QUESTION
You asked whether the evidence of record, including a State court order declaring
the deceased number holder the father of the claimant, establishes the claimant is
the number holder's child for purposes of child's insurance benefits on the number
holder's earnings record.
OPINION
The record does not provide clear and convincing evidence that the number holder is
the claimant's father for the purposes of Florida intestacy law. The record also does
not provide sufficient evidence that the claimant could be deemed the number holder's
child. Therefore, the claimant is not the number holder's child for purposes of child's
insurance benefits on the number holder's earnings record.
BACKGROUND
According to the information provided, B~ (Claimant) was born on February, in Florida. Claimant's
birth certificate lists Carla as her mother. Claimant's birth certificate does not
name her father. The information indicates Claimant's mother was married to P~ when
Claimant was born. Although the record does not include a copy of the marriage certificate,
a Joint Stipulation and Marital Settlement Agreement (Agreement) entered into on February
xx, 20xx, states Claimant's mother and P~ were married on December xx, 19xx. The Agreement
states the parties separated on or about March 19xx. The Agreement further states
two children were born of the marriage, in 19xx and 19xx; Claimant is not listed as
one of the two children. On April xx, 20xx, a Florida court approved and incorporated
the Agreement into a final judgment dissolving the marriage between Claimant's mother
and P~.
Roy, the number holder (NH), died on June xx, 19xx. NH's death certificate indicates
he was a resident of Florida when he died. On August xx, 19xx, Claimant's mother
applied on behalf of Claimant for child's insurance benefits (CIB) on NH's earnings
record. In connection with Claimant's 1999 application, a Social Security Administration
(SSA) claims representative contacted a child support worker to obtain evidence regarding
NH's relationship with Claimant. The child support worker reported he had two files
for Claimant, one naming P~ as Claimant's father, the other file naming NH as Claimant's
father. The child support worker reported his agency had obtained DNA testing that
showed P~ was not Claimant's father. The child support worker also reported his agency
had planned to go to court regarding NH's possible paternity, but NH died before the
commencement of any court proceedings.
The SSA claims representative also contacted T~ , NH's brother, regarding his knowledge
of the alleged relationship between NH and Claimant's mother. NH's brother did not
want to discuss the matter, but acknowledged he had heard rumors Claimant was NH's
child. NH's brother stated he could never say for certain Claimant was NH's child,
and he stated he would never be willing to sign a statement to that effect. K~, then
the wife of NH's brother (i.e., NH's sister-in-law at the time), reported the same
information as NH's brother; she also was unwilling to sign any statement. On August
xx, 19xx, SSA denied Claimant's application because Claimant's mother did not present
sufficient evidence that Claimant was NH's child.
Claimant's mother filed a second CIB application on Claimant's behalf on October XX,
2007, which SSA denied on November xx, 20xx, because Claimant's mother failed to prove
Claimant was NH's child. Claimant's mother filed a third CIB application on Claimant's
behalf on February xx, 20xx. According to SSA records, the only new evidence Claimant's
mother presented was an affidavit from K~ . According to the information provided,
SSA no longer has a copy of this affidavit and Claimant's mother reported she did
not have copy of the affidavit when contacted by SSA in connection with Claimant's
current application. A claims representative found the affidavit suspicious because
the affidavit was drafted on November xx, 20xx, but not signed by Katherine until
November xx, 20xx; the affidavit had K~'s name spelled with a "C" instead of a "K";
and the affidavit did not list any relationship to Claimant or the Claimant mother
or provide any contact information. The claims representative also noted the Katherine
who signed the affidavit was supposedly the same K~ who had previously declined to
sign a statement declaring Claimant was NH's child. SSA again denied Claimant's claim
because Claimant's mother failed to prove Claimant was NH's child.
