 C.F.R. § 404.350(a)(1)-(5). Here, Tony met all requirements for entitlement on December 28, 2005, the date of the DNA test report. We therefore conclude that he became entitled to benefits as of that date. Because Tony did not meet all requirements for entitlement until December 28, 2005, and because actions that confer inheritance rights operate only from the date of their occurrence, he is not entitled to a retroactive award of benefits on the number holder's account.

Tina M. W~
Regional Chief Counsel

By: _______________
Eric D. P~
Assistant Regional Counsel

C. PR 07-122 Texas State Law Evidence to Rebut Presumption of Paternity and Effective Date of Child Relationship (NH Bryan W. B~; SSN ~) -- REPLY

DATE: April 27, 2007

1. SYLLABUS

In Texas, in a case in which the mother and her husband consented to the DNA testing showing a 99.97 percent probability that the number holder is the claimant's father, that report combined with the husband's statement that he is not the child's father is sufficient to rebut the presumption of paternity by the clear and convincing standard.

Under Texas' Uniform Parentage Act a man is presumed to be the father of a child if he is married to the mother of the child and the child is born during the marriage. This presumption can only be rebutted by a court decision or by the husband's filing of a valid denial of paternity in conjunction with the filing by another person of a valid acknowledgment of paternity. In this case, the courts would accept the DNA test results as admissible since the husband consented to the testing being performed.

The claimant's relationship to the number holder is established effective February 12, 2007, the date the husband submitted his denial of paternity.

2. OPINION

You have requested an opinion regarding whether a deoxyribonucleic acid (DNA) test report showing that Bryan B~ (the number holder) is the biological father of Kaitlyn U~ is sufficient to rebut the presumption that Kaitlyn is the legitimate child of Mark U~ (Mr. U~), who was married to Kaitlyn's mother (Mrs. U~) at the time of Kaitlyn's birth. You have also asked whether the DNA test report grants inheritance rights and, if so, as of what date is Kaitlyn entitled to child's benefits on the account of the number holder. ]

In our opinion, because Mr. and Mrs. U~ consented to the DNA test report showing that the number holder is Kaitlyn's father and because Mr. U~ stated he is not Kaitlyn's biological/natural father, the report is sufficient to rebut the presumption of Mr. U~'s paternity. Kaitlyn has established by clear and convincing evidence that she is entitled to inherit from the number holder under Texas law as of February 12, 2007, the date that Mr. U~ submitted what, we believe, amounts to a denial of paternity. She is entitled to benefits on the number holder's account as of that date. The benefits that she received prior to that date constitute an overpayment.

As we understand the facts, the number holder died on June 6, 2001, while domiciled in Texas. Kaitlyn was born in Texas on November 15, 2001. While Mr. and Mrs. U~ were not married at the time of Kaitlyn's conception, they were married at the time of Kaitlyn's birth. Kaitlyn's birth certificate lists Mr. U~ as her father. The U~s are still married and are raising Kaitlyn. Mr. U~ has not filed a legal action attempting to disavow paternity.

On November 22, 2005, Mrs. U~ filed an application for child's benefits on behalf of Kaitlyn on the number holder's account. Mrs. U~ submitted a DNA test report dated November 8, 2005, showing the probability of the number holder's paternity of Kaitlyn as 99.97 percent.

The Agency mistakenly granted Mrs. U~'s application, and subsequently requested a legal opinion.

In our earlier legal opinion, issued on December 26, 2006, we determined that Kaitlyn was not entitled to child's benefits on the number holder's account because Kaitlyn had not submitted sufficient evidence to rebut the presumption that Mr. U~ was her father. As a result, on January 29, 2007, the Agency issued a notice that it would stop paying Kaitlyn benefits. On February 12, 2007, Mrs. U~ filed a request for reconsideration and submitted additional evidence, including: (1) a statement that she was pregnant with Kaitlyn before marrying Mr. U~ and that she placed Mr. U~'s name on Kaitlyn's birth certificate because Kaitlyn's biological father was deceased; (2) a statement dated February 1, 2007, signed by Mr. U~, in which he stated that he was not Kaitlyn's natural/biological father, that Ms. U~ had a DNA test for paternity to serve as proof that the number holder is Kaitlyn's biological father, and that Mr. U~ consented to the DNA test.

