The claimant did not provide clear and convincing evidence that he is the number holder's child under Tennessee intestacy law. Therefore, the claimant is not the number holder's child for purposes of child's insurance benefits.

The NH's death certificate indicates he was domiciled in Tennessee when he died. Therefore, we look to Tennessee intestacy law to determine whether Claimant is NH's child under section 216(h)(2)(A). Under Tennessee intestacy law, when a person dies intestate, the surviving children of the deceased (i.e., the surviving issue or heirs) may be entitled to all or a share of the deceased's intestate personal property. For purposes of intestate succession, a person is the child of the father if:

(A) The natural parents participated in a marriage ceremony before or after the birth of the child, even though the attempted marriage is void; or

(B) The paternity is established by an adjudication before the death of the father or is established thereafter by clear and convincing proof . . . .

The information the Claimant provided does not indicate the Claimant's mother and NH participated in a marriage ceremony. Therefore, Claimant had to establish NH's paternity by clear and convincing proof. We do not believe the warranty deed provides clear and convincing evidence that NH is Claimant's father under Tennessee intestacy law and for the purposes of section 216(h)(2)(A) of the Act.

Nothing in the warranty deed explains how or by whom Claimant was determined to be one of NH's surviving heirs. Claimant's numident also is reportedly devoid of any explanation as to why SSA listed NH as Claimant's father. Claimant alleged he inherited the property from NH under Tennessee intestacy law, but he provided no proof to support his claim. Moreover, the date of NH's death indicated in the warranty deed—October 15, 2005—is different from the date of his death on his death certificate—December 28, 2004. The discrepancy calls into question the validity of the statements in the warranty deed and even whether the Cecil W~ noted in the warranty deed is NH.

Claimant also failed to prove he is NH's child under section 216(h)(3)(C) of the Act. Therefore, we do not believe an SSA adjudicator could conclude Claimant is NH's child for the purposes of child's insurance benefits on NH's earnings record. Claimant did not provide evidence typically provided in paternity actions, such as blood tests, acknowledgement by the father, family resemblance, evidence of access, opportunity, and capacity to have children, or anecdotal evidence that would support his claim that NH is his father. The unsubstantiated statements in the warranty deed, standing alone, do not create a firm belief or render it highly probable that NH is Claimant's father. Therefore, we believe Claimant failed to provide clear and convincing proof that is his father under Tennessee intestacy law for the purposes of section 216(h)(2)(A) of the Act. SSA could not deem Claimant to be NH's child under section 216(h)(3)(C) of the Act.

QUESTION

You have asked whether the claimant is the child of the number holder for purposes of child's insurance benefits based on statements in a warranty deed indicating the number holder died intestate and the claimant was one of his surviving heirs.

OPINION

We believe the claimant did not provide clear and convincing evidence that he is the number holder's child under Tennessee intestacy law. Therefore, the claimant is not the number holder's child for purposes of child's insurance benefits.

BACKGROUND

According to the documents and information provided, Matthew F~ (Claimant) applied for child's insurance benefits on the earnings record of Cecil E. W~, the number holder (NH), on July 13, 2010, as a disabled adult child. Social Security Administration (SSA) computer records indicate SSA previously found Claimant disabled for purposes of disability insurance benefits and Supplemental Security Income on his own record. SSA's computer records and the information provided also indicate Claimant's mother was married to W. F~, but they divorced on February 26, 1956, more than four years before Claimant's birth. Claimant apparently told SSA he thought Mr. F~ was his father until his mother told him NH was his father. The information provided also states Mr. F~ did not legally adopt Claimant, accept Claimant as his child, or contribute to Claimant's support. Claimant's birth certificate and Claimant's first entry in the Master Files of Social Security Number (SSN) Holders and SSN Applications (Numident) did not list a father. SSA later changed Claimant's Numident entry to list NH as his father, but SSA's computer records do not provide a basis for designating NH as Claimant's father. A copy of NH's death certificate indicates he died on December 28, 2004.

In connection with his application for child's insurance benefits on NH's earnings record, Claimant submitted a copy of a warranty deed dated May 20, 2008, conveying land owned by Claimant. The description of the land in the warranty deed indicates NH, or another individual named Cecil W~, inherited a 1/6 undivided interest in the land as an heir of John W~ by deed recorded on January 26, 1989. The description of the land also states "Cecil W~ died intestate on October 15, 2005, survived by his children, [Claimant and another individual], being his sole surviving heirs."

Claimant also provided a child relationship statement in which he checked a box to indicate NH made a will listing him as a beneficiary. On the next page, however, Claimant reported NH died without a will. In the statement, Claimant also claims he inherited NH's property under Tennessee intestacy law. Claimant indicated he had no other documents or evidence regarding his relationship with NH.

