NH’s Certificate of Death indicates he was domiciled in Mississippi when he died, therefore, we look to Mississippi intestacy law to determine whether the Claimant is NH’s child for purposes of section 216(h)(2)(A) of the Act. DNA test results showed a 99.99% probability that the NH’s father is related to Claimant as a second-degree relative. A Mississippi Court issued an Order of Filiation and adjudged that the Claimant is NH’s biological, legitimate and legal child. Based on the information provided, the claimant is the child of the number holder for determining the claimant’s eligibility for CIB on the number holder’s earnings record, and the effective month of the relationship is August 2015, the month of the court order indicating that the claimant is related to the number holder.

QUESTION

You asked whether the claimant is the child of the number holder for determining the claimant’s eligibility for child’s insurance benefits (CIB) on the number holder’s earnings record based on an Order of Filiation from the Chancery Court of Harrison County, Mississippi, ordering and adjudging that the claimant is the legitimate and legal child of the number holder. If so, you also asked whether the first month of entitlement to benefits would be August 2015, the month the court issued the Order of Filiation.

OPINION

Based on the information provided, the claimant is the child of the number holder for determining the claimant’s eligibility for CIB on the number holder’s earnings record, and the effective month of the relationship is August 2015, the month of the court order indicating that the claimant is related to the number holder.

BACKGROUND

B~ (Claimant) applied for child’s survivor’s benefits on the earnings record of J~, the number holder (NH). According to the information provided, Claimant’s mother and NH were never married. Rather, an Alabama Certificate of Marriage dated July XX, 2010, shows Claimant’s mother married J2~. A Certificate of Death shows NH died on January XX, 2014, and lists H~ County, Mississippi, as NH’s county of residence. NH’s death certificate lists G~ as NH’s father. A Certificate of Live Birth shows Claimant was born on September XX, 2014, and lists Claimant’s mother and J2~ as the parents. At the time of NH’s death, Claimant’s mother stated she was separated from J2~ and lived with NH. Claimant’s mother provided no independent evidence that she lived with NH. DNA samples were collected on September XX, 2014, from Claimant, Claimant’s mother, and NH’s father. DNA test results showed a 99.99% probability that NH’s father is related to Claimant as a second-degree relative.

On August XX, 2015, the Chancery Court of H~ County, Mississippi, issued an Order of Filiation based on a joint petition filed by Claimant’s mother, NH’s father, NH’s mother, and NH’s brother. The court ordered and adjudged that Claimant is NH’s legitimate and legal child, and ordered that Claimant’s name be changed to B~ to reflect Claimant’s legitimacy. The court also ordered and adjudged that Claimant’s mother and NH are Claimant’s biological parents. The court noted that Claimant’s mother and NH’s survivors all acknowledged Claimant as NH’s biological child. The court found the DNA test results provided scientific evidence of a familial link between Claimant and NH’s father. The court also ordered and adjudged that Claimant shall receive Social Security benefits as NH’s legitimate, biological child, and shall inherit from NH under Mississippi statutes of descent and distribution.

DISCUSSION

A claimant may be eligible for CIB on the earnings record of an individual who dies a fully or currently insured individual if the claimant is the insured individual’s “child.” See Social Security Act (Act) § 202(d)(1); 20 C.F.R. § 404.350(a)(1) (2015).^[1] “Child” includes “the child” of an insured individual. See Act § 216(e); 20 C.F.R. § 404.354; Astrue v. Capato, 132 S. Ct. 2021, 2027-28 (2012). A claimant may show she is “the child” of a deceased insured individual, within the meaning of section 216(e)(1), under section 216(h)(2)(A) or 216(h)(3)(C) of the Act. See Capato, 132 S. Ct. at 2028. Under section 216(h)(2)(A) of the Act, a claimant is considered “the child” of the insured individual if the claimant could inherit the insured individual’s intestate personal property under the law of the State in which the insured individual was domiciled at the time of his death. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4).^[2]

 

NH’s Certificate of Death indicates he was domiciled in Mississippi when he died. Therefore, we look to Mississippi intestacy law to determine whether Claimant is NH’s child for purposes of section 216(h)(2)(A) of the Act. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4). Under Mississippi law, the intestate personal property of a deceased person descends to his or her heirs. See Miss. Code Ann. § 91-1-11 (West 2015). Heirs include a decedent’s children. See Clark Sand Co., Inc. v. Kelly, 60 So. 3d 149, 159 (Miss. 2011) (citing Miss. Code Ann. §§ 91-1-1 to 91-1-11).

Mississippi law establishes a rebuttable presumption that a child born during a marriage is legitimate, i.e., the child is the child of the mother’s husband. See Rafferty v. Perkins, 757 So. 2d 992, 995 (Miss. 2000); Perkins v. Thompson (In re Estate of Taylor), 609 So. 2d 390, 394 (Miss. 1992). The presumption of legitimacy is one of the strongest known to Mississippi law. See Perkins, 609 So. 2d at 394. “A party challenging legitimacy may prevail if he proves beyond a reasonable doubt that the legal husband of the mother is not, in fact, the biological father.” Id. “The burden notwithstanding, (dis)proving paternity is a matter of fact, and courts proceed as with other issues of fact. Any evidence tending to support or deny the fact may be considered.” Id.

The question in the end is whether the court can say beyond a reasonable doubt, given the totality of the circumstances as shown by all of the evidence before it, that the husband is not the father. Necessarily, this standard requires a sensitive assessment of the evidence of each individual case.

Id. “At common law, [the presumption of legitimacy] was rebutted by showing either that the husband was incapable of procreating or that the mother and husband were physically separated at the time of conception.” M.A. v. M.D. (In re B.N.N.), 928 So. 2d 197, 200 (Miss. Ct. App. 2006); see Perkins, 609 So. 2d at 394. However, “the presumption has bowed to realism.” Perkins, 609 So. 2d at 394.