Under section 216(h)(2)(A) of the Social Security Act (Act), a child is entitled to benefits on the earnings record of a deceased wage earner if the child could inherit the wage earner's property as his natural child under the intestacy laws of the state in which the wage earner was domiciled at the time of his death. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1). If, under state law, a child could take intestate personal property as a number holder's child, she is considered the number holder's child for Social Security benefit purposes. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1). A child's relationship to a number holder, under section 216(h)(2) of the Act, can be established without the need for a court determination of paternity. See 20 C.F.R. § 404.355(b)(2).

Because the number holder was domiciled in Texas at the time of his death, the question is whether a Texas court would consider Kaitlyn to be the number holder's child for purposes of intestate succession. The Texas Probate Code specifies five methods by which a right to paternal inheritance may be established. These methods are: 1) the child is born under circumstances described in section 160.201 of the Family Code; 2) the child is adjudicated to be the child of the father by court decree as provided by Chapter 160 of the Family Code; 3) the father adopted the child; 4) the father executed an acknowledgement or like statement of paternity as provided by Subchapter D, Chapter 160 of the Family Code; or 5) the child establishes by clear and convincing evidence that the purported father was the biological father of the child. See Tex. Prob. Code § 42(b)(1); Tex. Fam. Code §§ 160.201, 160.204. An action to establish paternity can be brought after the death of the alleged father. See In the Interest of A.S.L., 923 S.W.2d 814, 817-18 (Tex. App. 1996). The first, third and fourth methods are not relevant in this case under the facts as you have presented them. The second and fifth methods are, however, relevant.

Under the second method of section 42(b)(1) of the Texas Probate Code, if a court adjudicated Kaitlyn to be the child of the number holder, as provided in Chapter 160 of the Texas Family Code, she would be entitled to inherit from the number holder. See Tex. Prob. Code § 42(b)(1).

As long as the mother and the presumed father consent, the results of genetic tests, such as those that Mrs. U~ submitted, may be used to adjudicate the issue of paternity and are evidence that a Texas court would consider. See Tex. Fam. Code §§ 160.505, 160.621, 160.631. A man is rebuttably identified as the father of a child if testing reveals at least a 99 percent probability of paternity and a combined paternity index of at least 100 to 1. See Tex. Fam. Code § 160.505(a). The results of genetic testing can only be rebutted by other genetic tests. See Tex. Fam. Code §§ 160.505(b), 160.631. The DNA report Mrs. U~ submitted shows the probability of the number holder's paternity as 99.97 percent and appears to satisfy the statutory requirements for genetic testing. See Tex. Fam. Code § 160.503.

We believe that a Texas court would admit the DNA test report as evidence to adjudicate Mr. U~'s paternity and conclude that Mr. U~ is not Kaitlyn's father. The evidence that you submitted shows that Mr. and Mrs. U~ both consented to the DNA testing.

Under the fifth method of section 42(b), if Kaitlyn could show by clear and convincing evidence that the number holder was her biological father, she would be entitled to inherit from him. See Tex. Prob. Code § 42(b)(1). Clear and convincing evidence is defined as "the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." Tex. Fam. Code § 101.007.

The presumption of paternity that arises in marriage, such as in this case, is strong and very difficult to rebut. But we believe that the evidence you submitted constitutes clear and convincing evidence that rebuts the presumption that Mr. U~ is Kaitlyn's father. See J~ v. M~, 623 S.W.2d 442, 443-444 (Tex. App. 1981) (the presumption that a child conceived during marriage is the legitimate child of the husband and wife is one of the strongest presumptions known to the law).

The presumption of paternity may be rebutted by two methods. First, it may be rebutted by an adjudication to determine the parentage of a child under Subchapter G of the Texas Family Code. See Tex. Fam. Code § 160.601. Second, it may be rebutted when a presumed father files a valid denial of paternity in conjunction with the filing by another person of a valid acknowledgment of paternity as provided by section 160.305 of the Texas Family Code. See Tex. Fam. Code Ann. §§ 160.204(b)(1)-(2), 160.305.

Under the first method, paternity of a child having a presumed father, such as Kaitlyn, may be disproved by admissible results of genetic testing excluding that man as the father of the child. See Tex. Fam. Code § 160.631(b); see alsoTex. Fam. Code § 160.503 (setting forth requirements for genetic testing). The results of genetic testing must show that a putative father has at least a 99 percent probability of paternity and a combined paternity index of at least 100 to 1. See Tex. Fam. Code § 160.505(a)(1),(2); see, e.g., T~ v. Metropolitan Life Insurance Co., 768 F. Supp. 577, 579-80 (S. D. Tex. 1991) (grandparentage DNA). Because Mr. U~ stated that he is not Kaitlyn's natural/biological father and because he consented to the DNA test, we believe that the results of the genetic testing are sufficient to rebut the presumption that Mr. U~ is Kaitlyn's father. See Tex. Fam. Code § 160.621 (c)(1).

