QUESTION
You asked whether the claimant, O~, qualifies for child’s survivor insurance benefits
as the child of the number holder (NH), T~, in light of genetic tests performed on
the NH’s parents that showed a 99.99% probability of grandpaternity.
SHORT ANSWER
We do not have sufficient evidence to find that the claimant would be considered the
NH’s child under California Although we were originally asked whether the child would
qualify under Ohio intestacy law, because the NH was domiciled in California when
he died, we consider only California law. We discuss these legal requirements in
more detail in the text, below. intestacy law because the NH did not take sufficient
actions to “hold out” the child as his own during his lifetime. California law does
not rely on the biological relationship for purposes of intestate succession and therefore
the DNA evidence does not address the relevant legal requirements.
SUMMARY OF EVIDENCE
The claimant, O~, was born in April in Lima, Ohio. The NH, T~, died in October, while
domiciled in California. He was not entitled to benefits before his death.
On November XX, 2010, the claimant’s mother, R~ filed an application seeking child
survivor’s benefits for the claimant on the NH’s earnings record. R~ indicated that
she lived in Ohio with the claimant.
On the “Child Relationship Statement,” Form SSA-2519, R~ answered “no” to the following
questions about the NH:
(a) whether he ever filed an application with or otherwise made a statement to the
Veterans Administration, any government agency or welfare office stating the child
was his;
(b) whether he had written any letters to anyone referring to the child as his daughter
or to himself as her parent;
(c) whether he ever listed the child in a family tree or other family record;
(d) whether the worker ever listed the child as a dependent on a tax return;
(e) whether he ever took out insurance policies on the child or made the child a beneficiary
of an insurance policy on his own life;
(f) whether he ever made a will listing the child as a beneficiary;
(g) whether he ever made an allotment for the child while in the military;
(h) whether he ever listed the child as his on any employment application;
(i) whether he ever registered the child in school or at a place of worship, or signed
a report card as the child’s parent;
(j) whether he ever took the child to the doctor’s or dentist’s office or the hospital
and list himself as a parent;
(k) whether he ever accepted responsibility for or paid the child’s hospital expenses
at birth or gave information for the birth certificate;
(l) whether there was any written evidence of any kind that would show that the child
was his sons; and
(n) whether the worker was making regular and substantial contributions to the child’s
support at the time the worker died?
R~ answered “yes” only to Question (m), indicating that the NH had orally admitted
he was the child’s parent. On page 2 of Form SSA-2519, O~ stated that the NH told
his parents that the claimant was his son. She further stated that she never married
nor lived with the NH prior to his death; the NH never contributed to R~’s or the
claimant’s support; and no court had ordered such support.
R~ also submitted a DNA analysis of the NH’s parents, T2~ and D~, performed by Laboratory
Corporation of America in Burlington, North Carolina. In a DNA analysis report dated
December XX, 2010, Dr. K~, the Director of Laboratory Corporation, stated under oath
that the testing showed a 99.99% probability that T2~ and D~ were the claimant’s biological
grandparents as compared to untested, unrelated persons. The report further stated
that the alleged paternal grandparents could not be excluded as the claimant’s biological
grandparents and the result supported the assertion that “a son of” the paternal grandparents
“could be the biological father” of the claimant.
The DNA analysis was ordered by the Child Support Enforcement Agency (CSEA) of Van
Wert County, Ohio, in connection with a paternity case brought against the deceased
NH on the claimant’s behalf. A February XX, 2011 memorandum to R~ from a CSEA case
manager stated that CSEA “could not issue an administrative order declaring T~ to
be the father of O~ ” because it was not able to test the NH’s genetic material. However,
because the test results indicated that T2~ and D~ could not be excluded as the biological
grandparents, Ohio law required the CSEA to “open an estate thru [sic] Probate Court
in hopes of obtaining a Court Order declaring T~ to be the father of O~.” The February
XX, 2011 letter further indicated that CSEA’s legal department was “hoping to get
a consent entry drawn up,” and if it was approved by the judge, it might result in
an Ohio court order establishing paternity. We do not have any evidence as to whether
the claimant later obtained an Ohio court order establishing paternity. However, because
we consider the law of the NH’s domicile at the time of death, we would still look
to California and not Ohio law to determine the claimant’s eligibility for child survivor
benefits. See Social Security Act § 216(h)(2)(A), 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1).
If the claimant had a paternity order from Ohio, we would analyze how California would
treat that order.
