TN 11 (10-13)

PR 01210.036 North Carolina

A. PR 13-100 Child Status Based on DNA Testing of Claimant, Claimant’s Mother, and Number Holder’s Sister – North Carolina

DATE: July 9, 2013

1. SYLLABUS

A child can be awarded benefits under Section 216(h)(3) of the Social Security Act based on results of testing of DNA samples from the claimant, the claimant’s mother, and the number holder’s (NH’s) sister combined with evidence of verbal acknowledgments of paternity by the NH and his acknowledgment in a personal journal and on Facebook that the claimant is his child.  The DNA test results, combined with the statements from the NH, provide clear and convincing evidence that the claimant is the NH’s child under North Carolina intestacy law and section 216(h)(2)(A) of the Social Security Act (Act). Moreover, the NH’s Facebook postings qualify as a written acknowledgment under section 216(h)(3)(C)(i)(I) of the Act. Therefore, the claimant can qualify as the NH’s child for determining the claimant’s eligibility for Child’s Insurance Benefits (CIB) on the NH’s earning record.

2. OPINION

QUESTION

You have asked whether results of DNA testing of samples from the claimant, the claimant’s mother, and the NH’s sister, combined with evidence of verbal acknowledgments of paternity by the NH and his acknowledgment in a personal journal and on Facebook that the claimant is his child, are sufficient to establish the claimant as the NH’s child for determining the claimant’s eligibility for CIB on the NH’s earning record.

OPINION

The DNA test results, combined with the statements from the NH, can provide clear and convincing evidence that the claimant is the NH’s child under North Carolina intestacy law and section 216(h)(2)(A) of the Social Security Act (Act). The NH’s written acknowledgments of claimant would also seem to establish the claimant as the NH’s child under section 216(h)(3)(C) of the Act. Therefore, the claimant can qualify as the NH’s child for determining the claimant’s eligibility for CIB on the number holder’s earning record. 

BACKGROUND

According to the information provided, Savanna (Claimant) was born in 2009.  Savanna’s birth certificate identifies Brandon as her father. According to the marriage certificate, Claimant’s mother, Christina, was married to Brandon (Husband) in September 2007.  The evidence also includes an agreement of separation between the spouses in January 2008 and September 2010 Decree of Divorce. According to Christina and the notarized Agreement of Separation, Christina and Brandon were married, but separated at the time of Savanna’s birth. According to Christina, Brandon knows he is not the father. The Decree of Divorce, however, lists Savanna as a child of the marriage and specifies that the spouses agreed Brandon would pay monthly child support and 100% of the child’s uninsured health costs.   

David, the NH, died in July 2012. According to the death certificate, NH was a resident of North Carolina when he died.

Christina applied on Savanna’s behalf for CIB on NH’s earnings record. In support of Savanna’s application, Christina submitted DNA test results dated November 2012. The DNA test results relied on samples taken from Savanna, Christina, and the NH’s sister. The results showed the NH’s sister has a probability of relatedness with Savanna of 99.95%. 

Christina also completed a Child Relationship Statement in which she indicated NH referred to Savanna as his daughter in a personal journal and on his Facebook page. Christina also indicated NH had acknowledged Savanna orally as his daughter to his family and friends. Christina submitted a picture with comments from NH’s Facebook memorial page, which allegedly shows resemblance between NH and Savanna (the quality of the copy of the photo makes it difficult to actually decipher the various faces in the photograph, but the comments suggest a resemblance).  There is also a second print out of a Facebook photo with accompanying comments during NH’s life in which he claims her as “my pretty little vanna.” The evidence also includes a print out of private messages between Christina and NH in which the last message from NH responds to a question about when he will come see Savanna with a statement that he wants to see “my daughter.” Christina did not provide a copy of NH’s personal journal.  Christina indicated on the Child Relationship Statement that NH never took out an insurance policy on Savanna, did not list her on a tax return, make a will listing her, register her for school, or take her to the doctor or hospital. The evidence also includes a statement from NH’s sister that NH had acknowledged Savanna as his biological daughter directly to her and by posting pictures on his Facebook page acknowledging Savanna as his daughter and telling family and friends.  

