QUESTION
You asked whether a parent-child relationship existed between J~, the deceased wage
earner (DWE), and each of the five child claimants (Claimants) for purposes of determining
their entitlement to survivor’s insurance benefits, where DNA evidence shows a high
probability that four of the five Claimants share a biological father with the DWE’s
recognized daughter.
SHORT ANSWER
Y2~ is entitled to survivor’s insurance benefits. Under California law, Y2~ is able
to inherit intestate from the DWE because it was impossible for the DWE to hold her
out as his child, and there is clear and convincing evidence of her paternity through
DNA testing.
L~ not entitled to survivor’s insurance benefits. Based on the available information,
it was impossible for the DWE to hold L~ out as his child, but the record does not
contain clear and convincing evidence of L~’s paternity. She therefore cannot inherit
as the DWE’s child under California law.
E~ and J2~ are not entitled to survivor’s insurance benefits. They are not able to
inherit intestate from the DWE under California law because the available information
in the record does not show clear and convincing evidence that the DWE openly held
them out as his children. [8] In addition, the California court order requiring the DWE to pay child support for
R~ and J2~ was not issued until after the DWE’s death. The evidence does not therefore
meet the federal standard for entitlement.
SUMMARY OF EVIDENCE
The DWE died on January XX, 2013 in Long Beach, California.
R~ filed claims for child’s survivor’s insurance benefits on behalf of her two minor
daughters, A~ (Date of Birth (DOB): 2010) and L~ (DOB: 2013). R~ provided L~’s birth
certificate, which lists R~ as the mother, but does not list the name of L~’s father.
1. Y~ filed claims for child’s survivor’s insurance benefits on behalf of her five
children, E~ (DOB: 2006), R~ (DOB: 2011), J2~ (DOB: 2009), C~ (DOB: 2008), and Y2~
(DOB: 2013).
R~ and Y~ claimed that the DWE fathered their respective children. Neither R~ nor
Y~ were married to the DWE.
In February 2013, the agency determined that A~ was the DWE’s natural child. From
the information you provided, it appears that the agency made this determination because
A~’s birth certificate listed the DWE as her father.
Likewise, in April 2013, the agency determined that C~ was the DWE’s natural child.
Again, it appears that the agency made this determination because C~’s birth certificate
listed the DWE as her father.
On March 6, 2013, a California Superior Court ordered the DWE to pay child support
for C~, J2~, and R~. It is unclear whether the Court was aware that the DWE was deceased
at the time it issued the child support order. On May XX, 2013, California’s Department
of Child Support Services issued a notice of withholding instructing the agency to
deduct a portion of the DWE’s Social Security benefits and forward these funds for
payment of the DWE’s child support obligation.
Y~ provided a signed statement to the agency dated April XX, 2013. According to this
statement, the DWE never lived with Y~ or her children but visited them every other
week for several days at a time. Furthermore, the DWE reportedly told his friends
that he was the father of Y~’s children. Y~’s mother, I~, and Y~’s aunt, C~, provided
signed statements corroborating Y~’s allegations. [9]
On February XX, 2014, the DNA Diagnostics Center [10] issued DNA Test Reports for E~, R~, J2~, and Y2~, showing the probability that each
child shared the same biological father as C~. According to the test results, the
likelihood that E~ shared the same biological father as C~ was 302 to 1 (99.6%); the
likelihood that R~ shared the same biological father as C~ was 421 to 1 (99.7%); the
likelihood that J2~ shared the same biological father as C~ was 8,089 to 1 (99.98%);
and the likelihood that Y2~ shared the same biological father as C~ was 73 to 1 (98.6%).
Each DNA test report was signed by D~, Ph.D., who attested to the valid interpretation
of the test results. Additionally, each DNA test report identified each individual
that provided a genetic sample, the date of collection, and the method of testing.
In an August XX, 2014 Report of Contact, the Lakewood, California field office met
with the DWE’s mother and sister. The DWE’s mother and sister reported that the DWE
was the biological father of E~, R~, J2~, Y2~, and L~. They also reported that the
DWE provided care and support for E~, R~, J2~, A~, and C~; and the DWE was aware that
Y~ and R~ were pregnant with his children before he died. The DWE’s mother and sister
claimed that the DWE, with the support of his parents, financially provided for all
of the children and would have custody of the children on weekends. They provided
pictures showing the DWE with the children during holidays, birthdays, and special
events. The DWE’s mother and sister refused to sign a child relationship statement,
explaining they were on poor terms with Y~ and R~, and did not wish for the mothers
to receive benefits on their children’s behalf.