 

In particular, “[s]cientific and technological advancements have resulted in other means of rebutting this presumption, such as paternity testing.” M.A., 928 So. 2d at 200 (citing Miss. Code Ann. §§ 93-9-21, 93-9-27);^[3] Perkins, 609 So. 2d at 394 (noting that Mississippi courts “accept that blood tests can produce a high level of discrimination either excluding or including a given male as the father of a particular child”) (internal quotation marks omitted). While “[g]enetic test results are admissible as evidence of paternity, but are not necessarily conclusive,” In re Estate of Grubbs, 753 So. 2d 1043, 1052 (Miss. 2000), genetic testing “may rebut the presumption of legitimacy.” Rafferty, 757 So. 2d at 995.

Here, the information provided offers strong evidence to rebut the presumption that Claimant is the legitimate child of J2~, who is identified as the husband of Claimant’s mother on the Certificate of Marriage, and is identified as Claimant’s father on the Certificate of Live Birth. The DNA testing showed a 99.99% probability Claimant is related to NH’s father as a second-degree relative. The DNA testing does not specifically disprove that J2~ is Claimant’s child, but given the highly unlikely possibility that B~ is related to NH’s father, the DNA testing strongly indicates that J2~ is not Claimant’s father.

The court’s Order of Filiation also provides evidence that Claimant is not J2~’s child. However, the agency is not bound by a state trial court’s determination to which it was not a party. See Social Security Ruling (SSR) 83-37c. Nevertheless, the agency is not free to ignore an adjudication of a state court where the following prerequisites exist: (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 SSR 83-37c (adopting Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973), as national policy).

 

Here, the court’s Order of Filiation does not meet all the prerequisites in SSR 83-37c. The court had jurisdiction to decide the issue of Claimant’s legitimacy, which fell within the general category of domestic relations law. See Miss. Code Ann. § 93-17-1(1) (stating that the chancery court shall have jurisdiction upon petition to make legitimate any offspring of petitioner not born in wedlock). Also, the court’s determination appears to be consistent with Mississippi law. However, nothing in the Order of Filiation suggests parties with opposing interests genuinely contested the issue of whether NH is Claimant’s father. No guardian ad litem was appointed to represent Claimant’s interests. See, e.g., Baker by Williams v. Williams, 503 So. 2d 249, 252-53 (Miss. 1987) (acknowledging that the interests of mother may not be the same as the interests of child in paternity matter, and lower court needed to consider appointing guardian ad litem for child). Also, there is no indication that J2~ was a party, despite being identified on the Certificate of Marriage as the husband of Claimant’s mother and on the Certificate of Live Birth as Claimant’s father. Further, although the court ordered and adjudged that Claimant shall receive Social Security benefits as NH’s legitimate biological child. However, the agency was not a party and court did not have jurisdiction to order the agency to take such action. Therefore, the court’s finding that Claimant is NH’s legitimate child is not entitled to any special significance.

Nevertheless, the court’s determination provides further evidence to rebut the presumption that J2~ is Claimant’s father. The court ordered and adjudged that Claimant is NH’s biological, legitimate, and legal child. The court noted that Claimant’s mother and all of NH’s survivors acknowledged Claimant as NH’s biological child. The court order, together with the DNA test results and the statements mentioned in the court order, provides evidence beyond a reasonable doubt to rebut the presumption that Claimant is the legitimate child of J2~. See Rafferty, 757 So. 2d at 995; Perkins, 609 So. 2d at 394.

Although the court legitimized Claimant in the same order, for purposes of the following legal analysis we assume Claimant is illegitimate because the evidence presented actually rebutted the presumption of legitimacy. Mississippi intestacy law provides that an illegitimate child shall inherit from her father if:

(a) The natural parents participated in a marriage ceremony before the birth of the child, even though the marriage was subsequently declared null and void or dissolved by a court; or

(b) There has been an adjudication of paternity or legitimacy before the death of the intestate; or

(c) There has been an adjudication of paternity after the death of the intestate, based upon clear and convincing evidence, in an heirship proceeding.

Miss. Code Ann. § 91-1-15(3) (West 2015).^[4] In the Order of Filiation, the court found that NH and Claimant’s mother were not married when Claimant was born and there is no other evidence showing that NH and Claimant’s mother participated in a marriage ceremony. Further, there is no information that a court adjudicated NH’s paternity or Claimant’s legitimacy before NH’s death. Therefore, Claimant could establish a right to inherit from NH only through an adjudication of paternity after NH’s death based on clear and convincing evidence. See Miss. Code Ann. § 91-1-15(3)(c).

An individual born out-of-wedlock seeking to establish inheritance rights from a deceased putative father “must offer clear and convincing proof of paternity.” Grubbs, 753 So. 2d at 1048 (citing Miss. Code Ann. § 91-1-15(3)(c)). “The requisite standard of clear and convincing evidence reflects the high degree of confidence society demands in adjudications of paternity. The standard serves the interests of legitimate heirs, and of society as a whole, in averting fraudulent claims.” Id. (internal citation, quotation marks, and brackets omitted). The evidence presented must be of sufficient quantity and quality and provide a substantial basis for the trier of fact to conclude that clear and convincing evidence establishes paternity. See Estate of Kendrick v. Gorden, 46 So. 3d 386, 390 (Miss. Ct. App. 2010) (citing Estate of Robinson v. Gusta, 540 So. 2d 30, 33 (Miss. 1989)).