DISCUSSION

To qualify for CIB on the earnings record of an insured individual who has died, a claimant must be the insured individual’s “child.” See Act § 202(d); 20 C.F.R. § 404.350(a)(1) (2013). All future references to the C.F.R. are to the 2013 version unless otherwise noted. “Child” includes “the child” of an insured individual. See Act § 216(e); 20 C.F.R. § 404.354; Astrue v. Capato, --- U.S. ---, 132 S. Ct. 2021, 2027-28 (2012). A claimant may show she is “the child” of a deceased insured individual who never married her mother, within the meaning of section 216(e)(1), under section 216(h)(2)(A) or 216(h)(3)(C) of the Act. Under section 216(h)(2)(A), a claimant is considered “the child” of the insured individual if the claimant could inherit the insured individual’s intestate personal property under the law of the State in which the insured individual was domiciled when he died. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4); C~, 132 S. Ct at 2028-34. 

NH’s death certificate indicates he was a resident of North Carolina when he died. Therefore, we look to North Carolina intestacy law to determine whether Savanna was NH’s child for the purposes of section 216(h)(2)(A) of the Act.  Under North Carolina intestacy law, a child of a person dying intestate generally is entitled to a share of the person’s personal property. See N.C. Gen. Stat. Ann. §§ 29-13(a), 29-14(b)(1), (b)(2), 29-15(1), (2), 29-16(a)(1) (West 2013). However, under North Carolina law a child born in wedlock is presumed to be legitimate, i.e., the child of her mother’s husband. See Wright v. Wright, 188 S.E.2d 317, 325 (N.C. 1972).  The marital presumption that a child born during a marriage is the child of the husband and wife “can be overcome by clear and convincing evidence.” N.C. Gen. Stat. Ann. § 49-12.1(b) (West 2013).  Although the presumption is one of the strongest in common law, “this presumption must give way before dependable evidence to the contrary.” W~, 188 S.E.2d at 325-26. The North Carolina Supreme Court held in Wright that blood grouping tests showing a man cannot be the father of a child are “perhaps the most dependable evidence we have known.”  Id. at 326; see also Batcheldor v. Boyd, 423 S.E.2d 810, 814 (N.C. Ct. App. 1992) (holding DNA test results may be used to rebut presumption that child born to married woman is her husband’s child). 

The presumption of legitimacy applies in this case because Christina was married to Brandon at the time Savanna was born. Christina produced DNA test results indicating a 99.95% probability that Savanna is related to NH’s sister.  This DNA evidence does not necessarily exclude Brandon as the father and there are no DNA test results excluding Brandon as the father. Although the DNA evidence alone may not rebut the marital presumption in this case, Christina did submit other evidence, which, along with the DNA evidence, supports a conclusion that Savanna is not Brandon’s child. The other evidence includes the notarized statement from NH’s sister that NH had orally acknowledged to her that Savanna was his daughter. Christina also submitted a picture with comments from NH’s Facebook memorial page, which allegedly shows resemblance between NH and Savanna. There is also a second print out of a Facebook photo with accompanying comments during NH’s life in which he claims Savanna as “my pretty little vanna.”  The evidence also includes a print out of private Facebook messages between Christina and NH, where Christina asks about NH coming to see “vana” and NH’s response that he really wants to see “my daughter.” North Carolina courts have previously allowed evidence and statements from Facebook and/or MySpace in determining whether clear and convincing evidence supported a finding. See, e.g., In re N.A.R., No. COA12–1240, 2013 WL 1619388, 741 S.E.2d 513 (N.C. Ct. App. April 16, 2013) (noting Facebook message from father to mother of child where father does not ask about child as evidence supporting finding of abandonment). A North Carolina court would weigh the above evidence with the evidence in the divorce decree in which Brandon agreed to pay child support and health expenses for Savanna. Under 20 C.F.R. § 404.355(b)(2), the Social Security Administration (SSA) applies the standard of proof that a State court would use as the basis for paternity decisions.  If the State inheritance law requires a court determination of paternity, SSA will not require a claimant to obtain a court determination, but will decide the claimant’s paternity by using the standard of proof that the State court would use as the basis for the determination of paternity. See id.  We believe, however, the DNA evidence, in combination with the other evidence, establishes clear and convincing evidence to rebut the presumption of legitimacy.  