ANALYSIS
Pursuant to the Social Security Act (Act), an unmarried child who is under the age
of 18 and applies for benefits may be eligible for child’s insurance benefits on the
account of an individual who dies fully or currently insured, if he or she: (1) is
the insured’s “child,” as defined in 42 U.S.C. § 416(e); and (2) was dependent upon
the insured at the time of the insured’s death. Social Security Act § 202(d), 42 U.S.C.
§ 402(d)(1)(A)-(C); 20 C.F.R. § 404.350(a)(1)-(5).
A “child” is defined as the child, legally adopted child, stepchild (for at least
one year before the application for child’s insurance benefits is filed), or, in limited
circumstances, grandchild of an insured individual. Social Security Act § 216(e),
42 U.S.C. § 416(e); see also 20 C.F.R. § 404.354 (explaining that the definition of “child” includes “natural
child, legally adopted child, stepchild, grandchild, stepgrandchild, or equitably
adopted child”).
In determining whether a claimant qualifies as the child of the insured individual,
and where the insured is deceased, the Commissioner must apply the law governing “the
devolution of intestate personal property . . . by the courts of the State in which
he was domiciled at the time of his death.” Social Security Act § 216(h)(2)(A), 42
U.S.C. § 416(h)(2)(A); see also 20 C.F.R. ' 404.355(a)(1). If the child does not qualify under the state law provision,
the Act contains alternative federal standards for establishing child status: (1)
the claimant is the insured’s natural child and the mother or father went through a ceremony, which would have resulted in a valid
marriage between them except for a “legal impediment;”(2) before his death, the insured acknowledged in writing that the child was his natural child; he was
decreed by a court to be the father; or he was ordered by a court to contribute to
the child’s support because the claimant was his child; (3) the insured is shown by
evidence satisfactory to the Commissioner to have been the child’s father, and he was living with or contributing to the child’s support at the time of his death. Social
Security Act §§ 216(h)(2)(B), 216(h)(3)(C); 42 U.S.C. §§ 416(h)(2)(B), 416(h)(3)(C);
20 C.F.R. § 404.355(a); see also POMS GN 00306.010(A)(1) (“A natural child is a child who is born to the parent, i.e.,
biological child”). The evidence submitted shows that the claimant cannot meet these
requirements because R~ and the NH never attempted to marry, there was no written
acknowledgment or court decree during the NH’s lifetime, and he did not live with
or contribute to the claimant’s support at the time of his death. If an applicant
establishes that he is the insured’s child under this provision, he is deemed dependent
upon the insured, unless he has been adopted by someone else and the insured is not
living with the child or contributing to the child’s support. Social Security Act
§ 202(d)(3), 42 U.S.C. § 402(d)(3); 20 C.F.R. § 404.361.
Because the NH was domiciled in California when he died, we look to California intestacy
law to determine child status. Under California intestacy law, a child may inherit
the intestate estate of his natural parent. Cal. Prob. Code §§ 6401, 6402 (West 2011);
see also Cal. Prob. Code § 6450 (West 2011) (“The relationship of parent and child exists
between a person and the person’s natural parents, regardless of the marital status
of the natural parents.”); Program Operations Manual System (POMS) GN 00306.430 (“California Intestacy Laws”).
For the purpose of determining who is a “natural parent,” the natural parent-child
relationship is established “where that relationship is presumed and not rebutted
pursuant to the Uniform Parentage Act [UPA].” Cal. Prob. Code § 6453(a) (West 2011). California
has incorporated the UPA as Family Code sections 7600-7730. The UPA as codified in
the California Family Code does not equate natural parent status with biological parenthood
such that a mere biological relationship is sufficient to grant status as a natural
parent. Cal. Fam. Code §§ 7610-7614; see e.g., Vernoff v. Astrue, 568 F.2d 1102, 1108 (9th Cir. 2009) (considering California parentage law).
The NH would not be considered the claimant’s presumed father under any provision
of the California Family Code. The evidence indicates the NH was not married to,
nor did he ever attempt to marry R~, and he never signed a voluntary declaration of
paternity. See Cal. Fam. Code § 7540 (West 2011) (conclusive presumption as child of marriage);
id. § 7576 (conclusive presumption where father signs voluntary declaration); id. § 7611(a)-(c) (presumptions based on marriage and attempted marriage). Also, the
NH never “receive[d] the child into his home and openly [held] out the child as his
natural child.” Cal. Fam. Code § 7611(d) (West 2011). He thus cannot satisfy California
Probate Code section 6453(a).
