Because there is no chain of custody and there is no way to verify that the samples actually came from the number holder or the claimant, a Paternity Screening Report issued as the result of an in-home DNA test would likely be inadmissible in a Missouri Court. The evidence remaining in this case without the test is insufficient to rebut the presumption that the mother's husband at the time is the father of the claimant.

You asked whether an applicant may receive child’s benefits based on the account of an insured number holder who provided mail-order, in-home DNA test results indicating he was the child’s biological father. Based upon the information provided and our analysis of the applicable law, it appears that the child would not be entitled to benefits on the insured’s record.

FACTS

The information you provided indicates that the child-applicant, Alexandra T~, was born in Missouri on September 19, 1993. Allen R. T~ is named as her father on her birth certificate and in Social Security records. On July 9, 2009, Glenwood T~ (number holder) went to the St. Peter’s field office and filed an application for child’s benefits for Alexandra T~ based on his receipt of disability benefits. The number holder stated that he had become aware that Alexandra might be his daughter about a year earlier when she sought him out and suggested he was her father. At that time, the number holder insisted that he and Alexandra undergo a paternity test. The number holder stated that he and Alexandra were mailed testing kits which they used to swab their mouths. They then sent the kits to the laboratory. He presented a document to the field office staff entitled Paternity Screening Report from a company called Genetic Identity. The number holder told the field office staff that, based on the test results, he was convinced that Alexandra was his daughter.

The Paternity Screening Report was dated October 14, 2008. It stated that Glenwood T~ was the alleged father and “Allie T~” was the child. We assume “Allie” is Alexandra. The report stated that the probability of paternity was 99.999339 percent with a prior probability of .5 as compared to an untested, unrelated man of the Caucasian population. A note at the bottom of the report states that the “samples were not collected according to AABB guidelines and the laboratory cannot verify the origin of the DNA samples.” The report is signed by Robert A~, Ph.D., Chief Scientific Officer. The report also includes the website address www.paternityexperts.com. A review of the website’s Frequently Asked Questions section revealed that the company offers “personal” paternity tests and “legal” paternity tests. The personal tests, which is what the number holder and Alexandra used, do not include an identification process or any chain of custody procedures. The company website states that the personal test results are not admissible in a court of law.

You also obtained additional information from Alexandra’s mother, Dawn T~. She stated that she was married to Allen T~ from 1986 to 2003. She stated that they were separated for approximately six months during which time she had a relationship with the number holder. Mrs. T~ did not deny that the number holder was Alexandra’s biological father, however, she stated she was under the impression that Allen T~ was considered Alexandra’s father because she was born during the marriage. She also reported that Allen T~ pays child support on behalf of Alexandra. Alexandra lived with the number holder for one month, but currently lives with her mother. Mrs. T~ also reported that the number holder collected a swab from Alexandra for DNA testing while she was in a McDonald’s.

ANALYSIS

A child of an individual who receives disability benefits pursuant to the Social Security Act is entitled to child's insurance benefits if he or she is the insured’s child as defined in 42 U.S.C. § 416(e), has applied for such benefits, is unmarried, is under the age of 18, and was dependent upon the insured at the time the application for child’s benefits was filed. See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350. Section 416(e) defines a “child” as (1) the child or legally adopted child of an individual, (2) a stepchild under certain circumstances, or (3) a person who is the grandchild or stepgrandchild under certain circumstances. See 42 U.S.C. § 416(e). If the applicant for child’s benefits is the insured's child as defined in section 416(e), he or she is also considered dependent upon the insured for purposes of determining eligibility for child’s benefits. See 20 C.F.R. § 404.361(a).

The Social Security Act provides four mechanisms for determining “child” status:

1. The applicant could inherit the insured’s property as the insured’s child under the law of intestate succession in the state where the insured was domiciled at the time the child filed the application. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b);

2. The claimant is the insured's natural child and the insured went through a marriage ceremony with the child’s other natural parent which resulted in a purported marriage between them that, except for a procedural defect, would have been a valid marriage. See 42 U.S.C. § 416(h)(2)(B); 20 C.F.R. § 404.355(a)(2);

3. Prior to the commencement of the insured’s period of disability, the insured acknowledged in writing that the applicant was his natural child; the insured 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. See 42 U.S.C. § 416(h)(3)(B)(i); 20 C.F.R. § 404.355(a)(3); or

4. The insured is shown by evidence satisfactory to the Commissioner of Social Security to be the child's father, and the insured was living with or contributing to the child's support at the time the child filed the application for benefits. See 42 U.S.C. § 416(h)(3)(B)(ii); 20 C.F.R. § 404.355(a)(4).

If the evidence establishes any of the above factual scenarios, the applicant is considered the insured’s child for purposes of entitlement to child’s benefits. See 42 U.S.C. § 416(h)(3).

In order to determine whether Alexandra is entitled to benefits based on the number holder’s account, we must first determine whether she could inherit from the number holder under the Missouri laws of intestate succession. In Missouri, the child of a decedent may inherit the decedent’s intestate property. See MO. ANN. STAT. § 474.010. Thus, it is necessary to determine whether Alexandra is the number holder’s child as that term is used in the Missouri intestacy statutes.

Alexandra was born while her mother was married to Allen T~. Missouri law states that a man is presumed to be the natural father of a child born while he and the child’s mother are married. See MO. ANN. STAT. § 210.822(1)(1). The presumption can be rebutted “in an appropriate action only by clear and convincing evidence.” See MO. ANN. STAT. § 210.822(2). Because Alexandra is presumed the child of Allen T~, she could not inherit through intestate succession from the number holder unless there is clear and convincing evidence to rebut the presumption of Allen T~’s paternity.