DISCUSSION

A claimant may be eligible for child's insurance benefits on the earnings record of an individual who dies a fully or currently insured individual if the claimant is the insured individual's "child." See Social Security Act (Act) § 202(d)(1); 20 C.F.R. § 404.350(a)(1) (2010). "Child" includes the natural child of an insured individual. See Act § 216(e); 20 C.F.R. § 404.354 (2010). If the number holder is deceased and he and the claimant's mother never married, the claimant must establish his relationship to the number holder under section 216(h)(2)(A) or section 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) (2010). NH's death certificate indicates he was domiciled in Tennessee when he died. Therefore, we look to Tennessee intestacy law to determine whether Claimant is NH's child under section 216(h)(2)(A).

Under Tennessee intestacy law, when a person dies intestate, the surviving children of the deceased (i.e., the surviving issue or heirs) may be entitled to all or a share of the deceased's intestate personal property. See Tenn. Code Ann. §§ 31-2-101, 31-2-103, 31-2-104 (2010). For purposes of intestate succession, a person is the child of the father if:

(A) The natural parents participated in a marriage ceremony before or after the birth of the child, even though the attempted marriage is void; or

(B) The paternity is established by an adjudication before the death of the father or is established thereafter by clear and convincing proof . . . .

Tenn. Code Ann. § 31-2-105(a)(2) (2010). The information provided does not indicate Claimant's mother and NH participated in a marriage ceremony. Therefore, Claimant had to establish NH's paternity by clear and convincing proof. See In re Estate of Walton v. Young, 950 S.W.2d 956, 958 (Tenn. 1997) (indicating child born out of wedlock has burden of proof). In defining clear and convincing proof, the Tennessee Supreme Court has stated:

The clear and convincing standard falls somewhere between the preponderance of the evidence in civil cases and the beyond a reasonable doubt standard in criminal proceedings. To be clear and convincing, the evidence must produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established. Clear and convincing evidence means evidence in which there is no serious or substantial doubt about the correctness of the conclusions drawn from the evidence.

Id. at 960 (quoting Fruge v. Doe, 952 S.W.2d 408, 412 n.2 (Tenn. 1997) (internal quotation marks and citations omitted). "In contrast to the preponderance of the evidence standard, clear and convincing evidence should demonstrate that the truth of the facts asserted is highly probable as opposed to merely more probable than not." In re M.A.R., 183 S.W.3d 652, 660 (Tenn. Ct. App. 2005) (quoting In re C.W.W., 37 S.W.3d 467, 474 (Tenn. Ct. App. 2000) (internal quotations marks omitted). "[T]he requirements of clear and convincing proof is not satisfied by circumstances which merely 'suggest' or imply parentage, or even support probability. The circumstances must be such as to produce a state of conviction (by convincing) that the desired fact is indeed true." Majors v. Smith, 776 S.W.2d 538, 540 (Tenn. Ct. App. 1989).

In support of his claim, Claimant provided a copy of a 2008 warranty deed by which Claimant conveyed land he allegedly inherited from NH. The only relevant portion of the warranty deed is the description of the land. The description states Cecil W~ inherited a 1/6 interest in the land from John W~. The description further states "Cecil W~ died intestate on October 15, 2005, survived by his children, [including Claimant], being his sole surviving heirs."

We do not believe the statements in the warranty deed provide clear and convincing evidence that NH is Claimant's father. Nothing in the warranty deed explains how or by whom Claimant was determined to be one of NH's surviving heirs.** Claimant's numident also is reportedly devoid of any explanation as to why SSA listed NH as Claimant's father. Claimant alleged he inherited the property from NH under Tennessee intestacy law, but he provided no proof to support his claim. Moreover, the date of NH's death indicated in the warranty deed—October 15, 2005—is different from the date of his death on his death certificate—December 28, 2004. The discrepancy calls into question the validity of the statements in the warranty deed and even whether the Cecil W~ noted in the warranty deed is NH. Claimant also did not provide evidence typically provided in paternity actions, such as blood tests, acknowledgement by the father, family resemblance, evidence of access, opportunity, and capacity to have children, or anecdotal evidence that would support his claim that NH is his father. See McDowell v. Boyd, No. 01A01-9509-CH-00413, 1997 WL 749470, at *2-4 (Tenn. Ct. App. 1997) (noting evidence that may prove parentage); Majors, 776 S.W.2d at 540 (discussing cases involving clear and convincing evidence or lack thereof). The unsubstantiated statements in the warranty deed, standing alone, do not create a firm belief or render it highly probable that NH is Claimant's father. See In re M.A.R., 183 S.W.3d at 660; In re Estate of Walton, 950 S.W.2d at 960. Therefore, we believe Claimant failed to provide clear and convincing proof that NH is his father under Tennessee intestacy law for the purposes of section 216(h)(2)(A) of the Act.

