Based on the facts of this case, it is reasonable to conclude that the genetic test provided in this case is an acceptable source of genetic testing under Nebraska law.  Also, we believe that the claimant could inherit from the NH under Nebraska's intestacy laws. Therefore it is reasonable to conclude that Hayden O~-P~ is entitled to child’s insurance benefits on Dustin P~’s earnings record.

You requested a legal opinion regarding whether a particular genetic test was an acceptable source of genetic testing in determining whether Hayden O~-P~ qualifies for child’s insurance benefits on the earnings record of Dustin P~. Based on the facts of this case, it is reasonable to conclude that the genetic test provided in this case is an acceptable source of genetic testing under Nebraska law. It is therefore reasonable to conclude that Hayden O~-P~ is entitled to child’s insurance benefits on Dustin P~’s earnings record. Because we believe a Nebraska court would conclude that Hayden is Dustin P~’s child from birth, it is also reasonable to find Hayden entitled to retroactive benefits.

Factual Background

The materials you provided indicate that Madison O~ applied for child’s insurance benefits on behalf of her son, Hayden O~-P~, on the earnings record of Dustin P~. Madison O~ and Dustin P~ lived together in Nebraska until Dustin P~ died.  Social Security records show Dustin P~ died on May 29, 2010. 

Hayden O~-P~’s birth certificate lists Madison O~ as his mother but does not provide the name of his father. The birth certificate indicates Hayden was born on February 1, 2011.

Dustin P~’s obituary in the Sioux City Journal indicated that he lived in Homer, Nebraska. The obituary noted that he “[left] behind the one he loved and moved in with to start a life, Madie O~.” See id.

On July 11, 2011, Madison O~ provided the results of genetic testing notarized and signed by the laboratory director of Orchid Cellmark, a genetic testing facility accredited by AABB (formerly known by its full name as the “American Association of Blood Banks”). See AABB, AABB Name Change, http://www.aabb.org/about/who/Pages/namechange.aspx (last visited Aug. 15, 2011). The laboratory director, in a form dated May 23, 2011, indicated specimens had been obtained from Madison O~ and Hayden O~-P~ on March 16, 2011, and from Dustin P~ on June 5, 2010.  The director stated that the probability that Dustin P~ was Hayden O~-P~’s father was “99.99% when compared to an untested unrelated man of the North American Caucasian population.” 

The genetic test report included a form describing the chain of custody of the specimen from Dustin P~. The form indicated that a coroner’s office had obtained blood and hair from Dustin P~ on June 5, 2010. A physician certified that the specimen from Dustin P~ had been under her control until she released it to Orchid Cellmark for deoxyribonucleic acid (DNA) testing. Orchid Cellmark received the specimen on April 15, 2011, and noted no signs of tampering.

Madison O~ also later provided forms describing the chain of custody of the specimens from her and her son, Hayden. The forms indicated that Nicole L~ collected specimens from Madison O~ and Hayden O~-P~ on March 16, 2011, and sent them to Orchid Cellmark. Orchid Cellmark received them on March 17, 2011, and noted no signs of tampering.

Analysis

Section 202(d)(1) of the Social Security Act (Act) establishes the criteria for entitlement to child’s insurance benefits. This section provides that every child (as defined in 216(e)) of an individual who dies fully insured under the Act is entitled to benefits if the child applies for benefits, is unmarried and under 18 (or a full-time elementary or secondary school student and under age 19), or is under a disability that began before age 22, and was dependent on the deceased at the time of death. Id.  A child who was born to married parents or who was legally adopted by the insured individual is deemed dependent, and is thus entitled to benefits. Social Security Act § 202(d)(3).

A nonmarital child can be deemed dependent on a deceased insured individual in several ways. First, section 216(h)(3)(C)(ii) of the Act provides that the child can be deemed dependent on the insured by showing that the insured was his or her parent and was living with or contributing to his or her support at the time of the insured’s death.  Second, section 216(h)(2)(B) of the Act provides that the child can be deemed dependent on the insured if the child can show that the insured was his or her parent and that his or her parents went through a purported marriage ceremony, but their marriage was invalid because of a legal impediment. Third, section 216(h)(3)(C)(i) of the Act provides that the child can be deemed dependent on the insured if the child can show that the insured had, before his or her death: (a) acknowledged in writing the child as his or her child; (b) been decreed by a court to be the child’s parent; or (c) been ordered by a court to contribute to the support of the child on the basis of parenthood. Based on the information provided, it does not appear that Hayden can meet any of these requirements.

A nonmarital child who does not meet any of the above requirements for showing dependency can also be entitled to benefits under section 216(h)(2)(A) if the child could 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 such insured individual . . . was domiciled at the time of his death . . . . Id. See also 20 C.F.R. § 404.355(a)(1); Program Operations Manual System (POMS) GN 00306.055. A nonmarital child who meets the standard that Congress set forth in 216(h)(2)(A) of the Act is deemed to be dependent. See Matthews v. Lucas, 427 U.S. 495, 514-15 n.17 (1976).