The Eighth Circuit has adopted the Missouri Court of Appeals definition of “clear and convincing” proof as that “which ‘instantly tilt[s] the scales in the affirmative when weighed against evidence in opposition,’ and clearly convinces the factfinder that the evidence is true.” Eldridge for Eldridge v. Sullivan, 980 F.2d 499, 500 (8th Cir. 1992) (citing Sherrill for Sherrill v. Bowen, 835 F.2d 166, 168 (8th Cir. 1987) (quoting In re Michael O’Brien, 600 S.W.2d 695, 697 (Mo. Ct. App. 1980)). See also Jones v. Chater, 101 F.3d 509, 511 (7th Cir. 1996) (Missouri’s intestacy statute requires clear and convincing evidence of paternity); State of Missouri v. Tuckness, 949 S.W.2d 651 (Mo. Ct. App. 1997) (“The clear and convincing standard refers to evidence which instantly tilts the scales in the affirmative when weighed against the evidence in opposition, and the fact finder’s mind is left with an abiding conviction that the evidence is true.”) (citing In re Marriage of Jennings, 910 S.W.2d 760, 763 (Mo. Ct. App. 1995)). Other courts have defined clear, convincing, and cogent evidence as that which admits no reasonable doubt. Eldridge, 980 F.2d at 500 (citations omitted).

The evidence supporting a finding that the number holder is Alexandra’s father consists of his oral statement to the field office staff that he believes Alexandra is his child and the results of the in-home DNA test. DNA test results are generally considered reliable evidence and can even raise a presumption of paternity. See MO. ANN. STAT. § 210.822(1)(4). However, the Paternity Screening Report states that the samples tested “were not collected according to AABB guidelines and the laboratory cannot verify the origin of the DNA samples.” Additionally, the company website states that the results of a personal paternity screening cannot be used in court because a strict chain of custody and identification procedures are not used. The Missouri Court of Appeals has stated that, “[b]lood test results must be supported by evidence establishing the chain of custody. A proper evidentiary foundation must be laid concerning the methods employed and the qualifications of those who did the testing and interpreted the results.” Yokley v. Townsend, 849 S.W.2d 722, 725 (Mo. Ct. App. 1993). Because there is no chain of custody and there is no way to verify that the samples actually came from the number holder or Alexandra, the Paternity Screening Report would likely be inadmissible in a Missouri Court. Because the DNA test results would not be admissible, the court would be left with only the number holder’s oral statement that he believes Alexandra is his daughter. The statement alone does not “clearly convince the factfinder that the evidence is true.” See Eldridge, 980 F.2d at 500. Therefore, the facts as they currently stand would not overcome the presumption that Allen T~ is Alexandra’s father. Because Allen T~ is Alexandra’s father under Missouri law, she would not be allowed to inherit through intestate succession as the number holder’s child.

Alexandra is not eligible for child’s benefits pursuant to the first statutory provision because she cannot inherit from the number holder. She is also not eligible for child’s benefits under any of the three other methods of determining “child” status. The second method requires a marital relationship between the natural parents to establish eligibility. See 42 U.S.C. § 416(h)(2)(B); 20 C.F.R. § 404.355(a)(2). There is no evidence that the natural parents are or were ever married.

The third method for establishing eligibility requires a determination of whether the number holder, prior to the commencement of the number holder’s period of disability, acknowledged in writing that Alexandra was his natural child, was decreed by a court to be Alexandra’s father, or was ordered by a court to pay child support for Alexandra. See 42 U.S.C. § 416(h)(3)(B)(i); 20 C.F.R. § 404.355(a)(3); Program Operations Manual System (POMS) GN 00306.100. The number holder became eligible for disability benefits in March 2004. According to his statements to the field office staff, the number holder did not become aware of the possibility that Alexandra was his daughter until about a year earlier, in 2008. Therefore, it would be impossible for the number holder to have acknowledged his paternity in writing prior to the commencement of his period of disability in March 2004. Additionally, according to information you provided, there has never been a court order regarding the number holder’s paternity or requiring him to pay child support for Alexandra.

The final statutory method of establishing Alexandra’s eligibility to receive child’s benefits on the number holder’s account requires evidence that otherwise establishes that Alexandra is the number holder’s natural child and that he was living with or contributing to her support at the time she filed the application for benefits. See 42 U.S.C. § 416(h)(3)(B)(ii); 20 C.F.R. § 404.355(a)(4). The evidence indicates that Alexandra lived with the number holder for only one month. There is no evidence that the number holder has ever provided support for Alexandra. Thus, Alexandra is not the number holder’s “child” pursuant to 42 U.S.C. § 416(h)(3)(B)(ii).

Based on the facts provided, Alexandra is not eligible to receive child’s benefits on the number holder’s account. Should additional evidence become available the status of Alexandra’s eligibility for benefits could change.

In summary, it is reasonable to conclude that, based on the evidence you provided, Alexandra is not the number holder’s child as defined in the Social Security Act and is not entitled to “child” benefits on the number holder’s record. See 42 U.S.C. §§ 402(d)(1); 415(e), (h). Should additional evidence become available, please feel free to contact us for further advice.

Kristi A. S~
Chief Counsel, Region VII

By______________
Angela G. T~-M~
Assistant Regional Counsel

In this Missouri case, the child beneficiary was born 289 days after the number holder's death-within the 300 day limit allowed under State law. Based on a DNA test of a known child of the number holder and the beneficiary showing only a 0.8 percent probability that the two share the same father and the mother's statement confirming that she had relations with another man shortly after the number holder's death, a Missouri court would find that the presumption of legitimacy has been overcome by the clear and convincing evidentiary standard.

You have requested our opinion as to whether Shonie L~ is the child of the deceased number holder (NH), John L~, for the purposes of receiving child's benefits. Based on the information provided, the evidence rebuts the presumption that the NH was Shonie L~'s father for the purpose of receiving child's benefits.