Proving or disproving paternity “is a matter of fact, and . . . [a]ny evidence tending to support or deny the fact may be considered.” Perkins, 609 So. 2d at 394. Mississippi courts “accept that blood tests can produce a high level of discrimination either excluding or including a given male as the father of a particular child.” Id. “Genetic test results are admissible as evidence of paternity, but are not necessarily conclusive.” Grubbs, 753 So. 2d at 1052 (citing Chisolm v. Eakes, 573 So. 2d 764, 767 (Miss. 1990)). The fact finder “may consider the expert testimony [regarding the results of genetic testing] for what it feels the testimony is worth, and may even discard it entirely. Where non-genetic evidence is conflicting, the fact finder must engage in a determination of credibility.” Grubbs, 753 So. 2d at 1052 (citing Chisolm, at 767, 768). “[A]bsent some statutory pronouncement, paternity test results, even those showing a high probability of paternity, cannot be conclusive as a matter of law.” Chisolm, 573 So. 2d at 769. Because “the courts do not recognize blood tests as infallible nor do they accept blood tests as conclusive proof of paternity,” an individual claiming paternity must “produce other evidence to establish his claim of paternity.” Groves v. Slaton, 733 So. 2d 349, 352 (Miss. Ct. App. 1999) (citing Chisolm, 573 So. 2d at 767).

 

Here, the evidence indicated that the DNA testing showed a 99.99% probability that Claimant is related to NH’s father as a second-degree relative. However, NH had a brother, G2~. The DNA evidence did not rule out G2~ as Claimant’s father. Moreover, Claimant’s mother did not provide a statement indicating that NH’s brother, G2~, was not Claimant’s father. Other evidence provided revealed Claimant’s mother reported she no longer lived with J2~ at the time of NH’s death. She stated she was separated from J2~ and lived with NH prior to NH’s death. However, Claimant’s mother did not provide any other evidence to support her claim. Although Claimant’s mother did not provide additional evidence, the state court noted the testimony of Claimant’s mother and NH’s family members, including G2~, stating Claimant was the child of NH. The court ordered and adjudged that that Claimant is NH’s legitimate and legal child and shall inherit from NH under the statutes of descent and distribution of the State of Mississippi. The order did not contain a detailed legal analysis of how Claimant, as an illegitimate child, could inherit from NH based upon clear and convincing evidence. Nevertheless, the court reached that conclusion and legitimized Claimant as the child of NH. Based on the evidence provided, an adjudicator could conclude Claimant is NH’s child under section 216(h)(2)(A) of the Act.

You also asked whether the first month of entitlement to benefits would be August 2015, the month the court issued the Order of Filiation. “An act/event conferring inheritance rights generally has effect only from the date of such act/event.” Program Operations Manual System (POMS) GN 00306.055.A.3. If one piece of evidence satisfies the applicable standard of proof, the effective date is the date of that piece of evidence. See id. If an adjudicator needs more than one piece of evidence to satisfy the applicable standard of proof, the effective date is the date of the latest necessary piece of evidence. See id.

 

Here, establishing NH’s paternity under Mississippi Code Annotated § 91-1-15(3)(c) would confer inheritance rights on Claimant by finding that Claimant is NH’s legitimate child. The court’s order indicates it relied on more than one piece of evidence in reaching its decision, namely the DNA tests and the acknowledgement of Claimant’s mother and all of NH’s survivors that Claimant is NH’s biological child. The DNA tests were reviewed and sworn in September 2014, whereas the other evidence is not dated. In the absence of any other dates, the court Order of Filiation conferring inheritance rights represents the effective date. Thus, Claimant’s status as NH’s child could not be effective before August 2015. See POMS GN 00306.055.A.3.

CONCLUSION

Based on the evidence provided, we believe a Mississippi court would conclude the presumption of paternity is rebutted. We also believe that an adjudicator could determine that there is clear and convincing evidence establishes that Claimant is NH’s child for purposes of Mississippi intestacy law. Therefore, an adjudicator could find that Claimant is NH’s child for the purposes of determining Claimant’s eligibility for CIB on NH’s earnings record. The effective month of the relationship between Claimant and NH is August 2015, the date of the court order.

 

Mary Ann Sloan

Regional Chief Counsel

By: Jennifer L. Patel

Assistant Regional Counsel

 

The NH’s was domiciled in Mississippi at the time of his death, therefore, we look to Mississippi intestacy law to determine whether Claimant is NH’s child for purposes of section 216(h)(2)(A) of the Act. The Mississippi intestacy law provides that an illegitimate child shall inherit from his father if: (a) The natural parents participated in a marriage ceremony before the birth of the child, even though the marriage was subsequently declared null and void or dissolved by a court; or (b) There has been an adjudication of paternity or legitimacy before the death of the intestate; or (c) There has been an adjudication of paternity after the death of the intestate, based upon clear and convincing evidence, in an heirship proceeding . In this case, the NH and claimant’s mother did not participate in a marriage ceremony nor a court adjudicated NH’s paternity or Claimant’s legitimacy before NH’s death. The Claimant can only establish the right to inherit from NH through an adjudication of paternity based on clear and convincing evidence.

The Mississippi’s Uniform Law of Paternity provides that genetic tests establishing a probability of paternity of 98% or greater create a rebuttable presumption of paternity that can be rebutted only by a preponderance of the evidence. The Claimant’s mother provided DNA test results indicating a 99.99% probability that NH is Claimant's father. The testing was based on DNA samples from Claimant and NH. None of the evidence or information provided suggests the DNA test results were not reliable and credible. Therefore, the DNA test results provide substantial evidence that Claimant is NH’s child and arguably create a rebuttable presumption that NH is Claimant’s father. Based on the evidence provided, we believe a Mississippi court would conclude the claimant is the number holder’s child under Mississippi intestacy law. Therefore, the claimant is the number holder’s child for determining the claimant’s eligibility for CIB on the number holder’s earnings record. The effective date of the relationship is the date of the DNA test results.

