TN 7 (03-12)

PR 01215.051 Virgin Islands

A. PR 12-065 Whether Malachi (the claimant), the biological child of Chasidy, is entitled to Social Security benefits as the child of Errol, the number holder (NH)

DATE: March 6, 2012

1. SYLLABUS

Based upon our review of Virgin Islands law and the facts you provided to us, we believe that Virgin Islands courts would find that paternity has been established in this case. We believe the evidence in its entirety makes it more likely than not that the claimant is NH’s child. Therefore, we conclude that the claimant is entitled to Survivor’s Benefits on NH’s account.

2. OPINION

QUESTION PRESENTED

Whether Malachi (the claimant), the biological child of Chasidy is entitled to Social Security benefits as the child of Errol , the number holder (NH).

OPINION

The claimant is entitled to benefits as the NH’s child because paternity can be established under Virgin Islands law.     

BACKGROUND

NH died on May 17, 2009, in St. Thomas, Virgin Islands. At the time of his death, he was in a relationship with Chasidy the claimant’s mother.  The claimant was born one month later on June .

On July 23, 2009, Chasidy filed an application for Survivor Child’s benefits on behalf of the claimant on NH’s record. The claim was denied on September 22, 2009 on the basis that there was not enough evidence to prove paternity. Chasidy filed for reconsideration on December 17, 2009, which was denied on October 18, 2010. Chasidy filed a new claim for the claimant on November 11, 2011 and submitted additional evidence, which consists of a DNA test report from an alleged paternal uncle.

The evidence presented includes:

  • Death certificate for NH, showing that he died on May 17, 2009.

  • The claimant’s birth certificate, showing he was born on June . The father’s name is not provided.

  • SSA-783 Statement Regarding Contributions, dated July 23, 2009, wherein Chasidy indicated that NH occasionally contributed to her support from August 2008 to September 2008 (form incorrectly states September 2005), but then stopped because he was no longer working.

  • Statements from Chasidy and other persons in support of her allegation of paternity:

  • On July 23, 2009, Chasidy stated that she was NH’s girlfriend prior to his death, and that he was not happy about her pregnancy. She admitted that he did not accompany her to her prenatal care appointments, and did not give her money for rent or other support for her and her unborn baby.  She asserted that they did not live together prior to his death. She admitted that she did not know his family prior to his death, and did not believe that they knew about her pregnancy. She did not know whether NH’s friends or coworkers were aware of her pregnancy.

  • On September 21, 2009, Bridgette , a friend and coworker of Chasidy , asserted that Chasidy and NH were in a relationship, and that Chasidy told her that she was pregnant with NH’s baby.  

  • On December 17, 2009, Chasidy reiterated that NH did not provide financial support to her, but mentioned that he gave her money for her cable bill. She also added that he was present at her baby shower on May 3, 2009, and that the women present were aware that he was her baby’s father. 

  • On January 8, 2010, Chasidy stated that NH mentioned to her neighbor, Triola , that he was the father of Chasidy’s baby.

  • On February 17, 2010, Wycliffe , Chasidy’s father, stated that, although his daughter never introduced NH to him as her boyfriend, he did see the two of them together. He also stated that Chasidy told her father that NH was the father of her child after NH’s death.

  • On February 17, 2010, Shauna , a coworker of Chasidy, stated that Chasidy told her that NH was her boyfriend and, later, that he was the father of her baby. Shauna and others held a baby shower for Chasidy, and he was present.

  • On February 18, 2010, Dawn , Chasidy’s coworker, asserted that NH told her that he was the father of Chasidy’s unborn child. Dawn also stated that she and other coworkers threw a baby shower for Chasidy and included NH. 

  • On February 18, 2010, Faye , a former coworker of NH and current coworker of Chasidy, stated that he told her prior to his death that he had a baby on the way, and that the mother of his baby was Chasidy.

  • On March 9, 2010, Germaine asserted that Chasidy told her that she was pregnant with NH’s baby.

  • Pictures of NH with a pregnant Chasidy, reportedly taken at her baby shower.

  • SSA – 553 determination, dated September 22, 2009, that the claim for benefits should be denied on the basis that NH did not provide support to the child. The determination mentions that the district office obtained a statement (not provided to us) from NH’s sister, Cheryl , who did not know that NH had a baby on the way before his death, but who does presently recognize the claimant as her nephew. In addition, the district office spoke to another sister, Kimrah , by telephone, and she indicated that NH told her that he had a baby on the way, but did not mention anything about his girlfriend or the baby’s due date. The district office did not obtain a written and signed statement from Kimrah.       

