QUESTION
You asked several questions concerning whether Damonicka (C1) may be entitled to child's
insurance benefits on the record of the deceased number holder, Broderick (NH), on
the basis of DNA testing of NH's father, Lawrence , and NH's sister, Michelle . Specifically,
you asked:
What are the accreditation requirements of DNA testing laboratories per Alabama State
Intestacy Law?
Is the DNA evidence submitted from the father and sibling of NH sufficient to rebut
the presumption of paternity for C1?
Since [the precedent in PR 01115.001C states that the DNA from a brother is sufficient to establish a presumption of paternity
that can only be rebutted by clear and convincing evidence under Alabama Law, would
this presumption also apply to DNA from a parent and/or sister of the NH?
If the children meet the requirements of an illegitimate child with inheritance rights
of the NH, can the children be paid retroactively or prospectively from the date of
the DNA?
If the children can be paid retroactively, should the previous denials be reopened
to allowances?
In October 2005, we spoke with Betty to clarify the questions asked, and agreed that
the questions should reflect whether both C1 and Broderick (C2) are entitled to benefits.
We also agreed that our opinion should address whether the DNA testing is sufficient
to rebut the presumption that Donald is the children's legitimate father. Thus, the
questions to be answered are:
Can C1 and C2 be entitled to child's insurance benefits on NH's record on the basis
of DNA testing of NH's father and sister?
Is this DNA testing sufficient to rebut the presumption that Donald is the children's
father?
If the children are entitled to benefits on NH's record, can the children be paid
retroactively or would their benefits be prospective from the date of the DNA testing?
If the children could be paid retroactively, should the Agency reopen the children's
previous denials?
What are the accreditation requirements for genetic testing laboratories under Alabama
law?
ANSWER
Generally, the DNA testing of a father and sibling of a deceased number-holder that
yield a probability of paternity that is greater than 97% create a presumption of
paternity under Alabama law that can only be rebutted by clear and convincing evidence.
The DNA testing in this case cannot alone rebut the controlling presumption that Donald is both children's father. Thus,
when taking into account the evidence before the Agency, an Alabama court would find
C1 and C2 to be the children of Donald , and an Agency adjudicator could not conclude
that C1 and C2 are NH's children for entitlement purposes.
C1 and C2 are not entitled to benefits on NH's record, and thus, payment is not at
issue; however, a child born out of wedlock does not inherit under Alabama law in
the same manner as though legitimate. Children who meet the requirements of an illegitimate
child with inheritance rights of a number-holder would be paid prospectively from
the date of the DNA testing.
The children's prior applications should not be reopened, because they are not entitled
to benefits on NH's record; however, only C2's prior application could have been reopened
pursuant to the regulations, if he could be paid retroactively.
Alabama does not expressly require an accredited laboratory to conduct genetic testing
to establish paternity rights. The lack of accreditation of the laboratory conducting
the DNA tests, standing alone, does not render the test results inadmissible. Rather,
a laboratory's accreditation is a factor that can be considered by the trier of fact
when assessing the weight it assigns to the DNA tests. Because the testing facility
here appears to be accredited, the issue of accreditation does not seem to be an issue
in this case.
BACKGROUND
On January XX, 2001, NH died while domiciled in Alabama. C1 was born on June. C2 was
born on August. The children's mother, Ronda , has been married to Donald since December
1988. There is no evidence that they ever divorced.
On September XX, 2004, the children's grandmother, Beulah (Applicant), applied for
surviving child's benefits on the children's behalf. Applicant submitted the results
from a DNA kinship test dated April XX, 2005. The DNA samples were taken from Ronda,
C1, and C2 as well as Lawrence, NH's father, and Michelle, NH's sister. The results
showed that NH was not excluded as the children's biological father and that the probability
of paternity was of 99.71%. The conclusion was based upon the assumption that Michelle
was NH's biological full sibling and Lawrence was NH's biological father. This DNA
test was conducted by Reliagene Technologies, Inc. Reliagene's stationary claims that
it is accredited by "the Parentage Testing Committee of the American Association of
Blood Banks."
The record also includes copies of the children's birth certificates. C1's birth certificate
lists Donald as the father. C2's birth certificate does not list a father.