In this case, the evidence indicates that Dustin P~ was domiciled in Nebraska at the time of his death. Therefore, we will apply Nebraska intestacy law.

Under Nebraska intestacy law, if a decedent has no surviving spouse, the decedent’s children, including children “conceived before his death but born thereafter,” take the decedent’s property. Neb. Rev. Stat. §§ 30-2303, 30-2308. The Nebraska intestacy law describes the determination of the relationship between parent and child for “purposes of intestate succession.” Neb. Rev. Stat. § 30-2309. A nonmarital child is a child of the mother and also a child of the father if (1) “the natural parents participated in a marriage ceremony before or after the birth of the child, even though the attempted marriage is void,” or (2) “paternity is established by an adjudication before the death of the father or is established thereafter by strict, clear and convincing proof.” Id. In addition, “[t]he open cohabitation of the mother and the alleged father during the period of conception shall be admissible as evidence of paternity.” Id.

Because there is no evidence that Madison O~ and Dustin P~ ever married or attempted to marry, and no evidence that paternity was ever adjudicated, we must determine whether paternity is established by “strict, clear and convincing proof.” The Court of Appeals of Nebraska, in interpreting this standard, has stated that “‘[c]lear and convincing evidence means and is that amount of evidence which produces in the trier of fact a firm belief or conviction about the existence of a fact to be proved.’” In re Estate of B~, 603 N.W.2d 688, 693 (Neb. Ct. App. 2000) (citing In re Interest of Joshua M. et al., 558 N.W.2d 548, 563 (Neb. 1997)). The court noted that “evidence may be clear and convincing despite the fact that other evidence may contradict it.” Id. at 694. 

Under Nebraska Revised Statute § 43-1415, when genetic testing “show[s] a probability of paternity of ninety-nine percent or more, there shall exist a rebuttable presumption of paternity.” Neb. Rev. Stat. § 43-1415. While this statute is located in an article of the Nebraska Revised Statutes concerning child support and paternity, we believe Nebraska courts would consider the statutes and case law on child support and paternity relevant in evaluating paternity under the intestacy laws. See In re Estate of T~, 507 N.W.2d 478, 482 (Neb. 1993) (“In probate proceedings, there is no rational basis for making a distinction between a determination of paternity in a filiation proceeding and a determination of paternity in a divorce or dissolution proceeding.”). Under Nebraska Revised Statute § 43-1415, the genetic test results provided by Madison O~ would establish a rebuttable presumption of paternity because they showed a probability of paternity of 99.99 percent.

Nebraska Revised Statute § 43-1415 does not indicate whether the laboratory performing the genetic tests must be accredited by a particular organization, but Nebraska Revised Statute § 43-1414 discusses laboratory accreditation in the context of genetic testing ordered by attorneys, the court, or the Department of Health and Human Services. See Neb. Rev. Stat. §§ 43-1414, 43-1415.  Nebraska Revised Statute § 43-1414(2) states that “[a]ll genetic testing shall be performed by a laboratory accredited by the College of American Pathologists or any other national accrediting body or public agency which has requirements that are substantially equivalent to or more comprehensive than those of the college.” Neb. Rev. Stat. § 43-1414(2).

It is unclear whether genetic test results not ordered by attorneys, the court, or the Department of Health and Human Services must meet the accreditation standard set forth in Nebraska Revised Statute § 43-1414, and we did not find Nebraska case law addressing this issue. In any event, a Nebraska court would likely find that Orchid Cellmark, the facility that conducted the genetic test in this case, meets the accreditation standard.  

Orchid Cellmark is not accredited by the College of American Pathologists, See Orchid Cellmark, Accreditations, http://www.orchidcellmark.com/about/accreditations.html (last visited Aug. 13, 2011); AABB, AABB Accredited Relationship (DNA) Testing Facilities, http://www.aabb.org/sa/facilities/Pages/RTestAccrFac.aspx (last visited Aug. 13, 2011). but it is accredited by AABB, AABB has developed accreditation standards that “combine[] internationally accepted quality management system requirements with technical requirements appropriate for each given discipline.” AABB, Standard Setting Activities, http://www.aabb.org/sa/standards/Pages/default.aspx (last visited Aug. 15, 2011). an accrediting organization often cited in state case law on paternity. See e.g., State ex rel. Dep’t of Soc. Servs. v. Johnson, 753 So.2d 388, 393 (La. Ct. App. 2000) (emphasizing a laboratory’s accreditation by AABB); Fowler v. Napier, 663 N.E.2d 1197, 1200 (Ind. Ct. App. 1996) (noting a doctor’s membership in AABB in finding the “trial court did not abuse its discretion by qualifying [the doctor] as an expert”).  AABB is also recognized by the Department of Health and Human Services as a reliable accreditation body. See David G. R~, Accreditation of Genetic Testing Labs, U.S. Dep’t of Health and Human Servs., http://www.acf.hhs.gov/programs/cse/pol/IM/1997/im-9703.htm (last visited Aug. 15, 2011). In State on Behalf of Joseph F. v. Rial, the Nebraska Supreme Court found that the testing procedures of a particular laboratory, which was accredited by AABB according to the laboratory director’s testimony, “were in conformance with appropriate laboratory protocols.” State on Behalf of Joseph F. v. Rial, 554 N.W.2d 769, 775-76 (Neb. 1996).  We believe that it is reasonable to conclude that a Nebraska court would find that Orchid Cellmark meets the accreditation standard set forth in Nebraska Revised Statute § 43-1414(2).