Alternatively, the relationship may be established under the UPA by a legal action
“brought by the child or personal representative of the child . . . [or] . . . the
mother.” Cal. Fam. Code § 7630(c) (West 2011). However, such an action establishes
paternity for the purpose of intestate succession only if:
-
1.
a court order declaring paternity was entered during the father’s lifetime; or
-
2.
paternity is established by clear and convincing evidence that the father has openly
held out the child as his own; or
-
3.
it was impossible for the father to hold out the child as his own, and paternity is established by clear and convincing evidence.
Cal. Prob. Code § 6453(b) (West 2011) (emphasis added).
Although the claimant may be pursuing a paternity action through his county CSEA in
Ohio, no court determined paternity during the NH’s lifetime. Nor would it have been
impossible for the NH to hold out the claimant as his child because he died six months
after the child’s birth. See Cheyanna M. v. A.C. Nielsen Co., 78 Cal. Rptr. 2d 335, 349 (Cal. Ct. App. 1998) (explaining, that the “impossibility”
provision is meant to “cover the situation . . . where the father dies before the
child is born”). Therefore, the claimant cannot meet the requirements of California
Probate Code sections 6453(b)(1) or (b)(3).
The only remaining means of establishing the natural parent-child relationship would
be by showing “clear and convincing evidence” that the NH openly held out the claimant
as his own, pursuant to Probate Code section 6453(b)(2). The “clear and convincing”
standard of proof “requires a finding of high probability . . . [so] as to leave no
substantial doubt.” Weeks v. Baker & McKenzie, 74 Cal. Rptr. 2d 510, 533 (Cal. Ct. App. 1998). The high standard of proof is intended
to discourage dubious paternity claims made after death for the sole purpose of inheritance. Estate of G~, 96 Cal. Rptr. 3d 651, 654 (Cal. Ct. App. 2009). “Under California law, a child born
out of wedlock is the decedent’s heir even if there has been no formal declaration or judgment of paternity in the decedent’s lifetime, if the decedent
received a child into his home and held the child out as his natural child. Probate
Code section 6453 . . . adds the requirement that when the relationship is established
that way, the evidence of holding out must be ‘clear and convincing.’” Estate of Carter v. Carter, 4 Cal. Rptr. 3d 490, 496 (Cal. Ct. App. 2003) (emphasis in original; citation omitted);
accord Ramirez v. Astrue, No. 10-5553-JEM, 2011 WL 2134977, at *4 (C.D. Cal. May 31, 2011) (unpublished) (upholding Commissioner’s
denial of survivor’s benefits under California law, even though NH was claimant’s
biological father, because the NH never “held [claimant] out as his own” child during
his lifetime and there “was no actual dependency”).
Although the agency does not require actual court action, it does adhere to the “clear
and convincing” standard of proof that the California court would use. See 20 C.F.R § 404.355(b)(2) (“If applicable State inheritance law requires a court determination
of paternity, we will not require that you obtain such a determination but will decide
your paternity by using the standard of proof that the State court would use as the
basis for a determination of paternity.”); POMS GN 0306.430(A)(1)(b)(7) (same). Here,
the only evidence of “holding out” consists of the NH’s purported oral statement that
he was the claimant’s father. This evidence is not sufficiently clear and convincing.
The claimant’s mother alleges that the NH orally admitted paternity to his parents.
We have no direct evidence of a written or oral admission by the NH by a party to
the alleged conversation. Even if the NH’s oral statement was substantiated by his
parents, a putative father’s statement admitting paternity to some family members
is not clear and convincing evidence of “openly holding out” under California law. See In re Spencer, 56 Cal. Rptr. 2d 524, 526 (Cal. Ct. App. 1996) (concluding that claim of paternity
to friends and family insufficient evidence of “holding out”). Although such statements
may be probative, “openly holding out” involves more than privately acknowledging
paternity. See In re Estate of B~, 53 Cal. Rptr. 3d 390, 396 (Cal. Ct. App. 2007) (concluding “clear and convincing”
standard met where putative father acknowledged in writing that he was a “party to
conception,” asked the child’s mother to marry him, and admitted to his own family
as well as child and child’s mother that he was the father). Rather, a putative father
openly holds a child out as his own by declaring paternity when there may be some
cost to him, such as consequent liability for child support. See Spencer, 56 Cal. Rptr. 2d at 526 (considering facts that “[putative father] never contacted
AFDC officials to inform them of his relationship to [child],” “never sought to have
his name put on [child’s] birth certificate, and took no other legal action during
this period to establish paternity.”). California case law does not uniformly require
that acknowledgment of paternity entail some cost to the purported father. For example,
in Estate of G~, 25 Cal. 4th 904 (Cal. 2001), the California Supreme Court stated that word “acknowledge”
as used in the Probate Code means, according to dictionary definitions, “to admit
to be true or state; confess” and “to show by word or act that one has knowledge of
and agrees to (a fact or a truth) . . . [or] concede to be real or true . . . [or]
admit”].” G~, 25 Cal. 4th at 911. The G~ court held that the biological father had acknowledged the child because he declared
before a court that the child in question was his and paid court-ordered child support
monthly until the child turned eighteen. Id. However, the Timothy Court upheld a paternity determination when the father had not incurred any financial
detriment but admitted paternity “on a number of occasions to a number of people,
both orally and in writing.” Timothy, 53 Cal. Rptr. 3d at 396.
