In a case where a child was born to a surrogate mother after in-vitro fertilization, a Maryland court would find the child to be a child of the number holder because the number holder has acknowledged in writing that he is the father and has openly and notoriously recognized the child as his own. Because the number holder was not married to the surrogate, the child would not be considered the legitimate child of the number holder under Maryland law.

QUESTION PRESENTED

You asked our advice as to whether Rosa C. C~-T~ (Rosa), who was born to a gestational surrogate, would be entitled to child's insurance benefits on the earnings record of Peter B. T~ (the number holder), and, if so, the effective date of the parent-child relationship and whether retroactive benefits could be paid.

SUMMARY

We have reviewed the information that you provided and have researched the relevant provisions of applicable law. It is our opinion based on the existing evidence, that Rosa would be entitled to child's insurance benefits and that a parent-child relationship existed between the number holder and Rosa as of October 5, 2005, her date of birth. Accordingly, we believe that Rosa would be entitled to retroactive child's benefits as of November 2005.

BACKGROUND

According to the information made available to us, the number holder was a resident of Maryland when he filed an application for Social Security retirement benefits on June 23, 2005. The number holder became entitled to benefits in June 2005. On April 7, 2006, the number holder filed an application for child's benefits on his account for Rosa C. C~-T~. Rosa was born on October 5, 2005 in Casa Grande, Arizona. The number holder reported that Rosa was born to a surrogate gestational carrier who had been implanted with an embryo resulting from a donated egg fertilized in vitro with his sperm. Rosa's birth certificate indicates that the number holder is her father. Rosa's application for a Social Security number filed on October 17, 2005, also indicates that the number holder is her father. Rosa lived with the number holder in Maryland when he filed the application for child's benefits on April 7, 2006.

DISCUSSION

The Social Security Act (Act) provides that every child of an individual entitled to old-age or disability insurance benefits is entitled to child's insurance benefits if that child meets certain criteria. 42 U.S.C. § 402(d)(1). The Act further provides that in determining whether an applicant is the "child" of an insured individual, the Commissioner shall apply the intestacy laws of the state in which the insured has his permanent home at the time the applicant files her application. 42 U.S.C. § 416(h)(2)(A). An applicant having the status of "child" under the state's intestacy laws would have the same status for purposes of obtaining child's insurance benefits. Id. The evidence we received indicates that the number holder lived in Maryland when he applied for child's benefits on Rosa's behalf. Accordingly, Maryland law applies.

Under Maryland's intestacy statutes, the term "child" refers to a legitimate child, an adopted child, or an illegitimate child. Md. Est. & Trusts Code Ann. § 1-205. A child born or conceived during a marriage is considered a legitimate child. Md. Est. & Trusts Code Ann. § 1-206(a). An adopted child is treated as a natural child of his adopting parent or parents. Md. Est. & Trusts Code Ann. § 1-207. A child born to parents who have not participated in a marriage ceremony with each other shall be considered to be the child of her father only if the father (1) has been judicially determined to be the father; (2) has acknowledged in writing to be the father; (3) has open and notoriously recognized the child to be his child; or (4) has subsequently married the mother and has acknowledged being the father. Md. Est. & Trusts Code Ann. § 1-208(b).

In this case, Rosa was born through a gestational surrogacy arrangement. Because the number holder was not married to Rosa's surrogate mother or the donor of the egg, we do not believe that Rosa would be considered the legitimate child of the number holder under Maryland law. See Md. Est. & Trusts Code Ann. § 1-206(a). There is also no evidence that the number holder adopted Rosa. Therefore, based on the evidence we received, Rosa could not be considered the adopted child of the number holder. See Md. Est. & Trusts Code Ann. § 1-207. However, we believe that a Maryland court would find that Rosa is the child of the number holder because the number holder has acknowledged in writing that he is Rosa's father and has openly and notoriously recognized Rosa as his child. See Md. Est. & Trusts Code Ann. § 1-208(b). Indeed, the number holder has identified Rosa as his child on Rosa's application for a Social Security number and on her application for child's insurance benefits. In addition, Rosa's birth certificate identifies the number holder as her father. Furthermore, the number holder reported to the Agency that Rosa was "the product of [his] sperm and a donated egg that was implanted in the gestational carrier." In light of this evidence, we conclude that a Maryland intestacy court would find that Rosa was the child of the number holder. Accordingly, we conclude that Rosa would be considered the "child" of the number holder under the Act and would be entitled to child's insurance benefits. 42 U.S.C. § 416(h)(2)(1).