FACTUAL BACKGROUND

You advised us that the NH died on November 12, 2004, while domiciled in Missouri. He was married to Andrea L~. Ms. L~ gave birth to a daughter, Shonie, on August 29, 2005. This was 289 days after the death of the NH. For reasons which were not explained, Shonie was placed in custody of the Department of Social Services (DSS). DSS filed a claim for Child's Benefits under Title II of the Social Security Act in October 2005. At that time, Shonie's mother, Andrea L~, signed a statement saying that she was living with the NH at the time of his death and that he was Shonie's biological father. In May 2006, Shonie was determined to be eligible for benefits on the record of the NH retroactive to her birth.

Shonie's entitlement to benefits caused another child, Cameron L~, to be overpaid. Cameron was born in April 1999 during the NH's prior marriage to Alice V~. In June 2006, Cameron's grandmother, Wilma B~, filed a request for a waiver of the overpayment. This was apparently denied, but on reconsideration she submitted the results of a DNA test which showed that the probability of half-siblingship between Shonie and Cameron was .08%. The "DNA Siblingship Reports," signed and sworn by Michael L. B~, Ph.D., of "DNA Diagnostics Center" states that the likelihood that the two children did not share the same biological father was 1,176 to 1. The report also states that it is not possible to determine with 100% certainty whether or not two people are definitely siblings or not, only whether they are likely or not likely to be siblings.

Ms. B~ also submitted a letter from an attorney, James G~, dated October 13, 2006, in which he stated that Andrea L~ confirmed that the NH was not Shonie's father in sworn testimony, apparently in the course of a wrongful death suit. You stated that you had been unable to obtain a transcript of the report to which the attorney referred.

On May 23, 2007, a claims representative contacted Andrea L~. Ms. L~ stated that she was living with the NH when he died. She stated that she was "not with" another man prior to his death, but "did sleep with someone a few weeks after his death." She stated that she was not sure who the father was. She was not cooperative with further questions. She did not return further calls.

ANALYSIS

A child of an individual who dies when fully or currently insured pursuant to the Social Security Act is entitled to child's insurance benefits if he or she is the insured's child as defined in 42 U.S.C. § 416(e), has applied for such benefits, is unmarried, is under the age of 18, and was dependent upon the insured. See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350 (2007). Section 416(e) defines a "child" as (1) the child or legally adopted child of an individual, (2) a stepchild under certain circumstances, or (3) a person who is the grandchild or stepgrandchild under certain circumstances. See 42 U.S.C. § 416(e). If the applicant for child's benefits is the insured's child as defined in section 416(e), he or she is also considered dependent upon the insured for purposes of determining eligibility for child's benefits. See 20 C.F.R. § 404.361(a).

An applicant may show that he or she is the "child" of an insured number holder by presenting evidence establishing one of the following four circumstances:

1. The applicant could inherit the insured's property as the insured's child under the law of intestate succession in the state where the insured was domiciled at the time of death. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(4);

2. If the claimant does not qualify under the provisions of subparagraph (A), the child shall nevertheless be deemed a child of the insured if the insured individual and the mother or father of the child went through a marriage ceremony with the child's other natural parent which resulted in a purported marriage between them that, except for a procedural defect, would have been a valid marriage. See 42 U.S.C. § 416(h)(2)(B); 20 C.F.R. § 404.355(a)(2);

3. If one of the above two provisions is not met an individual shall be deemed a child of the insured if, in the case of an insured individual entitled to old-age benefits, the insured individual acknowledged in writing that the applicant was his son or daughter, was decreed by a court to be the father or mother, or was ordered to contribute to the support of the child because they are his son or daughter (subject to certain time limitations). See 42 U.S.C. § 416(h)(3)(A)(i); 20 C.F.R. § 404.355(a)(3); or

4. The insured is shown by evidence satisfactory to the Commissioner of Social Security to be the child's father, and the insured was living with or contributing to the child's support at the time of death. See 42 U.S.C. § 416(h)(3)(A)(ii); 20 C.F.R. § 404.355(a)(4).

If the evidence establishes any of the above factual scenarios, the applicant is considered the insured's child for purposes of entitlement to child's benefits. See 42 U.S.C. § 416(h)(3). While all four of the methods for showing that an individual is a "child" of an insured number holder are presented above for consistency with prior opinions, only the first test is relevant given the facts at hand.

Under these rules, it is necessary to determine whether the individual is the insured's child under the law of intestate succession. See 42 U.S.C. § 416(h)(2)(A). The Act states that we must apply the law which is used in determining the devolution of intestate personal property by the courts of the state in which the insured individual was domiciled at the time of death. See id.; 20 C.F.R. § 404.355(b)(4) (2007). Applicants who would inherit as a child under the laws of intestate succession are considered to be a "child" for the purpose of receiving children's insurance benefits under the Act. See id.

Because the NH was domiciled in Missouri, we must apply Missouri law to determine if the child is entitled to benefits on his record. See id.; 20 C.F.R. § 404.355 (2007). While Missouri has adopted a version of the Uniform Parentage Act, the Missouri Supreme Court has held that "[i]n matters relating to probate, the probate code -- and not the Uniform Parentage Act--governs determinations of paternity." LeSage v. Dirt Cheap Cigarettes and Beer, Inc., 102 S.W.3d 1 (Mo. 2003) (citing In re Nocita, 914 S.W.2d 358 (Mo. B~ 1996)). However, it is not improper to use the evidentiary standards and presumptions of the Parentage Act in proving paternity. See id.