In a December XX, 2014 Report of Contact, the Lakewood, California field office spoke
with Y~ on the phone. Y~ stated that the DWE purchased items for the children, such
as diapers and he would supply cash to assist with Y~’s rent. Y~ also reported that
the DWE was listed as C~’s father on her school records, but not the other children
because they were too young to attend school prior to the DWE’s death. Y~ did not
have any documentary evidence that the DWE financially contributed to the children’s
care. In regard to the California Superior Court’s child support order, Y~ was not
aware of what evidence the Court relied in concluding that the DWE was the father
of C~, R~, and J2~.
ANALYSIS
Federal Law
Under the Social Security Act (Act), every unmarried minor child of an insured individual
[11] that dies fully or currently insured 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 of his death. 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.” Social Security
Act § 216(h)(2)(A), 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. ( 404.355(a)(1). In applying
state law, we do not require the claimant to obtain a court determination but use
the same law and standards that the state court would use. 20 C.F.R. § 404.355(b).
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”); Social Security Ruling (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...”).
If the applicant does not qualify under section 216(h)(2)(A) of the Act, he or she
may still be deemed the child of the insured individual under alternative federal
standards. Social Security Act § 216(h)(3), 42 U.S.C. § 416(h)(3). An applicant may
qualify as the child of an insured individual under section 216(h)(3) of the act if,
before the insured individual’s death: (1) he acknowledged the applicant as his child
in writing, (2) a court decreed him the child’s father, or (3) a court ordered that
he contribute to the child’s support. [12] Social Security Act § 216(h)(3)(C)(i), 42 U.S.C. § 416(h)(3)(C)(i). Alternatively,
the applicant will have child status if the agency finds that the insured individual
is the applicant’s father, and he was living with or contributing to the support of
the applicant at the time of his death. Social Security Act § 216(h)(3)(C)(ii), 42
U.S.C. § 416(h)(3)(C)(ii).
In addition, SSR 06-02p provides that, if another child is determined to be the insured’s
natural child under section 216(h)(3) of the Act, the agency may consider the claimant’s
biological relationship with that child for purposes of determining whether the claimant
is also the natural child of the insured individual under section 216(h)(2)(A). SSR
0602p. 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
claimant and the other natural child establishes claimant as the insured’s child.
Id.
Here, the DWE died while domiciled in California. Accordingly, California law applies
for determining whether Claimants are the DWE’s children under section 216(h)(2)(A)
of the Act.
California Law
Pursuant to the California Probate Code, a child may inherit through his or her natural
parents, regardless of the parents’ marital status. Cal. Prob. Code § 6450(a). A parent-child
relationship is established where the relationship is presumed and not rebutted under
California’s Uniform Parentage Act (UPA). Cal. Prob. Code § 6453(a); see also Cal. Fam. Code §§ 7600-7730 (UPA). Under the UPA, several presumptions of parentage
arise when a child is born before, during, or after a marriage, or attempted marriage,
of the presumed parent and the child’s natural mother. See Cal. Fam. Code §§ 7611(a)-(c). A presumption also arises, even absent a marriage,
where the presumed parent “receives the child into his or her home and openly holds
out the child as his or her natural child.” Cal. Fam. Code § 7611(d); see also POMS GN 00306.430.A.1.b.6. [13]
Here, a presumption of parentage does not arise out of the DWE’s relationship with
the Claimants’ biological mothers. The DWE did not marry Y~ or R~; thus, sections
7611(a) through (c) are not applicable. Moreover, a presumption does not arise under
section 7611(d), as the DWE never received any of the Claimants into his home.
Where no presumption of parentage applies under the UPA, a parent-child relationship
may be established through an action brought under California Family Code § 7630(c)
to determine the existence of a father and child relationship, so long as one of the
following conditions exist:
(1) A court order was entered during the father’s lifetime declaring paternity;
(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 (e.g., the father
died before the child’s birth) and paternity is established by clear and convincing
evidence.