Under the second method, paternity can be rebutted when a presumed father files a valid denial of paternity with the Bureau of Vital Statistics in conjunction with the filing by another person of a valid acknowledgment of paternity as provided by section 160.305 of the Texas Family Code. See Tex. Fam. Code Ann. §§ 160.204(b)(2). While Mr. U~ did not file a denial with the Texas Bureau of Vital Statistics, he submitted a statement to the Agency denying that he is Kaitlyn's biological father. Thus, under these circumstances, we find that Kaitlyn has rebutted the presumption that Mr. U~ is her father.

Finally you asked whether the DNA test report grants inheritance rights only and whether it operates prospectively from the date of the November 2005 DNA report or retroactively from the number holder's death in June 2001. The child of a deceased number holder becomes entitled to benefits in the first month covered by her application in which she meets all requirements for entitlement. 20 C.F.R. § 404.352(a)(1). These requirements include proof that the child: (1) is the number holder's child; (2) is dependent upon the number holder; (3) has applied for benefits; (4) is unmarried; and (5) is under the age of 18. See 20 C.F.R. § 404.350(a)(1)-(5). Actions that confer inheritance rights operate only from the date of their occurrence. Here, Kaitlyn did not meet all requirements for entitlement until February 12, 2007, the date that Mr. U~ submitted a denial of paternity and rebutted the presumption that he was her father. As of that date, the Agency should treat Kaitlyn as an individual who could inherit property through intestate succession as the deceased number holder's child. Tex. Prob. Code Ann. § 42(b)(1); Tex. Fam. Code Ann. §§ 160.201, 160.204. Because the Agency began paying benefits to Kaitlyn prior to the time, February 12, 2007, that she met all requirements for entitlement, she received an overpayment.

In conclusion, because Mr. and Mrs. U~ consented to the DNA test report showing that the number holder is Kaitlyn's father and because Mr. U~ stated he is not Kaitlyn's biological/natural father, the report is sufficient to rebut the presumption of Mr. U~'s paternity. Kaitlyn has established by clear and convincing evidence that she is entitled to inherit from the number holder under Texas law as of February 12, 2007, the date that Mr. U~ submitted what, we believe, amounts to a denial of paternity. She is entitled to benefits on the number holder's account as of that date. The benefits that she received prior to that date constitute an overpayment.

Tina M. W~
Regional Chief Counsel
By:___________________________
Julia D~
Assistant Regional Counsel

D. PR 07-044 Texas State Law Use of Grandparentage Screening Report to Establish Child Relationship (NH Joel T. M~, SSN ~) - REPLY

DATE: January 10, 2007

1. SYLLABUS

In Texas, in a case where the number holder has died and cannot provide a specimen for genetic testing, the court will consider the results of genetic testing of his parents showing a 99.99 percent probability that they are the child's grandparents.

The parent-child relationship is established as of the date of the DNA testing.

2. OPINION

You asked us to provide a legal opinion regarding the significance of a notarized grandparentage deoxyribonucleic acid (DNA) test report. Specifically, you asked whether such a report is sufficient under Texas law to establish that Phoenix T. M~ (Phoenix) is the child of Joel T. M~ (the deceased number holder). You also requested our opinion regarding whether acts that grant inheritance rights to a child, but do not legitimate the child, have retroactive effect in Texas. Our opinion is that the available evidence is sufficient under Texas law to establish that Phoenix is the number holder's child. We also believe that acts that grant inheritance rights to a child, but do not legitimate the child, have no retroactive effect in Texas. Accordingly, we believe that Phoenix is entitled to benefits as of December 22, 2005, the date of the grandparentage DNA test report.

The number holder was born on January 26, 1983, to Donna K~ (Ms. K~, formerly known as Donna M~) and Johnny M~ (Mr. M~). According to the information we received, the number holder was the only child of Ms. K~ and Mr. M~. The number holder died in an automobile accident on August 6, 2004. His permanent home was in Texas.

Phoenix was born on March 10, 2005. His birth certificate identifies Ermelinda E. M~ (Ms. M~) as his mother. It does not identify his father. Ms. M~ and the number holder were never married.

