TN 8 (06-15)
PR 01215.021 Louisiana
A. PR 15-137 Louisiana State Law – Court Judgment and DNA Report After Death Disputing NH’s Acknowledgment of Paternity of Entitlement of Child (NH: ~; SSN~)
Date: May 20, 2015
The agency approved the child’s application for survivor benefits under section 216(h)(3)(C)(i)(l) of the Act as the number holder’s (NH’s) deemed child based on the NH’s written acknowledgement. The agency may find that evidence of non-paternity overrides the acknowledgment, but such evidence must be very persuasive. In this case, the court Judgment’s finding that the NH was not the child’s biological father was based on a DNA report that is unreliable and inadmissible under Louisiana law. Therefore, the DNA report and the court Judgment are not persuasive evidence to contradict the NH’s acknowledgment of paternity and do not provide a basis for reopening the agency’s determination that the child is entitled to benefits on the NH’s account.
This memorandum is in response to your request for an opinion on whether the evidence received after the Social Security Administration (agency) awarded surviving child’s benefits to K1~ on the deceased number holder D~ (NH’s) record, specifically a court judgment and a deoxyribonucleic acid (DNA) test showing a zero percent probability of paternity, provides sufficient evidence to reopen K1~’s application and deny benefits.
The DNA test results are unreliable and not admissible under Louisiana law, so the court should not have relied on the results to make an implied finding of no paternity. Thus, the judgment does not bind the agency. It is our opinion that the evidence does not warrant reopening K1~’s application for child’s benefits.
A Louisiana birth certificate shows that on May 2011, L~ gave birth to K1~ and lists the NH as K1~’s father. On May 2011, L~ and the NH signed a Louisiana Acknowledgment of Paternity Affidavit before a notary public and two witnesses, certifying that the NH was K1~’s biological father. The evidence indicates that the NH and L~ were never married, they first lived with each other in August 2012, and they stopped living together in October 2012.
On or about March 9, 2013, the NH died in Louisiana. On March 28, 2013, L~ applied for Child’s Insurance Benefits -- Survivor Claim on K1~’s behalf as the NH’s child. On June 22, 2013, the agency determined that K1~ was entitled to monthly child’s benefits on the NH’s record beginning March 2013. The agency approved K1~’s application under section 216(h)(3)(C)(i)(I) of the Act as the NH’s deemed child based on the NH’s acknowledgment.
On or about April 9, 2014, K2~, the NH’s mother, had a genetic testing company, AnyLabTestNow!/DNA Diagnostics Center (the Laboratory), perform a DNA test on herself and K1~. The Laboratory compared their DNA samples and determined that the probability of relatedness was 5.7%. The report generated from this test contains a disclaimer that because the DNA samples were not collected under a strict chain of custody by a neutral third party and the Laboratory could not verify the origin of the DNA samples, the test results may not be defensible in a court proceeding.
On May 9, 2014, the NH’s mother initiated a small claims court case against L~ in the Second Justice Court, Parish of Jefferson, State of Louisiana. The NH’s mother alleged that L~ deceived the NH and her by asserting that the NH was K1~’s biological father, and she sued L~ for “fraud, deceit, [and] for emotional, physical, mental, and financial distress.” The NH’s mother requested that the court order a DNA test, remove the NH’s name from K1~’s birth certificate, terminate the Social Security benefits K1~ was receiving on the NH’s account, and award $5,160.00 in damages.
At the court’s direction, the Laboratory collected DNA samples from L~ and K1~ on August 15, 2014. Although the DNA report provides that the samples were obtained from L~ and K1~, the report does not show how the Laboratory identified L~ or K1~ when they obtained these samples. There is also no evidence showing the chain of custody of their DNA samples from the time of collection until the testing was completed. The Jefferson Parish Coroner’s Morgue sent a DNA sample of the NH to the Laboratory. The evidence shows the chain of custody of the NH’s DNA sample from the morgue in Louisiana to the Laboratory in Ohio. The Laboratory’s resulting DNA Test Report dated August 22, 2014, conclusively excluded the NH as K1~’s father, finding the probability of paternity was 0%. The director of the Laboratory signed an affidavit verifying the results as correct. On October 7, 2014, the court issued a Judgment in the NH’s mother’s favor and against L~ for $635.00. The one-page Judgment makes no determination regarding paternity, K1~’s birth certificate, or Social Security benefits, but awarded damages in part on the negative DNA test.
