TN 1 (07-07)

PS 01115.024 Massachusetts

A. PS 07-151 Massachusetts Accreditation Requirements of Labs Performing DNA Testing Number Holder: Jerome M. S~, SSN ~

DATE: June 8, 2007

1. SYLLABUS

Under Massachusetts law, to be acceptable evidence to assist in establishing a parent-child relationship a DNA test must be "of a type generally acknowledged as reliable and performed by a laboratory approved by an accreditation body designated by the federal Secretary of Health and Human Services pursuant to Title IV, Part D of the Social Security Act."

In this specific case, the laboratory does meet this standard and the test showing a 99.98 percent probability of paternity constitute a rebuttable presumption of paternity when combined with statements from the mother and the number holder that sexual intercourse between them took place during the time when the child was conceived.

Since the statements were not obtained until December 2005, the child's eligibility to benefits will be restricted to that month.

2. OPINION

This is a revised opinion in response to your request for an opinion as to whether the DNA evidence submitted in this case was from an accredited DNA testing facility, whether the evidence shows that the child claimant is the child of the number holder for purposes of entitlement to child's insurance benefits (CIB) on the number holder's record, and if so, the date that entitlement began. For the reasons set forth below, we believe that the DNA evidence is from an accredited facility and that the evidence submitted establishes that the child is the number holder's child for CIB entitlement purposes. Further, we believe that the child met all the requirements for entitlement to CIB as of December of 2005 and is entitled to benefits beginning December of 2005.

FACTUAL BACKGROUND

The child, Christy L. B~, was born on March 25, 1991. The child's mother is Alice F. B~ (né J~). No father is listed on the child's birth certificate. The number holder, Jerome M. S~, was approved for disability benefits on December 11, 1998. On his application for benefits, the number holder did not list any children. The child's mother and the number holder were never married, nor is there any evidence that the mother was married to anyone else at or near the time of the child's birth. DNA test results dated October 19, 2004, from Genelex Corporation, show a 99.98 percent probability that the number holder is the child's father. On December 16, 2005, the child's mother applied for child's insurance benefits (CIB) on the child's behalf on the record of the number holder. On December 19, 2005, the number holder verbally acknowledged to the Agency that he is the child's father. The number holder further stated that he did not know Christy was his child until the DNA test was performed.

Analysis

Section 202(d)(1) of the Social Security Act ("the Act") provides for the payment of CIB to a child of an insured individual entitled to disability insurance benefits if the child has filed an application for CIB and was unmarried, under age 18 (or age 19 if a full-time student), and dependent upon the insured individual at the time the application. 42 U.S.C. §402(d)(1); 20 C.F.R. § 404.350 (2006); POMS RS 00203.001.A.1.

For purposes of CIB eligibility under the Act, a child is defined as the child, adopted child or stepchild of an insured individual. See § 216(e) of the Act, 42 U.S.C. § 402(e). If a putative father (here, the number holder) is living and never married the child's mother, the child claimant's status as the child of the putative father is governed by either section 216(h)(3)(B) of the Act, 42 U.S.C. § 416(h)(3)(B), or section 216(h)(2)(A) of the Act, 42 U.S.C. § 416(h)(2)(A). To establish child status under section 216(h)(3)(B) of the Act, the child claimant must show one of the following: (1) that the putative father acknowledged in writing that the child claimant is his daughter, (2) that a court decreed the putative father to be the father of the child claimant, (3) that the putative father had been ordered to contribute to the support of the child claimant or (4) that the putative father is the father based on evidence satisfactory to the Commissioner and was living with or contributing to the support of the child claimant at the time the claimant's application for benefits was filed. We understand that you have not been able to obtain a written statement from the number holder acknowledging that he is the child's father, and we are aware of no evidence which otherwise satisfies the requirements of section 216(h)(3)(B) of the Act.

To establish her status as the child of the number holder under section 216(h)(2)(A) of the Act, the child claimant must show that she would be entitled to a child's share of the number holder's intestate personal property under the law of the state in which the number holder was domiciled at the time the child's application was filed. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(3); POMS GN 00306.001.C.2.a. According to the evidence provided, the number holder was domiciled in Massachusetts at the time that the child's application was filed. There is no evidence suggesting that the number holder's domicile was other than Massachusetts. We conclude that the number holder was domiciled in Massachusetts at the time the child's application was filed and that the Massachusetts law of intestate succession applies in determining whether the child could inherit from the number holder's intestate estate for purposes of establishing a parent-child relationship under section 216(h)(2)(A) of the Act. See 42 U.S.C. 416(h)(2)(A); 20 C.F.R. § 404.355; POMS GN 00306.001.C.2.a.