A claimant also may be the "child" of a deceased insured individual under section 216(h)(3)(C) of the Act if the claimant is the son or daughter of the insured individual and shows one of the following: (1) the insured individual acknowledged in writing that the claimant was his child, (2) a court decreed the insured individual to be the claimant's father, (3) a court ordered the insured individual to contribute to the claimant's support, or (4) the insured individual was living with or contributing to the claimant's support when the insured individual died. See Act § 216(h)(3)(C); 20 C.F.R. § 404.355(a)(3), (a)(4). The acknowledgment, court decree, or court order also must have occurred before the insured individual's death. See Act § 216(h)(3)(C); 20 C.F.R. § 404.355(a)(3). The information provided does not indicate Claimant is NH's son, i.e., his biological child. See Program Operations Manual System GN 00306.100.A.1, D.1. The information provided also does not include a written acknowledgement by NH, a court order establishing paternity, a court order ordering NH to support Claimant, or evidence that NH lived with or contributed to Claimant's support. Therefore, SSA could not deem Claimant to be NH's child under section 216(h)(3)(C) of the Act.

CONCLUSION

We do not believe the warranty deed provides clear and convincing evidence that NH is Claimant's father under Tennessee intestacy law and for the purposes of section 216(h)(2)(A) of the Act. Claimant also failed to prove he is NH's child under section 216(h)(3)(C) of the Act. Therefore, we do not believe an SSA adjudicator could conclude Claimant is NH's child for the purposes of child's insurance benefits on NH's earnings record.

Mary A. S~
Regional Chief Counsel

By___________
Brian C. H~
Assistant Regional Counsel

Under Arkansas law if the mother was not married at the time of conception or birth, or anytime between conception and birth, the name of the father shall not be listed on the child's birth certificate without written consent of the mother and the person to be named as the father. The number holder was named as the father on the child's Arkansas birth certificate, without his written consent as required by Arkansas State law. Therefore, the birth certificate cannot by itself serve as written acknowledgment of paternity.

The purpose of this memorandum is to respond to your request for a legal opinion regarding whether an Arkansas birth certificate listing the putative father's name is sufficient to establish evidence of paternity, absent written consent of the purported father to have his name to appear on the certificate as required by State law. According to information supplied with your request for an opinion, the number holder Maurice J~ died on August 29, 2003, while domiciled in Tennessee. Three days prior to his death, on August 26, 2003, Mr. J~ filed a claim for disability insurance benefits under Title II of the Social Security Act (the Act). 42 U.S.C. § 423(d)(1)(A). On that disability claim, Mr. J~ acknowledged Demarcus Y~ as his only child. On September 22, 2003, a claim for child's insurance benefits under the Act was filed on behalf of Heaveney L. J~ on Mr. J~' earning's record. According to a certified copy of the Arkansas birth certificate, Heaveney was born in West Memphis, Arkansas, on November 4, 2001. The birth certificate lists Evette S. G~ (Harris) as the child's mother, and Mr. J~ as the child's father. Ms. G~ and Mr. J~ never married.

Your request for an opinion states that the Arkansas birth certificate was the only evidence submitted to establish the child relationship. Apparently the claim was initially allowed. However, you have now requested a legal opinion given the fact that the Arkansas birth certificate does not list whether Mr. J~ gave his written consent to have his name placed on the birth certificate as Heaveney's father. Based upon the reasons discussed herein, it is our opinion that no evidence has been provided with your request for a legal opinion demonstrating that Mr. J~ gave his written consent to place his name on Heaveney's birth certificate as the putative father as required by State law. Therefore, the fact that Mr. J~' name appears on the birth certificate cannot by itself serve as written acknowledgement of paternity.

To be considered the insured person's natural child for purposes of entitlement to Social Security benefits under section 216(h)(2) of the Act one of the following conditions must be met: (1) the child would be entitled to inherit through intestate succession under the laws of the state in which the insured person was domiciled when he died; or (2) the parents of the child went through a marriage ceremony which did not create a valid marriage because of a legal impediment. 42 U.S.C. § 416(h)(2)(A) and (B). However, an applicant who is not deemed to be the child of the insured under section 216(h)(2) of the Act shall nevertheless be deemed to be the child of the insured under section 216(h)(3) of the Act if: (1) prior to the death of the insured individual, he acknowledged the child in writing, had been decreed by a court to be the father of the child, or had been ordered to contribute to the support of the child because of paternity; or (2) the insured person is shown by satisfactory evidence to be the father of the child and was living with the child or contributing to the child's support at the time such insured individual died. 42 U.S.C. §§ 416(h)(3)(C)(i) and (ii).