In March 2005, Ms. M~ filed an application for child's benefits on behalf of Phoenix on the number holder's account. She claimed that the number holder was Phoenix's father, but that the number holder never knew this. Ms. M~ reportedly did not learn that she was pregnant until shortly after the number holder's death. She provided statements and letters from several people (including her mother and sister and the number holder's mother and brother) to support her claim that the number holder was Phoenix's father. Nonetheless, because Ms. M~ failed to provide clear and convincing evidence that the number holder was Phoenix's father, the Agency denied the March 2005 application for child's benefits.

In January 2006, Ms. M~ filed a second application for child's benefits on behalf of Phoenix on the number holder's account. She supported this application with a notarized grandparentage DNA test report dated December 22, 2005. This report shows that the number holder's biological parents, Ms. K~ and Mr. M~, cannot be excluded as Phoenix's biological grandparents. Indeed, the report shows a 99.99% probability that Ms. K~ and Mr. M~ are Phoenix's biological grandparents.

To be entitled to child's benefits on the account of an insured number holder, a child must:

(1) be the number holder's child; (2) be dependent upon the number holder; (3) apply for benefits; (4) be unmarried; and (5) be under the age of 18. See 20 C.F.R. § 404.350(a)(1)-(5). Here, Ms. M~ applied for benefits on behalf of Phoenix, who is unmarried and under the age of 18. The Agency will consider Phoenix to be dependent upon the number holder if he is the number holder's child. See 20 C.F.R. § 404.361(a).

To determine whether an applicant is the child of a deceased number holder, the Commissioner will apply the intestacy laws of the state in which the number holder had his permanent home. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b). Thus, Phoenix's eligibility for child's benefits depends upon whether he could inherit property through intestate succession as the number holder's child. See id. Texas law controls because the number holder had his permanent home in Texas when he died.

Texas law provides five ways for a child to show that he has a right to inherit property from his purported biological father. See Tex. Prob. Code Ann. § 42(b)(1) (Vernon 2007). Specifically, the child must show one of the following: (1) he was born under the circumstances described in section 160.201 of the Texas Family Code; (2) the purported father adopted him; (3) the purported father executed an acknowledgment of paternity; (4) a court found him to be the purported father's child under chapter 160 of the Texas Family Code; or (5) clear and convincing evidence establishes that the purported father was his biological father. See id.

Here, Phoenix was not born under the circumstances described in section 160.201 of the Texas Family Code. The number holder neither adopted Phoenix nor executed an acknowledgment of paternity. No court found Phoenix to be the number holder's child, but if state law requires a court determination of paternity, the Commissioner will not require the child to obtain such a determination. 20 C.F.R. § 405.355(b)(2). Instead, the Commissioner will apply the law that the state court would apply to determine the child's paternity. See id. Thus, to establish that he has a right to inherit property from the number holder, Phoenix must do one of the remaining two things: (1) show that a Texas court would find him to be the number holder's child under chapter 160 of the Texas Family Code; or (2) provide clear and convincing evidence that the number holder was his biological father.

A Texas court will consider the results of genetic testing when adjudicating the paternity of a child under chapter 160 of the Texas Family Code. See Tex. Fam. Code Ann. § 160.631 (Vernon 2007). A man is rebuttably identified as the father of a child if genetic testing reveals a 99% probability of paternity. See Tex. Fam. Code Ann. § 160.505(a) (Vernon 2007). When the man has died and cannot provide a specimen for genetic testing, the court may consider the results of genetic testing of the man's parents. See Tex. Fam. Code Ann. § 160.508(a)(1) (Vernon 2007); See Also Tipps v. Metropolitan Life Ins. Co., 768 F.Supp. 577, 579-580 (S.D. Tex. 1991) (after death of putative father, Texas court may draw inferences from grandparentage DNA testing to determine paternity). Only the results of genetic testing may rebut the results of other genetic testing. See Tex. Fam. Code Ann. §§ 160.505(b), 160.631 (Vernon 2007).

Under the Texas Family Code, genetic testing must satisfy certain requirements. Tex. Fam. Code Ann. § 160.503 (Vernon 2007). For example, the testing must take place in a laboratory that has received accreditation from the American Association of Blood Banks (AABB) or another satisfactory accrediting body. See Tex. Fam. Code Ann. § 160.503(a) (Vernon 2007). A laboratory designee must sign the test report. See Tex. Fam. Code Ann. § 160.504(a) (Vernon 2007).

According to the information we received, the grandparentage DNA testing in this case took place at Genetica DNA Laboratories, Inc., an AABB-accredited facility. Maria Z~-K~, Ph.D., the laboratory's designee, signed the test report before a notary public and verified the interpretation of the results. Thus, the grandparentage DNA testing satisfied the requirements of the Texas Family Code. No one presented further DNA testing to rebut the results of the grandparentage DNA testing. We therefore believe that a Texas court would view the grandparentage DNA test report as convincing evidence that the number holder was Phoenix's father.