The Act directs that the child of an individual entitled to old-age insurance benefits or disability insurance benefits shall be entitled to benefits for each month, beginning with "the first month throughout which the child is a child and meets the criteria" set forth in Sections 202(d)(1)(A)-(C) of the Act. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.352(a)(2) (explaining when a child's insurance benefits begin). Here, Rosa would be considered the "child" of the number holder as of her date of birth, October 5, 2005, and would be entitled to retroactive benefits as of November 2005 based on her application filed April 6, 2006.

20 C.F.R. § 404.621 (2005).

CONCLUSION

For the reasons stated above, it is our opinion that Rosa is entitled to child's insurance benefits on the earnings record of the number holder beginning November 2005.

Sincerely,

Donna L. C~

Regional Chief Counsel

By: ______________________

Brian C. O'D~

Assistant Regional Counsel

Under Maryland law, a DNA test which excludes a parent-child relationship is sufficient to refute previously established illegitimate child status. Additionally, SSA may reopen a previous decision within four years of the notice of initial determination based on new and material evidence and child benefits may be terminated effective with the date of the DNA test.

QUESTION PRESENTED

On August 31, 2005, you requested a legal opinion regarding: (1) whether a parent-child relationship exists between Edward J. J~, Jr., the number holder (NH), and Brandon A. G~; (2) the effective date of the parent-child relationship, if any; (3) whether Brandon's entitlement to child's insurance benefits ended; and (4) if so, as of what date should the benefits end.

SUMMARY

Based on our review of the facts of this case and our research of relevant Maryland statutes and case law, we believe that a Maryland court would find that a parent-child relationship does not exist between the NH and Brandon. Without the requisite parent-child relationship, Brandon is not entitled to child's insurance benefits on the NH's earnings record. We believe that Brandon's entitlement to child's insurance benefits ended on August 6, 2004, the date on which a deoxyribonucleic acid (DNA) test excluded the NH as Brandon's father.

BACKGROUND

Brandon was born on December 26, 2002. Brandon's birth certificate and his April 23, 2003, application for a social security number (NUMI) list Brandon's mother as Deborah G~ and Brandon's father as "unknown." However, a subsequent NUMI dated February 23, 2004, listed the NH as Brandon's father. The NH and Brandon's mother were never married.

The NH has received disability insurance benefits since December 1990. On June 15, 2003, the NH filed an application for child's insurance benefits on Brandon's behalf. The application describes the relationship between the NH and Brandon as "legitimated child." A report of contact dated June 26, 2003, states that the NH, Brandon's mother, and Brandon entered a district office and presented Brandon's Maryland birth certificate which did not list the NH as the father. However, the NH declared that Brandon was his child "as far as he knew." The report of contact indicates that a paternity test was not performed and Brandon did not live with the NH. Brandon became entitled to child's insurance benefits in January 2003.

On March 21, 2005, Anne Arundel County Department of Social Services (Department of Social Services) sent a letter to SSA stating that Brandon was in the care and custody of their agency for out of home placement. The letter also states that it was determined in August 2004 that the NH was not Brandon's father. Brandon's child's insurance benefits are currently suspended.

We contacted the Department of Social Services to determine the basis for their allegation that the NH was not the biological father of Brandon. We learned that a DNA test dated August 6, 2004 excluded the NH as the biological father of Brandon.

