QUESTION
You asked whether a parent-child relationship existed between number holder Norman
(NH) and claimant Pete for purposes of determining Pete’s eligibility for child’s
survivor’s insurance benefits, where DNA evidence indicates that Pete is the full
biological sibling of Nicole, Norman’s natural daughter.
SHORT ANSWER
Yes. As the agency determined that Nicole was the NH’s natural child, we apply Social
Security Ruling (SSR) 06 02p and Guam intestacy law to conclude, based on DNA and
other evidence, that Pete is also the NH’s natural child.
SUMMARY OF EVIDENCE
The NH, Norman, was born on May in the Philippines. According to Pete’s representative
payee, Ruben, the NH resided in Guam at the time of his death. Ruben obtained this
information through communications with members of the NH’s family still residing
in Guam.
The NH is listed as the father on the birth certificate of Nicole, born on October
at the Guam Memorial Hospital in Oka, Tamuning, Guam. The NH signed the birth certificate
certifying that the personal information provided was correct. Next to the NH’s signature,
in a box called “Relation to Child,” appears the handwritten word: “father.”
The NH is also listed as the father on the birth certificate of Pete, the claimant,
born on November at the Guam Memorial Hospital in Oka, Tamuning, Guam. Although the
claim information we received indicates that Pete’s parents were never married, we
note that the Guam administrative rules for birth certificates provide that the child’s
last name will be the same as that of the mother’s last name on the date of birth
if the mother is unmarried at the time of conception or birth. See 26 Guam Admin. Rules & Regs. § 2104. Here, Pete’s birth certificate gives his last
name as that of the NH. We have no information to explain this discrepancy.
The NH did not sign his name in a box on Pete’s birth certificate that states, “I
certify that the personal information provided on this is correct to the best of my
knowledge and belief.” Instead, that box was signed by Pete’s mother, Marissa.
In a certified report dated May 4, 2011, Laboratory Corporation of America in Burlington,
North Carolina, stated that Pete, his mother, and Nicole were genetically tested to
evaluate whether Pete and Nicole were full siblings or half siblings. The results
of the DNA testing revealed that the probability of Pete and Nicole being full siblings
was 99.99%.
Currently, Pete’s mother lives in Sarasota, Florida. According to a report of contact,
she “remarried and divorced,” but her children were never adopted. Although the report
of contact indicates that Pete’s mother “remarried,” the San Marcos office also indicated
in internal emails that Nicole and Pete were born “out of wedlock.”
Pete now resides in Texas.
The agency’s San Marcos, Texas office determined that Nicole was the NH’s natural
child, making her eligible for survivor’s insurance benefits. The field office’s determination
turned on the fact that the NH signed Nicole’s birth certificate as her father, based
on the existing policy guidance regarding Guam intestacy law. See Programs Operations Manual Support (POMS), GN 00306.465 (discussed below).
ANALYSIS
Federal Law
Under the Social Security Act (Act), every unmarried minor child of an insured individual Here,
the term “insured individual” refers to an individual entitled to old-age or disability
insurance benefits. See Social Security Act § 202(d)(1), 42 U.S.C. § 402(d)(1). shall be entitled to child
insurance benefits. Social Security Act § 202(d)(1), 42 U.S.C. § 402(d)(1). However,
to receive child insurance benefits the applicant must qualify as the insured individual’s
“child,” as defined by section 216(e) of the Act, and be dependent on the insured
individual at the time he filed his application for child’s insurance benefits. See id.; 20 C.F.R. § 404.350. Section 216(e)(1) of the Act defines a “child” as “the child
or legally adopted child of an individual.” Social Security Act § 216(e)(1), 42 U.S.C.
§ 416(e)(1).
Section 216(h) of the Act provides further elaboration on the definition of child:
“[i]n determining whether an applicant is the child...[of] the insured individual...apply
such law as would be applied in determining the devolution of intestate personal property
by the courts of the State in which [the insured] was domiciled.” Section 216(h)(2)(A)
of the Act, 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. ' 404.355(a)(1). An applicant who
satisfies the requirements of section 216(h)(2)(A) of the Act is also deemed dependent
upon the insured individual. 20 C.F.R. ' 404.361(a) (“If you are the insured’s natural
child, as defined in § 404.355, you are considered dependent upon him or her”); SSR
77-2c (“where state intestacy law provides that a child may take personal property
from a father’s estate, it may reasonably be thought that the child will more likely
be dependant during the parent’s life...”).
SSR 06-02p provides that, if another person (C1) is determined to be the insured’s
natural child under section 216(h)(3) of the Act, Pursuant to section 216(h)(3)(C)(i)(I)
of the Act, a claimant will be found to be the child of a insured deceased individual
if the insured individual acknowledged the claimant in writing as his or her son. Section
216(h)(3)(C)(i)(I) of the Act, 42 U.S.C. § 416(h)(3)(C)(i)(I). The San Marcos office
considered the NH’s signature on Nicole’s birth certificate to be a written acknowledgement
of parentage by the NH. While the field office based its conclusion on POMS GN 00306.465, regarding Guam law, the same writing meets the elements of section 216(h)(3)(C)(i). See POMS GN 00306.100.B.1 & E.2 (Entitlement Requirements – Section 216(h)(3) Child).