Cal. Prob. Code § 6453(b); see also Cal. Fam. Code § 7630(c) (actions to establish a father-child relationship not based
upon a presumption arising under Cal. Fam. Code § 7611). Genetic testing that indicates
a likelihood of paternity of 100 times or greater creates a rebuttable presumption
of paternity. Cal. Fam. Code § 7555(a); see also POMS GN 00306.430.A.1.c (recognizing that submission of genetic test results is one method for establishing
clear and convincing evidence of paternity).
1) Y2~ is entitled to child survivor’s insurance benefits.
Having found that C~ is the child of the DWE for purposes of survivor’s insurance
benefits, the agency will apply SSR 06-02p to determine whether, under California
intestacy law, genetic testing between Y2~ and C~ will also establish Y2~ as the DWE’s
child. Under the California Probate Code, Y~ can establish a parent-child relationship
through clear and convincing evidence of paternity, such as genetic testing, but she
must first show that it was impossible for the DWE to hold her out as his child. Cal.
Prob. Code § 6453(b)(3); Cal. Fam. Code § 7630(c); POMS GN 00306.430.A.1.c. As the DWE died prior to Y~’s birth, it was impossible for him to hold Y~
out as his child. Indeed, the impossibility provision was enacted to cover this type
of situation, where the father dies before his child is born. See Cheyanna M. v. A.C. Nielsen Co., 78 Cal.Rptr.2d 335, 66 Cal.App.4th 855, 877 (Cal. Ct. App. 1998); POMS GN 00306.430.A.1.b.7.C (noting that, where a putative father died while the child was in utero,
and where paternal efforts are insufficient to establish that he held the child out
as his own, then “holding out shall be deemed impossible and the child shall be permitted
to present other clear and convincing evidence of paternity”).
In addition, Y~ can show clear and convincing evidence of paternity. DNA testing revealed
that the probability that Y2~ and C~ share a biological father is 73 times more likely
than not. [14] Although the probability of Y2~ and C~ sharing the same biological father does not
exceed the minimum standard necessary to establish a presumption of paternity under
California Family Code § 7555(a), i.e., 99% or greater, the test results nevertheless
demonstrate “clear and convincing” evidence that the DWE is Y~’s father. See In re Angelia P., 28 Cal. 3d 908, 919 (Cal. 1981) (clear and convincing evidence requires a finding
of “high probability,” with evidence “so clear as to leave no substantial doubt”).
Additionally, statements submitted by the DWE’s mother and sister support a finding
that the DWE knew he fathered a child with Y~’s mother before he died. The genetic
test results, in combination with the family’s statements, amounts to clear and convincing
evidence that DWE was the father of Claimant.
Accordingly, application of SSR 06-02p and California intestacy law establishes Y~
as the child of the DWE. Genetic test results between Y~ and C~ reveal their common
paternal relation. As the agency previously determined that C~ was the natural child
of the DWE, it follows that the agency should also find Y~ is his child. Moreover,
the DWE’s reported acknowledgement of paternity serves as additional evidence establishing
Claimant as the DWE’s child. See SSR 06-02p (“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”).
2) L~ is not entitled to child survivor’s insurance benefits.
Like Y2~, L~ was born after the DWE’s death; thus, it was impossible for the DWE to
hold L~ out as his child. See Cal. Prob. Code § 6453(b)(3); Cheyanna M., 66 Cal. App. at 877. However, the agency has not received evidence of L~’s paternity
that a California court would view as “clear and convincing” evidence. In contrast
to Y2~, L~ has not submitted genetic evidence to support her claim and thus the analysis
under SSR 06-02p does not apply. See SSR 06-02p. Although the DWE’s mother and sister provided unsigned statements claiming
that the DWE knew that R~ was pregnant with L~ before he died, these statements standing
alone do not constitute clear and convincing evidence that the DWE was L~’s father.
Therefore, based on the currently available evidence, L~ would not be able to inherit
intestate from the DWE under California intestacy law, and she is not entitled to
child survivor’s insurance benefits under either the State or Federal standards.
3) E~, R~ and J2~ are not entitled to child survivor’s insurance benefits.
E~, R~ and J2~ were each born prior to the DWE’s death. As the children were born
during the DWE’s lifetime, merely establishing biological parentage is insufficient
for them to inherit intestate from the DWE under California law. Rather, E~, R~, and
J2~ must show clear and convincing evidence that the DWE openly held them out as his
children. See Cal. Prob. Code § 6453(b)(2). [15]
The evidence currently before the agency shows minimal evidence of “holding out”.