QUESTION

You asked whether the claimant is the number holder’s child based on DNA test results, statements from the claimant’s mother, and a court order establishing paternity for determining the claimant’s eligibility for child’s insurance benefits (CIB) on the number holder’s earnings record. You also asked whether the claimant would be entitled to retroactive benefits.

OPINION

We believe a Mississippi court would conclude the claimant is the number holder’s child under Mississippi intestacy law. Therefore, the claimant is the number holder’s child for determining the claimant’s eligibility for CIB on the number holder’s earnings record. The effective date of the relationship is the date of the DNA test results.

BACKGROUND

According to the information provided, on March XX, 2014, L~(Claimant’s mother) applied for CIB on behalf of D2~. (Claimant), on the earnings record of T~, the number holder (NH). NH’s death certificate shows he died on March XX, 2010, while domiciled in Mississippi. Claimant’s mother and NH were never married. Claimant’s birth certificate shows that he was born on December, and lists Claimant’s mother and D~, as his parents. D~ also signed the birth certificate. Claimant’s mother also reports that D~ signed “something at child support” acknowledging Claimant as his child. Claimant’s mother and D~ were never married.

According to Claimant’s mother, she later learned that NH had sexual relations with her on one occasion while she was sleeping, and she began to suspect NH was Claimant’s father. Claimant’s mother also reported NH planned to sign an acknowledgment that he was Claimant’s father but died before taking action. ^[5] Claimant’s mother obtained a court order to have NH’s body exhumed, and DNA samples were collected on January XX, 2014. Test results showed a 99.99% probability that NH was Claimant’s father. Claimant’s mother reports that because of these DNA test results, D~ is no longer required to pay child support. On August XX, 2014, the Chancery Court of C~ County, Mississippi, issued an Order Establishing Paternity. The court ordered, adjudged, and confirmed Claimant to be NH’s “natural born son” and changed Claimant’s name to E~.

DISCUSSION

A claimant may be eligible for CIB on the earnings record of an individual who dies a fully or currently insured individual if the claimant is the insured individual’s “child.” See Social Security Act (Act) § 202(d)(1); 20 C.F.R. § 404.350(a)(1) (2014). ^[6] “Child” includes “the child” of an insured individual. Act § 216(e); see 20 C.F.R. § 404.354; Astrue v. Capato, --- U.S. ---, 132 S. Ct. 2021, 2027-28 (2012). A claimant may show he is “the child” of a deceased insured individual, within the meaning of section 216(e)(1), by meeting the requirements listed in either section 216(h)(2)(A) or section 216(h)(3)(C) of the Act. ^[7] See id. at 2028. Under section 216(h)(2)(A) of the Act, a claimant is considered the child of the insured individual if the claimant could inherit the insured individual’s intestate personal property under the law of the State in which the insured individual was domiciled at the time of his death. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4).

NH’s death certificate shows he was domiciled in Mississippi when he died. Therefore, we look to Mississippi intestacy law to determine whether Claimant is NH’s child for purposes of section 216(h)(2)(A) of the Act. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4); Program Operations Manual System (POMS) PR 01115.027 (PR 13-101). Mississippi intestacy law provides that an illegitimate child shall inherit from his father if:

(a) The natural parents participated in a marriage ceremony before the birth of the child, even though the marriage was subsequently declared null and void or dissolved by a court; or

(b) There has been an adjudication of paternity or legitimacy before the death of the intestate; or

(c) There has been an adjudication of paternity after the death of the intestate, based upon clear and convincing evidence, in an heirship proceeding . . . .

Miss. Code Ann. § 91-1-15(3) (West 2014); see also Miss. Code Ann. § 91-1-15(1)(c) (“‘Illegitimate’ means a person who at the time of his birth was born to natural parents not married to each other and said person was not legitimized by subsequent marriage of said parents or legitimized through a proper judicial proceeding.”); POMS PR 01115.027 (PR 13-101). The information provided does not indicate NH and Claimant’s mother participated in a marriage ceremony or that a court adjudicated NH’s paternity or Claimant’s legitimacy before NH’s death. Therefore, Claimant could establish his right to inherit from NH only through an adjudication of paternity based on clear and convincing evidence. See Miss. Code Ann. § 91-1-15(3)(c). ^[8] An individual born out-of-wedlock seeking to establish inheritance rights from a deceased putative father “must offer clear and convincing proof of paternity.” In re Estate of G~, 753 So. 2d 1043, 1048 (Miss. 2000) (citing Miss. Code Ann. § 91-1-15(3)(c)). “The requisite standard of clear and convincing evidence reflects the high degree of confidence society demands in adjudications of paternity. The standard serves the interests of legitimate heirs, and of society as a whole, in averting fraudulent claims.” Id. (internal citation, quotation marks, and brackets omitted). The evidence presented must be of sufficient quantity and quality and provide a substantial basis for the trier of fact to conclude that clear and convincing evidence establishes paternity. See Estate of Kendrick v. Gorden, 46 So. 3d 386, 390 (Miss. Ct. App. 2010) (citing Estate of Robinson v. Gusta, 540 So. 2d 30, 33 (Miss. 1989)); POMS PR 01115.027 (PR 13-101).

