TN 8 (12-11)

PR 01210.042 Pennsylvania

A. PR 12-012 Reply to Your Request for a Legal Opinion as to Whether a Parent-Child Relationship Exists Between the Deceased Number Holder (“NH”), Timothy , SSN ~, and minor child, Izaiah.

DATE: November 2, 2011

1. SYLLABUS

On September 30, 2011, a legal opinion was requested as to whether a parent-child relationship existed between the deceased NH and Izaiah, a minor, in light of a court order from the Court of Common Pleas of Lancaster County, Pennsylvania, dated June 10, 2008, finding that the NH was the father of Izaiah. The requester also asked if a parent-child relationship can be established, what is the effective date of the relationship. For the reasons stated below, we conclude that no parent-child relationship existed between the NH and Izaiah.

Based on our analysis under section 216(h)(2)(A) of the Social Security Act, we believe a court would not find clear and convincing proof that a parent-child relationship existed between the NH and Izaiah under South Carolina intestacy law. In addition, we believe a parent-child relationship also cannot be established under alternative sections of the Act. Furthermore, although the Court of Common Pleas in Lancaster County Pennsylvania issued an order on June 10, 2008, finding that the NH was the father of Izaiah, we conclude SSA should not give deference to this order because it does not satisfy the requirements set forth in Social Security Ruling (SSR) 83-37c.

2. OPINION

QUESTION PRESENTED

On September 30, 2011, you requested an opinion as to whether a parent-child relationship existed between the deceased NH and Izaiah, a minor, in light of a court order from the Court of Common Pleas of Lancaster County, Pennsylvania, dated June 10, 2008, finding that the NH was the father of Izaiah. You also asked if a parent-child relationship can be established, what is the effective date of the relationship. For the reasons stated below, we conclude that no parent-child relationship existed between the NH and Izaiah.

SHORT ANSWER

Based on our analysis under section 216(h)(2)(A) of the Social Security Act, we believe a court would not find clear and convincing proof that a parent-child relationship existed between the NH and Izaiah under South Carolina intestacy law. In addition, we believe a parent-child relationship also cannot be established under alternative sections of the Act. Furthermore, although the Court of Common Pleas in Lancaster County Pennsylvania issued an order on

June 10, 2008, finding that the NH was the father of Izaiah, we conclude SSA should not give deference to this order because it does not satisfy the requirements set forth in Social Security Ruling (SSR) 83-37c.

BACKGROUND

Izaiah's mother, Kaila, gave birth to Izaiah on September . There is no father listed on Izaiah's birth certificate or under Izaiah's social security number in SSA's “Master Files of Social Security Number (SSN) Holders and SSN Applications” (Numident) system of records. Kaila was not married to the NH. Although Kaila alleged that, when she was seven months pregnant with Izaiah, the NH acknowledged to her via telephone that he was Izaiah's father, she admitted that she has no written documentation where the NH admitted he was Izaiah's father.

On June 10, 2008, prior to the NH's death, the Court of Common Pleas in Lancaster County, Pennsylvania, issued a court order finding the NH to be the father of Izaiah as authorized by Pennsylvania statute 23 Pa. Con. Stat. Ann. §4342(e) (West 2010). This statute provides for expedited procedures for the determination of paternity and the determination of enforcement and support. Id. at § 4342(a). Importantly, this statute states, in pertinent part, that “[T]he court shall enter a default order establishing paternity and enforcing support upon a showing that the defendant has been properly served and has not appeared.” Id. at § 4342(e). Kaila asserted that the court's order “was simply based on her story and the fact [that the NH] did not show up for court and refute the allegations of paternity.” SSA-533 form, p. 3.

On November 24, 2009, the NH filed an application for disability insurance benefits and stated that he had no children under the age of 18. Subsequently, the NH died on January 13, 2010, and, at the time of his death, was domiciled in South Carolina. On September 6, 2011, Kaila filed applications on Izaiah's behalf for child's insurance benefits (CIB) and the lump sum death payment on the NH's earnings record.