Having found that Savanna rebutted the presumption of legitimacy, a North Carolina court would then evaluate whether NH is Savanna’s father as if she were illegitimate. See B~, 423 S.E.2d at 814. North Carolina intestacy law states in pertinent part:

(b) For purposes of intestate succession, an illegitimate child shall be entitled to take by, through and from:

(1) Any person who has been finally adjudged to be the father of such child pursuant to the provisions of G.S. 49-1 through 49-9 or the provisions of G.S. 49-14 through 49-16;

(2) Any person who has acknowledged himself during his own lifetime and the child’s lifetime to be the father of such child in a written instrument executed or acknowledged before a certifying officer named in G.S. 52-10(b) and filed during his own lifetime and the child’s lifetime in the office of the clerk of superior court of the county where either he or the child resides.

N.C. Gen. Stat. Ann. § 29-19(b) (West 2013). The evidence does not indicate NH acknowledged Savanna as his child before a certifying officer and thus subsection (b)(2) does not apply in Savanna’s claim.  The only provision in subsection (b)(1) that is relevant to Savanna’s claim is N.C. Gen. Stat. Ann. § 49-14, which discusses civil actions to establish paternity. See N.C. Gen. Stat. Ann. § 49-14 (West 2013).  North Carolina law prohibits civil actions to establish paternity unless the action is commenced, and judgment entered, either prior to the death of the putative father or within a certain period after the putative father’s death.  See N.C. Gen. Stat. Ann § 49-14(c). However, SSA will not apply any State inheritance law requirement that an action to establish paternity must be taken or commenced before or within a specified time of the insured individual’s death.  See 20 C.F.R. § 404.355(b)(2). 

Under North Carolina law, proof of paternity must be established by “clear, cogent, and convincing evidence.” N.C. Gen. Stat. Ann. § 49-14(b). “Clear, cogent and convincing evidence describes an evidentiary standard stricter than a preponderance of the evidence, but less stringent than proof beyond a reasonable doubt.” Nash Cnty Dep’t of Soc. Servs. v. Beamon, 485 S.E.2d 851, 852 (N.C. Ct. App. 1997).  In deciding a paternity claim under § 49-14, a trial court has the duty “to determine whether evidence offered in a particular case is clear, cogent, and convincing,” and “it is within the court’s discretion to consider some, none or all of the evidence, and to determine the weight to place on the testimony.” Brown v. Smith, 526 S.E.2d 686, 687-88 (N.C. Ct. App. 2000) (internal quotation marks omitted).

North Carolina has established presumptions of paternity based on genetic testing. N.C. Gen. Stat. Ann. § 49-14(f) states:

When a determination of paternity is pending in a IV-D case, the court shall enter a temporary order for child support upon motion and showing of clear, cogent, and convincing evidence of paternity. For purposes of this subsection, the results of blood or genetic tests shall constitute clear, cogent, and convincing evidence of paternity if the tests show that the probability of the alleged parent’s parentage is ninety-seven percent (97%) or higher.  If paternity is not thereafter established, then the putative father shall be reimbursed the full amount of temporary support paid under the order.

In addition, N.C. Gen. Stat. Ann. § 8-50.1(b1)(4) (West 2013) states:

If the experts conclude that the genetic tests show that the alleged parent is not excluded and that the probability of the alleged parent’s parentage is ninety-seven percent (97%) or higher, the alleged parent is presumed to be the parent and this evidence shall be admitted. This presumption may be rebutted only by clear, cogent, and convincing evidence.