Furthermore, the record includes a form SSA-795 signed by Donald in July 2001 that
states he is not the father of C1 or "the unborn child that Ronda is carrying." We
can infer that the referenced unborn child is C2 (who was born on August).
Under Alabama law, a child may inherit from the father through intestate succession,
if paternity is established by an adjudication supported by clear and convincing evidence,
even if commenced after the father's death. See Ala. Code § 43-8-48(2)b (2005); Cotton v. Terry, 495 So.2d 1077, 1079 (Ala. 1986). Proof by clear and convincing evidence requires
a level of proof greater than a preponderance of evidence or the substantial weight
of the evidence, but less than beyond a reasonable doubt. See Ex parte C.V., 810 So.2d 700, 721 (Ala. 2001).
DISCUSSION
1. Sufficiency of DNA testing of the father and sister of NH to establish a presumption
of paternity under Alabama law.
When determining entitlement to surviving child's benefits, the Agency applies the
inheritance laws of the state where the insured had his permanent home when he died.
See § 216(h)(2)(A) of the Social Security Act (Act), 42 U.S.C. § 416(h)(2)(A) (2005);
20 C.F.R. § 404.355(a)(1), (b)(1) (2005). Agency regulations further provide that
if applicable state inheritance law requires a court determination of paternity, the
Agency will not require a court determination, but will decide paternity by using
the standard of proof that the state court would use. 20 C.F.R. § 404.355(b)(2). NH
was domiciled in Alabama when he died.
Under Alabama law, a child may inherit from the father through intestate succession,
if paternity is established by an adjudication supported by clear and convincing evidence,
even if commenced after the father's death. See Ala. Code § 43-8-48(2)b (2005); Cotton v. Terry, 495 So.2d 1077, 1079 (Ala. 1986). Proof by clear and convincing evidence requires
a level of proof greater than a preponderance of evidence or the substantial weight
of the evidence, but less than beyond a reasonable doubt. See Ex parte C.V., 810 So.2d 700, 721 (Ala. 2001).
Alabama's intestacy statute does not address genetic testing, but its paternity statute
does. Under the Alabama version of the Uniform Parentage Act (UPA), genetic test results
that "indicate a 97 percent or greater probability of paternity" create a presumption
of paternity that may only be rebutted by clear and convincing evidence. See Ala. Code § 26-17-13(a)(3). While there is no statute that expressly states that
Alabama courts will use the UPA paternity presumptions in an intestacy proceeding,
there is supporting caselaw that an Alabama court will apply the same rules for paternity
adjudications under the UPA and the state's intestacy statute. In Blackmon v. Brazil, 895 So.2d 900 (Ala. 2004), the Supreme Court addressed whether an adjudication of
paternity under the state's intestacy statute, Ala. Code § 43-8-48(2)b, was subject
to the statute of limitations under Ala. Code § 6-2-33(2). Id. at 908. The Court noted first that the language of Ala. Code § 43-8-48(2)b neither
exempted nor subjected a paternity proceeding for intestacy purposes to the statute
of limitations. Id. Next, the court found that the state legislature intended to subject a UPA proceeding
for an adjudication of paternity to establish the right of inheritance in a child
born out of wedlock to the statute of limitations. The Court concluded that Ala. Code
§ 43-8-48(2)b was subject to the statute of limitations, because an adjudication of
paternity to establish inheritance rights for a child born out of wedlock under the
UPA was subject to the same statute of limitations. Id. Because the Supreme Court of Alabama is willing to apply provisions applicable to
UPA paternity determinations when determining the inheritance rights of children born
out of wedlock under the intestacy statute, we conclude that the courts will look
to the paternity provisions in the UPA to govern the paternity proceedings under the
state's intestacy statutes, and as such, would apply the UPA provisions on genetic
testing.
In this case, the DNA test results yield a "probability of paternity" that is greater
than 97%; however, these results were based on the DNA from the father and sister
of NH. We found no statute or controlling caselaw precluding the use of DNA tests
on relatives. Nothing in Alabama law limits DNA test results that yield a probability
of paternity to tests performed on the putative father; the statute merely requires
tests results that "indicate a 97 percent probability that the alleged father is the
biological or natural father of the minor." See Ala. Code § 26-17-13(a)(3). Therefore, we conclude that the statute is satisfied by
tests on relatives that yield a probability of paternity, as opposed to tests that
yield a probability of siblingship, grandpaternity, relatedness, or some other relationship.