The agency may consider the applicant’s (C2) biological relationship with C1 for purposes
of determining whether C2 is also the natural child of the insured individual under
section 216(h)(2)(A). SSR 06-02p. The agency will apply the intestacy law of the
state where the insured was domiciled at his time of death to determine whether the
results of a DNA test between C1 and C2 establish C2 as the insured’s child. Id.
SSR 06-2p and Guam Law
Under Guam law, a child’s right to inherit through intestate succession depends upon
the existence of a parent-child relationship. 15 Guam Code § 815(a). A parent-child
relationship exists where such relationship is established under “applicable Guam
laws.” 15 Guam Code § 815(d). However, neither Guam statute nor case law clearly defines
the elements for establishing a parent-child relationship. Title 19, Chapter 4 of
the Guam Code, entitled “Parent and Child,” defines the manner for finding a child
“legitimate,” but nowhere does the Code state that a child must be legitimate for
a parent-child relationship to exist. We have not found a clear legal foundation
for the statement of Guam intestacy law in POMS GN 00306.465. The POMS section pulls from various sections of the Guam Code; however, its interpretation
of the current law appears incomplete. See POMS GN 00306.465. For instance, the POMS section states that a parent-child relationship exists if
the child’s parents intermarry or the father acknowledges the child in a writing signed
in the presence of a competent witness. Id. These methods of establishing a parent-child relationship are found in Guam Code
section 4124, which sets out methods for legitimating children. See 19 Guam Code § 4124(a). As discussed in the text, Guam law does not require that
a child be legitimate in order for a parent-child relationship to exist. Accordingly,
we recommend that POMS GN 00306.465 be revised to more accurately reflect Guam law.
19 Guam Code §§ 4101, 4102, 4124(a). To the contrary, section 815 of the Guam Code,
makes no distinction between legitimate and illegitimate children for purposes of
intestacy rights. 15 Guam Code § 815. Guam’s official annotated comment following
section 815 indicates that the code section was revised at least in part to eliminate
the requirement that a child be legitimate in order to inherit from his or her parent’s
estate. Notably, California’s Probate Code, from which Guam’s section 815 was initially
adapted, expressly states the marital status of a child’s natural parents is irrelevant
when determining the existence of a parent-child relationship for purposes of intestacy. Cal.
Prob. Code § 6450(a). 15 Guam Code Ann. § 815 (Comment: “Section 815 does not refer
to illegitimate children at all: rather, it makes succession dependent on the existence
of a ‘parent-child relationship,’ which can come about in a variety of ways”) (emphasis added); see also 15 Guam Code Ann. § 915 (Comment: “Although the Commission does not condone illegitimacy,
illegitimate children nonetheless exist; and to deny them succession to their parents’
estates would perhaps work an additional hardship on them”). In sum, though a child’s
right to inherit under Guam intestacy law turns on the existence of a parent-child
relationship, Guam does not explicitly specify the elements for establishing such
a relationship.
Other provisions in the Guam Code provide guidance regarding the evidence necessary
to establish a parent-child relationship. For purposes of determining a father’s liability
for child support, Guam provides that paternity can be established through clear and
convincing evidence, including DNA test results. See 5 Guam Code §§ 34119(d) & (i). If genetic testing reveals a likelihood of at least
95% that the tested person is the child’s father, paternity will be conclusively presumed. Id. Accordingly, under Guam law, DNA evidence provides at least one possible avenue for
establishing a parent-child relationship. Here, though Pete cannot show an independent
genetic connection to the NH, DNA results show that Pete has a 99.99% likelihood of
being Nicole’s brother.
Pursuant to SSR 06-02p, having determined Nicole to be the NH’s natural daughter,
we apply Guam law to determine whether Pete’s genetic relationship to Nicole establishes
that he is also the NH’s child. SSR 06-02p. Because Guam accepts the results of genetic
testing with a probability of 95% or greater to be clear and convincing evidence of
a biological relationship for purposes of paternity, it is likely that Guam would
also find such evidence presumptive in establishing a full sibling relationship. Therefore,
application of SSR 06-02p and Guam law, result in a rebuttable presumption that Pete
is Nicole’s brother, and thus, the NH’s natural child.
Moreover, SSR 06-02p provides for the consideration of additional evidence supporting
the existence of a parent-child relationship. Id. (“we will apply the law of intestate succession of the appropriate State to determine
whether the results of the DNA test between C1 and C2 (and any other evidence of C2’s relationship to the worker) establish C2’s status as the worker’s child”) (emphasis added). Here, the NH was
listed as the father on Pete’s birth certificate, and Pete has the NH’s last name,
further supporting the presumption that Pete is the NH’s child. See 26 Guam Admin. Rules & Regs. § 2104 and footnote 1, above.
CONCLUSION
Given the 99.99% likelihood that Pete and Nicole are full biological siblings, and
having determined that Nicole is the natural child of the NH, we conclude that Pete
is also the NH’s natural child. This conclusion is consistent with the agency policy
expressed in SSR 0602p, and the application of the relevant provisions of Guam law.