QUESTION
You asked whether a DNA test showing a high probability that a number holder’s brother
is the uncle of a claimant establishes that the claimant is the number holder’s child
for determining the claimant’s eligibility for child’s insurance benefits (CIB) on
the number holder’s earnings record.
SHORT ANSWER
The DNA test results, alone, do not amount to the clear, cogent, and convincing evidence
necessary to establish the claimant is the number holder’s child under North Carolina
intestacy law. Thus, under the current record, 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
According to the information provided, P~ (Claimant’s mother) filed an application
on behalf of her son, M~, (Claimant), for CIB on the earnings record of M2, the number
holder (NH). To support the application, Claimant’s mother submitted Claimant’s birth
certificate, which shows that Claimant was born on April XX, 2015, and has the same
surname as NH. A father is not identified on the birth certificate. Claimant’s mother
also submitted the results of DNA testing. The DNA testing report indicates that a
facility accredited by the American Association of Blood Banks (AABB) analyzed DNA
samples from Claimant and K~ (NH’s brother). The DNA testing revealed a 99.4721% probability
that NH’s brother is Claimant’s uncle.
NH’s death certificate indicates that he died on November XX, 2014, while domiciled
in North Carolina. The death certificate does not identify a surviving spouse, and
the information provided does not indicate that NH ever married Claimant’s mother.
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 Act § 202(d)(1); 20 C.F.R. § 404.350(a)(1) (2015). “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 of either 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), a claimant is considered “the child”
of a deceased insured individual if he could inherit 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); Capato, 132 S. Ct. at 2028-34; POMS GN 00306.001(C)(1)(a), (C)(2)(a). NH’s death certificate indicates that he was domiciled in North
Carolina when he died. Therefore, we look to North Carolina intestacy law to determine
whether Claimant is NH’s child.
Under North Carolina intestacy law, a child of a person who died intestate generally
is entitled to a share of the person’s personal property. See N.C. Gen. Stat. Ann. §§ 29-13(a), 29-14(b)(1), (b)(2), 29-15(1), (2), 29-16(a)(1)
(West 2016). North Carolina intestacy law states, in pertinent part, that a child
born out of wedlock shall be entitled to take by, through and from:
-
1.
Any person who has been finally adjudged to be the father of the child pursuant to
the provisions of G.S. 49-1 through 49-9 or the provisions of G.S. 49-14 through 49-16;
-
2.
Any person who has acknowledged himself during his own lifetime and the child’s lifetime
to be the father of the child in a written instrument executed or acknowledged before
a certifying officer named in G.S. 52-10(b) and filed during his own lifetime and
the child’s lifetime in the office of the clerk of superior court of the county where
either he or the child resides[; or]
-
3.
A person who died prior to or within one year after the birth of the child and who
can be established to have been the father of the child by DNA testing.
N.C. Gen. Stat. Ann. § 29-19(b).
The evidence does not indicate that NH acknowledged Claimant as his child prior to
NH’s death and, thus, subsection (b)(2) of the above North Carolina Code does not
apply in Claimant’s claim. The evidence also does not include DNA testing results
that establish NH’s paternity. Rather, the DNA test results available only address
whether NH’s brother is Claimant’s uncle. Therefore, subsection (b)(3) of the above
North Carolina Code also does not apply in Claimant’s claim.
The only provision in subsection (b)(1) that is relevant to Claimant’s claim is N.C.
Gen. Stat. Ann. § 49-14, which discusses civil actions to establish paternity. See N.C. Gen. Stat. Ann. § 49-14. North Carolina law prohibits civil actions to establish
paternity unless the action is commenced, and judgment entered, either prior to the
death of the putative father or within a certain period of the putative father’s death.
See N.C. Gen. Stat. Ann. § 49-14(c). However, SSA regulations state that the agency will
not apply any state inheritance law requirement that an action to establish paternity
must be taken or commenced before or within a specified time of the insured individual’s
death. See 20 C.F.R. § 404.355(b)(2). Similarly, if the state inheritance law requires a court
determination of paternity, SSA will not require a claimant to obtain a court determination,
but will decide the claimant’s paternity by using the standard of proof that the state
court would use as the basis for the determination of paternity. See id.
Under North Carolina law, proof of paternity must be established by “clear, cogent,
and convincing evidence.” N.C. Gen. Stat. Ann. § 49-14(b). Clear, cogent and convincing
evidence is an evidentiary standard that “is greater than the preponderance of the
evidence standard required in most civil cases, but not as stringent as the requirement
of proof beyond a reasonable doubt required in criminal cases.” In re Montgomery, 316 S.E.2d 246, 252 (N.C. 1984). In deciding a paternity claim under § 49-14, a
trial court has the duty “to determine whether evidence offered in a particular case
is clear, cogent, and convincing,” and “it is within the court’s discretion to consider
some, none or all of the evidence, and to determine the appropriate weight to place
on the testimony.” Brown v. Smith, 526 S.E.2d 686, 688 (N.C. Ct. App. 2000) (internal quotation marks omitted).