Claimant's mother filed a fourth CIB application on Claimant's behalf on December
xx, 20xx. Claimant's mother submitted a child relationship statement in which she
claimed NH had admitted orally to his family that Claimant was his child. Claimant's
mother indicated she had no documents or other information pertaining to NH's purported
relationship with Claimant. Claimant's mother also submitted an affidavit dated November
xx, 20xx, from K~ , the ex-wife of NH's brother (i.e., NH's ex-sister-in-law). NH's
ex-sister-in-law stated Claimant was NH's daughter. NH's ex-sister-in-law also indicated
NH had acknowledged Claimant was his child and stated NH's family knew Claimant was
NH's child. A claims representative contacted NH's ex-sister-in-law on January xx,
20xx. NH's ex-sister-in-law stated she was friends with Claimant's mother before
they became involved with NH and his brother. NH's ex-sister-in-law stated she was
aware Claimant belonged to NH and claimed NH's brother, her ex-husband, knew Claimant
was NH's child. The claims representative noted the statements by NH's ex-sister-in-law
were contradictory to the statements made by her and NH's brother in 19xx. On January
xx, 20xx, SSA denied Claimant's application because Claimant's mother did not provide
other information showing Claimant was NH's child.
Claimant's mother filed a fifth CIB application on Claimant's behalf on March XX,
2009. Claimant's mother submitted an affidavit dated February XX, 2009, from NH's
brother. NH's brother stated Claimant was NH's child and "[t]here was never a question
of [Claimant's] paternity . . . ." NH's brother also stated NH was in touch with Claimant's
mother concerning Claimant's welfare and their relationship was very close. A claims
representative questioned the affidavit from NH's brother based on the 1999 statements
of NH's brother that he could never say for certain that Claimant was NH's child and
he would never sign a statement to that effect. SSA denied Claimant's application,
and Claimant's mother filed a request for reconsideration. SSA denied the request
for reconsideration on August xx, 20xx. A claims representative indicated the denial
was based on the contradictory and insufficient evidence regarding Claimant's relationship
to NH.
On February xx, 20xx, Claimant's mother filed the sixth and current CIB application
on Claimant's behalf. Claimant's mother submitted an Order of Summary Administration
and Adjudicating Paternity from a Florida probate court. The court noted the cause
was before the court based on a petition filed by Claimant's mother on Claimant's
behalf for summary administration of NH's estate and for an order adjudicating paternity
after the death of the putative father. The court found NH's estate qualified for
summary adjudication, but acknowledged he died leaving no assets to be distributed. The
court noted it heard testimony from Claimant's mother and NH's brother and reviewed
case law. The court did not mention other evidence or discuss case law. The court
found "clear and convincing evidence to determine that [NH] is the biological father
of" Claimant. The court declared NH "the legal and biological father of" Claimant
and Claimant "a lineal and lawful heir of" NH.
Claimant's mother also submitted laboratory results of a paternity evaluation performed
in October 20xx. Testing of genetic samples from Claimant, Claimant's mother, and
Percy showed a zero percent probability of paternity and excluded Percy as Claimant's
biological father. Although not clear from the record, the genetic testing could be
the DNA testing obtained by the child support agency referenced by the SSA claims
representative investigating Claimant's first CIB application in 1999.
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) (2011). All references
to 20 C.F.R. are to the 2011 version unless otherwise noted.
"Child" includes "the child" of an insured individual. See Act § 216(e)(1); 20 C.F.R. § 404.354 (2010). 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. Under section 216(h)(2)(A), 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 when he died. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4); Baker o/b/o Baker v. Sullivan, 880 F.2d 319, 321 (11th Cir. 1989).
According to NH's death certificate, NH was domiciled in Florida when he died. Therefore,
we look to Florida intestacy law to determine whether Claimant is NH's child for the
purposes of section 216(h)(2)(A) of the Act. Under Florida intestacy law, a lineal
descendent of a decedent is entitled to a share of the decedent's estate not effectively
disposed of by will. See Fla. Stat. Ann. §§ 732.101(1), 732.103(1) (West 2011); see also Fla. Stat. Ann. § 731.201(9) (West 2011) (defining "descendant" in the Florida Probate
Code to include children and noting "descendant" is synonymous with "lineal descendant");
Fla. Stat. Ann. § 731.201(3) ("'Child' includes a person entitled to take as a child
under [the Florida Probate Code] by intestate succession from the parent whose relationship
is involved"). The Florida Probate Code consists of Chapters 731-735 of Title XLII
of the Florida Statutes. See Fla. Stat. Ann. § 731.005 (West 2011).