  • SSA-2519 Child Relationship statement, dated November 16, 2011, wherein Chasidy stated that NH orally admitted to others that he was the claimant’s father. Chasidy also stated that NH did not acknowledge paternity in writing, and did not contribute to the child’s support (by contributing to her support while she was pregnant).

  • DNA Test Report using paternal uncle’s DNA, showing 92.9% probability of relatedness.

ANALYSIS

A.     Federal Law

For purposes of child’s benefits under the Social Security Act (Act), a “child” is defined as the child, legally adopted child, stepchild, or in limited circumstances, grandchild of an insured individual. The child must also (1) apply for child’s insurance benefits; (2) at the time such application is filed be unmarried and either be under age 18 or be under age 19 and a full-time elementary or secondary school student, or over 18 and under a disability which began before he attained the age of 22; and (3) be dependent on the NH. Act § 202(d)(1); 20 C.F.R. § 404.350.

 Act §§ 202(d), 216(e); 42 U.S.C. §§ 402(d), 416(e). First, the Act provides that in determining whether a claimant will be deemed the surviving child of an insured individual, the Commissioner shall apply such law as would be applied in determining the devolution of intestate personal property under the laws of the State in which the insured wage earner was domiciled at the time of his death. Act § 216(h)(2)(A); 42 U.S.C. § 416(h)(2)(A). Because NH was domiciled in the Virgin Islands at the time of his death, Virgin Islands’s law regarding the devolution of intestate personal property applies. 

Second, the Act permits a claimant to be deemed the child of an insured person if the

insured person and the mother or father of the child, as the case may be, participated in a

marriage ceremony resulting in a purported marriage which, but for a legal impediment, would

have been a valid marriage. There is no dispute here that Chasidy and NH never married. Act § 216(h)(2)(B); 42 U.S.C. § 416(h)(2)(B). 

Lastly, the Act provides that a claimant will be deemed the child a fully insured

individual, if, in the case of a deceased individual, such insured individual had: (1)

acknowledged in writing that the applicant is his son or daughter; (2) been decreed by a court to

be the father of the applicant; or (3) been ordered by a court to contribute to support of the

applicant because the applicant was his son. Act § 216(h)(2)(C)(i); 42 U.S.C. § 416(h)(3)(C)(i). This section further states that the acknowledgment, court decree, or court order must have been made before the death of the wage earner. Id. Under subsection (3)(C), the claimant may also be deemed the child of an insured person if “such insured individual is shown by evidence satisfactory to the Commissioner of Social Security to have been the mother or father of the applicant, and such insured individual was living with or contributing to the support of the applicant at the time such insured individual died.” Act § 216(h)(3)(C)(ii); 42 U.S.C. § 416(h)(3)(C)(ii).

B.     State Law

  1. Intestacy Law

The intestacy law of the Virgin Islands provides that:

[a]n illegitimate child shall be considered to have the same status, for purposes of decent and distribution of the property of his or her ancestor…provided that the [father] admitted of record paternity of such child by signing the birth certificate; or he was adjudged the father of such child by a court of competent jurisdiction; or by written acknowledgement recognized such child as his.

15 V.I. § 84(13). The statute thus does not provide for posthumous findings of paternity. 

Additionally, the Program Operations Manual System (POMS) sets forth individual State intestacy laws on how a child or parent can be legitimated/acquire inheritance rights, and when each provision is effective. POMS GN 00306.400.  Pursuant to POMS GN 00306.655(4), where the father dies after August 3, 1957, adjudication of paternity for the purpose of inheritance must have occurred in his lifetime. For claims filed on or after November 27, 1998, or pending on that date, SSA will determine the relationship between the alleged father and the child during the alleged father's lifetime and after his death by applying a preponderance of the evidence standard.  Preponderance of the evidence is evidence which is of greater weight or which is more convincing than the opposing evidence; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not. The unsupported testimony of the mother, if believed, satisfies the standard. Id.

However, the Commissioner’s regulations provide as follows:

We will not apply any State inheritance law requirement that an action to establish paternity must be taken within a specified period of time measured from the worker’s death or the child’s birth, or that an action to establish paternity must have been started or completed before the worker’s death. 

20 C.F.R. 404.355(b)(2).

The regulations go on to state that, in cases where state inheritance laws require

that paternity be established within a specified period of time, the Commissioner will decide paternity by using the standard of proof that the state courts would use as the basis for a determination of paternity. Id. Thus, because the Virgin Islands statute does not provide for posthumous determinations of paternity, we must apply the standard of proof that Virgin Islands courts would use for a determination of paternity. 

  1. Paternity Law

According to the Virgin Islands paternity statute, paternity can be established by a court order where the parties consent, per 16 V.I. § 293(e), or where the issue is contested, and the court orders a blood, genetic, or DNA test, per 16 V.I. § 293(f). A test result showing a statistical probability of paternity of 99% or higher shall constitute a conclusive presumption of paternity.  16 V.I. § 293(f).