Proving or disproving paternity “is a matter of fact, and . . . [a]ny evidence tending to support or deny the fact may be considered.” In re Estate of T~, 609 So. 2d 390, 394 (Miss. 1992). Mississippi courts “accept that blood tests can produce a high level of discrimination either excluding or including a given male as the father of a particular child.” Id. (internal quotations marks omitted). “Genetic test results are admissible as evidence of paternity, but are not necessarily conclusive.” G~, 753 So. 2d at 1052 (citing Chisolm v. Eakes, 573 So. 2d 764, 767 (Miss. 1990)). The fact finder “may consider the expert testimony [regarding the results of genetic testing] for what it feels the testimony is worth, and may even discard it entirely. Where non-genetic evidence is conflicting, the fact finder must engage in a determination of credibility.” G~, 753 So. 2d at 1052 (citing C~, at 767, 768). “[A]bsent some statutory pronouncement, paternity test results, even those showing a high probability of paternity, cannot be conclusive as a matter of law.” C~, 573 So. 2d at 769. Because “the courts do not recognize blood tests as infallible nor do they accept blood tests as conclusive proof of paternity,” an individual claiming paternity must “produce other evidence to establish his claim of paternity.” Groves v. Slaton, 733 So. 2d 349, 352 (Miss. Ct. App. 1999) (citing C~, 573 So. 2d at 767); POMS PR 01115.027 (PR 13-101).

Mississippi’s Uniform Law of Paternity provides that genetic tests establishing a probability of paternity of 98% or greater create a rebuttable presumption of paternity that can be rebutted only by a preponderance of the evidence. See Miss. Code Ann. § 93-9-27(2); Estate of Smith v. Smith ex rel. Rollins, 130 So. 3d 508, 513 (Miss. 2014). We have not found Mississippi case law that has applied the statutory presumption in cases involving the issue of paternity in determining heirs of an intestate’s estate; however, the Mississippi Supreme Court applied the presumption in determining a deceased’s heirs in wrongful death cases-cases involving a wrongful death statute. See id.; Brown v. Jackson (In re Estate of C~), 711 So. 2d 878, 882 (Miss. 1998). An illegitimate child has all the benefits, rights, and remedies in a wrongful death action if he or she establishes the right to inherit from the deceased under Mississippi Code Annotated § 91-1-15. See Miss. Code Ann. § 11-7-13; In re Estate of B~, 755 So. 2d 1108, 1112-13 (Miss. Ct. App. 1999). In Estate of S~, the court considered DNA testing showing 0% possibility that the deceased was the child’s father and a 99.997% likelihood that another man was the father. Citing a paternity case, the Smith court held that “‘[w]here scientific evidence points overwhelmingly towards one man as the father of a child, paternity is established.’” Estate of S~, 130 So. 3d at 513 (quoting Griffith v. Pell, 881 So. 2d 227, 230-31 (Miss. Ct. App.2003)). Thus, we believe a Mississippi court presented with genetic testing showing a 98% or greater probability of paternity at least would need to consider the statutory presumption in Mississippi Code Annotated § 93-9-27(2) in determining paternity under Mississippi Code Annotated § 91-1-15(3)(c). See B~, 711 So. 2d at 882; see also Miss. Code Ann. § 91-1-15 (“The remedy created herein is separate, complete and distinct, but cumulative with the remedies afforded illegitimates as provided by the Mississippi Uniform Law on Paternity”).

Claimant’s mother provided DNA test results indicating a 99.99% probability that NH is Claimant's father. The testing was based on DNA samples from Claimant and NH. None of the evidence or information provided suggests the DNA test results were not reliable and credible. Therefore, the DNA test results provide substantial evidence that Claimant is NH’s child and arguably create a rebuttable presumption that NH is Claimant’s father. See Miss. Code Ann. §§ 91-1-15(3)(c), 93-9-27(2); G~, 753 So. 2d at 1052; B~, 711 So. 2d at 882. As noted above, however, the DNA test results are not conclusive evidence of paternity; and a Mississippi court would require additional evidence to establish NH’s paternity. See G~, 753 So. 2d at 1052; G~, 733 So. 2d at 352.

Although Claimant’s mother provided a chancery court order finding NH is Claimant’s natural parent based solely on the DNA test results, ^[9] Social Security Ruling (SSR) 83-37c provides the agency is not bound by a state trial court’s determination to which it was not a party. However, the agency cannot ignore such a decision that meets all four of the following prerequisites: “(1) an issue in a claim for Social Security benefits previously has been determined by a State court of competent jurisdiction; (2) the 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.” SSR 83-37c. Because the chancery court’s decision was not genuinely contested, the decision does not satisfy the requirements of SSR 83-37c. Therefore, the agency is not bound by the chancery court order of paternity.

In addition to the DNA test results, the evidence includes statements of Claimant’s mother regarding the circumstances under which she had sexual relations with NH. Although another man, D~, is listed as the father on Claimant’s birth certificate and had been ordered to pay child support after acknowledging Claimant, D~ and Claimant’s mother were never married and never lived together. Earlier paternity orders “may be vacated once DNA testing establishes someone other than the named individual is the child’s biological father.” Estate of S~, 130 So. 3d at 513 (citations omitted). In this regard, Claimant’s mother reported that the child support order was rescinded after the DNA test results confirmed that D~ was not Claimant’s father. Given the available evidence, we believe a Mississippi court, as the chancery court did here, would find that clear and convincing evidence establishes that NH is Claimant’s father for the purposes of Mississippi intestacy law. Therefore, the agency could conclude Claimant is NH’s child under section 216(h)(2)(A) of the Act.

You also asked whether Claimant would be entitled to retroactive CIB. “An act/event conferring inheritance rights generally has effect only from the date of such act/event.” POMS GN 00306.055.A.3. If State law confers inheritance rights based on an adjudication of paternity but does not legitimate the child, and the State law is prospective only, the effective date of the parent-child relationship depends on the evidence needed to satisfy the applicable standard of proof. See id. If one piece of evidence satisfies the applicable standard of proof, the effective date is the date of that piece of evidence. See id. If an adjudicator needs more than one piece of evidence to satisfy the applicable standard of proof, the effective date is the date of the latest necessary piece of evidence. See id.