A strong presumption exists in Florida law that a child born in wedlock is legitimate,
i.e., the husband is the father of the child. See B~, 880 F.2d at 321; Nevitt v. Bonomo, 53 So. 3d 1078, 1081 (Fla. Dist. Ct. App. 2010); In re Estate of R~, 520 So. 2d 99, 101 (Fla. Dist. Ct. App. 1988). "This presumption of legitimacy is
one of the strongest rebuttable presumptions known to law." Dep't of Revenue v. Cummings, 930 So. 2d 604, 607 (Fla. 2006) (internal quotation marks). A person alleging paternity
by someone outside the marriage must present "clear and satisfactory" evidence to
overcome the presumption. R~, 520 So. 2d at 101. "In general, the presumption will not be overcome 'unless common
sense and reason are outraged by applying it to the case at hand.'" Lander v. Smith, 906 So. 2d 1130, 1133 (Fla. Dist. Ct. App. 2005) (quoting Dep't of Health & Rehabilitative Servs. v. Privette, 617 So. 2d 305, 309 (Fla. 1993)). "This means that 'there must be a clear and compelling
reason based primarily on the child's best interests to overcome the presumption of
legitimacy even after the legal father is proven not to be the biological father.'"
Id. (quoting P~, 617 So. 2d at 309).
Claimant was born during the marriage of her mother and Percy. Therefore, Claimant
is presumed to be Percy's child under Florida law. Furthermore, Florida law at the
time of Claimant's birth stated, "If the mother is married at the time of birth, the
name of the husband shall be entered on the birth certificate as the father of the
child, unless paternity has been determined otherwise by a court of competent jurisdiction."
Fla. Stat. Ann § 382.013(6)(a) (West 1996); see 1987 Fla. Sess. Law Serv. 87-387 § 11 (West) (adding the relevant language). Current
Florida statute uses the same language. See Fla. Stat. Ann § 382.013(2)(a) (West 2011). The record does not include a court order
from before 2011 determining paternity, and because Claimant's mother and Percy were
married when Claimant was born, Percy would be considered Claimant's "legal father"
even though he was not listed as Claimant's father on her birth certificate. See L~, 906 So. 2d at 1131 n.1.
Nevertheless, the record as a whole, including the fact that Percy was not listed
on Claimant's birth certificate, indicates Percy was not Claimant's father. The Agreement
states Claimant's mother and Percy separated on or about March 1995, approximately
eleventh months before Claimant was born on February. The Agreement states two children
were born of the marriage Claimant's mother and Percy, in 1991 and 1993. Claimant,
born in 1996, is not one of the children listed, which indicates neither Claimant's
mother nor Percy considered Claimant to be Percy's child. As discussed below, the
record also includes contradictory statements from NH's brother and ex-sister-in-law
regarding whether NH is Claimant's father. Although the statements from NH's brother
and ex-sister-in-law do not clearly establish that Claimant was NH's child, their
statements tend to support a finding that Percy was not Claimant's father.
Moreover, genetic testing of samples from Claimant, Claimant's mother, and Percy in
October 1998 showed a zero percent probability of paternity, excluding Percy as Claimant's
biological father. Florida case law indicates genetic testing, at least when considered
with other evidence, may provide sufficient evidence to overcome the presumption that
a child born in wedlock is the legitimate child of the husband. See Daniels v. Greenfield, 15 So. 3d 908, 914 (Fla. Dist. Ct. App. 2009); Fernandez v. Fernandez, 857 So. 2d 997, 999 (Fla. Dist. Ct. App. 2003). Other courts have noted genetic testing
can disprove paternity. See, e.g., Handley v. Schweiker, 697 F.2d 999, 1005 (11th Cir. 1983) ("Blood tests can conclusively disprove paternity
. . . without the need for more ordinary forms of testimony"); Families First v. Gooden, 439 S.E.2d 34, 38 (Ga. Ct. App. 1993) (noting genetic tests performed on husband
excluded any possibility he was the father and remanding in part for trial court to
instruct jury that if they found genetic testing authentic, they must conclude husband
was not the natural parent). Furthermore, in any proceeding to determine paternity,
"[i]f test results show the alleged father cannot be the biological father, the case
shall be dismissed with prejudice." Fla. Stat. Ann § 742.12(4) (West 2011). Given
the Agreement, Claimant's birth certificate, and the genetic testing, the record provides
clear and satisfactory evidence to rebut the presumption that Claimant is P~'s child.