Furthermore, POMS PR 01115.001C provides that DNA genetic testing conducted on a number holder's brother, which established
a 99.71% probability of paternity for the number holder, is sufficient under Alabama
law to establish a presumption of paternity that can only be rebutted by clear and
convincing evidence. See
id. (citing Ala. Code § 26-17-13(a)(3)).
Given this authority, it is our opinion that the DNA testing on NH's father and sibling
that shows a 99.71% probability that NH is the father of the children in this case
could create a presumption of paternity under the Alabama paternity statute and that
such a presumption could only be rebutted by clear and convincing evidence. However,
this conclusion must be weighed against the clear and convincing evidence in the record
that would establish Donald as the children's father.
2. Sufficiency of DNA testing to rebut the presumption that Donald is the children's
father.
The presumption of paternity established by the DNA testing in this case does not
rebut the presumption that Donald is the legitimate father of both C1 or C2. Consequently,
an Agency adjudicator could not conclude that C1 and C2 are NH's children for entitlement
purposes based on the facts provided to the Agency.
Under Alabama law, a man is presumed to be the natural father of a child if he and
the child's mother are or have been married to each other and the child is born during
the marriage. Ala. Code § 26-17-5(a)(1). The statute further provides that "[i]n the
event two or more conflicting presumptions arise, that which is found upon the weightier
considerations of public policy and logic, as evidenced by the facts, shall control."
See id. at § 26-17-5(b).
In this case, the record shows that Ronda , the children's mother, married Donald
in December 1988, and the file provides no indication that the couple divorced. In
fact, Applicant signed an SSA-795 stating that, to her knowledge, Ronda and Donald
never divorced. Because both C1 and C2 were born to Ronda while she was married to
Donald , is presumed to be the children's natural father under Alabama law. This presumption
conflicts with the presumption established by the DNA testing.
The Alabama Supreme Court addressed the issue of conflicting presumptions, like those
in the instant case, and held that the "public policy considerations" in which a husband
is presumed to be the father of the wife's child are weightier than other presumptions
of paternity. See Ex
parte Presse, 554 So.2d 406, 412 (Ala. 1989). "[I]t is not logical that two men could be presumed
to be the child's father. The presumption in favor of the [husband] is an ancient
one, supported by logic, common sense, and justice." Id. The Alabama Supreme Court addressed this issue again in Ex parte C.A.P., 683 So.2d 1010 (Ala. 1996), and elaborated that the presumption in Ala. Code § 26-17-5(a)(1)
is established if the child is born during the marriage. See id. at 1012.
Given this authority, and the fact that Ronda and Donald are still married, an Alabama
court would find C1 and C2 to be the children of Donald . An Agency adjudicator, therefore,
could not conclude that either C1 or C2 is NH's child for entitlement purposes.
In addition, Applicant, the maternal grandmother of C1 and C2, would not have standing
to bring an action seeking to declare NH as the father of these children, because
the law restricts who may bring an a paternity action when the presumption of legitimacy
has been established under Ala. Code § 26-17-5(a)(1). In Presse, the Alabama Supreme Court held that when a child's presumed father is the husband,
a third party would not have standing under the law. See
554 So.2d at 413. In M.H.E. v. B.E., 864 So.2d 351 (Ala. Civ. App. 2002), the alleged father was deceased, and the court
held that his mother did not have standing to bring an action on his behalf. See id. at 354. Given this authority, Applicant has no standing to challenge the paternity
of Donald .
Only NH or Ronda conceivably would have standing to challenge the paternity action,
only if the presumed father, Donald , does not "persist in the presumption that he
is the father." In Cravens v. Cravens, - So.2d - (Ala. Civ. App. 2005), the court held that "no one, including the mother
of the child, has standing to challenge a presumed father's paternity as long as the
presumed father persists in claiming paternity of the child." Id. (citing Ex parte C.A.P., 683 So.2d 1010 (Ala.1996), and Ex parte Presse, 554 So.2d 406 (Ala.1989)). The Court in Presse explained:
the legal question is whether is a man has standing to bring an action seeking to
declare a child illegitimate and to have himself declared the father of that child.