DISCUSSION

Section 42 U.S.C. § 402(d)(1) of the Social Security Act (Act) provides that every child of an individual entitled to disability insurance benefits is entitled to child's insurance benefits if that child meets certain qualifications. In determining whether an applicant is the "child" of a disabled wage earner, the Act instructs the SSA "to apply the law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual is domiciled at the time such applicant files." 42 U.S.C. § 416(h)(2)(A). An applicant having the status of "child" under the state's intestacy laws would have the same status for purposes of obtaining child's insurance benefits. Id. We are assuming that the NH resided in Maryland on June 15, 2003, the date on which he filed an application for child's insurance benefits on Brandon's behalf. Accordingly, Maryland law applies.

According to Section 1-205 of the Annotated Code of Maryland, a "child" is either a legitimate child, an adopted child, or an illegitimate child. Md. Est. & Trusts Code Ann. §§ 1-205 to 1-208.

In this case, it is clear that the NH and Brandon's mother never married and there is no evidence that the NH adopted Brandon. Thus, the only remaining issue is whether Brandon meets the definition of an illegitimate child.

An illegitimate child is one born to parents who have not participated in a marriage ceremony. Id. at § 1-208. According to Maryland law, an illegitimate child can only be considered to be the child of the father if the father:

1. (a) 

   Has been judicially determined to be the father in an action brought under the statues relating to paternity proceedings;

2. (b) 

   Has acknowledged himself, in writing, to be the father;

3. (c) 

   Has openly and notoriously recognized the child to be his child; or

4. (d) 

   Has subsequently married the mother and has acknowledged himself, orally or in writing, to be the father.

Id. at 1-208(b).

In this case, we have evidence that the NH acknowledged himself in writing to be Brandon's father and has also "openly and notoriously" recognized Brandon as his child. This is based on the fact that the NH made an application for child's insurance benefits indicating that Brandon was his son and that he "openly and notoriously" declared that Brandon was his son "as far as he knew." Thus, under Maryland intestacy laws, Brandon would normally be found to be the child of the NH.

However, as you indicated, the NH's acknowledgment of Brandon as his child is complicated by the Department of Social Services' March 21, 2005, letter stating that it was determined in August 2004 that the NH was not Brandon's biological father. As stated above, the determination was based on an August 6, 2004 DNA test which excluded the NH as Brandon's biological father.

Maryland's family law statute explains how a Maryland court would treat DNA evidence in a paternity proceeding. Under Maryland law, a blood or genetic test establishing a statistical probability of the alleged father's paternity of at least 99.0% creates a rebuttable presumption of paternity. Md. Est. & Trusts Code Ann at § 5-1029(f)(4). Maryland law further instructs that a blood or genetic test must be received into evidence if definite exclusion is established. Id. § 5 1029(f)(1)(i). In fact, Maryland law permits a court to set aside a declaration of paternity if a blood or genetic test done in accordance with § 5-1029 establishes the exclusion of the individual named as the father in the order. Md. Est. & Trusts Code Ann. § 5-1038.

We believe that a Maryland Court considering both the NH's actions and the subsequent DNA test results would find that Brandon was not the NH's child for purposes of intestacy. Although the NH's actions in this case can legitimate Brandon as his child, a Maryland Court would be required to consider the DNA evidence which excludes the NH as Brandon's father. Indeed, a Maryland Court could even set aside a court order that would otherwise be final based on DNA evidence excluding paternity. Because the NH's actions in this case are less binding than a court order, we believe that a Maryland Court would find that DNA evidence excluding the NH as the father of Brandon conclusive evidence to rebut his prior acknowledgment which was made in the absence of a paternity test. Thus, we believe that a parent-child relationship does not exist in this case.