Under the Missouri intestacy statute, the part of an estate not distributable to a surviving source will descend and be distributed to the decedent's children. See Mo. Rev. Stat. § 474.010(2) (2006). All posthumous children of the intestate shall inherit in like manner, as if they were born in the lifetime of the deceased. See Mo. Rev. Stat. § 474.050 (2006). In determining the status of a child, we do not apply any state statute of limitations which might apply to establishing paternity under the probate code. See 20 C.F.R. § 404.355(b)(2) (2007).

In Missouri, a child born to a woman who is married at the time of birth is presumed to be the legitimate child of the woman's husband. See L.M.K. v. D.E.K, 685 S.W. 2d 614, 616 (Mo. App. 1985). Likewise, a child born to a wife within 300 days of the death of the husband is presumed to be a child of the husband. See Mo. Rev. Stat § 210.822(1). This is a strong presumption, and the evidence to rebut this presumption must be "clear and convincing."

See LMK, 685 S.W. 2d at 617, E.S. v. G.M.S., 520 S.W.2d. 652 (Mo.App.1975). The presumption may be overcome by competent evidence so clear and convincing that no other conclusion is reasonable. See L.M.K., 685 S.W.2d at 617; Mo Rev. Stat. § 210.822.2 (2006).

Clear and convincing evidence is defined as "evidence that instantly tilts the scales in the affirmative when weighed against the opposing evidence and that leaves the fact finder with the abiding conviction that the evidence is true." Marsh v. State, 942 S.W.2d 385, 390 (Mo.App.1997). In the context of a Social Security case, the Seventh Circuit has interpreted the Missouri probate standard of "clear and convincing proof" as less than "proof beyond a reasonable doubt." See Jones for Jones v. Chater, 101 F.3d. 509, 512 (7th Cir. 1996); see also Sherrill v. Bowen, 835 F.2d 166, 168 (8th Cir. 1987). Clear and convince evidence is also described as evidence which clearly convinces the fact finder that the evidence is true.

See Eldridge for Eldridge v. Sullivan, 980 F.2d 499, 500 (8th Cir. 1992).

Blood rest results, weighed in accordance with the evidence of statistical probability of paternity, can be used to rebut paternity as can all other relevant evidence. See Mo. Rev. Stat. § 210.836 (2006). A DNA test is included as a type of blood test which can be used in determining parenthood. See Mo. Rev. Stat. § 210.817(1) (2006). When a court finds that the results of a blood test show that a person presumed or alleged to be the father is not the father, this evidence will be conclusive of non-paternity. See Mo. Rev. Stat. § 210.834.4 (2006).

Social Security Ruling (SSR) 06-02p provides guidance on the use of siblingship DNA testing. A siblingship DNA test may be used to ascertain whether a second child (C2) is a child of the number holder when a first child's (C1) relationship to the worker has already been established. See SSR 06-02p. Under this policy, we "will determine whether the evidence relating to C2's relationship to the known child of the worker (C1), and any other evidence of C2's relationship to the worker, establishes that C2 is the worker's child under the standards of the applicable state law" Id. This "avoids the redundancy . . . that would occur if we reviewed C1's relationship to the worker under State law when we have already determined that C1 is the worker's child . . ." Id. Here, C1 is Cameron, born in 1999, and C2 is Shonie, born in 2005. Under the ruling, we need not re-evaluate Cameron's status but may instead use a DNA test to show whether Cameron and Shonie are siblings, and then whether Shonie is a child of the NH.]

Based on the facts presented, Shonie is presumed to be the child of the NH because she was born within 300 days of his death, and at the time of his death the NH was married to Shonie's mother Andrea. See Mo. Rev. Stat. § 210.822(1). However, the NH's parentage can be rebutted with clear and convincing evidence. See L.M.K., 685 S.W.2d at 617; Mo Rev. Stat. § 210.822.2 (2006).

There are two key pieces of evidence which, together, constitute clear and convincing evidence in this case. First, Andrea admitted to an SSA representative, in a contact on May 23, 2007, that she did "sleep" with another man a "few weeks" after the NH's death, and that she was not sure who the father was. Using the common usage of a "few" weeks, that would date this event at approximately 275 days prior to Shonie's birth. Second, the siblingship DNA test shows that there is only a slight possibility that Shonie and Cameron could be siblings. There was only a .08% chance that the two children shared the same father. Stated another way, the likelihood was 1,176 to 1 that they did not share the same father. There is only a remote possibility that the two children could share the same father. We have no evidence to rebut the validity of the DNA test, and we do not have any reason to question its validity. However, should the claimant question it, she does have the right to appeal your determination and present appropriate evidence. Given that there is no reason to doubt the DNA evidence that was submitted, there is no basis at the present time for further development the evidence.

Because of the combination of the admissions of Shonie's mother and the DNA siblingship test, the possibility that the NH was the father is highly unlikely. We believe that a Missouri probate court would find that clear and convincing evidence shows that the NH was not the father of Shonie based on this evidence, and that the presumption of paternity was rebutted.

Based on the evidence you have presented, the DNA siblingship testing along with the oral statements of Andrea L~ are sufficient to overcome the presumption that the child, Shonie, is the child of the deceased MH. We believe it is reasonable to conclude that she is not entitled to child's benefits on the NH's.

Kristi A. S~ III
Chief Counsel, Region VII

By______________
Bert W. C~
Assistant Regional Counsel

Under Missouri law, blood test excluding the NH as the child's biological father is clear and convincing evidence rebutting the presumption that the child (born during the NH's marriage to the child's mother) is the NH's natural child.

You have asked us for advice regarding whether the presumption of paternity could be challenged under Missouri law and whether the Social Security Administration (SSA) could terminate child's benefits based upon a blood test excluding Number Holder (NH) as the child's biological father. For the reasons discussed below, we believe that the statute of limitations does not prevent a cause of action from being filed to rebut the presumption of paternity and that the Missouri courts would entertain such an action, but that no one, with standing, would bring such an action. However, SSA is not bound by the presumption under Missouri law that NH is the father of the child and a blood test excluding him as the biological father of the child provides "clear and convincing" evidence to terminate the child's benefits.