DISCUSSION

Analysis of Parent-Child Relationship Under Section 216(h)(2)(A) of the Social Security Act and South Carolina Intestacy Law 1 Section 216(e)(1) of the Act defines “child” as 1) the child or legally adopted child of an insured, or 2) a stepchild if, in the case of a deceased insured, he has been a stepchild for not less than nine months immediately preceding the day on which the insured died. 42 U.S.C. § 416(e)(1). A claimant may show he is “the child” of a deceased insured individual, within the meaning of section 216(e)(1), under sections 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 an 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. 2 The Secretary “shall” apply the intestacy law of the state where the NH was domiciled at the time of his death in order to determine if the child can inherit personal property from an intestate NH. 42 U.S.C. § 416(h)(2)(A).

According to the information provided, the NH died while domiciled in South Carolina. Therefore, we look to South Carolina intestacy law to determine whether Izaiah is the NH's child for the purposes of section 216(h)(2)(A) of the Act. South Carolina intestacy law entitles an individual's issue to a share of the individual's intestate estate. See S.C. Code Ann. § 62-2-103 (2010),3

Program Operations Manual System (POMS) PR 01215.045A (PR 11-090). “Issue” includes all lineal descendants with the relationship of parent and child at each generation determined by the definitions of child and parent contained in the South Carolina Probate Code. See S.C. Code Ann. § 62-1-201(21), POMS PR 01215.045A (PR 11-090). For the purposes of intestate succession, a person born out of wedlock can establish a parent-child relationship with his father if “the paternity is established by an adjudication . . . if commenced after his death, by clear and convincing proof.” S.C. Code Ann. § 62-2-109(2)(ii) (time restrictions omitted), POMS PR 01115.045A (PR 08-152); see also 20 C.F.R. § 404.355(b)(2) (stating SSA will not apply any State inheritance law requirement that an action to establish paternity must be commenced within a specified period after the worker's death). Clear and convincing evidence is defined under South Carolina law as “an intermediate standard of proof, more stringent than ‘preponderance of the evidence’ but less than ‘beyond a reasonable doubt.’” POMS PR 01115.045B (PR 07-186).

Under South Carolina law, family court proceedings to determine the paternity of an individual may constitute an adjudication of paternity for purposes of state intestacy determinations. See Neely v. Thomasson, 618 S.E.2d 884, 888 (S.C. 2005). The following evidence is admissible at a hearing to determine paternity: 1) the results of genetic tests; 2) refusal of a party to submit to a genetic or other ordered test (goes to the credibility of the party); 3) test results showing a probability of paternity of nine-five percent or higher; 4) a verified acknowledgment of paternity; 5) a foreign paternity determination whether established through administrative or judicial process; 6) a birth certificate containing the signature of the mother and the putative father; 7) an expert's opinion concerning the time of conception; 8) the testimony of a husband and wife as to any relevant matter, including marriage and parentage; and 9) any other relevant and competent evidence deemed admissible in the discretion of the court. See S.C. Code Ann. § 63-17-60(A) (replacing but not changing former S.C. Code Ann. § 20-7-956),4 POMS PR01115.045A (PR 08-152). A verified acknowledgment of paternity can create a conclusive presumption of the putative father's paternity, but the acknowledgment must be voluntary, made by a sworn document, signed by the person acknowledging paternity, and properly witnessed. See S.C. Code Ann. § 63-17-60(A)(4)

Kaila alleged the NH orally acknowledged that Izaiah was his child, but she admitted she had no written documentation where the NH acknowledged Izaiah as his child. Thus, the oral acknowledgement allegedly made by the NH did not create a conclusive or even rebuttable presumption of paternity. See S.C. Code Ann. § 63-17-60(A)(4); POMS PR 01115.045A. (PR 08-152) (finding no evidence that NH executed an acknowledgment of the type required by South Carolina law), POMS PR 01115.045E (PR 05-237) (finding signed statements from NH's parents that NH told them that he was claimant's biological father would not satisfy requirements for a verified, voluntary acknowledgment). The allegation by Kaila that the NH acknowledged Izaiah as his child may be admissible evidence in an adjudication of paternity, but standing alone, her allegation does not establish clear and convincing evidence that Izaiah was the NH's child. Notably, Kaila admitted that the NH was not present at Izaiah's birth and he did not provide any support for Izaiah. Furthermore, the NH stated that he had no children under the age of eighteen when he applied for disability insurance benefits in November 2009, two years after Izaiah's birth. This evidence, when considered as a whole, does not provide clear and convincing evidence that the NH was Izaiah's father.