Without the requisite parent-child relationship, Brandon is not entitled to child's insurance benefits on the NH's earnings record. This raises an issue of whether the DNA test would allow SSA to reopen the initial determination that granted Brandon child's insurance benefits. See 20 C.F.R. § 404.987(b) (defining determinations about an applicant's entitlement to benefits as an initial determination). SSA can reopen and revise a final determination on its own initiative under certain conditions. 20 C.F.R. § 404.987(b). More specifically, 20 C.F.R. § 404.988(b) states, in relevant part, that a final determination may be reopened "[w]ithin four years of the date of the notice of the initial determination if we find good cause . . . to reopen the case". The regulations state that good cause exists to reopen a determination where new and material evidence is furnished. 20 C.F.R. § 404.989.

The facts of this case meet the requirements for reopening. The notice of the initial determination was necessarily issued sometime after April 23, 2003, the date the application for child's insurance benefits was filed, which is within the four year period outlined in 20 C.F.R. § 404.988(b). Good cause would also exist to reopen the initial determination because the DNA test result would constitute new and material evidence. Thus, SSA can reopen and revise Brandon's application for benefits.

This still leaves open your question as to what date Brandon's entitlement to benefits should end. We believe that Brandon's entitlement to benefits should end on August 6, 2004, the date of the DNA test results. This is because it is the date of the first piece of evidence that conclusively demonstrated that a parent-child relationship did not exist.

CONCLUSION

Based on the above, we believe that a Maryland court would find that Brandon was not the child of the NH based on the DNA test results which exclude paternity. Without the requisite parent child relationship, Brandon is not entitled to child's insurance benefits under the Act. Although SSA initially awarded Brandon child's insurance benefits as a legitimized child, SSA may reopen that determination based on the DNA test results obtained within four years of the notice of the initial determination which is new and material evidence. Finally, we believe that Brandon's entitlement to child's insurance benefits should end on August 6, 2004, the date of the DNA test results, as it was the first piece of evidence that conclusively demonstrated that a parent-child relationship did not exist.

Sincerely,

 

Donna L. C~

Regional Chief Counsel

By: ______________________

Michelle S~

Assistant Regional Counsel

Although there was evidence establishng that the NH recognized the children as his children during his lifetime, and a judicial determination of paternity, the subsequent DNA evidence excluding the NH as the child's father conclusively establishes non-paternity. Therefore the children are not the children of the NH under section 216(h)(2)(A) of the Act.

QUESTION PRESENTED

This is in response to your request for our opinion on whether in deciding a claim for inheritance rights under the laws of the State of Maryland, deoxyribonucleic acid (DNA) evidence can be considered to exclude the paternity of the number holder. You have also apprized us that the DNA evidence conflicts with other evidence which would ordinarily establish Corbin and Colby as the number holder's children under Maryland law.

CONCLUSION

We have reviewed the materials you provided and have researched the relevant provisions of Maryland law as they pertain to establishing and excluding paternity, including a review of several state and federal court decisions on the issue. Based on the evidence presented in this case, it is our opinion that the evidence is sufficient to exclude paternity under Maryland law.

BACKGROUND

In April 2002, Tracy Minor applied for surviving child's benefits on behalf of Corbin and Colby S~, as the children of the deceased worker, Keith S~. Benefits were awarded to both children in April 2002 based on the Consent Paternity Judgment issued for each child by the Circuit Court of Baltimore City in August 1993. Each Judgment showed Keith S~'s signature as “assenting to the passage of the order.” Keith S~ died on March 24, 2002 in Baltimore, Maryland. Due to family maximum provisions, the entitlement of Corbin and Colby reduced the benefit amount already being paid to Keith Jr., another child of Keith S~. Alicia S~, the mother and payee of Keith Jr. protested this reduction. She presented copies of DNA testing results in support of her allegation that Corbin and Colby were not the children of the number holder. The DNA samples were obtained on January 27, 2000, and the reports from the BRT Laboratories in Baltimore, Maryland are dated February 7, 2000. The reports show that “Keith S~ can be excluded as the father” of Corbin and Colby S~.