In September 2014, the NH’s mother, sister, and brother provided statements to the agency claiming that the NH is not K1~’s father and that she should not be receiving child’s benefits on the NH’s record. After the agency contacted L~, she provided a statement dated October 10, 2014, in which she stated that she has never married, did not live with the NH until after K1~ was born, did not have sexual relations with anyone other than the NH around the time of conception, and believes the NH is K1~’s father.
A. K1~’s Entitlement to Surviving Child’s Benefits Under the Act and Requirements for Reopening
Under the Act, a child may be eligible for surviving child’s benefits if she is the child of an individual who has died fully or currently insured. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.352(a). The Act provides several ways to determine whether someone is the child of a deceased wage earner. See 42 U.S.C. §§ 416(h)(2)(A)-(B), 416(h)(3)(C)(i), (ii); 20 C.F.R. § 404.355(a)(1)-(4). Here, the agency determined that K1~ was entitled to benefits as the NH’s child based on the NH’s written acknowledgment. See 42 U.S.C. § 416(h)(3)(C)(i)(I).
The subsequent DNA report and court Judgment indicate that the NH is not K1~’s father. Therefore, the question is whether the agency can reopen its initial determination in light of the subsequent evidence. The agency may reopen and revise a determination, which is otherwise final and binding, within 12 months of the date of the notice of the initial determination for any reason; within 4 years of the date of the notice of the initial determination if the agency finds good cause to reopen the case; or at any time if the determination was obtained by fraud or similar fault. 20 C.F.R. §§ 404.987, 404.988.
Because it has been longer than 12 months but shorter than four years since the agency issued its June 2013 determination, we will examine whether there is good cause for the agency to reopen the claim. See 20 C.F.R. § 404.988(b). The regulatory definition of “good cause” includes when new and material evidence is furnished to the agency. See 20 C.F.R. § 404.989(a)(1). The POMS further defines “new and material evidence” as any evidence that:
(1) Was not a part of the claims, disability or earnings discrepancy file when the final determination or decision was made; but
(2) Relates back to the date of the original determination or decision; and
(3) Shows facts that would result in a conclusion different from that originally reached had the new evidence been introduced or available at the time of the original determination.
See POMS GN 04010.030(A).
We also examine whether the agency’s determination was obtained by fraud or similar fault since it is a basis for reopening a determination at any time. See 20 C.F.R. § 404.988(c)(1). The POMS defines “fraud” as existing when a person, with intent to defraud, either makes or causes to be made a false statement or misrepresentation of a material fact for use in determining rights to Social Security benefits, or conceals or fails to disclose a material fact for use in determining rights to Social Security benefits. POMS GN 04020.010(A)(1). “Similar fault” exists when a person knowingly makes an incorrect or incomplete statement that is material to the agency’s determination to grant benefits, or knowingly, with no fraudulent intent, conceals information that is material to the determination. POMS GN 04020.010(A)(2). The determination of whether fraud or similar fault exists is a judgment decision and is based on the facts in the case. POMS GN 04020.010(B)(2).
B. The Evidence Does Not Support Reopening
We first consider whether the court’s Judgment is binding on the agency. Generally, a state court judgment does not bind the agency if it involves a proceeding to which the agency was not a party. See Social Security Ruling (SSR) 83-37c (adopting Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973)); see also POMS GN 00306.001(C)(3) (providing that when determining a child’s relationship under state law, where the evidence includes a state court decision on the issue, the agency is not necessarily bound by the court decision; referring the agency to SSR 83-37c for the applicable criteria of Gray v. Richardson). However, the agency should defer to state court determinations when (1) a state court of competent jurisdiction previously determined an issue in a claim for Social Security benefits; (2) parties with opposing interests genuinely contested the issue before the state court; (3) the issue falls within the general category of domestic relations law; and (4) the resolution by the state trial court is consistent with the law enunciated by the highest court in the state. See Gray, 474 F.2d at 1373; SSR 83-37c. The Fifth Circuit has similarly recognized that the agency is not bound by ex parte orders of state courts, but emphasized that the agency should disregard such orders only where the agency is convinced the decision is in conflict with what the state supreme court would hold were the issue presented to it (the fourth Gray factor). See Garcia v. Sullivan, 883 F.2d 18, 20 (5th Cir. 1989); Warren v. Sec'y of Health & Human Servs., 868 F.2d 1444, 1446-47 (5th Cir. 1989). As explained below, the instant court’s Judgment does not meet the fourth Gray factor, so we need not address the other factors.
