Claimant cannot qualify as Number Holder's (NH) child under 216(h)(3)(C) because the evidence provided does not show that NH (1) had acknowledged in writing that Claimant is his son, (2) had been decreed by a court to be Claimant’s father, (3) had been ordered by a court to contribute to Claimant’s support because Claimant was his son, or (4) was living with or contributing to the support of Claimant when he died.

Whether a DNA test that shows an alleged sister (Aunt) of R~, the number holder (NH), is the aunt of R2~ (Claimant) is sufficient evidence to establish paternity for determining Claimant’s eligibility for child’s insurance benefits (CIB) and a lump-sum death payment (LSDP) on NH’s earnings record.

Based on the available facts, we do not believe Claimant could establish paternity to inherit from NH under Tennessee intestacy law. Thus, Claimant is not eligible for CIB or a LSDP on NH’s record.

According to the information provided, Claimant was born on November XX, 2010, in Tennessee. At the time of birth, his mother (Mother) was married to S~. Claimant’s birth certificate lists S~ as Claimant’s father.

However, Mother alleges NH, not S~, is Claimant’s father. In support, Mother states she was already pregnant when she married S~, that she married S~ during his incarceration, and that she never had sexual intercourse with him during their marriage. A Final Decree of Divorce dated April XX, 2013 dissolved the marriage between Mother and S~ and established a parenting plan for a child.

In 2018, NH died by homicide in Missouri and was a resident of Tennessee at his time of death. He was married to B~ from 2001 until his death. The agency paid B~ the LSDP.

Claimant provided a genetic testing report from Archpoint Labs indicating a 99.96 percent probability Aunt is Claimant’s paternal aunt, as compared to an untested, unrelated person. The report states the testing supports the assertion that a brother of Aunt could be the biological father of Claimant. Mother alleges Aunt is the sister of NH.

Here, the DNA test shows a probability that Aunt is the aunt of Claimant, not a probability that NH is the father of Claimant. Therefore, the DNA test does not show paternity and does not create a rebuttable or conclusive presumption of paternity.

Further, the DNA test does not establish paternity by clear and convincing evidence because there is no evidence that NH is the brother of Aunt other than the unsupported statements of Mother. In POMS PR 01115.047(B), the agency found DNA tests between a claimant and an alleged child of a deceased number holder had no value because of a lack of evidence—beyond the unsupported claims of claimant’s mother—that the alleged child was the child of the number holder. Similarly, here, the record lacks evidence that Aunt and NH are siblings.

Moreover, even if established, a sibling relationship between Aunt and NH would not suffice to show paternity by clear and convincing evidence because there is no evidence showing Aunt did not have a brother(s) other than NH who could have fathered Claimant. This reasoning is consistent with precedent opinion in POMS PR 01115.012(E). In that opinion, avuncular genetic test results established a 99.99% probability that the number holder’s brother was the claimant’s uncle as opposed to being unrelated to the claimant. Id. However, the testing did not exclude the possibility that another brother of the number holder was the claimant’s father. Id. The opinion concluded that because the genetic testing did not address that possibility, it did not establish that the claimant could inherit from the number holder under Georgia intestacy law. Id.

Finally, the record lacks evidence that would constitute clear and evidence of paternity. In addition to using the results of DNA tests to determine paternity, a Tennessee court would also consider: (1) the declarations and conduct of Mother; (2) any acknowledgment by NH; (3) family resemblance; and (4) evidence concerning NH’s access, opportunity, and capacity to have children. See POMS PR 01115.047(B).

Here, the available evidence does not establish paternity by clear and convincing evidence. First, Mother was married to S~ at the time of Claimant’s birth, and the birth certificate lists S~ as Claimant’s father. Second, the Divorce Decree also shows Mother and S~ had an agreed parenting plan, which suggests that S~ acted as Claimant’s father, even after he and Mother divorced.^[3]

Third, there is no evidence that NH acknowledged paternity of Claimant, provided support for Claimant’s Mother, or held Claimant out as his son. Under similar facts, the Tennessee Court of Appeals held the record lacked clear and convincing evidence of paternity where the deceased putative father did not: (1) attempt to legitimate the child by adjudication; (2) acknowledge paternity openly to the public; (3) hold the child out to his family as his daughter; (4) provide support to the child's mother; and (5) the record lacked evidence of community acceptance of the child as the putative father’s daughter. Gentry v. Jordan, 1986 WL 8152, at *2 (Tenn. Ct. App. July 25, 1986).

For the foregoing reasons, the facts of record do not establish NH’s paternity of Claimant by clear and convincing evidence. Therefore, Claimant is not entitled to CIB. Because he is not entitled to CIB, he is also not entitled to a LSDP.^[4] See Act § 202(i)(2); 20 C.F.R. § 404.392.

We do not believe Tennessee courts would find that the evidence presented provides clear and convincing proof that NH is Claimant’s father under Tennessee intestacy law. Therefore, the agency could not find that Claimant is NH’s child for determining Claimant’s eligibility for CIB and LSDP on NH’s earning record.