The DWE’s mother and sister reported that the DWE financially supported E~, R~, and
J2~, and had custody of them on the weekends. However, the DWE’s mother and sister
refused to attest to these facts in a signed statement, diminishing the credibility
of their allegations. Y~ reported that the DWE regularly visited the children and
told his friends that he was the father of Y~’s children. However, merely visiting
with the children and making private claims of paternity to friends and family is
insufficient evidence of “holding out” for purposes of section 6453(b)(2) of the Probate
Code. POMS GN 00306.430.A.1.b.7.B (“ordinarily, statements to friends and family impose no potential cost
and do not constitute holding out”) (emphasis in original); see also In re Estate of Burden, 53 Cal. Rptr. 3d 390, 396 (Cal. Ct. App. 2007) (openly holding out under Cal. Prob.
Code § 6453(b)(2) requires more than privately acknowledging paternity); In re Spencer W., 56 Cal. Rptr. 2d 524 (Cal. Ct. App. 1996) (finding no parent-child relationship
where the putative father claimed paternity to family and friends, but was unwilling
to proclaim paternity when there might have been some cost to him).
Furthermore, there is no documentary evidence supporting Y~’s allegations that the
DWE contributed to the care of and held out E~, R~, and J2~ as his children. Although
the DWE’s mother and sister provided pictures purportedly showing the DWE spending
time with the children, these photos had little probative value in showing the DWE
held the children out as his own or that he financially contributed to their support.
Moreover, although the California Superior Court found that the DWE was the father
of E~ and J2~, it is unclear what evidence the Court relied on in reaching this conclusion.
It may be that the Court, believing the DWE was still living at the time of its disposition,
based its paternity determination solely on genetic evidence, without considering
the holding out requirements raised in section 6453(b)(2) of the Probate Code. [16] Accordingly, absent sufficient evidence that the DWE held them out as his children,
E~, R~ and J2~ are unable to inherit intestate from the DWE under California law.
Likewise, E~, R~ and J2~ do not qualify as the DWE’s children under any of the alternative
federal standards. Specifically, the record does not contain a written acknowledgment
or court decree of paternity as required under section 216(h)(3)(C)(i) of the Act.
See Social Security Act § 216(h)(3)(C), 42 U.S.C. § 416(h)(3)(C); POMS GN 00306.100.B.1. Although a California Superior Court issued an order on March 6, 2013, finding
the DWE to be the father of C~, R~, and J2~, and requiring the DWE to pay child support,
the Court issued this order after the DWE’s death. [17] See Social Security Act § 216(h)(3)(C), 42 U.S.C. § 416(h)(3)(C) (requiring that the court
order of paternity or child support obligation be issued during the number holder’s
lifetime).
Furthermore, there is insufficient evidence to find that E~, R~ and J2~ are entitled
as the DWE’s children under section 216(h)(3)(C)(ii). Although there is strong evidence
that the DWE was the biological father of the three children, he was not living with
the children, and there is insufficient evidence that he financially supported them.
See POMS RS 01301.005.C.1.c (procedures for documenting contributions in cases where the number holder
is deceased; requiring the agency to obtain a completed form SSA-783 from the claimant
or another person with personal knowledge of the claimant’s support situation); GN 00306.130 (referencing POMS RS 01301.005 for purposes of defining “contributions” under section 216(h)(3) of the Act). [18]
Accordingly, E~, R~ and J2~ cannot be considered the DWE’s children for benefit purposes
under either the state or federal standards.
CONCLUSION
Under California law, Y2~ is able to inherit intestate from the DWE because it was
impossible for the DWE to hold her out as his child, and there is clear and convincing
evidence of her paternity through genetic testing. L~ is not able to inherit intestate
from the DWE because there is not clear and convincing evidence of her paternity.
E~, R~ and J2~ are not able to inherit intestate from the DWE under California law
because there is not clear and convincing evidence that the DWE openly held them out
as his children. Furthermore, a California Superior Court order of paternity is insufficient
to establish R~ and J2~ as the DWE’s children under the alternative federal standards
because the Court did not issue the order during the DWE’s lifetime.