FACTUAL BACKGROUND

The materials you sent with your request indicate that on February 20, 2003, NH died domiciled in Arnold, Missouri. On February 28, 2003, Jackie S~ filed a claim for surviving child's benefits on behalf of Michael S~ and Sahra S~, as the surviving children of NH. Jackie and NH were married on August 25, 1984. Sahra was born on January 28, 1986. Michael was born on November 18, 1990. Michael's birth certificate listed NH as the father. The field office approved Michael's claim based on the above information. On January 16, 2004, Martin S~, brother of NH, presented paternity test results and a separation agreement to the field office. The information from Mr. S~ shows that on August 10, 1993, blood samples were obtained from NH, Jackie, and Michael. "DNA fingerprint" testing was performed according to the criteria outlined in the American Association of Blood Banks (AABB) Parentage Testing Standards. Paternity test results dated August 27, 1993, indicated that NH was excluded as the biological father of Michael. Robert W. A~ , Ph.D., Director, Human Identification at H.A. Chapman Institute of Medical Genetics, verified under oath the validity of the test results. Although Jackie and NH never divorced, on August 21, 1999, Jackie signed a Separation and Property Settlement Agreement indicating that she and NH were separated on May 17, 1999. The agreement listed Sahra as the only minor child born during the arriage. Custody of only Sahra was discussed in the agreement. NH never signed the Separation and Property Settlement Agreement. Mr. S~ stated that the issue of paternity for Michael was the reason why the legal process was not finished. Mr. S~ believed that NH and Jackie were separated for approximately one and a half years. At some point, Jackie moved back in with NH to give the children a stable environment as Sahra was pregnant at age 13 or 14.

ANALYSIS

Section 202(d)(1) of the Social Security Act (Act) establishes the criteria for entitlement to child's insurance benefits. This section provides that every child (as defined in section 216(e)) of an individual who dies fully insured under the Act is entitled to benefits if the child applies for benefits, is unmarried and under 18 (or a full-time elementary or secondary school student and under age 19), or is under a disability that began before age 22, and was dependent on the deceased at the time of death. Id. A child who is "legitimate" or legally adopted by the insured individual is deemed dependent, and is thus entitled to benefits. Social Security Act § 202(d)(3).

Section 216(h)(2)(A) of the Act (42 U.S.C. § 416(h)(2)(A)) provides:

In determining whether an applicant is the child or parent of a fully or currently insured individual for purposes of this subchapter, the [Commissioner] shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual is domiciled at the time such applicant files application, or, if such insured individual is dead, by the courts of the State in which he was domiciled at the time of his death, or, if such insured individual is or was not so domiciled in any State, by the courts of the District of Columbia. Applicants who according to such law would have the same status relative to taking intestate personal property as a child or parent shall be deemed such.

Id. Therefore, we must look to the law of the State of Missouri, where NH was domiciled upon his death.

In 1987, the Missouri legislature adopted the Uniform Parentage Act (UPA). See In re Carl Nocita, 914 S.W.2d 358, 359 (Mo. banc 1996); Mo. Ann. Stat. §§ 210.817-852. Under the UPA a man is presumed to be the natural father of a child if:

He and the child's natural mother are or have been married to each other and the child is born during the marriage, or within three hundred days after the marriage is terminated by death, annulment, declaration of invalidity, or dissolution, or after a decree of separation is entered by a court . . . .See Mo. Ann. Stat. § 210.822.1(1). As Michael was born during the marriage of Jackie and NH, under Missouri law, NH is presumed to be the natural father of Michael. This presumption "may be rebutted in an appropriate action only by clear and convincing evidence[.]" See Mo. Ann. Stat. § 210.822.2. The only parties having standing to bring such an action include "[a] child, his natural mother, a man presumed to be his father under subsection 1 of section 210.822, a man alleging himself to be a father, any person having physical or legal custody of a child for a period of more than sixty days or the division of child support enforcement[.]" See Mo. Ann. Stat. § 210.826.1. No action has been brought regarding the issue of NH's paternity to Michael, therefore, the presumption that NH is Michael's natural father is still intact. Under Missouri's intestacy law, Michael, as NH's child was entitled to inherit from NH's estate. See Mo. Ann. Stat. § 474.010(2)(a).

The original UPA established a five-year statute of limitations to bring an action for the purpose of establishing the nonexistence of a presumed paternal relationship. See Mo. Ann. Stat. § 210.826.1(2). In 1993, Missouri's version of the UPA was amended to remove the statute of limitations to allow such an action to be brought at any time. See Mo. Ann. Stat. § 210.822.1. The change in the statute of limitations will not revive a cause of action which has already expired. See W.B. v. M.G.R., 955 S.W.2d 935, 937 (Mo. banc 1997); see also Anderson v. Division of Child Support Enforcement, 995 S.W.2d 546, 549 (Mo. Ct. App. 1999). However, as Michael was born in 1990 and the UPA was amended in 1993, a cause of action had not expired in relation to Michael. See e.g. State of Missouri ex rel. Department of Social Services, Division of Child Support Enforcement v. Kobush, 908 S.W.2d 383 (Mo. App. 1995). Nevertheless, it does not appear that, practically, such a cause of action will be brought. NH's brother does not appear to have standing under Missouri law to question Michael's legitimacy and there is no apparent reason for Jackie or Michael to bring such an action. See Mo. Ann. Stat. § 210.826.1.