In this case, the NH did not openly declare paternity in a manner consistent with
the California standard. We have no evidence that, for example, he acknowledged paternity
in writing, broadly recognized his relationship to the child or his mother, attempted
to have his name placed on the claimant’s birth certificate, signed a voluntary declaration
of paternity, was present at the claimant’s birth, was willing to assume physical
custody, tried to provide for the claimant financially, or provided any monetary or
in-kind support for the claimant. See, e.g.. Timothy, 53 Cal. Rptr. 3d at 396; Spencer , 56 Cal. Rptr. 2d at 526; accord POMS PR 01010.006(C) California No. PR 04-115 (concluding that putative father had not openly held out child as his
own where he had attended lived with child’s mother as matter of convenience unknown
to state authorities); PR 01115.006(G) California No. PR 05-013 (concluding that holding out requirement had not been met where only
evidence during two years before father’s death was short note). Thus, the claimant
has not presented clear and convincing evidence that the NH openly held out the claimant
out as his natural child under California Probate Code § 6453(b)(2).
The DNA test results from the NH’s parents do not alter this conclusion. Although
the California Family Code includes provisions for consideration of genetic evidence,
these provisions are not part of the UPA and are not incorporated by Probate Code
section 6453. Compare Family Code §§ 7600-7730 (UPA) with §§ 7522-7555 (Uniform Act on Blood Tests to Determine
Paternity). While DNA evidence to prove paternity under Family Code section 7555(a)
may be relevant to establish custody or support during the father’s lifetime, it is
not a sufficient basis for establishing intestate succession under Probate Code section
6453. See R~, 2011 WL 2134977 at *4 (construing Probate Code § 6453); B~, 53 Cal. Rptr. 3d at 396 (holding that admission of DNA evidence was irrelevant to
question of intestate succession); Spencer, 2 Cal.App.4th at 471 (denying illegitimate child’s request for DNA testing on ground
that it was irrelevant to determination of intestate succession because the Probate
Code does not provide for DNA evidence as an alternate basis for establishing paternity).
The agency has previously recognized that DNA evidence is not sufficient to meet the
requirements of California law under even more compelling facts, such as where DNA
testing of the father himself showed 99.99% likelihood of paternity. POMS PR 01115.006(H) California No. PR 03-016 (concluding that, despite DNA evidence, father had not held child out
as his own). Similarly, the agency has found DNA evidence from grandparents insufficient
in the absence of clear and convincing evidence that the father held out the child
as his own when he had the opportunity to do so. POMS PR 01115.006(V) California No. PR 00-113 (concluding evidence did not show holding out despite grandparent DNA
testing showing 99.99% probability of paternity when father died nearly seven months
after child’s birth); compare PR 01115.006(E) California No. PR 06-349 (concluding grandparent DNA evidence could be considered where father
died before child’s birth, father had no living male sibling, and other evidence established
the father’s relationship with the mother). Thus, the question of whether the grandparents’
DNA is sufficient to establish paternity need not be considered because the “holding
out” requirement has not been met.
CONCLUSION
The claimant would not be able to inherit from the NH under California intestacy law. The
NH did not hold out the claimant as his child when he was alive and it was not impossible
for him to do so, nor did any court establish the parental relationship prior to the
NH’s death. In the absence of this evidence, California law does not consider the
biological relationship. We therefore conclude that the claimant would not be eligible
for child’s insurance benefits on the NH’s earnings record. If the claimant obtains
a paternity order from an Ohio court or presents any additional evidence regarding
“holding out,” we will be able to consider whether these facts change the analysis
and conclusion.