DISCUSSION

Section 202(d) of the Social Security Act (Act) provides that every child of an individual who dies a fully or currently insured individual shall be entitled to child's insurance benefits if that child meets certain qualifications. In determining whether the child is the child of a fully or currently insured individual, the Act instructs the Agency “ to apply the law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual lived at the time of his death.”

42 U.S.C. § 416(h)(2)(A). A child having the status of “child” under the state's intestacy laws would have the same status for purposes of obtaining child's insurance benefits. Id.

Keith S~, the alleged father, was domiciled in the State of Maryland when he died. Thus, Maryland law applies. According to Section 1-205 of the Annotated Code of Maryland, a “child” is either a legitimate child, an adopted child, or an illegitimate child. Md. Est. & Trusts Code Ann. §§ 1-205 to 1-208. Based on the information provided, it is clear that Tracy M~ Keith S~ were never married and that Keith S~ never adopted Corbin and Colby.

According to Maryland law, a child born to parents who have not participated in a marriage ceremony with each other is considered the child of his/her mother. Id. at § 1-208(a). However, an illegitimate child can only be considered to be the child of the father if the father:

• •

  Has been judicially determined to be the father in an action bought under the statues relating to paternity proceedings;

• •

  Has acknowledged himself, in writing, to be the father;

• •

  Has openly and notoriously recognized the child to be his child; or

• •

  Has subsequently married the mother and has acknowledged himself, orally or in writing, to be the father.

Id. at § 1-208(b). In addition, Maryland's family law statue provides that undisputed blood test results which show a statistical probability of the alleged father's paternity of at least 99.0% creates a rebuttable presumption of paternity. Md. Family Law Code Ann. § 5-1029(f)(1)(2).

POMS Section GN 00306.515 reflects Maryland law regarding when a child born out of wedlock shall be considered to be the child of a father. This section provides, in pertinent part:

GN 00306.515 Maryland Intestacy Laws

A child born to parents who have not participated in a marriage ceremony with each other shall be considered to be the child of his father only if the father:

• •

  is alive on or after 01/01/70 and has been judicially determined to be the father in an action bought under the statutes relating to paternity proceedings. Md. Code Ann. Fam. Law section 5-1028 (1996). For claims filed on or after 11/27/98, or pending on that date, a judicial determination is not required, and SSA will determine the relationship between the alleged father and the child by applying a preponderance of the evidence standard; or

• •

  has acknowledged himself, in writing, to be the father; or

• •

  has openly and notoriously recognized the child to be his child; or

• •

  has subsequently married the mother and has acknowledged himself, orally or in writing, to be the father. Md. Code Ann. Est. & Trusts section 1-208 (1996); or

• •

  as of 10/1/84, is shown to be the father based on a blood or genetic test report which shows a statistical probability of paternity of at least 99.0%. This constitutes a rebuttable presumption of paternity.

POMS GN 00306.515.A.

In this case, there has been a judicial determination of Corbin and Colby's paternity, in which Keith S~ acknowledged paternity in writing. Further, this evidence establishes that Keith S~ “openly and notoriously recognized” Corbin and Colby as his children. Therefore, under the Maryland intestacy laws, Corbin and Colby would normally be found to be the children of Keith S~.

However, with regard to your specific question of whether Maryland law would permit exclusion of paternity based on DNA testing, Maryland law and the POMS provide that paternity is to be excluded on this basis. Although a paternity decree can legitimate a child, Maryland law provides that a declaration of paternity may be modified or set aside if a blood or genetic test done in accordance with § 5-1029 of the Maryland Family Law statute established the exclusion of the individual named as father in the order. Md. Family Law Code Ann. § 5-1038(a)(2)(i)(2)(2002). See Walter v. Gunter, 367 Md. 386, 396, 788 A.2d 609, 615 (Md. Ct. App. 2002) (“Without paternity, there is no legal duty; without a legal duty, there can be no financial obligation.”), see also Lanston v. Riffe, 359 Md. 396, 754 A.2d 389 (Md. Ct. App. 2000).