Kaila also submitted a Pennsylvania court order issued on June 10, 2008, prior to the NH's death. The order from the Pennsylvania Court of Common Pleas for Lancaster County found that the NH, who failed to appear at the court hearing, was Izaiah's father, “as authorized by 23 Pa. Con. Stat. Ann. § 4342(e).” As set forth above, this statute states, in pertinent part, that “the court shall enter a default order establishing paternity and enforcing support upon a showing that the defendant has been properly served and has not appeared.” Id. Kaila asserted that the court's order “was simply based on her story and the fact [that the NH] did not show up for court and refute the allegations of paternity.” SSA-533 form, p. 3.

South Carolina law states “A foreign paternity determination whether established through administrative or judicial process . . . creates a conclusive presumption of paternity.” S.C. Code Ann. § 63-17-60(A)(5). Therefore, it is necessary to determine whether SSA will accept the Pennsylvania court's order of paternity in this case. When determining whether to accept a trial court's findings on domestic relations issues, we look to SSR 83-37c, which adopted the court ruling in Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973). Although SSA is not bound by a state trial court's decision in a case where the Commissioner was not a party, SSA must give deference to a trial court's decision where the following prerequisites are met: 1) an issue in a claim for Social Security benefits was previously determined by a state court of competent jurisdiction; 2) the issue was genuinely contested in state court by parties with opposing interests; 3) the issue falls under the general category of domestic relations law; and 4) the findings of the state trial court are consistent with the law enunciated by the state's highest court. SSR 83-37c. Here, there is no dispute as to the first and third requirements set forth in SSR 83-37c. In addition, regarding the fourth requirement, the Pennsylvania court's decree of paternity is in accord with 23 Pa. Con. Stat. Ann. § 4342(e) which, as stated, provides for entry of a default order establishing paternity upon a showing that the defendant has been properly served with notice of the court proceeding and does not appear. Thus, the Pennsylvania court properly entered the order of paternity against the NH in this case.

However, we conclude that the second requirement of SSR 83-37c was not met, i.e., the issue of paternity was not genuinely contested by parties with opposing interests in the proceeding before the court. The Pennsylvania court resolved the issue of paternity on the basis of Kaila's allegation that the NH was Izaiah's father and the fact that the NH did not appear at the hearing to refute the allegations of paternity after having been properly served with notice of the hearing. Thus, the issue of paternity was not genuinely contested in court. The Pennsylvania court entered the order of paternity as a default judgment as authorized by 23 Pa. Con. Stat. Ann. § 4342(e). The court did not resolve the issue of paternity upon the presentation of evidence by parties with opposing interests. As such, we conclude that SSA should not give deference to the Pennsylvania state court order of paternity in determining whether the NH is Izaiah's father for purposes of South Carolina intestacy law. Therefore, we believe Izaiah is not the NH's child for purposes of inheritance under South Carolina intestacy law.

II. Analysis of Parent-Child Relationship Under Alternative Sections of the Act.

When a claimant cannot establish that he is the wage earner's child under state intestate succession laws, the Act allows alternative avenues to establish child status for survivorship benefits. First, under section 216(h)(2)(B), an applicant can be deemed a child under the Act if his parents went through a marriage ceremony that turned out to be legally invalid. See 42 U.S.C. § 416(h)(2)(B). This section of the Act is not applicable here because there is no evidence that Kaila ever went through a marriage ceremony with the NH.

Second, under section 216(h)(3)(C)(i), an applicant can be deemed to be a child under the Act where prior to the NH's death 1) the NH acknowledged paternity in writing, 2) the NH was decreed a parent by a court, or 3) the NH was ordered by a court to contribute to the support of the applicant. 42 U.S.C. § 416(h)(3)(C)(i)(I)-(III). In this case, as admitted by Kaila, the NH never acknowledged paternity in writing. In addition, there is no evidence that the NH was ordered by a court to support Izaiah. Regarding section 416(h)(3)(C)(i)(II), although Kaila presented a Pennsylvania state court order finding the NH to be the father of Izaiah, we will not give deference to this order. As explained in detail above, pursuant to SSR 83-37c, SSA should not give deference to the Pennsylvania order because the issue of the NH's paternity was not genuinely contested by the NH and Kaila in a proceeding before the Pennsylvania court.

Third, under section 216(h)(3)(C)(ii), an applicant can be deemed a child under the Act if the NH was living with or contributing to the support of the child at the time the NH died. See 20 C.F.R. § 416(h)(3)(C)(ii). In the instant matter, there is no evidence that at the time of his death the NH was living with or contributing to the support of Izaiah. Therefore, we find that Izaiah cannot be deemed a child of the NH under sections 216(h)(2)(B) and 216(h)(3)(C) of the Act.