The record also provides "a clear and compelling reason based primarily on [Claimant's]
best interests to overcome the presumption of legitimacy." L~, 906 So. 2d at 1133 (citing P~, 617 So. 2d at 309). The Agreement indicates Claimant's mother and Percy separated
approximately eleven months before Claimant was born, and Claimant was not listed
as P~'s child in the Agreement. The record does not indicate P~ had or maintained
any relationship with Claimant or provided any financial support for Claimant. Thus,
overcoming the presumption would not sever any relevant relationship between Claimant
and Percy. See P~, 617 So. 2d at 309 (noting overcoming presumption of legitimacy might be in child's
best interest where child has been abandoned by mother's husband and was in need of
support); F~, 857 So. 2d at 999 (finding it in children's best interests to overcome presumption
of legitimacy in part because family was not intact "in a practical sense" and action
did not disrupt children's lives because they had never known mother's husband as
integral part of their family life).
Excluding Percy as Claimant's father, however, does not establish that Claimant is
NH's child and lineal descendant for the purposes of inheriting NH's intestate estate.
Under Florida intestacy law, a person born out of wedlock is the lineal descendant
of his or her father if:
a. The natural parents participated in a marriage ceremony before or after the birth
of the person born out of wedlock, even though the attempted marriage is void.
b. The paternity of the father is established by an adjudication before or after the
death of the father.
c. The paternity of the father is acknowledged in writing by the father.
Fla. Stat. Ann. § 732.108 (West 2011). Although section 732.108 refers to a person
born "out of wedlock," Florida courts have applied the statute where a child born
in wedlock alleges paternity by someone not a part of the marriage, for inheritance
purposes. See B~, 880 F.2d at 321 (citing R~, 520 So. 2d at 99; Williams v. Estate of Long, 338 So. 2d 563 (Fla. Dist. Ct. App. 1976); In re Estate of J~, 339 So. 2d 237 (Fla. Dist. Ct. App. 1976)).
Claimant could not qualify as a NH's lineal descendant under subsection (a) of Fla.
Stat. Ann § 732.108(2) because NH and Claimant's mother did not marry and the evidence
does indicate they attempted to marry. The evidence provided also does not indicate
NH acknowledged in writing that Clamant was his child for the purposes of subsection
(c) of Fla. Stat. Ann § 732.108(2). Therefore, the only means by which Claimant could
establish she is NH's lineal descendant is by an adjudication of paternity. See Fla. Stat. Ann. § 732.108(2)(b). Claimant's mother submitted an Order of Summary Administration
and Adjudicating Paternity from on Florida probate court. The court found "clear and
convincing evidence to determine that [NH] is the biological father of" Claimant.
The court also declared NH "the legal and biological father of" Claimant and Claimant
"a lineal and lawful heir of" NH.
SSA, however, is not bound by the decision of a State court in a proceeding to which
SSA was not a party. See B~, 880 F.2d at 322 ("As a legal matter, the Appeals Council could determine that the
state court judgment is not binding on the [Commissioner] on the issue of paternity
of the children . . . , particularly when the [Commissioner] was not a party to the
state court action, and no opposing interests were presented in the case"). Florida
law also indicates a person is not bound by a prior judicial paternity decision when
that person was "not a party to the litigation in which the issue was determined."
R~, 520 So. 2d at 102, quoted in B~, 880 F.2d at 322; see also Voss v. Shalala, 32 F.3d 1269, 1271 (8th Cir. 1994) (holding ALJ not bound by State probate court
judgments of paternity because SSA was not a party to probate proceedings and judgments
were only part of broader inquiry into the facts and applicable law). Nevertheless,
SSA 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 Social Security Ruling (SSR) 83-37c (adopting Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973), as national policy). In this case, the order does
not meet all of the prerequisites in SSR 83-37c. Specifically, parties with opposing
interests did not genuinely contest the issues of NH's paternity and Claimant's status
as a lineal descendant of NH and the court's order is not consistent with Florida
law. The probate court had jurisdiction to determine NH's lineal descendants in intestate
proceedings. See Fla. Stat. Ann. § 742.10(1) (West 2011); Fagan v. Cramer, 877 So. 2d 945, 946 (Fla. Dist. Ct. App. 2004) (citing In re Estate of S~, 685 So. 2d 1206, 1208 (Fla. 1996)). Florida law imposes a four-year statute of limitations
on actions relating to the determination paternity, but the time does not begin to
run until the child reaches the age of majority. See Fla. Stat. Ann. § 95.11(3)(b) (West 2011); S~, 685 So. 2d at 1210 (holding § 95.11(3)(b) applies to paternity adjudications under
§ 732.108(2)(b), but noting § 95.11(3)(b) does not bar a claim after death of putative
father where claim filed within four years of child reaching majority). The issue
of paternity also falls within the general category of domestic relations law. See Fla. Stat. Ann. § 742.10 (part of Florida's domestic relations statutes).