Additionally, the POMS provide clear guidance. The POMS unequivocally state that a blood test report that excludes the named individual is conclusive evidence of non-paternity. Specifically, POMS GN 003-6.515A.5, which pertains to blood tests establishing paternity, further provides, in relevant part:

• •

  A test report which excludes the named individual is conclusive evidence of non-paternity.

• •

  Submit to the RCC for a determination about whether the evidence satisfies the state's standards:

• •

  blood or genetic test results which show a statistical probability lower than 99.0%; or

• •

  evidence presented to rebut the presumption; or

• •

  test results presented to exclude the named individual as father.

POMS GN 00305.515A.5 (emphasis added).

Thus, the POMS clearly state that a test report excluding the named individual is conclusive evidence of non-paternity. Although there is evidence that Keith S~ recognized Corbin and Colby as his children during his lifetime, the later DNA evidence conclusively established non-paternity. Therefore, on the basis of the DNA testing, it is our opinion that Corbin and Colby are not entitled to surviving child's insurance benefits as the number holder's children.

CONCLUSION

For the reasons stated above, it is our opinion that a DNA test can be used to exclude paternity under Maryland law. Although there was evidence establishing that Keith S~ recognized Corbin and Colby as his children during his lifetime, the subsequent DNA evidence conclusively established non-paternity. Therefore, because Corbin and Colby would not be recognized as Keith S~'s children under May law or the POMS, we believe that they should not be determined to be the children of the Number Holder under section 216(h)(2)(A) of the Act and not entitled to surviving child's insurance benefits.

James A. W~

Regional Chief Counsel

By: ______________________

Taryn F. G~

Assistant Regional Counsel

Maryland does not specifically provide for paternity to be established based on DNA testing which uses the alleged paternal grandparent's blood. However, such DNA test results can constitute relevant and persuasive, but not conclusive, evidence of the father's paternity, if such results show a relationship probability of at least 99.0%. Such evidence could be sufficient to create a parent-child relationship if additional evidence were present in the record supporting a relationship between the child and the alleged father, or the mother and the alleged father. Maryland courts would require additional evidence, beyond DNA testing of relatives, to establish paternity by a preponderance of the evidence.

INTRODUCTION

This is in response to your August 28, 2001 request for advice regarding whether, in deciding a claim for inheritance rights under the laws of the State of Maryland, DNA evidence can be considered to establish paternity that does not include the alleged father's blood. In addition, you have asked whether the results of the DNA testing which used the alleged grandmother's blood is acceptable evidence where the results indicated a relationship probability of 96.01% and 98%.

Based on our review of the information you have provided, our review of our prior opinion dated August 24, 1999, and our research of the applicable law, we have concluded that Maryland does not specifically provide for paternity to be established based on DNA testing which uses the alleged paternal grandparent's blood. However, it is our opinion that DNA test results which use the blood of the alleged paternal grandparent can constitute relevant, but not conclusive, evidence of the father's paternity, if such evidence showed a relationship probability of at least 99.0%. Nevertheless, based on all the evidence presented in this case, it is our opinion that the DNA evidence here, without more, is insufficient to establish paternity under Maryland law.

BACKGROUND

Thomas B~, the Number Holder, died fully insured on July 14, 1989. He was a resident of Baltimore, Maryland at the time of his death. Ashley S~, a minor child, was born on August 2, 1987.

Thomas B~ and Verna S~, Ashley's mother, did not live together and were not married. Ashley's birth certificate lists Thomas B~, the number holder, as her father and Verna S~ as her mother. Ashely's application for a social security number (NUMI) indicated Thomas B~ as her father and Verna S~ as her mother. There is no evidence that Thomas B~ acknowledged, in writing, that he was the father of Ashley S~.