CONCLUSION

Accordingly, we conclude that no parent-child relationship existed between the NH and Izaiah under the Act, and therefore, Izaiah is not entitled to benefits on the NH's record.

Eric P. Kressman
Regional Chief Counsel, Region III

By___________
Nicole A. Schmid
Assistant Regional Counsel

B. PR 04-135 Using Information from Child's Birth Certificate as Written Acknowledgment or Proof of Court in Pennsylvania

DATE: March 31, 2000

1. SYLLABUS

Despite the recent change in the law, effective January 1, 1998, the information found on a Pennsylvania birth certificate does not provide reliable evidence of paternity in all cases. Therefore, SSA may not infer from information on the birth certificate that there was written acknowledgment for purposes of section 216(h)(3) of the Act (POMS GN 00306.120).

2. OPINION

QUESTION PRESENTED

You have requested our opinion regarding whether a Pennsylvania birth certificate which lists the father's name for a child born to unmarried parents provides evidence of written acknowledgment or proof of a court determination of paternity.

CONCLUSION

Despite the recent change in the law, effective January 1, 1998, we do not believe that the information found on a birth certificate provides reliable evidence of paternity in all cases. Therefore, we recommend that the Agency continue to verify birth certificate information with the Bureau of Vital Statistics (BVS).

DISCUSSION

Pursuant to Act 1997-58 and subsequent amendments, effective January 1, 1998, the Pennsylvania legislature has attempted to increase the credibility of information found on the face of a birth certificate. The law now requires that when a child is born to unmarried parents, the name of the father is placed on a birth certificate only in two situations, when (1) both father and mother have signed a voluntary acknowledgment of paternity; or (2) a court or administrative agency of competent jurisdiction has issued an adjudication of paternity. 23 Pa. C.S.A. § 5103(I). Prior to Act 1997-58, an unmarried mother could list a father's name on a birth certificate without his consent.

Specifically, the new law requires that an agent of a hospital or birthing center provide to "unmarried mothers" information regarding establishment of paternity and the opportunity to sign an acknowledgment of paternity. 23 Pa. C.S.A. § 5103(c). The purported father must also sign the acknowledgment on a form prescribed by Department of Public Welfare (DPW) and it shall be filed with the DPW. 23 Pa. C.S.A. § 5103(a). Once signed by both mother and father, the legal effect of this acknowledgment is to give to both the father and the child all rights and duties as if the father had been married to the mother at the time of birth. Id. DPW then provides notification to the Bureau of Vital Statistics (BVS), who places the name of the father on the child's birth certificate. 23 Pa. C.S.A. §§ 5103(d), (I).

According to the Agency's Program Manual Operations System (POMS), information from a birth certificate cannot be inferred unless 1) the Bureau of Vital Statistics (BVS) is contacted to verify the information or 2) the birth certificate shows illegitmacy and the regional legal office shows that applicable State law requires a written acknowledgment or court determination of paternity in order for the father's name to appear on the birth certificate or for his surname to be placed on the birth certificate. POMS, GN 00306.120. We believe that BVS verification is still needed.

Although the applicable State law now requires written acknowledgment, it is noteworthy that the law specifically provides that the properly signed acknowledgment, and not the birth certificate, constitutes conclusive evidence of paternity in Pennsylvania. 23 Pa. C.S.A. § 5103(d). According to the information you provided in your request, the local welfare office's procedures are consistent with the law because that office, too, only accepts a notarized acknowledgment of paternity, and not the birth certificate as evidence of paternity. Moreover, despite the apparent purpose of the new law, we are also concerned with the loopholes that the law has created.

First, the law provides that any signatory has the right to rescind the acknowledgment of paternity within the earlier of the following: (1) sixty days; or (2) the date of an administrative or judicial proceeding relating to the child in which the signatory is a party. 23 Pa. C.S.A. § 5103(g). According to a representative at BVS, that agency does not wait sixty days before it issues a birth certificate. Therefore, the situation could arise where a birth certificate is issued before a signatory has the opportunity to inform DPW that he no longer assumes paternity. Although DPW would inform BVS of a rescission and amend the birth certificate, the change in the amended birth certificate is