Even though there has been no court proceeding to establish paternity, in order to determine if Michael can be entitled to child's benefits on NH's record, SSA stands in the shoes of the court to determine if Michael could inherit an intestate share of NH's personal property. Because Michael was born during the marriage of NH and Jackie, NH is presumed to be the father of Michael. However, the presumption can still be overcome by clear and convincing evidence. The Eighth Circuit has adopted the Missouri Court of Appeals' definition of clear and convincing proof as that "which 'instantly tilt[s] the scales in the affirmative when weighed against evidence in opposition,' and clearly convinces the factfinder that the evidence is true." See Eldridge for Eldridge v. Sullivan, 980 F.2d 499, 500 (8th Cir. 1992) (citing Sherrill for Sherrill v. Bowen, 835 F.2d 166, 168 (8th Cir. 1987) (quoting In re Michael O'Brien, 600 S.W.2d 695, 697 (Mo. Ct. App. 1980)). See also Jones v. Chater, 101 F.3d 509, 511 (7th Cir. 1996) (Missouri's intestacy statute requires clear and convincing evidence of paternity); State of Missouri v. Tuckness, 949 S.W.2d 651 (Mo. Ct. App. 1997) ("The clear and convincing standard refers to evidence which instantly tilts the scales in the affirmative when weighed against the evidence in opposition, and the fact finder's mind is left with an abiding conviction that the evidence is true.") (citing In re Marriage of Jennings, 910 S.W.2d 760, 763 (Mo. Ct. App. 1995)). Other courts have defined clear, convincing, and cogent evidence as that which admits no reasonable doubt. See Eldridge, 980 F.2d at 500 (citations omitted).

The courts have provided some direction on which factors satisfy the clear and convincing standard of proof under Missouri law. In Kobush, 908 S.W.2d at 386, the court found clear and convincing evidence to rebut the presumption that the child born during the marriage was the husband's child. Evidence was presented which showed the mother used reliable contraceptive devices with her husband but not with the putative father and verified blood tests showed a 99.99 percent probability that the putative father was the biological father. In Shadwick v. Byrd, 867 S.W.2d 231 (Mo. Ct. App. 1993), the court found that the husband was the presumed father of a child born during his marriage to the child's mother. The court then found that substantial evidence supported the trial court's determination that the paternity test results, along with the testimony of the child's mother, was sufficient to rebut this presumption by clear and convincing evidence. Id. at 235.

The evidence in this case constitutes "clear and convincing" evidence to rebut the presumption that NH is the biological father of Michael. Blood testing performed according to AABB Parentage Testing Standards determining that NH is excluded as the biological father of Michael is conclusive proof of nonpaternity. Missouri defines "blood test" as:

any medically recognized analysis which uses blood or other body tissue or fluid to isolate and identify genetic or other characteristics in order to determine the probability of paternity or the probability of exclusion of paternity. The term specifically includes, without being limited to, tests employing red cell antigens, white cell antigens, including the human leukocyte antigen (HLA) test, DNA methodology, and serum proteins and enzymes;

Mo. Ann. Stat. § 210.817(1). We have no information to rebut the validity of this blood test. Dr. A~ Director, Human Identification at H.A. Chapman Institute of Medical Genetics, verified under oath the validity of the test results. In Missouri, blood testing is conclusive evidence of nonpaternity if the results so indicate. See State of Missouri ex rel. K.R. v. Brashear, 841 S.W.2d 754, 756 (Mo. Ct. App. 1992); Dobyns v. Phillips, 936 S.W.2d 588, 589 (Mo. Ct. App. 1996); Mo. Ann. Stat. § 210.834.4. Social Security Ruling (SSR) 72-25 states that "because of the scientific accuracy of blood tests in excluding paternity, a negative result from such a test, if properly conducted, should be considered as conclusively rebutting the presumption of the child's legitimacy." Although NH is listed on Michael's birth certificate as the father, other evidence also supports the conclusion that the presumption is rebutted. Michael was not included as a child born during the marriage on the Separation and Property Settlement Agreement. Specifically, Jackie signed the agreement which indicated that Sahra was the only minor child born of the marriage. We believe that considering all the evidence, there is proof that "'instantly tilt[s] the scales in the affirmative when weighed against evidence in opposition,' and clearly convinces the factfinder the evidence is true." See Eldridge, 980 F.2d at 500; Sherrill, 835 F.2d at 168; In re Michael O'Brien, 600 S.W.2d at 697.

In conclusion, as there is clear and convincing evidence rebutting the presumption that Michael is the natural and biological son of NH, we believe it is reasonable to conclude that he is not entitled to child's benefits on NH's record. Moreover, 20 C.F.R. § 404.988 allows a determination to be reopened within fours years of the date of the notice of initial determination for good cause. Good cause is found when new and material evidence is furnished. See 20 C.F.R. § 404.989. The new evidence submitted by NH's brother could reasonably be view as establishing good cause for reopening the initial determination awarding Michael benefits on NH's record.

Frank V. S~III
Chief Counsel, Region VII

By______________
Christina Y. M~
Assistant Regional Counsel

The presumption that the NH is the child's biological father may be rebutted by clear and convincing evidence under Missouri law. In this case, the NH and the child's mother separated approximately 11 months prior to the child's birth; a court order adjudicated another other man to be the child's father; the blood test evidence shows a 99.999 percent probability that the other man is the child's biological father; and no one denies that the other man is the child's natural father. The paternity test, in addition to this other evidence, constitutes clear and convincing evidence to rebut the presumption that the NH is the child's biological father.

You have asked for advice as to whether a court order adjudicating paternity to a third party is enough to rebut the presumption that the husband is the father of a child born during a marriage to the mother and thus deny entitlement to child's benefits on the record of the husband. For the reasons discussed below, we believe there is sufficient evidence to rebut the presumption that Larry M~ is the biological father of Joshua M~.