On November 20, 1998, Ms. S~ applied for surviving child's benefits on behalf of Ashley, on the earnings record of the Number Holder. In support of this application, Ms. S~ submitted the results of DNA testing dated October 26, 1998, which showed a relationship probability of 96.01% between Ashley and Eva B~, Thomas B~'s mother. Ms. S~ later submitted the results of DNA testing dated June 13, 2001, which showed a relationship probability of 98.98% between Ashley and Eva B~.

In addition, as discussed in our memorandum of August 24, 1999, Eva B~ stated that she “recognized” Ashley S~ as her granddaughter, as the child of her deceased son. In a statement prepared in February 1999, Verna S~ stated that she believed Thomas B~ admitted to his friends at the time (apparently of Ashley's birth) that he was the father, but that she did not know if any of those friends would admit to having such knowledge. At the same time, she stated that Thomas B~ denied being the father because he wanted her to have an abortion. Verna S~ stated that she contacted one of Thomas B~'s friends when she initially applied for child's insurance benefits in 1995, but the friend denied knowing whether Thomas B~ was the father.

DISCUSSION

The Social Security Act (Act) provides that an illegitimate child can qualify for benefits if the child is entitled to inherit personal property under “such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which [the] insured individual . . . [was] domiciled at the time of his death.” 42 U.S.C. § 416(h)(2)(A). In the present case, Thomas B~, the alleged father, was domiciled in the State of Maryland at the time of his death. Therefore, Maryland intestacy law applies.

According to the section of the Maryland code that addresses inheritance rights, an illegitimate child can only be considered to be the child of the father if the father:

1. (a) 

   Has been judicially determined to be the father in an action brought under the statutes relating to paternity proceedings;

2. (b) 

   Has acknowledged himself, in writing, to be the father;

3. (c) 

   Has openly and notoriously recognized the child to be his child; or

4. (d) 

   Has subsequently married the mother and has acknowledged himself, orally or in writing, to be the father.

Md. Est. & Trusts Code Ann. § 1-208(b) (2001). In applying this section, Maryland courts are attempting to guard against false paternity claims, such as those made after the putative father is dead and no longer able to give his own version of matters. Hall v. Coates, 489 A.2d 41 (Md. App. 1985); see also Montgomery v. Schweiker, 523 F. Supp. 1128 (D. Md. 1981). Consequently, absent evidence sufficient to support a finding that the father established or admitted his paternity during his lifetime, paternity will generally not be established under this section. Similarly, Maryland statutes relating to paternity proceedings, which are found at sections 5-1001 through 5-1048, Md. Family Law Code Ann. (2001), generally require proceedings establishing paternity to have been brought during the decedent's lifetime. The courts have held that a child meeting any of the requirements of section 1-208 will be viewed as a legitimate child within the meaning of 42 U.S.C. § 402(d)(3) and thus will be eligible for social security benefits. Tyler v. Schweiker, 530 F. Supp. 1028 (D. Md. 1981); Davis v. Schweiker, 553 F. Supp. 158 (D. Md. 1982).

In this case, it is clear that subsections (b)(1), (b)(2), and (b)(4) of section 1-208 do not apply. There has been no judicial determination of Ashley's paternity, Thomas B~ did not acknowledge in writing that he was Ashley's father, and he and Verna S~ were never married. Further, under subsection (b)(3), Ashley can not be determined to be Thomas B~'s child. There is no evidence in the record establishing that Thomas B~ “openly and notoriously recognized” Ashley as his child. According to the evidence reviewed in our 1999 memorandum, Eva B~ is apparently willing to accept Ashley as Thomas B~'s daughter and her granddaughter. However, she notably does not attest that Thomas B~ ever acknowledged to her that Ashley was his child. It is our opinion that the evidence is inadequate to establish that Thomas B~ recognized Ashley as his child.