If the insured is deceased, the Social Security Administration will apply the law on inheritance rights in the state where the insured individual had his permanent home when he died. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. §§ 404.355(b)(1) and (b)(4) (2004). In this case, the evidence indicates that the deceased number holder was domiciled in Tennessee; therefore, Tennessee intestacy law would normally apply. Id. However, on July 29, 2004, the Regional Office of the General Counsel in Atlanta issued a legal opinion where they concluded that under the "most significant relationship" doctrine, Tennessee courts would determine that the birth status of Heaveney, and whether Mr. J~' name was properly placed on the birth certificate, would be governed by Arkansas State law since both Mr. J~ and Ms. G~ were living in Arkansas at the time of Heaveney's birth.

As our Office has previously concluded that, since February 19, 1981, under Arkansas law, if the mother was not married at the time of conception or birth, or anytime between conception and birth, the name of the father shall not be entered on the birth certificate without written consent of the mother and the person to be named as the father. See OGC legal opinion No. 99-163, entitled "Establishing Precedents for Using Information from Child's Birth Certificate as Written Acknowledgment or Proof of Court Order of Paternity," dated November 20, 2000 (reviewing prior Ark. Code Ann. § 20-18-401(e)(2)(1981) and Ark. Code Ann. § 20-18-401(f)(2) (Repl. 2000)).

Additionally, we also stated that in any case where the paternity of the child is determined by a court of competent jurisdiction, the name of the father shall be entered on the birth certificate in accordance with the findings and order of the court. Id. A review of the relevant statute at issue shows no major changes from our prior November 2000 opinion./

The method to obtain consent of the mother and putative father is governed through the use of paternity affidavits. See Ark. Code Ann. § 20-18-408 (current through the end of the 2003 Second Extraordinary Sess). Under this statute, "[u]pon the birth of a child to a woman that was unmarried at the time of either conception or birth or between conception and birth, the person responsible under § 20-18-401 for providing birth registration information shall . . . provide an opportunity for the child's mother and natural father to complete an affidavit acknowledging paternity, to include such information as is required by the court to establish paternity and establish child support obligation, and to be filed with the Division of Vital Records of the Department of Health." Ark. Code Ann. § 20-18-408(1). However, prior to signing the affidavit, the mother and natural father must be provided written information explaining the implications of signing the affidavit and their resulting parental rights and responsibilities. Ark. Code Ann. § 20-18-408(2).

Our Office could only find one case which discussed the relevant Arkansas statutory section at issue. In 2001, the Arkansas Court of Appeals reversed a Chancery Court's decision to amended a divorce decree entered 14 months prior to reflect, in part, that the appellant was not the child's biological father when paternity was not even at issue in the original divorce proceeding. See Slusher v. Slusher, 73 Ark.App. 303, 306-07, 43 S.W.3d 189, 191-92 (Ark.Ct.App. 2001). While the court reversed the case primarily because the lower court had amended the judgment outside of the permissible time period specified under the Arkansas rules of civil procedure; nevertheless, in a concurring opinion the honorable Judge Neal stated that:

In this state, if the mother of a child is not married at the time of either conception or birth, the name of the father is not to be entered on the child's birth certificate unless the mother and the putative father sign an affidavit of paternity. [citing to Ark. Code Ann. § 20-18-401(f)(2)]. Prior to signing the affidavit, the mother and natural father are given written information explaining the implications of signing the affidavit and their resulting parental rights and responsibilities. [citing to Ark. Code Ann. 20-18-408(2)]. Once the mother and the putative father execute an acknowledgement of paternity pursuant to section 20-18-408, the man executing the document is the father of the child for all intents and purposes and the acknowledgements, by operation of law, constitute a conclusive finding of paternity. Id.

Applying these principles to the facts of this case, it is our opinion that the proper State law procedure for placing Mr. J~' name on the birth certificate was not followed. Since Heaveney was born in Crittenden Memorial Hospital, it was the responsibility of hospital personnel to obtain the required consent through a paternity affidavit from both the mother and putative father before placing Mr. J~' name on the birth certificate. See Ark. Code Ann. §§ 20-18-401(b), 20-18-408. While State law provides that both the paternity affidavit and birth certificate are to be filed with the Division of Vital Records of the Department of Health, it seems likely that Crittenden Hospital personnel would have also kept a copy of such existing documentation. Id. However, no documentation supporting the existence of the paternity affidavit, thus establishing the putative father's consent to have his name placed on the birth certificate, has been provided. Therefore, the fact that Mr. J~' name appears on the birth certificate cannot by itself serve as written acknowledgement of paternity.

Tina M. W~
Regional Chief Counsel

By___________
Thomas C. S~
Assistant Regional Counsel