Louisiana law provides for the use of testing of blood or tissue samples in any civil action where paternity is a relevant fact. See La. Rev. Stat. Ann. 9:396(A)(1). The results of the testing must be certified by a sworn affidavit by the expert who supervised the testing. Id. at § 9:397.3(A)(1). The affidavit must state:
(a) That the affiant is qualified as an examiner of blood or tissue samples for inherited characteristics, including but not limited to blood and tissue types, to administer the test and shall give the affiant's name, address, telephone number, qualifications, education, and experience.
(b) How the tested individuals were identified when the samples were obtained.
(c) Who obtained the samples and how, when, and where the samples were obtained.
(d) The chain of custody of the samples from the time obtained until the tests were completed.
(e) The results of the test and the probability of paternity as calculated by an expert based on the test results.
(f) The procedures performed to obtain the test results.
See id. If the report and affidavit from the expert who supervised the testing do not satisfy these requirements, the affidavit and report are not admissible. See Richardson v. Richardson, 974 So. 2d 761, 771 (La. Ct. App. 2007).
The DNA report does not meet several of the requirements for admissibility. It does not list the affiant’s qualifications; it does not show how the Laboratory identified L~ or K1~ when they obtained their DNA samples; and it does not explain how or where L~’s and K1~’s DNA samples were obtained. The report also fails to establish the required chain of custody for L~’s and K1~’s DNA samples. The DNA report shows that the testing of the samples occurred in Ohio, but there is no evidence showing how the Laboratory handled the samples after collection in Louisiana, how the samples were transported to Ohio for testing, or how the Laboratory handled the samples in Ohio until the tests were completed. Thus, in our opinion the Louisiana Supreme Court would find that the Second Justice Court improperly admitted and relied upon the DNA report. Accordingly, the Judgment’s implicit finding that the NH was not K1~’s biological father, which was based on the unreliable and inadmissible DNA report, does not bind the agency. As such, it is our opinion that this evidence would not have resulted in a different conclusion as to K1~’s biological father, and thus does not provide good cause for reopening the application for benefits. See POMS GN 00306.010(C)(1) (only admissible evidence showing no paternity could rebut presumed paternity).
For the same reasons, the agency should not reopen its determination due to fraud or similar fault. Given that the DNA report is unreliable and the court’s Judgment is not binding on the Commissioner, there is no persuasive evidence that L~ intended to defraud or conceal evidence from the agency. The birth certificate and the NH’s signed acknowledgement of paternity outweigh any unreliable evidence that the NH was not K1~’s biological father.
Nonetheless, despite the presumption of paternity arising from the NH’s written acknowledgement, the agency may find that evidence of non-paternity overrides the acknowledgment, but “such evidence must be very persuasive.” POMS GN 00306.100(D)(1). Because the DNA report is inadmissible and unreliable for the reasons discussed above, we believe the DNA report and the other evidence is less than “very persuasive” and does not override the NH’s written acknowledgement.
The DNA report is unreliable and inadmissible under Louisiana law, so the court should not have relied on it to make an implied finding of no paternity. The DNA report and the court Judgment are not persuasive evidence to contradict the NH’s acknowledgment of paternity. As such, it is our opinion that the DNA report and Judgment do not provide a basis for reopening the agency’s determination that K1~ is entitled to benefits on the NH’s account.
Regional Chief Counsel
Michael J. Carey
Assistant Regional Counsel
Because a later determination that another man is a child’s father is not a terminating event under the Social Security Act, the agency may only stop benefits based on a number holder’s earnings record if the agency reopens the original child-status determination. See 42 U.S.C.
§ 402(d)(1)(D)-(H); 20 C.F.R. § 404.352(b) (setting out when entitlement to child’s benefits ends).
References to a DNA report or DNA test below refer to this August 22, 2014, DNA Test Report.
Our opinion is consistent with an Atlanta OGC legal opinion that the agency could not reopen an application based on a DNA test showing a zero percent probability of paternity because the DNA test was not admissible under Mississippi law. See POMS PR 01215.027 Mississippi at PR 08-176. When the DNA tests showing a zero percent probability of paternity were valid under state law, our office and other offices have issued legal opinions that arrived at the opposite conclusion—finding that the agency could reopen the application and deny benefits. See, e.g., POMS PR 01115.005 Arkansas at PR 06-119; POMS PR 01115.017 Indiana at PR 06-196; POMS PR 01210.012 Georgia at PR 06-088 and PR 06-087.