The court issued its order based on a petition filed by Claimant's mother on Claimant's
behalf for summary administration of NH's estate and for an order adjudicating paternity.
The court's order does not indicate anyone contested the petition. NH's brother testified
before the court, but the court's order does not indicate NH's brother contested the
relief sought by Claimant's mother. On the contrary, the court's order suggests NH's
brother provided testimony in support of the petition filed by Claimant's mother.
NH's brother may have had an interest in NH's estate, but NH died more than eleven
years before the court issued its order and the court noted NH died leaving no assets
to be distributed. Thus, the evidence does not suggest that anyone genuinely contested
the issues of whether NH was Claimant's father or whether Claimant was NH's lineal
descendant and lawful heir. See SSR 83-37c; see also B~, 880 F.2d at 322 (holding "the requirement of section [216(h)] that the [Commissioner]
apply such law as would be applied by the courts of the State does not require the
[Commissioner] to accept findings of fact made by a state court in an uncontested
case").
The court's order also is not consistent with Florida intestacy law. To establish
paternity under Fla. Stat. Ann. § 732.108(2)(b) after the death of the putative father,
"the standard of proof . . . should be clear, strong and unequivocal, that is, the
person born out of wedlock should prove paternity by clear and convincing evidence."
Breedlove v. Estate of Breedlove, 586 So. 2d 466, 467 (Fla. Dist. Ct. App. 1991); see F~, 877 So. 2d at 946; R~, 520 So. 2d at 101. Although we have not found Florida case law that further defines
"clear and convincing evidence" in the context of intestacy proceedings, Florida courts
have described the "clear and convincing evidence" standard in other contexts as "something
more than a simple preponderance and less than the standard applied in criminal cases,
and that it is evidence free of substantial doubts or inconsistencies." In re Interest of D.J.S., 563 So. 2d 655, 661 (Fla. Dist. Ct. App. 1990) (citing The Florida Bar v. Rayman, 238 So. 2d 594, 596 (Fla.1970)). Courts also have defined the "clear and convincing
evidence" standard as "that intermediate level of proof that entails both a qualitative
and quantitative standard. The evidence must be credible; the memories of the witnesses
must be clear and without confusion; and the sum total of the evidence must be of
sufficient weight to convince the trier of fact without hesitancy." R.S. v. Dep't of Children & Families, 831 So. 2d 1275, 1277 (Fla. Dist. Ct. App. 2002) (quoting In re D~, 645 So. 2d 398, 404 (Fla. 1994) (indentions and internal brackets omitted).
In Claimant's case, the court stated it considered testimony from Claimant's mother
and NH's brother and reviewed case law. The court, however, did not recite the testimony
of Claimant's mother or NH's brother, nor did the court explain how their testimony
provided clear and convincing evidence that NH was Claimant's father. The court did
not indicate it considered any other evidence. The court also did not mention or discuss
the case law it considered. The court's order does not provide a sufficient discussion
of the evidence or case law to conclude the court reached its conclusions in accordance
with Florida law. SSA is not bound by the court's order, and the court's order was
not entitled to any deference in determining whether NH was Claimant's father under
Florida intestacy law.
Given the record as a whole, including the court's order, we believe a Florida court
in a contested case would conclude the record does not provide clear and convincing
evidence that NH was Claimant's father. See 20 C.F.R. § 404.355(b)(1), (b)(4); B~, 880 F.2d at 322 (stating the Commissioner may rely on his own assessment of the
evidence, and considering court judgment and other evidence, substantial evidence
supported decision that presumption of legitimacy was not rebutted); see also V~, 32 F.3d at 1271 (indicating Commissioner should consider State court judgments,
although not binding, as part of broader inquiry into the facts and applicable law).
The minimal discussion and cursory conclusions in the court's order, as discussed
above, do not provide noteworthy evidence that NH was Claimant's father. Claimant's
birth certificate indicates her last name is the same as NH's, but the birth certificate
does not list NH as Claimant's father. The Agreement and genetic testing indicate
Percy was not Claimant's father, but neither the Agreement nor the genetic testing
suggests NH was Claimant's father.