This is not permitted under [Alabama Law], as long as there is a presumed father,
pursuant to § 26-17-5(a)(1), who
has not disclaimed his status as the child's father.
554 So.2d. at 418 (emphasis added). In R.O.M. v. T.W.J., 768 So.2d 397 (Ala. Civ. App. 2000), the court found by clear and convincing evidence
that the man who claimed to be the child's biological father had standing to challenge
the paternity of the child, because the husband "disclaimed his status as the presumed
father." Id. at 399. In reaching this conclusion, the court focused on the fact that the husband
disclaimed "all legal rights" to the child, and submitted a waiver of those rights
to the court. See id. In addition, the court considered that the husband did not hold the child out as
his own, while the man claiming to be the father "pursued all legal avenues to establish
paternity." Id.
In this case, the evidence is insufficient to demonstrate that Donald disclaimed his
status as the presumed father. While Donald signed a statement for the Agency in July
2001 indicating that C1 was not his child, this does not constitute a disclaimer or
waiver of his legal rights to C1 as described in R.O.M. Moreover, there is no evidence that Donald did not hold himself out as the father
of the child, other than his signed statement. Contrarily, C1's birth certificate
lists Donald as the father of the child, and they both share the same last name. Finally,
there is no evidence that NH pursued any "legal avenues to establish paternity" of
C1. With regard to C2, there is some evidence, albeit not very probative, from C2's
kindergarten teacher which suggested NH held himself out as the father; however, there
is no evidence that NH made any effort, legal or otherwise, to establish paternity,
despite the fact that they share the same name. In addition, there is no evidence
that Donald disclaimed his legal rights to C2 or that such a legal waiver was made.
However, the statement provided to the Agency makes reference to "the unborn child
that Ronda is carrying," and it can only be inferred that he is referring to C2 who
was born one month after this statement was signed in July. Thus, the evidence of
record falls short of demonstrating that Donald disclaimed his legal rights as the
presumed father of C1 or C2, and an Alabama court would find C1 and C2 to be the children
of Donald . An Agency adjudicator could not conclude that C1 and C2 are NH's children
for entitlement purposes.
Alabama law does not treat illegitimate and legitimate children the same, and an established
illegitimate relationship would have a prospective effect from the date of DNA testing.
In this case, C1 and C2 are not entitled to benefits on the record of NH, and thus,
payment is not at issue. However, if C1 and C2 met the requirements of an illegitimate
child with inheritance rights of NH and were entitled to benefits on the record of
NH, you asked whether the children could be paid retroactively, or could they only
receive benefits prospectively from the date of the DNA testing.
As noted in POMS GN 00306.405(4), Alabama confers inheritance rights based on an adjudication of paternity after the death of the father, but this does not legitimate the child. A non-legitimated applicant with intestate
inheritance rights is a child only from the time inheritance rights arose. See POMS PR 01120.001A. Where a state law confers inheritance rights based on an adjudication of paternity
(but does not legitimate the child), and the law has no retroactive effect, the claimant's
status as the nameholder's child is established effective with the date of the latest
necessary piece of evidence (if more than one piece of evidence is needed to satisfy
the applicable standard of proof). See POMS GN 00306.055. Thus, if C1 and C2 had qualified as NH's children under Alabama law based on DNA
test results, they would not have inherited in the same manner as if they were legitimate,
and would have been paid prospectively from the date of the DNA testing.
4. The children's prior applications should not be reopened.
In this case, C1 and C2 are not entitled to benefits on the record of NH. Even if
they were entitled to benefits, they would be paid prospectively from the date of
DNA testing. Thus, whether to reopen C1 and C2's prior applications is not at issue.
However, if C1 and C2 could be paid retroactively, you asked whether the children's
prior applications should be reopened.
With regard to C1's prior application, there is no regulatory authority to reopen
her prior claim even if she were to be paid retroactively. The regulations permit
the Agency to reopen the determination within four years of the notice of the initial
determination, provided there is good cause. See 20 C.F.R. § 404.988(b). The regulations provide that there is good cause to reopen
a determination or decision if "new and material evidence is furnished." 20 C.F.R.