However, neither statutory provision applies directly to Savanna’s case. Both provisions involve test results showing “the probability of the alleged parent’s parentage.” N.C. Gen. Stat. Ann. §§ 8-50.1(b1)(4), 49-14(f).  In Savanna’s case, the DNA testing report indicated a 99.95% probability NH’s sister was related to Savanna; the report did not offer any conclusion regarding the probability that NH was Savanna’s father.  Thus, the DNA evidence in Savanna’s case does not constitute “clear, cogent, and convincing evidence” under section 49-14(f) or create a presumption of paternity under section 8-50.1(b1)(4).  Moreover, N.C. Gen. Stat. Ann. § 49-14(f) appears to be limited to “IV-D” cases. An “‘IV-D case’ means a case in which services have been applied for or are being provided by a child support enforcement agency established pursuant to Title IV-D of the Social Security Act as amended and” Article 9 of the North Carolina General Statutes, which pertains to child support. N.C. Gen. Stat. Ann. § 110-129(7) (West 2013). The evidence provided does not suggest anyone commenced an action for child support on behalf of Savanna.  In addition, the genetic testing subject to N.C. Gen. Stat. Ann. § 8-50.1(b1) involves court-ordered testing of “the mother, the child, and the alleged father-defendant.” In Savanna’s case, the DNA testing was not ordered by a court and the “alleged father-defendant,” i.e., NH, was not tested; therefore, the testing would not fit within the parameters of section 8-50.1(b1). See generally Columbus Co. o/b/o Brooks  v. Davis, 592 S.E.2d 225, 227 (N.C. Ct. App. 2004) (holding that when testing is not ordered by court, standard of section 8-50.1(b1) will not apply and party seeking to admit the test must present independent evidence of chain of custody); Catawaba Co. ex rel. Kenworthy v. Khatod, 479 S.E.2d 270, 272 (N.C. Ct. App. 1997) (holding genetic testing did not qualify for admissibility under relaxed evidentiary standards of section 8-50.1(b1) because testing was of mother’s husband and not “alleged father-defendant”).

Nevertheless, we believe a North Carolina court would conclude the DNA testing report, together with the other evidence in Savanna’s case, provides clear, cogent and convincing evidence that Savanna is NH’s child under North Carolina intestacy law. As noted in Program Operations Manual System (POMS) PR 01115.036C (PR 08-093, Apr. 11, 2008), North Carolina recognizes the general admissibility and reliability of DNA testing. N.C. Gen. Stat. Ann. §§ 8-50.1(b1)(4) and 49-14(f) also indicate North Carolina has concluded DNA evidence generally is reliable evidence to establish paternity. As was the case in PR 01115.036C (PR 08-093), we have not found North Carolina case law addressing the relevance of DNA test results showing a high probability of a relationship between a child and a close relative of the deceased putative father.  However, in 2010 the United States district court for the Western District of North Carolina remanded a Social Security case back to the agency to address DNA evidence showing 95% probability of relatedness between the claimant child and the alleged father’s brother.  See Carson v. Astrue, No. 3:09-cv-251-RJC-DCK, 2010 WL 4977055 (W.D.N.C. Nov. 8, 2010). The court found the DNA evidence did not rise to “clear and convincing” under North Carolina standards because the percentage was less than 97%, but it was still significant evidence. See id. at *3. The court did not draw a distinction between DNA evidence from the alleged parent and from a close relative. See id.  Further, as discussed in PR 01115.036C (PR 08-093), North Carolina will look to other jurisdictions for guidance on issues on which it has not yet ruled, and other jurisdictions have recognized DNA testing of a child and a close relative of the deceased putative father as evidence of paternity.

In Savanna’s case, we believe a North Carolina court would admit and consider the DNA testing report to determine whether Savanna is NH’s child. The DNA testing report stated the testing showed a 99.95% probability NH’s sister was biologically related to Savanna. The other evidence, including the Facebook posts and statements from NH’s sister that he orally acknowledged Savanna would appear to be enough together to constitute clear, cogent, and convincing evidence that Savanna is NH’s child under North Carolina intestacy law. Thus, Savanna can qualify as NH’s child under section 216(h)(2)(A) of the Act.

The evidence also indicates Savanna can qualify as NH’s child under section 216(h)(3)(C) of the Act. A claimant may qualify as “the child” of a deceased insured individual under section 216(h)(3)(C) if the claimant is the son or daughter of the insured individual and the insured individual acknowledged in writing that the claimant is his son or daughter. Savanna does not qualify as NH’s child under the other provisions of section 216(h)(3)(C) because there is no evidence of a court order or decree that NH was the father or that he must contribute to Savanna’s support. Act § 216(h)(3)(C)(i)(II), (III).  There is also no evidence that NH lived with or contributed to the support of Claimant. Act § 216(h)(3)(C)(ii).  See Act § 216(h)(3)(C)(i)(I); 20 C.F.R. § 404.355(a)(3); POMS GN 00306.100.A, B.1, D.1.  SSA policy requires additional development of biological relationship when there is evidence that suggests the child is not the biological child of the NH, such as another man’s name listed on the birth certificate. POMS GN 00306.100.A.1, E.  Here, Savanna’s birth certificate lists Brandon as the father. The DNA evidence present in this case, however, is sufficient to show Savanna is NH’s biological child. See POMS GN 306.100.D.1 (evidence submitted showing NH is not child’s biological parent “must be very persuasive in order to override a written acknowledgment or court action”). 