In Claimant’s case, although establishing NH’s paternity under Mississippi Code Annotated § 91-1-15(3)(c) would confer inheritance rights on Claimant, the statute does not render Claimant NH’s legitimate child. See Miss. Code Ann. § 91-1-15(1)(c) (indicating a person is “illegitimate” if his parents were not married to each other at the time of his birth and “said person was not legitimized by subsequent marriage of said parents or legitimized through a proper judicial proceeding”); cf. Miss. Code Ann. § 93-17-1(1) (stating chancery court shall have jurisdiction upon petition to make legitimate any offspring of petitioner not born in wedlock); Miss. Code Ann. § 93-17-1(2) (conferring legitimacy when father marries mother and acknowledges child); Miss. Code Ann. § 93-17-13 (indicating final adoption decree confers legitimacy on child). Given the DNA test results are the latest necessary piece of evidence needed to establish clear and convincing proof of NH’s paternity, Claimant’s status as NH’s child could not be effective before January 23, 2014, the date of the DNA testing. See POMS GN 00306.055.A.3.

CONCLUSION

We believe a Mississippi court would conclude NH is Claimant’s father under Mississippi intestacy law, and Claimant would be entitled to inherit NH’s intestate property. Therefore, Claimant is NH’s child for determining Claimant’s eligibility for CIB on NH’s earnings record. The effective date of the relationship between Claimant and NH is January XX, 2014, the date of the DNA testing.

Mary Ann Sloan

Regional Chief Counsel

By:_______________

Joseph P. Palermo, III

Assistant Regional Counsel

Can a child be entitled to benefits under Section 216(h)(3) of the Act when the number holder (NH): never married the child's mother, never acknowledged the child in writing, was not listed as the father on the child's birth certificate, died before the birth of the child, and there is not sufficient DNA evidence to establish the NH as the father of the Claimant?  A DNA sample was obtained from the NH's mother (the Claimant's grandmother) in an attempt to establish the NH as the father of the Claimant, but the results were not at or above the level required to be considered convincing evidence.   The DNA test results and other evidence do not provide clear and convincing evidence the NH is the Claimant’s father for purposes of Mississippi intestacy law and section 216(h)(2)(A) of the Act. The evidence provided also does not establish that Claimant is NH’s child under section 216(h)(3)(C) of the Act.  Therefore, Claimant is not NH’s child for determining Claimant’s eligibility for CIB on NH’s earnings record. 

QUESTION

You asked whether the evidence provided is sufficient under Mississippi law to establish the claimant as the number holder’s child for determining the claimant’s eligibility for child insurance benefits (CIB) on the number holder’s earning record. You also asked whether the claimant would be considered the number holder’s child under Section 216(h)(3) of the Social Security Act. 

OPINION

The evidence provided does not provide clear and convincing evidence that the number holder is the father of the claimant for the purposes of Mississippi intestacy law and the claimant would not be considered the number holder’s child under Section 216(h)(3) of the Social Security Act. Therefore, the claimant is not the number holder’s child for determining the claimant’s eligibility for CIB on the number holder’s earnings record.

BACKGROUND

Based on the information provided, we understand the facts to be as follows. On November XX, 2006, K~ , the number holder (NH), died while domiciled in the state of Mississippi. On March K2~ (Claimant) was born to K3~ (Claimant’s mother), in Mississippi. Claimant’s birth certificate originally listed D~(D~) as her father. In a statement dated February XX, 2013, Claimant’s mother claimed NH was the father of Claimant but he committed suicide when she was five months pregnant. Claimant’s mother stated D~, NH’s best friend, thought it would be best if he helped the mother raise Claimant and, therefore he was listed as the father on Claimant’s birth certificate. Claimant’s mother never married NH or D~, and the NH never acknowledged Claimant as his child in writing. 

In August 2008, Claimant, Claimant’s mother, and D~ provided samples for a DNA paternity test. The test results showed a 0% probability of paternity and indicated D~ is not Claimant’s biological father.  In February 2012, Claimant, Claimant’s mother, and NH’s mother provided samples for DNA testing of grandparentage. The test results indicated a 97.428% probability of relatedness between Claimant and NH’s mother.  In August 2012, the Chancery Court of L~ County, Mississippi, granted the petition of Claimant’s mother to adjudicate paternity and modify Claimant’s birth certificate to show NH as Claimant’s father.       

On February XX, 2013, Claimant’s mother filed an application on Claimant’s behalf for CIB on NH’s earnings record.

 

DISCUSSION

Child status under § 216(h)(2)(A) of the Social Security Act (Act)

To qualify for CIB on the earnings record of an insured individual, a claimant must be that individual’s “child.” See Act § 202(d); 20 C.F.R. § 404.350(a)(1) (2013). All references to 20 C.F.R. are to the 2013 version unless otherwise noted.

 “Child” includes “the child” of an insured individual. See Act § 216(e)(1); 20 C.F.R. § 404.354; Astrue v. Capato, 132 S. Ct. 2021, 2027-28 (2012). When the insured individual and claimant’s mother have not gone through a marriage ceremony, the claimant may show she is “the child” of a deceased insured individual, within the meaning of section 216(e)(1) of the Act, under either section 216(h)(2)(A) or section 216(h)(3)(C) of the Act. See C~, 132 S. Ct. at 2028. Under section 216(h)(2)(A), a claimant must show she would be entitled to a child’s share of the insured individual’s intestate personal property under the law of the State in which the insured individual was domiciled when he died. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4); Program Operations Manual System (POMS) GN 00306.055.A.1.   

According to the information provided, NH was domiciled in Mississippi when he died. Therefore, we look to Mississippi intestacy law to determine whether Claimant is NH’s child for purposes of section 216(h)(2)(A) of the Act.  Under Mississippi intestacy law,

An illegitimate shall inherit from and through the illegitimate’s natural father and his kindred . . . if:

(a) The natural parents participated in a marriage ceremony before the birth of the child, even though the marriage was subsequently declared null and void or dissolved by a court; or

(b) There has been an adjudication of paternity or legitimacy before the death of the intestate; or

(c) There has been an adjudication of paternity after the death of the intestate, based upon clear and convincing evidence in an heirship proceeding.