§ 404.989(a)(1). In this case, however, the initial determination denying C1's prior
claim was dated June XX, 2001, more than four years after the initial determination.
Although 20 C.F.R. § 404.991a permits the Agency to revise a determination if an investigation
into whether to revise the determination began before the applicable time period expired,
there is no evidence that such an investigation took place. Furthermore, 20 C.F.R.
§ 404.988(c) permits the Agency to reopen a determination at any time if one of the
conditions in the regulation are met. However, none of these conditions would have
been applicable.
With regard to C2's prior application, there would have been authority under 20 C.F.R.
§ 404.988(b) to reopen this claim if he were to be paid retroactively. The initial
determination denying C2's prior claim was dated January 20, 2003, and the receipt
of DNA testing establishing that NH is the father of C2 would most certainly qualify
as "new and material evidence." Thus, the Agency could have found "good cause" to
reopen the January XX, 2003 determination that C2 was not entitled to benefits.
5. Alabama accreditation for genetic testing.
Under Alabama law, there are no specific accreditation requirements for genetic testing
in connection with establishing paternity. However, as stated in POMS PR 01115.001C, genetic identification technology through DNA testing is specifically recognized
by Alabama statute as generally accepted by the relevant scientific community. See id.; see
also Ala. Code § 36-18-20 (the statute declaring DNA testing as generally accepted by
the relevant scientific community). In addition, DNA tests are recognized by Alabama
statute for the purpose of establishing paternity. See Ala. Code § 26-17-12.
Although there is no statutory or case law in Alabama that specifically addressed
the accreditation of laboratories conducting DNA testing to establish paternity, we
note that the issue of accreditation for genetic testing laboratories was addressed
in J.H.H. v. State, 897 So.2d 419 (Ala. Crim. App. 2004), and may serve as useful guidance for addressing
accreditation issues in connection with paternity rights. In J.H.H., the court noted that:
[o]ur research has not revealed any case where the appellate courts of this State
have addressed whether the laboratory's accreditation, or lack of accreditation, affects
the admissibility of its DNA test results. However, we agree … that the accreditation
status of the laboratory conducting the DNA tests, standing alone, does not render
the test results inadmissible, but that the laboratory's accreditation status is a
factor that can be considered by the trier of fact when assessing the weight it assigns
to this evidence.
Id. Thus, Alabama does not require genetic testing to be conducted by an accredited laboratory
to establish paternity rights, and a lack of accreditation appears to affect only
the weight of such evidence, not its admissibility.
In this case, Reliagene's stationary notes that it is "accredited by the Parentage
Testing Committee of the American Association of Blood Banks." Likewise, Reliagene's
website identifies that it is also accredited by the National Forensic Science Technology
Center for compliance with the Quality Standards of the DNA Advisory Board, the College
of American Pathologists, and the American Society of Crime Lab Directors/Laboratory
Accreditation Board in the discipline of DNA. See Reliagene Technologies, Inc., http://www.reliagene.com/index.asp?content_id=accred&menu_id=aboutus (last visited Nov. 2, 2005).
CONCLUSION
The genetic testing performed in this case can establish a rebuttable presumption
of paternity that NH is the father; however, this DNA testing cannot rebut the controlling presumption that Donald is the father of either C1 or C2. Thus,
when taking into the account the evidence before the Agency, an Alabama court would
find C1 and C2 to be the children of Donald , and an Agency adjudicator could not
conclude that C1 and C2 are NH's children for entitlement purposes. If C1 and C2 had
qualified as NH's children under Alabama law, they would not have inherited in the
same manner as if they were legitimate, and would have been paid prospectively from
the date of the DNA testing. Because these children would not have been paid retroactively,
the Agency would not need to reopen their prior applications. Furthermore, Alabama
does not require genetic testing to be conducted by an accredited laboratory to establish
paternity rights, and a lack of accreditation appears to affect only the weight of
such evidence, not its admissibility.
Mary Ann Sloan
Regional Chief Counsel
Brian Seinberg
Assistant Regional Counsel