The Massachusetts intestacy statute entitles a child of an individual who dies intestate to inherit a share of the decedent's intestate personal property. MASS. GEN LAWS, ch. 190, §§ 2-3. Where paternity has been established under Massachusetts law, a child born out of wedlock is entitled to inherit from the intestate estate of her father. MASS. GEN LAWS, ch. 190, § 7. Under Massachusetts law, for purposes of establishing inheritance rights, paternity of a child born out of wedlock may be shown by an acknowledgment of paternity by the purported father or by a judicial determination that the child is the child of the purported father. Id. Pursuant to 20 C.F.R. § 404.355(b)(2)(2005), SSA adjudicators will not require an actual judicial determination but will decide paternity by using the standard of proof that the State court would use as the basis for a determination of paternity. In Massachusetts, paternity must be proven by clear and convincing evidence. MASS. GEN LAWS, ch. 209C, § 7; Dep't. of Revenue v. Roe, 577 N.E. 2d 323, 325 (Mass. App. Ct. 1991); POMS GN 00306.520. A paternity determination is made on a case-by-case basis weighing the probative value of the evidence against the likelihood of fraud. See MASS. GEN LAWS, ch. 209C § 16; POMS 00306.520. The evidence can include blood or genetic marker tests, testimony and all other relevant evidence. MASS. GEN LAWS, ch. 209C, §§ 16-17.

Pursuant to MASS. GEN LAWS, ch. 209C, § 17, for purposes of establishing paternity, a DNA test must be "of a type generally acknowledged as reliable and performed by a laboratory approved by an accreditation body designated by the federal Secretary of Health and Human Services pursuant to Title IV, Part D of the Social Security Act." We have confirmed with the Boston region's Office of Child Support Enforcement, Administration for Children and Families, U.S. Department of Health and Human Services, that it has designated the American Association of Blood Banks (AABB) as an approved accreditation body. The AABB's website (<http://www.aabb.org/content>) lists the Genelex Corporation as an accredited parentage testing facility. Therefore, the lab meets the accreditation requirements of Chapter 209C, § 17.

As you discussed, paternity may be established based on the October 18, 2004 DNA test results, which show a 99.98 percent probability of paternity. Under POMS GN 00306.520.A, "[b]lood or genetic marker tests with a probability of 97.0% or greater will constitute a rebuttable presumption of paternity provided that the petitioner has presented evidence that sexual intercourse occurred between the mother and the [putative father] during the period of time that the child was conceived." See MASS. GEN LAWS, ch. 209C, § 17 (DNA evidence is not admissible "absent sufficient evidence of intercourse between the mother and the putative father during the period of probable conception"). Here, there is no evidence to rebut the presumption of paternity established by the DNA test results. To the contrary, the number holder acknowledges paternity. The only remaining element to be satisfied under the statute is the requirement of sufficient evidence of sexual intercourse during the probable period of conception. This requirement may be satisfied based on a preponderance of the evidence. GEB v. SRW, 661 N.E.2d 646, 655 (Mass. 1996). Statements by the mother or putative father are sufficient evidence that sexual intercourse occurred between them during the period of probable conception. See MASS. GEN LAWS, ch. 209C, § 8 (paternity may be established by testimony of the mother or putative father that sexual intercourse occurred between them during the probable period of conception); GEB v. SRW, 661 N.E.2d at 656-57 (mother's testimony constituted evidence of sexual intercourse and paternity); AB v. CD, 690 N.E.2d 839,842 (Mass. App. Ct. 1998) (mother's testimony constituted evidence of sexual intercourse). Assuming that you find statements made by the mother in the child's application, or by the putative father in your contact with him, to constitute "sufficient evidence" of sexual intercourse under the statute, we believe that this evidence plus the DNA test results would constitute clear and convincing evidence of paternity under Massachusetts law.

As you also mentioned, paternity may also be established here based solely on the number holder's verbal acknowledgement of paternity on December 19, 2005. See POMS GN 00306.520.A.2 (a child acquires the status of child under the Act if the purported father formally or informally acknowledges the child as his child); see also Higgins v. Ripley, 450 N.E.2d 186 (Mass. App. Ct. 1983) (written acknowledgment of paternity is not necessary in order for an illegitimate child to inherit from her father); Paquette v. Koscotas, 421 N.E.2d 483, 484 (Mass. App. Ct.) (same). We agree that based on the number holder's verbal statement, you would be justified in concluding that the child claimant's status as the natural child of the number holder for purposes of intestate succession has been established under Massachusetts law, especially given the additional evidence of the DNA test results presented, as discussed above.

Since we conclude that paternity can be established based on the evidence provided, the only remaining issue is when the child first became entitled to CIB. A child is entitled to CIB once she satisfies all the entitlement factors. See § 202(d)(1) of the Act; 42 U.S.C. 402(d)(1); 20 C.F.R. § 404.352(a). All of the requirements for the child's entitlement to benefits were met in this instance by December of 2005, at which time the parent-child relationship was established and the child applied for benefits. While the DNA evidence is from October of 2004, Massachusetts law also requires "sufficient evidence" of sexual intercourse. Assuming such evidence is established in the mother's or number holder's statements, such evidence would not appear to have been provided until December of 2005, either through the statements of the mother in the child's December 16, 2005 application or through the number holder's statements on December 19, 2005. Alternatively, if sufficient evidence of sexual activity has not been provided, the number holder's acknowledgment of paternity on December 19, 2005 alone would be sufficient to establish paternity. Thus the earliest date by which the child met all the eligibility requirements so as to be entitled to benefits was December of 2005.

CONCLUSION

The DNA evidence submitted is from an accredited facility. We believe that based on the evidence provided, the Massachusetts courts would find that the child could inherit from the number holder as his child under the Massachusetts intestacy statute. Therefore, we believe that the child qualifies as the number holder's child for purposes of entitlement to CIB. The child would be entitled to benefits beginning in December of 2005.


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