Factual Background

The court order you sent with your request indicates that Dee A. M~ was married to Larry M~ (Number Holder) on May 28, 1990. Two children were born of the marriage:

Sarah A. M~, born on April 15, 1990, and Melody D. M~, born on December 30, 1992. Larry and Dee A. M~ separated in April of 1999. On March 3, 2000, Dee A. M~ gave birth to Joshua M~.

The court order dissolving the marriage of Dee A. M~ and Larry M~ was entered on January 16, 2001. The court order indicated that, although Joshua M~ was born during the marriage, he was not the biological child of Larry M~. The court order adjudicated Joshua M~ to be the natural child of Rick S~, a third-party, and it changed Joshua M~'s name to Joshua S~. In addition, the court order awarded Rick S~ joint legal custody of Joshua and ordered him to pay child support. On February 20, 2001, Dee A. M~ requested that Joshua M~'s child benefits on the record of Larry M~ be ceased.

On May 30, 2001, we requested further development from the field office. On June 15, 2001, we received: (1) a second copy of the court order mentioned above, which contained a page not previously submitted, and (2) a paternity test dated November 10, 2000. The paternity test indicated that Rick S~ could not be excluded as the biological father of Joshua M~, and it rated his probability of paternity as 99.999 percent.

Analysis

Section 216(h)(2)(A) of the Social Security Act (42 U.S.C. § 416(h)(2)(A)) provides:

In determining whether an applicant is the child or parent of a fully or currently insured individual for purposes of this subchapter, the [Commissioner] shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual is domiciled at the time such applicant files application, or, if such insured individual is dead, by the courts of the State in which he was domiciled at the time of his death, or, if such insured individual is or was not so domiciled in any State, by the courts of the District of Columbia. Applicants who according to such law would have the same status relative to taking intestate personal property as a child or parent shall be deemed such.

Therefore, we must look to law of the State of Missouri, where Larry M~ is domiciled.

In 1987, the Missouri legislature adopted the Uniform Parentage Act (UPA). See In re Carl Nocita, 914 S.W.2d 358, 359 (Mo. banc 1996); Mo. Ann. Stat. §§ 210.817-852. The original UPA established a five-year statute of limitations to bring an action for the purpose of establishing the nonexistence of a presumed paternal relationship. See Mo. Ann. Stat. § 210.826.1(2). In 1993, Missouri's version of the UPA was amended to remove the statute of limitations and to allow such an action to be brought at any time. See Mo. Ann. Stat. § 210.822(1). Because Joshua was born on March 3, 2000, there is no applicable statute of limitations.

The UPA establishes a presumption of paternity in cases where there has been a marriage or attempted marriage between the alleged father and mother; if the alleged father has admitted paternity in a filed writing, if he was named on the birth certificate with his consent, or if he was ordered to pay child support; or if a blood test showed a ninety-eight percent or higher probability of paternity. See Mo. Ann. Stat. § 210.822.1. In this case, Larry M~ is the presumed father of Joshua M~ because he was married to Dee A. M~ at the time Joshua was born. In State ex rel. Lucas v. Wilson, 963 S.W.2d 408 (Mo. Ct. App. 1998), the court declined to add a cohabitation requirement onto this statutory presumption. See Lucas, 963 S.W.2d at 410. Therefore, the fact that Larry M~ and Dee A. M~ separated in April of 1999 does not change the presumption that Larry is the father of Joshua.

Although Larry M~ is Joshua's presumed father, this presumption may be rebutted. Missouri statutes provide in relevant part:

A presumption pursuant to this section may be rebutted in an appropriate action only by clear and convincing evidence, except that a presumption under subsection 1 of this section that arises from a blood test or the filing of an acknowledgment of paternity in a state or territory in which the blood test or the filing creates a conclusive presumption by law also has conclusive effect in Missouri. If two or more presumptions arise which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls. The presumption is rebutted by a court decree establishing the paternity of the child by another man.

See Mo. Ann. Stat. § 210.822.2.

Although Missouri statutes indicate that a presumption is rebutted by a court decree, which we have in this case, the Commissioner is not bound by the decree of a State trial court in a proceeding to which he was not a party. However, Social Security Ruling 83-37c indicates that, although the Commissioner is not bound by a decision of a State trial court in a proceeding to which he was not a party, he is not free to ignore an adjudication of a State trial court when the following prerequisites are found: (1) an issue in a claim for Social Security benefits previously has been determined by a State court of competent jurisdiction; (2) this issue was genuinely contested before the State court by parties with opposing interests; (3) the issue falls within the general category of domestic relations law; and (4) the resolution by the State trial court is consistent with the law enunciated by the highest court in the State. See also 63 Fed. Reg. 57,590 (1998).

In this case, it is clear that factors (1), (3), and (4) are present; however, it appears that factor (2) is not present. Factor (2) requires the issue to be "genuinely contested." In Wulff v. Kakadiaris, 856 S.W.2d 128 (Mo. Ct. App. 1993), the court indicated that default matters were "uncontested" because they were "tried without challenge or contest." See Wulff, 856 S.W.2d at 128; Weston Point Resort Condominium Owners' Association v. Floro, 796 S.W.2d 928 (Mo. Ct. App. 1990). Since Larry M~ did not appear before the court at the dissolution proceedings, the dissolution proceeding was not "genuinely contested" under Missouri law. Therefore, SSA is not bound by the court order finding that Joshua M~ is not the biological child of Larry M~.