The record also includes affidavits from NH's ex-sister-in-law and NH's brother, dated
November 23, 2008, and February 26, 2009, respectively. Claimant's mother submitted
the affidavits in connection with Claimant's fourth and fifth CIB applications, which
the Agency denied. In their affidavits, NH's brother and NH's ex-sister-in-law alleged
Claimant was NH's child and claimed NH had acknowledged Claimant was his child. As
the Agency noted, however, earlier statements by NH's brother and NH's ex-sister-in-law
contradicted their affidavits. In 1999, the same year NH died, an SSA claims representative
contacted NH's brother and NH's ex-sister-in-law (then still married to NH's brother)
regarding NH's possible paternity. NH's brother and did not want to discuss the matter
and merely acknowledged he had heard rumors Claimant was NH's child. NH's brother
stated he could not say for certain Claimant was NH's child, and he stated he would
never be willing to sign a statement to that effect. NH's ex-sister-in-law similarly
reported she had heard unsubstantiated rumors and was unwilling to sign any statement.
The reports of NH's brother and NH's ex-sister-in-law in 1999 and their refusal to
sign statements regarding NH's relationship with Claimant at that time raise significant
questions regarding the veracity of their later affidavits. The Agency also questioned
the veracity of another affidavit NH's ex-sister-in-law purportedly signed in 2007.
The statements and affidavits from NH's brother and NH's ex-sister-in-law do not provide
clear, strong, and unequivocal evidence that NH was Claimant's child. See F~, 877 So. 2d at 946; B~, 586 So. 2d at 467; R~, 520 So. 2d at 101. The evidence from NH's brother and NH's ex-sister-in-law raise
substantial doubts and inconsistencies, particularly given that their statements from
1999 are closer in time to Claimant's birth and the period when NH and Claimant could
have had a relationship before NH's death in 1999. See D.J.S., 563 So. 2d at 661. As noted previously, "clear and convincing evidence" means "[t]he
evidence must be credible; the memories of the witnesses must be clear and without
confusion; and the sum total of the evidence must be of sufficient weight to convince
the trier of fact without hesitancy." R.S., 831 So. 2d at 1277. The contrary nature of the evidence from NH's brother and NH's
ex-sister-in-law could indicate their memories are not clear or without confusion,
and given their statements and the other evidence, we cannot conclude without hesitancy
that NH is Claimant's father. Thus, the record does not provide clear and convincing
evidence that NH was Claimant's father for the purposes of Florida intestacy law.
Therefore, Claimant was not NH's child under section 216(h)(2)(A) of the Act. Claimant
could not be deemed NH's child under section 216(h)(2)(B) of the Act because nothing
in the record indicates NH and Claimant's mother went through a marriage ceremony
that might have resulted in a purported marriage. See Act § 216(h)(2)(B); 20 C.F.R. § 404.355(a)(2).
The evidence also does not establish Claimant as 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
meet one of several other requirements. See Act § 216(h)(3)(C); 20 C.F.R. § 404.355(a)(3), (a)(4); POMS GN 00306.100.A, B. To show he or she is the son or daughter of an insured individual, the claimant
must show he or she is the biological child of the insured individual. See Program Operations Manual System (POMS) GN 00306.100.D.1. The record does not indicate Claimant met the threshold requirement of section
216(h)(3)(C) of being NH's biological child. See Act § 216(h)(3)(C); 20 C.F.R. § 404.355(a)(3), (a)(4); POMS GN 00306.100.D.1. Moreover, Claimant did not provide evidence to satisfy the other requirements
of section 216(h)(3)(C)—the record does not include a written acknowledgement of paternity
by NH, a court order issued before NH's death, or evidence that NH lived with or contributed
to the support of Claimant. See Act § 216(h)(3)(C); 20 C.F.R. § 404.355(a)(3), (a)(4). Therefore, Claimant could
not qualify as NH's child under section 216(h)(3)(C) of the Act.
CONCLUSION
The evidence does not establish that Claimant is NH's child for the purposes of CIB
on NH's earning record.
Sincerely,
Mary A. Sloan
Regional Chief Counsel
By: Brian C. Huberty
Assistant Regional Counsel