Moreover, paternity can be established when a parent is deceased: “the deceased father of a child born out of wedlock, by having publicly acknowledged the child as his own…” thereby provides evidence of paternity. 16 V.I. § 295. Thus, section 295 allows for posthumous determinations of paternity without a court order.

       

  1. Standards of Proof in Paternity Cases - Preponderance of the Evidence and Clear and Convincing Evidence

To establish paternity, Virgin Islands courts generally apply the preponderance of the evidence standard. See, e.g., Hyman v. Prince, 9 V.I. 47 (1971) (which held that the unsupported testimony of the mother, if believed, satisfies the applicable proof of paternity by a preponderance of the evidence); Government of Virgin Islands, ex rel C.C. v. A.P., 1995 WL 789028 vacated on other grounds by 961 F. Supp 122 (1997)(“all that is required to establish paternity is sufficient evidence to convince the fact finder that the person accused is indeed the father”).

On the other hand, where paternity is contested, and there is clear and convincing evidence of paternity, either on the basis of genetic tests or other credible evidence, temporary child support can be ordered. 16 V.I. § 297. Thus, the  standard generally used for establishing paternity is the preponderance of the evidence standard, but for establishing temporary support, the standard is higher, requiring clear and convincing evidence.

  1. Types of Evidence the Court Considers to Determine Paternity under Both Standards

As discussed, the temporary support statute indicates that genetic testing satisfies the higher clear and convincing standard. The statute does not explain what other evidence is sufficiently credible to satisfy the clear and convincing evidence standard. 

Likewise, there is little caselaw that applies either standard. In H~, which applied the preponderance of the evidence standard, the court considered evidence that the putative father had a low sperm count, but determined that such evidence was insufficient to show that he was not the father, where it was still possible for him to impregnate someone, he had children in the past, the medical analysis of the sperm was poor, he had intercourse with the mother at the time of conception, and the mother testified that he was the father. 

In Baby Girl Lake, the court stated in dicta that, even if posthumous adjudications of paternity could be made, paternity could not be established where the putative father merely told one person that his girlfriend was pregnant. 1995 WL 789028 *3 (“[u]nder the most generous definition of ‘publicly,’ it would be difficult to maintain that when Powell informed only his first cousin of Dore’s pregnancy, it was a public affirmation of the child”). 

In Government of Virgin Islands, ex rel C.C. v. A.P., the court noted that Human Leukocyte Antigen blood testing was not conclusive evidence of paternity, but could be considered by the fact-finder. 1995 WL 914523 *3.  The court noted that the paternity statute did not require such strict standards for paternity, i.e., conclusive evidence, but only “sufficient evidence to convince a fact finder that the person accused is indeed the father.” Id.

In sum, some of the things that Virgin Islands courts consider are the testimony of the mother, the fact that the couple was together at the time of conception, the number of people the father told about his unborn child, and blood test results that lacked precision.

Based upon the foregoing cases, we believe that paternity has been established in this case.   Here, in contrast to Baby Girl Lake, NH told several people that he was the father of Chasidy’s baby. NH told Dawn and Faye that he was the father of Chasidy’s unborn baby. He also told his sister, Kimrah, that he had a baby on the way. NH came to Chasidy’s baby shower. This evidence could convince a fact-finder that NH had acknowledged that he was the father of Chasidy’s unborn child.  In addition, NH’s other sister, Cheryl, recognized the claimant as her nephew. 

In addition, statements made by Chasidy indicate that NH was the father of the claimant. She told Bridgette and Faye that she was pregnant with NH’s baby.  She also told her father that NH was the father of her baby. NH and Chasidy were “dating” from the time of conception through NH’s death. Shauna, a coworker of Chasidy, stated that Chasidy told her that NH was the father of her baby. 

Finally, the DNA testing of the claimant’s alleged paternal uncle, showing a 92% probability of relatedness, while not direct evidence of paternity, provides additional support for the claim.  In sum, we believe the evidence in its entirety makes it more likely than not that the claimant is NH’s child. Accordingly, he should be found entitled to Social Security Survivor’s benefits.

CONCLUSION

Based upon our review of Virgin Islands law and the facts you provided to us, we believe that Virgin Islands courts would find that paternity has been established in this case. Therefore, we conclude that the claimant is entitled to Survivor’s Benefits on NH’s account. 

 Mary Ann Sloan

 Acting Regional Chief Counsel

 By:_______                           

 Andreea Lechleitner

Assistant Regional Counsel


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PR 01215.051 - Virgin Islands - 03/26/2012
Batch run: 03/26/2012
Rev:03/26/2012