Even if SSA is not bound by the court order, however, the presumption can still be overcome by "clear and convincing" evidence. The Eighth Circuit has adopted the Missouri Court of Appeals definition of "clear and convincing" proof as that "which 'instantly tilt[s] the scales in the affirmative when weighed against evidence in opposition,' and clearly convinces the fact-finder that the evidence is true." See Eldridge for Eldridge v. Sullivan, 980 F.2d 499, 500 (8th Cir. 1992)(citing Sherrill for Sherrill v. Bowen, 835 F.2d 166, 168 (8th Cir. 1987)(quoting In re Michael O'Brien, 600 S.W.2d 695, 697 (Mo. Ct. App. 1980)). Other courts have defined clear, convincing, and cogent evidence as that which admits no reasonable doubt. See Eldridge,

980 F.2d at 500 (citations omitted).

In State ex rel. Dept. of Social Services, Division of Child Support Enforcement v. Kobusch, 908 S.W.2d 383 (Mo. Ct. App. 1995), the court found "clear and convincing" evidence to rebut the presumption that child born during the marriage was husband's. Evidence was presented which showed the mother used reliable contraceptive devices with her husband but not with the putative father and verified blood tests showed a 99.99 percent probability that putative father was the biological father. See Kobusch, 908 S.W.2d at 386. In Shadwick v. Byrd, 867 S.W.2d 231 (Mo. Ct. App. 1993), the court found that the husband was the presumed father of a child born during his marriage to the child's mother. The court then found that substantial evidence supported the trial court's determination that the paternity test results, along with the testimony of the child's mother, was sufficient to rebut this presumption by "clear and convincing evidence." See Shadwick, 867 S.W.3d at 235.

The evidence in this case constitutes clear and convincing evidence to rebut the presumption that Larry M~ is the biological father of Joshua M~. Larry M~ and Dee A. M~ separated in April of 1999 approximately eleven months prior to Joshua's birth in March of 2000. The court order adjudicated Rick S~ to be the biological father of Joshua. In addition, the blood test evidence shows a 99.999 percent probability that Rick S~ is the biological father of Joshua M~, and no one denies that he is the natural father of Joshua. We believe the paternity test, in addition to this other evidence, would constitute clear and convincing evidence to rebut the presumption that Larry M~ is the father of Joshua.

In the fact situation you present, the right of Joshua M~ to Social Security benefits is controlled by the Missouri law of intestate succession of personal property. We believe that the paternity test would constitute clear and convincing evidence to rebut the presumption that Larry M~ is the biological father of Joshua M~. Therefore, Joshua is not entitled to child's benefits on Larry M~'s record.

In the state of Missouri, artificial insemination of a married woman requires the agreement and consent of her husband. The husband who has consented to his wife's artificial insemination is treated in law as if he were the natural father of the child. The donor of the semen is treated in law as if he were not the natural father of the child.

Where a child is born to a married woman within 300 days of the husband's death, the child is presumed to be the child of the deceased. Only the child, the child's natural mother, the man presumed to be the child's father, or a man alleging to be the child's father, may question the existence or nonexistence of the relationship.

John W. P~, domiciled in the State of Missouri, died on February 9, 1997. He was survived by his wife Lanee R. P~ to whom he was married on February 15, 1992. He was also survived by two children from a previous marriage, Shaun and Christopher, who were awarded survivor benefits.

On May 27, 1997, Lanee filed applications for survivor benefits for herself and a minor child, Nikkita P~, born May 14, 1997. Nikkita's birth certificate listed John W. P~ as her father. Based upon a preliminary decision to award benefits to Lanee and Nikkita, a notice of adverse adjustment of benefits was sent to Shaun P~ and to Betty P~ on behalf of Christopher P~, informing them of the potential entitlement of Lanee and Nikkita. Betty P~ filed a timely protest to the proposed entitlement of Lanee and Nikkita.

Betty P~ alleged that John, her son, had undergone a vasectomy shortly after Christopher's birth and was unable to father any additional children. The claims file includes evidence that John underwent this procedure on November 9, 1982. The claims file also includes evidence that John underwent a procedure to reverse the vasectomy on December 2, 1994. Nevertheless, a semen analysis conducted for John in March 1995 was negative for the presence of sperm. In addition, blood typing results for the child indicated that Mr. P~ was not the biological father.

On June 27, 1997, a Claims Representative determined that Lanee and Nikkita's claims should be disallowed because the presumption of legitimacy of the child Nikkita had been rebutted by clear and convincing evidence that Mr. P~ was not the father. We believe that the Claim Representative reached the wrong conclusion because of incomplete information and evidence provided by Lanee.

This is not the typical case in which the presumption of the legitimacy of the child born during the marriage, or within 300 days after the husband's death, is at issue. Subsequent to the Claims Representative's determination, Lanee provided evidence that Nikkita was conceived by artificial insemination. Artificial insemination of a married woman in the State of Missouri requires the agreement and written consent of her husband. Records were received from Washington University School of Medicine, Department of Obstetrics and Gynecology, included agreements signed by John, Lanee, and a physician, consenting to artificial insemination; a letter from the physician stating that the donor's blood type was B negative and the date of insemination was August 24, 1996; and medical progress notes regarding the procedure. Under Mo. Ann. Stat. § 210.824 the husband who has consented to his wife's artificial insemination is treated in law as if he were the natural father of the child. The donor of the semen is treated in law as if he were not the natural father of the child. John's consent to Lanee's pregnancy by artificial insemination is in the record. Considering his consent and Missouri law, we do not believe the blood test results have any bearing on the question of Nikkita's legitimacy, anymore than similar blood test results would negate an adoption.

In addition, we believe Mo. Ann. Stat. § 210.826 may have relevance. Even if artificial insemination were not involved, where a child is born to a married woman within 300 days of the husband's death, the child is presumed to be the child of the deceased. Mo. Ann. Stat. § 210.826 provides that only the child, the child's natural mother, the man presumed to be the child's father (John), or a man alleging to be the child's father, may question the existence or nonexistence of the relationship. We do not believe John's mother would have standing under Missouri law to question Nikkita's legitimacy, especially given the circumstances herein.