Even if a Texas court would not rely solely on the grandparentage DNA test report to find that the number holder was Phoenix's father, Phoenix could still show that he may inherit property from the number holder. He could do so by providing clear and convincing evidence that he is the number holder's biological child. See Tex. Prob. Code Ann. § 42(b)(1) (Vernon 2007). The Texas Family Code defines "clear and convincing evidence" as "the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." Tex. Fam. Code Ann. § 101.007 (Vernon 2007). A Texas court will consider grandparentage DNA test results when deciding whether the evidence in a particular case is clear and convincing. See Tipps, 768 F.Supp. at 479-480.

As mentioned above, the evidence in this case includes the following: (1) a divorce petition and a letter that indicate that the number holder was the only child born to Ms. K~ and Mr. M~; (2) a DNA test report that shows a 99.99% probability that Ms. K~ and Mr. M~ are Phoenix's biological grandparents; (3) statements from Ms. M~ that identify the number holder as Phoenix's father; and (4) a statement from Ms. M~'s mother and letters from Ms. M~'s sister, Mr. M~'s brother, and Ms. K~, all of which support Ms. M~'s claim that Phoenix is the number holder's child. We believe that a Texas court would view all of this as clear and convincing evidence and find that Phoenix is the number holder's child. As such, Phoenix may inherit property from the number holder under Texas intestacy law, and he is entitled to Social Security benefits on the number holder's account.

With respect to the first possible month of entitlement to benefits, Agency policy provides that acts that legitimate a child generally operate retroactively to the birth of the child. Social Security Ruling 85-17. Acts that merely confer inheritance rights, on the other hand, operate prospectively from the date of the act. Id. In this case, the act that conferred inheritance rights to Phoenix was the grandparentage DNA test report of December 22, 2005.

The child of a deceased number holder becomes entitled to benefits in the first month covered by his application in which he meets all requirements for entitlement. 20 C.F.R. § 404.352(a)(1). As indicated above, these requirements include proof that the child: (1) is the number holder's child; (2) is dependent upon the number holder; (3) has applied for benefits; (4) is unmarried; and (5) is under the age of 18. See 20 C.F.R. § 404.350(a)(1)-(5). Here, Phoenix met all requirements for entitlement on December 22, 2005, the date of the grandparentage DNA test report. We therefore conclude that he became entitled to benefits as of that date. Because Phoenix did not meet all requirements for entitlement until December 22, 2005, and because actions that confer inheritance rights operate only from the date of their occurrence, he is not entitled to a retroactive award of benefits on the number holder's account.

Tina M. W~
Regional Chief Counsel

By: _______________
Eric D. P~
Assistant Regional Counsel

E. PR 06-249 Texas Law Using DNA Testing to Establish Child Relationship -- (NH Lee E~, SSN ~)--REPLY

DATE: March 22, 2002

1. SYLLABUS

In Texas, DNA testing showing that there is a 99.2 % probability that the deceased number holder's parents are the claimant's grandparents is clear and convincing evidence sufficient to establish a parent-child relationship between the deceased and the child provided that possible parentage by male siblings of the deceased can be ruled out.

Since DNA testing does not legitimize the child under Texas law, the relationship is established effective with the date of the DNA test.

2. OPINION

You have requested an opinion regarding whether a DNA testing report is sufficient to establish that Joshua L. E~ (Joshua) is the child of the wage earner. In our opinion, under Texas law, Joshua has established that he is entitled to inherit from the wage earner if parentage by the wage earner's two brothers can be eliminated as a possibility. If inheritance is established, Joshua meets the requirement for entitlement to benefits on the wage earner's record.

As we understand the facts, the wage earner, Lee E~, died April 9, 1995, in Texas. Joshua was born in Round Rock, Texas, on December 17, 1995. His mother, Jennifer R. H~ F~, was not married to the wage earner. She filed the present application for child's benefits on behalf of Joshua in March 2001. The wage earner had one or more brothers.

Ms. H~ F~ submitted a DNA report dated March 15, 2001, showing a 99.2 percent probability that the wage earner's parents are Joshua's grandparents. The report is from the DNA Diagnostic Center. Testing was performed on Joshua and the parents of the deceased wage earner, who had two brothers. The DNA testing report states:

The alleged grandparents, Joyce P. E~ and Walter L~ E~, Jr., are not excluded as the biological grandparents of the child named Joshua L. E~. Based on testing reports obtained from analyses of 9 different DNA probes, the probability of grandparentage is 99.2%. This probability of grandparentage is calculated by comparing to an untested, random individual of the North American Caucasian population (assumes prior probability equals .50).