Miss. Code Ann. § 91-1-15(3) (West 2013). All references to the Miss. Code Ann. are to the West 2013 version unless otherwise noted.

 None of the information provided indicates NH and Claimant’s mother participated in a marriage ceremony or that a court adjudicated NH’s paternity or Claimant’s legitimacy before NH’s death.  Therefore, Claimant could establish her right to inherit from NH only through an adjudication of paternity based on clear and convincing evidence in an heirship proceeding. Section 91-1-15(3)(c) of the Mississippi Code indicates that an action seeking an adjudication of paternity generally must be filed with one year after the death of the intestate. See Miss. Code Ann. § 91-1-15(3)(c). However, Miss. Code Ann. 91-1-15(5) states the one-year limitation does not apply when determining paternity for purposes of Social Security benefits.  Moreover, the Social Security Administration (SSA) does not apply any State inheritance law requirement that an action to establish paternity be commenced within a specified period when determining child status under section 216(h)(2)(A) of the Act.  See 20 C.F.R. § 404.355(b)(2). Moreover, when state inheritance law requires a court determination of paternity, SSA does not require an actual determination by a court, but rather decides the paternity issue by using the standard of proof the state court would use. Id. See Miss. Code Ann. § 91-1-15(3)(c).

An illegitimate child seeking to establish inheritance rights from a deceased putative father must offer “clear and convincing” evidence of paternity. See id.; Estate of Kendrick v. Gorden, 46 So. 3d 386, 390 (Miss. Ct. App. 2010).  The clear and convincing standard is a heavy burden of proof that is higher than the preponderance of the evidence standard, see Estate of G~, 753 So. 2d 1043, 1052 (Miss. 2000), but lower than the beyond a reasonable doubt standard, see Estate of Taylor v. Thompson, 609 So. 2d 390, 394 (Miss. 1992). “This standard reflects the high degree of confidence society demands in such adjudications.  And it serves the interests of legitimate heirs, and of society as a whole, in averting fraudulent claims.” Estate of K~, 46 So. 3d at 390 (internal citation and quotation marks omitted). The evidence presented must be “of sufficient quantity and quality that a rational trier of fact could have concluded that the claimant had proved by clear and convincing evidence that the decedent was his natural father.” Id. (internal quotation marks and brackets omitted); see also Estate of J~, 767 So. 2d 181, 185 (Miss. 2000) (holding trial judge correctly applied clear and convincing standard where trial judge stated issue was “whether or not the evidence presented . . . is sufficiently credible, is sufficiently clear, and sufficiently convincing” to determine if the appellee was the deceased’s child).

Proving or disproving paternity is a “matter of fact, and “[a]ny evidence tending to support or deny” paternity may be considered. Estate of T~, 609 So. 2d at 394. Mississippi Courts “accept that blood tests can produce a high level of discrimination either excluding or including a given male as the father of a particular child.” Id. (internal quotation marks omitted). However, although genetic tests are admissible as evidence of paternity, they “are not necessarily conclusive.” Estate of G~, 753 So. 2d at 1052 (citing Chisolm v. Eakes, 573 So. 2d 764, 767 (Miss.1990)). The fact finder “may consider the expert testimony [regarding the results of genetic testing] for what it feels the testimony is worth, and may even discard it entirely.  Where non-genetic evidence is conflicting, the fact finder must engage in a determination of credibility.” Id. (citing C~, 573 So. 2d at 767-68). “[A]bsent some statutory pronouncement, paternity test results, even those showing a high probability of paternity, cannot be conclusive as a matter of law.” C~, 573 So. 2d at 769. Because “the courts do not recognize blood tests as infallible nor do they accept blood tests as conclusive proof of paternity,” an individual claiming paternity must “produce other evidence to establish his claim of paternity.”  Groves v. Slaton, 733 So. 2d 349, 352 (Miss. Ct. App. 1999) (citing C~, 573 So. 2d at 767).

In Claimant’s case, Claimant’s mother provided DNA test results indicating a 97.428% probability Claimant and NH’s mother (i.e., Claimant’s purported grandmother) were related.  At least one Mississippi case suggests blood matching may be done between grandparents and the children to establish the children’s paternity. See Estate of Stowers v. Jones, 678 So. 2d 660, 661-62 (Miss. 1996).  Nevertheless, although the DNA test results may be probative of paternity, the DNA test results, alone, do not satisfy Mississippi’s clear and convincing standard.  The DNA testing at issue here establishes a 97.428% probability that Claimant and NH’s mother are related, but does not establish or identify a probability of paternity. Mississippi’s Uniform Statute on Paternity provides that genetic tests establishing a probability of paternity of 98% or greater creates a presumption of paternity that can be rebutted only by a preponderance of the evidence. See Miss. Code Ann. § 93-9-27(2); see also Estate of Chambers v. Jackson, 711 So. 2d 878, 882 (Miss. 1998) (holding trial judge must consider the statutory presumption in a case involving the issue of paternity in determining heirs in a wrongful death case).  Even assuming this statutory presumption applied in cases involving the issue of paternity in determining heirs of an intestate’s case, the presumption does not apply here, where the DNA test results do not identify a probability of paternity and fall below the percentage required to create a presumption of paternity. 

 In C~, the court held paternity tests indicating a 99.59649% probability of paternity, even when performed on the putative father, did not amount to a preponderance of the evidence, a lower standard of proof than the clear and convincing standard.  See C~, 573 So. 2d at 766-69 (affirming jury’s verdict finding paternity not established despite genetic testing where mother did not list purported father on birth certificate and waited a long time to bring paternity suit); see also POMS PR 01115.027.B (PR 07-183) (concluding DNA testing establishing a 98.15% probability that deceased number holder’s brother was claimant’s uncle, would not, alone, satisfy the clear and convincing evidence standard of paternity for inheritance purposes under Mississippi law).

