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