The report was sworn to and subscribed before a notary public.

As you know, the Social Security Act provides that in determining whether an applicant is the child of an insured individual, 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. 42 U.S.C. ' 416(h)(2)(A); 20 C.F.R. ' 404.355 (2001). Thus, eligibility for Social Security benefits depends on whether the child would inherit under the law of intestate succession in the state where the decedent was domiciled. Under the Commissioner's regulations, a natural child of the insured is considered to be dependent upon the insured when there is no issue of adoption by another individual. 20 C.F.R. ' 404.361. In this case, Texas law controls because the wage earner was domiciled in Texas at the time of his death.

The Texas Probate Code specifies five methods by which a right to paternal inheritance may be established. Tex. Prob. Code Ann. ' 42(b)(1) (Vernon 1999). One method is to obtain a court decree as provided in Chapter 160 (Determination of Parentage) of the Texas Family Code. The Texas Family Code provides that the effect of an order declaring that an alleged parent is the biological parent of the child is to confirm or create the parent-child relationship between parent and child for all purposes. Tex. Fam. Code Ann. ' 160.203, superseding § 160.006(b), by Act of June 14, 2001, Tex. Sess. Law. Serv. 821 (West 2001).

In the instant case, no court decree has been obtained. However, the Social Security Administration (SSA) will not apply a state inheritance law requirement that a court determination of paternity must be obtained or a requirement that paternity must be established before the worker's death. Paternity will be decided using the standard of proof that the state court would use. 20 C.F.R. ' 404.355(b)(2) (2001). The DNA Paternity Evaluation Report is evidence that would be considered by a Texas Court. The Texas Family Code provides:

If the parentage tests show the possibility of an alleged father's paternity and that at least 99 percent of the male population is excluded from the possibility of being the father, evidence of these facts constitutes a prima facie showing of an alleged father's paternity, and the party opposing the establishment of the alleged father's paternity has the burden of proving that the alleged father is not the father of the child.

Tex. Fam. Code Ann. ' 160.110(b) (Vernon 1999).

Testing of the deceased wage earner resulted in a conclusion that the wage earner's parents were not excluded as being Joshua's grandparents. The probability of grandparentage was 99.2 percent. The test results meet the statutory standard.

Using the clear and convincing evidence standard, DNA testing of grandparents has been used to support a finding of paternity. Tipps v. Metropolitan Life Insurance Co., 768 F.Supp. 577, 579-580 (S.D.Tx. 1991). The court described DNA testing as a well-established and accepted method of determining paternity. Id. at 579. Thus, we believe a Texas court would find that Joshua has shown that he is the child of the wage earner if it ruled out the possibility that one of the wage earner's brothers could have fathered Joshua. Therefore, you should eliminate parentage by the wage earner's brothers prior to awarding benefits.

With respect to the first possible month of entitlement, SSA policy provides that an act that gives inheritance rights is generally effective only from the date of that act, while an act that legitimates generally is effective retroactive to the birth of the child. See Social Security Ruling 85-17. Although Texas law allows an illegitimate child to inherit from his father once paternity is established, the law does not legitimate the child but merely establishes the parent-child relationship, pursuant to which the child receives inheritance rights. See Tex. Prob. Code Ann. ' 42(b)(1) (Vernon 1999).

Social Security regulations provide that a claimant may receive benefits from the first month he meets all the requirements. 20 C.F.R. § 404.620(a)(1). We believe that Joshua may receive benefits beginning March 15, 2001.

Tina M. W~
Regional Chief Counsel

By: _______________
Brenda L~
Assistant Regional Counsel

F. PR 05-182 Texas State Law Use of Grandparentage Screening Report to Establish Child Relationship (NH Brian K. R~, SSN ~) - REPLY

DATE: June 23, 2005

1. SYLLABUS

Under Texas law, DNA testing of the claimant and the deceased number holder's parents showing a 99.99% probability that the deceased's parents are the claimant's grandparents will be sufficient to rebuttably establish a parent-child relationship provided that development ruling out possible parentage by any sibling of the number holder is obtained.

The relationship is effective with the date of the DNA test.