Another section of the Maryland code dealing with domestic relations issues provides an alternate means for an illegitimate child to establish paternity and inheritance rights on the basis of DNA test results. Md. Family Law Code Ann. § 5-1029; Sider v. Sider, 639 A.2d 1076, 334 Md. 512 (1994); Turner v. Whisted, et. al., 607 A.2d 935, 327 Md. 106 (1992). In particular, laboratory reports of blood tests are admissible into evidence in a paternity proceeding where the testing is sufficiently extensive to exclude 97.3% of alleged fathers who are not biological fathers, and the statistical probability of the alleged father's paternity is 97.3%. Md. Family Law Code Ann. § 5-1029(f)(1)(2). Moreover, undisputed blood test results which show a statistical probability of the alleged father's paternity of at least 99.0% creates a “rebuttable presumption” of paternity. Md. Family Law Code Ann. § 5-1029(f)(4). Ultimately, the burden of proof rests with the complainant to establish by a preponderance of the evidence that the alleged father is the father of the child. Md. Family Law Code Ann. § 5-1027(a).

With regard to your specific question of whether Maryland law would permit Ashley to establish paternity based on DNA testing of the alleged paternal grandparent's blood, we were unable to find any controlling Maryland precedent permitting paternity to be established on this basis. At the same time, we did not find any Maryland case law or statute which made it impermissible to establish paternity based on a grandparent's DNA sample.

Consistent with the above, it is our position that DNA testing which uses the alleged grandparent's blood should be considered as relevant and persuasive, but not conclusive, evidence of paternity if it establishes a relationship probability of 99.0%. We believe that such evidence could be sufficient to create a parent/child relationship, if additional evidence were present in the record supporting a relationship between the child and the alleged father or the mother and the alleged father. Thus, we believe that the Maryland court would require additional evidence, beyond DNA testing of relatives, to establish paternity by a preponderance of the evidence.

We believe that the evidence in this case does not conclusively establish a parent-child relationship. Verna S~ presented evidence that showed a relationship probability between Ashley and Eva B~ of 96.01% and 98.98%. First, these test results fall short of the 99.0% required to create a “rebuttable presumption” of paternity under the paternity statute. More importantly, although 98.98% is much closer to the threshold for creating a “rebuttable presumption” under the paternity statute, as stated above, DNA testing of a grandparent is relevant and persuasive evidence of paternity, but it is not conclusive evidence of paternity. It is not enough to cure the lack of any other relevant evidence required under Maryland law. Thus, even if the test results had established a satisfactory grandparent relationship of 99.0%, Verna S~ presented no other evidence supporting the existence of a relationship between Ashley S~ and Thomas B~ or herself and Thomas B~. Notably, she provided no judicial determination of paternity, no written acknowledgment of paternity, no “open and notorious” recognition of paternity, and no subsequent marriage coupled with an oral or written acknowledgment of paternity. There is no evidence that Thomas B~ and Verna S~ ever cohabited. Thus, based on these test results which showed at most a 98.98% relationship probability, the lack of any other evidence of a relationship between Thomas B~ and Ashley S~ or Verna S~, and the fact that Thomas B~ failed to recognize Ashley as his child during his lifetime, it is our opinion that Ashley has not established that she is the child of Thomas B~ under Maryland law.

CONCLUSION

For the reasons stated above, it is our opinion that a DNA test which uses the blood of the alleged paternal grandmother can constitute relevant, but not conclusive, evidence of the father's paternity, if such evidence showed a relationship probability of at least 99.0%. However, we believe that the evidence in this case is insufficient to establish the paternity of Thomas B~. Namely, the DNA evidence did not show a statistical probability of at least 99.0% that Eva B~ was Ashley's grandmother and there was no other evidence establishing a relationship between Thomas B~ and Ashley S~ or Verna S~. Significantly, there was no evidence establishing that Thomas B~ recognized Ashley as his child during his lifetime. Therefore, because Ashley would not be recognized as Thomas B~'s child under Maryland law, we believe that she should not be determined to be the child of the Number Holder under section 216(h)(2)(A) of the Act and entitled to surviving child's insurance benefits.