Our office previously determined that DNA evidence can be used to establish paternity
for intestate purposes in North Carolina. See POMS PR 01115.036 (PR 14-078, PR 08-158, PR 08-093, 02-069). Under North Carolina law, testing of a
putative father’s DNA that reveals a 97% or greater likelihood of paternity effectively
amounts to the clear, cogent, and convincing evidence necessary to establish paternity
under North Carolina intestacy law because it creates a presumption of paternity that
can be rebutted only with other clear, cogent, and convincing evidence. See N.C. Gen. Stat. Ann. § 8-50.1(b1)(4). But when the DNA tested belongs to a putative
paternal relative other than the putative father or when testing the putative father’s
DNA reveals a probability of paternity between 85% and 97%, the DNA testing, standing
alone, does not amount to the clear, cogent, and convincing evidence necessary to
establish paternity under North Carolina intestacy law. See POMS PR 01115.036 (PR 14-078, PR 08-158, PR 08-093, 02-069). In these situations, the DNA testing must
be combined with additional evidence to meet the clear, cogent, and convincing standard
for establishing paternity under North Carolina intestacy law. See id.
We have determined that DNA evidence revealing a 99.99% probability that the father
of a number holder was a claimant’s grandfather, combined with statements from the
claimant’s mother indicating that she did not have a sexual relationship with any
of the number holder’s brothers and had dated the number holder exclusively in the
6 years preceding his death, could amount to the clear, cogent, and convincing evidence
necessary to establish the number holder’s paternity. See id. (PR 08-158). We also have determined that DNA evidence revealing a 99.99% probability
that the parents of a number holder were a claimant’s grandparents, combined with
evidence showing that the number holder did not have brothers who might have fathered
the claimant, could amount to the clear, cogent, and convincing evidence necessary
to establish the number holder’s paternity. See id. (PR 08-093).
The foregoing cases indicate that DNA evidence showing a high probability that a relative
of the putative father is related to the claimant, standing alone, cannot constitute
the clear, cogent, and convincing evidence necessary to establish paternity. To amount
to the clear, cogent, and convincing evidence necessary to establish paternity, such
DNA evidence must be combined with other evidence that suggests the only way the relationship
the DNA test supports could exist is if the putative father is the claimant’s father.
Thus, without evidence suggesting that Claimant’s mother did not have a sexual relationship
with any of NH’s brothers, the DNA test results showing a 99.4721% probability that
NH’s brother is Claimant’s uncle do not amount to clear, cogent, and convincing evidence
necessary to establish paternity under North Carolina intestacy law because NH’s brother
would still be Claimant’s uncle if Claimant’s father was a brother of NH. As the only
evidence Claimant’s mother submitted to establish NH’s paternity was the DNA test
results showing a 99.4721% probability that NH’s brother is Claimant’s uncle, the
evidence available is insufficient to establish that Claimant is NH’s child under
section 216(h)(2)(A) of the Act.
The evidence available also does not establish Claimant is NH’s child under section
216(h)(3)(C) of the Act. To qualify as “the child” of a deceased insured individual
under section 216(h)(3)(C), a claimant must be the son or daughter of the insured
individual and show one of the following: (1) the insured individual acknowledged
in writing that he was his child, (2) a court decreed the insured individual to be
his father prior to the insured individual’s death, (3) a court ordered the insured
individual to contribute to his support prior to the insured individual’s death, or
(4) the insured individual is his natural father and was living with him or contributing
to his support at the time the insured individual died. See Act § 216(h)(3)(C); 20 C.F.R. § 404.355(a)(3), (4); POMS GN 00306.100.A, B. The record, as discussed above, does not establish that Claimant met the threshold
requirement of section 216(h)(3) of being NH’s son, i.e., his biological child. See Act § 216(h)(3); 20 C.F.R. §404.355(a)(3); POMS GN 00306.100.D.1. Claimant’s mother also did not submit evidence that would satisfy any of the
four foregoing requirements of section 216(h)(3)(C). Claimant, therefore, does not
qualify as NH’s child under any provision of section 216(h)(3)(C) of the Act.
CONCLUSION
The evidence Claimant’s mother submitted is not sufficient to establish Claimant could
inherit from NH under North Carolina intestacy law and, therefore, Claimant is not
NH’s child under section 216(h)(2)(A) of the Act. The evidence also does not establish
Claimant could be deemed NH’s child under section 216(h)(3)(C) of the Act. Claimant,
therefore, is not NH’s child for determining Claimant’s eligibility for CIB on NH’s
earnings record.
Mary Ann Sloan
Regional Chief Counsel
By: Peter S. Massaro, III
Assistant Regional Counsel