2. OPINION

You have requested an opinion regarding whether DNA testing of the wage earner's parents is sufficient to establish status as a child of the wage earner under Texas state law. You also inquired as to the first possible month of entitlement. In our opinion, contingent upon the field office obtaining additional evidence to confirm that the individuals tested were the wage earner's parents and that the wage earner had no brothers who could potentially be Selina's father, the grandparentage screening report is sufficient to entitle Selina G~ as the wage earner's child. She can be entitled as of February 18, 2005.

As we understand the facts, Selina was born in San Diego, California, on March 13, 1993. Selina's mother, Deshaun L. B~, was not married to the wage earner. Selina's birth certificate shows Samuel G~, a person with whom Ms. B~ had a relationship when Selina was born, as Selina's father.

The wage earner received Title II disability benefits from October 1994 until his death on March 9, 1995, in Texas. On his application for benefits, the wage earner listed only one child, Britney R~. The wage earner's mother, however, informed the field office that the wage earner mentioned a possible daughter in California. His father wrote a letter to Ms. B~ in which he states that the wage earner told him about Selina.

Ms. B~ filed an application for child's benefits on behalf of Selina on February 22, 2005. As evidence of Selina's relationship to the wage earner, Ms. B~ submitted a February 18, 2005, DNA test report. The report is from Genetica DNA Laboratories, Inc., and is signed by Maria Z~, Ph.D., Assistant Laboratory Director. Testing was performed on Ms. B~, Selina, and the assumed parents of the wage earner. Dr. Z~ offered the following interpretation of the test results:

The alleged paternal grandparents, Shirley N. R~ and Bennie R. R~, cannot be excluded as the biological paternal grandparents of the child, Selina G~. Based on testing results obtained from analyses of 15 different DNA probes, the probability of grandparentage is 99.99%. This probability of grandparentage is calculated by comparing to an untested, unrelated couple of the North American Black population (assumes prior probability equals .50).

Dr. Z~'s written report was sworn to and subscribed before a notary public.

As you know, the Social Security Act provides that in determining whether an applicant is the child of an insured individual, 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. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355. Thus, eligibility for Social Security benefits depends on whether the child would inherit under the law of intestate succession in the state where the decedent was domiciled. Under the Commissioner's regulations, a natural child of the insured is considered to be dependent upon the insured when there is no issue of adoption by another individual. 20 C.F.R. § 404.361.

In this case, Texas law controls because the wage earner was domiciled in Texas at the time of his death. The Texas Probate Code specifies five methods by which a right to paternal inheritance may be established. Tex. Prob. Code Ann. § 42(b)(1) (Vernon 2004). These methods are: 1) The child is born under circumstances described by Section 160.201 of the Family Code (which cited to Section 160.204 - child born during a marriage or within 300 days after it, attempted or invalid marriage or father continuously lived with child the first two years and represented to others that the child was his own); 2) The child is adjudicated to be the child of the father by court decree as provided by Chapter 160 of the Family Code; 3) The child was adopted by the father; 4) The father executed an acknowledgement or like statement of paternity as provided by Subchapter D., Chapter 160 of the Family Code; or 5) The child establishes by clear and convincing evidence that the purported father was the biological father of the child. Tex. Prob. Code Ann. § 42(b)(1); Tex. Fam. Code Ann. §§ 160.201, 160.204. The first four methods do not apply as there has been no adjudication, adoption, or acknowledgement, and the circumstances surrounding the presumption of paternity in Section 160.204 of the Family Code do not exist in this case. Thus, only the fifth method, clear and convincing evidence, would remain.

However, one method is to obtain a court decree as provided in Chapter 160 (Determination of Parentage) of the Texas Family Code. The Texas Family Code provides that the effect of an order declaring that an alleged parent is the biological parent of the child is to confirm or create the parent-child relationship between the parent and child for all purposes. Tex. Fam. Code Ann. § 160.203, superseding § 160.006(b), by Act of June 14, 2001, Tex. Sess. Law. Serv. 821 (West 2004). In the instant case, no court decree has been obtained. However, the Social Security Administration (SSA) need not apply a state inheritance law requirement that a court determination of paternity must be obtained or a requirement that an action to establish paternity must have been started or completed before the worker's death. If applicable state law requires a court determination of paternity, SSA will decide paternity by using the standard of proof that the state court would use. 20 C.F.R. § 404.355(b)(2).

