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.