The evidence also indicates NH acknowledged in writing that Savanna is his daughter. The written acknowledgement does not have to be in any special form, but “must identify the child by name or otherwise . . . and must acknowledge or identify the child as the NH’s son or daughter.” POMS GN 00306.105A.1. This guidance is consistent with Social Security Ruling 79-22, which provides that:

[N]either the Act nor the Regulations . . . requires that the acknowledgement be executed in any special way. Any statement written by the wage earner, or at his direction, which acknowledges . . . the claimant as the wager earner’s son or daughter is sufficient acknowledgement in writing to satisfy the statutory requirement.

The POMS further provides that the document does not need to be in the number holder’s handwriting or signed, as long as it is a written record prepared at his direction. POMS GN 00306.105A.3.  The written acknowledgment requirement has been interpreted by the Commissioner “in a fashion that gives claimants the utmost favor.” Garcia o/b/o Garcia v. Sullivan, 874 F.2d 1006, 1007 (5th Cir. 1989).   Letters, tax returns, and public documents have been found to constitute written acknowledgment of paternity. See, e.g., Jones v. Sullivan, 953 F.2d 1291, 1294 (11th Cir. 1992) (tax return); Chester for Chester v. Sec’y of Health & Human Servs., 808 F.2d 473, 475 (6th Cir. 1987) (letter); Brown for Brown v. Bowen, 668 F. Supp. 146, 149 (E.D.N.Y. 1987) (public document).  Even a congratulatory card to the birth mother may be sufficient acknowledgment.  See C~, 2010 WL 4977055, at *5. Although the POMS does not address the validity or sufficiency of an electronic writing and we have not found a case addressing the issue, given the Agency’s policy as described above, we believe an electronic statement by the insured individual may serve as a written acknowledgement.

Although the writing containing the recognition of paternity need not be in any particular form, it should contain a clear and unequivocal acknowledgment that the writer is the father of the child.  See Johnson v. Sullivan, 735 F. Supp. 416, 420 (M.D. Fla. 1990). “Incomplete or ambiguous acknowledgements of paternity are not construed presumptively in illegitimate claimants’ favor.” G~, 874 F.2d at 1008. “A writing satisfies the statute when it ‘unequivocally acknowledges paternity,’ that is, when it ‘is susceptible of only one reasonable construction.’” J~, 735 F. Supp. at 421 (citations omitted). “Unequivocal language” concerning paternity includes, but is not limited to, references to the child as “my daughter [or son]” or “our baby.” Id. Thus, a posting on Facebook may qualify as a writing under § 216(h)(3)(C)(i)(I) if the person posting the comment or messages clearly and unequivocally acknowledges his paternity of the child.

Here, NH posted a picture of Savanna on his Facebook page in November 2011 and commented, “my pretty little vanna” and then later replied “she’ll be 3 in may . . [.]her name is savanna.” NH and Christina also had a continuing dialogue over several months at the end of 2011 and beginning of 2012 in which NH inquires about Savanna and asks how she is doing. In the last included message, NH states he wants to see his daughter.  NH unequivocally acknowledges that he is the father of Savanna. Accordingly, these statements on Facebook qualify as a written acknowledgment under section 216(h)(3)(C)(i)(I) of the Act, and establish that Savanna is NH’s child for the purposes of determining Savanna’s eligibility for child’s insurance benefits on NH’s record.

 

CONCLUSION

We believe a North Carolina court would conclude the evidence provides clear and convincing evidence to rebut the presumption of legitimacy and establish Savanna is NH’s child under North Carolina intestacy law and section 216(h)(2)(A) of the Act. Moreover, the documentation provided demonstrates Savanna is NH’s daughter and NH’s Facebook postings qualify as a written acknowledgment under section 216(h)(3)(C)(i)(I) of the Act. Therefore, Savanna is NH’s child for determining Savanna’s eligibility for CIB on NH’s earnings record.

Mary Ann Sloan

Regional Chief Counsel

By: ____________

Kristin M. Rogers

Assistant Regional Counsel


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PR 01210.036 - North Carolina - 10/30/2013
Batch run: 10/30/2013
Rev:10/30/2013