The information provided also includes non-genetic evidence, but this evidence is not sufficient to establish NH’s paternity of Claimant for intestacy purposes.  The order from the L~ County Chancery Court does not establish clear and convincing evidence that NH was Claimant’s father.  Under Social Security Ruling (SSR) 83-37c, SSA is generally required to accept a State court order adjudicating the legitimacy of a minor child. That ruling, interpreting the case of Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973), stated that the Commissioner may not ignore an adjudication of a State court where: (1) the State court is a court of competent jurisdiction and has determined an issue in a claim for Social Security benefits; (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.  The facts in this case do not satisfy the prerequisites of SSR 83-37c, because the State court order does not involve an issue genuinely contested by parties with opposing interests and the resolution by the State court is not consistent with Mississippi’s intestacy law. 

Although the Chancery Court ruled NH was Claimant’s natural father, the Chancery Court order here was not issued in an “heirship proceeding” pursuant to Miss. Code Ann. § 91-1-15(3)(c). Rather, the order was the result of a proceeding to correct a birth certificate pursuant to Miss. Code Ann. § 41-57-23. The order indicates it is based on the mother’s petition to adjudicate paternity and modify the birth certificate of Claimant.  As a result, the Chancery Court ordered the Bureau of Vital Statistics to change Claimant’s birth certificate to reflect that NH is Claimant’s father.  Although the Chancery Court did not indicate the statutory authority it was acting under, the amended birth certificate reflects it was amended pursuant to Miss. Code Ann. § 41-57-23. Additionally, Claimant’s surname was changed on the birth certificate to NH’s surname. The Mississippi Supreme Court has ruled that proceedings under Miss. Code Ann. § 41-57-23 employ a preponderance of the evidence to show that the change in the birth certificate or change of name is in the best interest of the child. See Rice v. Merkich, 34 So. 3d 555, 559-60 (Miss. 2010). Here, the Chancery Court’s order indicates it was acting under that standard, finding that the change in the birth certificate “is in the best interest of the minor child.” Thus, the Chancery Court court’s order, issued pursuant to Miss. Code Ann. § 41-57-23, did not employ the clear and convincing evidence standard required by Miss. Code Ann. § 91-1-15(3)(c).     

The amended birth certificate, which was changed to indicate NH was Claimant’s father, likewise fails to provide clear and convincing evidence needed to establish NH’s paternity under Mississippi’s intestacy law.  The creation of the amended birth certificate was based on the Chancery Court’s order, which, as discussed above, was decided by applying a preponderance of the evidence standard to the question of the best interests of the child, not by the clear and convincing evidence standard to the question of paternity, as required by the intestacy statute. See R~, 34 So. 3d at 559-60; Miss. Code Ann. § 41-57-23. In fact, the birth certificate explicitly states that it was amended by authority of Miss. Code Ann. § 41-57-23, not pursuant to an “heirship proceeding” under Miss. Code Ann. § 91-1-15(3)(c).  Further, Mississippi law does not give presumptive value to the information contained in an amended birth certificate, and standing alone, the listing of the father’s name on the birth certificate is not conclusive.  See Estate of I~, 2012 WL 6131208, at *10-11 (Miss. App. Dec. 11, 2012).  Rather, Mississippi’s vital statistics statute related to correcting information in a birth certificate allows the putative father to sign a voluntary acknowledgement of paternity when amending a birth certificate, not possible here as NH was deceased. See Miss. Code Ann. § 41-57-23(2).  Without a signed voluntary acknowledgment of paternity accompanying the amended birth certificate, the document by itself is insufficient evidence to establish NH was Claimant’s biological father. See Estate of I~, 2012 WL 6131208, at *10-11.    

Thus, although the DNA evidence and the non-genetic evidence presented here would be probative of paternity, the evidence provided does not constitute “clear and convincing” evidence of NH’s paternity. Therefore, Claimant is not NH’s child for purposes of Mississippi intestacy law and section 216(h)(2)(A) of the Act.

Child status under § 216(h)(3)(C) of the Act

To establish child status under section 216(h)(3)(C) of the Act, the claimant must show she is the biological child of the number holder and one of the following:  (1) the number holder acknowledged in writing that the claimant is his child; (2) a court decreed the number holder to be the claimant’s father; (3) a court ordered the number holder to contribute to the support of the claimant; or (4) the number holder is the claimant’s father and was living with or contributing to the support of the claimant when the number holder died.  See Act § 216(h)(3)(C); 20 C.F.R. § 404.355(a)(3), (a)(4); POMS GN 00306.100. Such acknowledgment, court decree, or court order must have occurred before the death of the insured individual. See Act § 216(h)(3)(C). 

According to Claimant’s mother, NH did not acknowledge in writing that Claimant was his child and no court ordered NH to pay child support. The information provided also does not include a court order decreeing NH to be Claimant’s father or evidence that NH was living with or contributing to Claimant’s support. Thus, the available evidence also does not establish that Claimant is NH’s child under section 216(h)(3)(C) of the Act.

CONCLUSION

The DNA test results and other evidence do not provide clear and convincing evidence that NH is Claimant’s father for purposes of Mississippi intestacy law and section 216(h)(2)(A) of the Act.  The evidence provided also does not establish that Claimant is NH’s child under section 216(h)(3)(C) of the Act. Therefore, Claimant is not NH’s child for determining Claimant’s eligibility for CIB on NH’s earnings record.  

Mary Ann Sloan

Acting Regional Chief Counsel V

By:______________

Richard V. Blake

Assistant Regional Counsel