In 2001, Texas became the first state to adopt the Uniform Parentage Act. Tex. Fam. Code Ann. Chapter 160 (Uniform Parentage Act) (Acts 2001, 77th Leg., ch. 821 (effective June 14, 2001)). The Uniform Parentage Act governs every determination of parentage in Texas. Tex. Fam. Code Ann. § 160.103(a). The Uniform Parentage Act provides for, and focuses on, genetic testing. A report of a genetic testing expert is generally admissible as evidence of the truth of the facts asserted in the report. Tex. Fam. Code Ann. § 160.621. The Uniform Parentage Act expressly provides that a court may order genetic testing of relatives, including parents, when an alleged father is not available. Tex. Fam. Code Ann. § 160.508 (genetic testing when all individuals not available). Here, the wage earner is deceased and is, therefore, not available for testing.

The results of genetic tests may be used to identify the father of a child. Tex. Fam. Code Ann. §§ 160.505, 160.631. A man is rebuttably identified as the father of a child if testing reveals at least a 99 percent probability of paternity and a combined paternity index of 100 to 1. Tex. Fam. Code Ann. § 160.505(a). The results of genetic testing can only be rebutted by other genetic tests. Tex. Fam. Code Ann. §§ 160.505(b); 160.631. The Uniform Paternity Act provides that "If the court finds that genetic testing under Section 160.505 does not identify or exclude a man as the father of a child, the court may not dismiss the proceeding. In that event, the results of genetic testing and other evidence are admissible to adjudicate the issue of paternity." Tex. Fam. Code Ann. § 160.631(e).

In this case, genetic testing of the deceased wage earner's parents resulted in a conclusion that the wage earner's parents could not be excluded as being Selina's grandparents. The probability of grandparentage is 99.99%. The test report is based on the assumption that the individuals tested were in fact the parents of the wage earner. The case file does not contain any evidence suggesting that the individuals tested were not the parents of the wage earner, or that there were any brothers of the wage earner who could have been Selina's father. The field office should obtain evidence, such as a birth certificate, an affidavit or letter from the mother or any brothers as to the relationship to the wage earner. Absent evidence raising doubt in these areas, we believe that the test results suffice to establish that Selina is the wage earner's child.

With respect to the first month of entitlement, SSA policy provides that an act that gives inheritance rights is generally effective only from the date of that act, while an act that legitimates generally is effective retroactive to the birth of the child. See Social Security Ruling 85-17. Although Texas law allows an illegitimate child to inherit from the father once paternity is established, the law does not legitimate the child but, merely establishes the parent-child relationship, pursuant to which the child receives inheritance rights. See Tex. Prob. Code Ann. § 42(b)(1) (Vernon 2004).

Social Security regulations provide that a claimant who files an application for benefits may receive benefits no earlier than the first month she meets all the requirements. 20 C.F.R. § 404.620(a)(1). We believe that Selina would be considered as having met the requirements for entitlement when she established inheritance rights based on the DNA test results dated February 18, 2005.

Tina M. W~
Regional Chief Counsel

By: ___________________________
Brenda L~
Assistant Regional Counsel


Footnotes:

[1]

Under the first method for establishing a parent-child relationship, Section 160.201 of the Texas Family Code provides that a father-child relationship is established if there in an unrebutted presumption of paternity under section 160.204 of the Texas Family Code. Situations where there is an unrebutted presumption of paternity includes where a child is born during a marriage or within 300 days after the marriage terminated by death, annulment, declaration of invalidity, or divorce. Tex. Fam. Code Ann. § 160.204(a). They also include instances where a purported father married a child’s mother after the child’s birth in apparent compliance with the law. Id. Paternity is also presumed under section 160.204 of the Texas Family Code where, during the first two years of the child’s life, the purported father resided continuously with the child and represented to others that he was the father, as well as instances where the purported father acknowledged paternity, a court adjudicated paternity, or the father adopted the child. Id. Finally, section 160.201 provides that a child can establish a father-child relationship if the man had consented to assisted reproduction of his wife that resulted in the birth of the child. Tex. Fam. Code Ann. § 160.201(b)(5).

[2]

Under Social Security Ruling (SSR) 06-02p, we would not need to review Kasey’s relationship to the number holder if we had previously determined that he met the federal definition of a child in 42 U.S.C. § 416(h)(3) and there was no reason to question that determination. Although the NUMIDENT shows that the number holder is Kasey’s father, it does not appear we have ever identified Kasey as the number holder’s child for purposes of receiving survivor or auxillary benefits. Accordingly, we must review his relationship to the number holder under state law.

[3]

The agency may pay child’s benefits based on the earnings record of a number holder entitled to disability benefits for up to 12 months immediately before the month in which the child files his application. 20 C.F.R. § 404.621(a)(1) (2010).


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1501120048
PR 01120.048 - Texas - 11/08/2010
Batch run: 11/29/2012
Rev:11/08/2010