The genetic test report Madison O~ provided also appears to be reliable. See State ex rel. A.E. v. Buckhalter, 730 N.W.2d 340, 348 (Neb. 2007) (noting that “evidence is needed to confirm the reliability of genetic tests if they are to be used as evidence). Nebraska Revised Statute § 43-1415 provides that results of genetic tests “may be introduced by verified written report without the need for foundation testimony or other proof of authenticity or accuracy unless there is a timely written request for personal testimony of the expert at least thirty days prior to trial.” Neb. Rev. Stat. § 43-1415. Here, the director of Orchid Cellmark provided a written report that she signed before a notary public. The genetic test report also included chain of custody forms establishing the chain of custody of the specimens taken from Madison O~, Dustin P~, and Hayden O~-P~. See Neb. Rev. Stat. § 43-1416. Nebraska Revised Statute § 43-1416 notes that the chain of custody of specimens is “competent evidence and admissible by stipulation or by a verified written report.” Neb. Rev. Stat. § 43-1416. The Court of Appeals of North Carolina, in interpreting the language of its statute requiring verified evidence of the chain of custody, found that “verified” required “affirmations or oaths” rather than certifications. See Rockingham County Dep’t of Soc. Servs. ex rel. Shaffer v. Shaffer, 484 S.E.2d 415, 416-17 (N.C. Ct. App. 1997). The chain of custody forms here were not notarized and included certifications by Orchid Cellmark. However, the Nebraska statute also notes that the chain of custody is “admissible by stipulation.” Neb. Rev. Stat. § 43-1416. Because there is no evidence of any dispute over paternity in this case, we believe the chain of custody forms would be admissible. A Nebraska court would likely admit the genetic test results into evidence. A Nebraska court would also be unlikely to find any reliability problems due to the coroner’s office obtaining the specimen from Dustin P~ after his death. Genetic tests can still be performed using specimens from deceased individuals. See Dep’t of Health and Human Services, Essentials for Attorneys in Child Support Enforcement, Paternity Establishment,http://www.acf.hhs.gov/programs/cse/pubs/2002/reports/ essentials /c8.html (last visited Aug. 15, 2011) (noting that specimens from deceased alleged fathers can be used in genetic testing to establish paternity); Maine Child Support: Division of Support Enforcement & Recovery (DSER), http://www.maine.gov/dhhs/ofi/dser/paternity/genetic-testing.html (last visited Aug. 15, 2011) (noting that if the alleged father is deceased, samples may still be taken from him).

Because the genetic test results Madison O~ provided established a chain of custody, were performed by a laboratory accredited by AABB, and showed a probability of paternity of 99.99 percent, a Nebraska court would likely find that the genetic test results established “strict, clear and convincing” proof of paternity.  Evidence that Madison O~ and Dustin P~ appeared to be openly living together during the time Hayden was likely conceived is also relevant. See Neb. Rev. Stat. § 30-2309 (noting that “[t]he open cohabitation of the mother and the alleged father during the period of conception shall be admissible as evidence of paternity”). Dustin P~’s obituary noted that he “[left] behind the one he loved and moved in with to start a life, Madie O~.” See Dustin L. P~, supra note 2. Based on this evidence and the genetic test results, it is reasonable to conclude that Hayden could inherit from Dustin P~ under Nebraska’s intestacy laws.

Because we believe that Hayden could inherit from Dustin P~ under Nebraska’s intestacy laws, Hayden O~-P~ can be entitled to child’s insurance benefits on the earnings record of Dustin P~.  See Social Security Act § 216(h)(2)(A). 

You also indicated that it was your understanding that if the genetic test results were an acceptable source of genetic testing, Hayden would be considered Dustin P~’s child from birth and would be entitled to retroactive benefits. We believe a Nebraska court would find Hayden to be Dustin P~’s child from birth. See State on Behalf of Joseph F. v. Rial, 554 N.W.2d 769, 777 (Neb. 1996) (noting that “the resulting duty of a parent to provide [child] support may, under appropriate circumstances, require the award of retroactive child support” because “[t]he requirement of support begins at the time of the birth of the child, whether the child is born in lawful wedlock or otherwise”).

 Therefore, we believe it is reasonable to award Hayden retroactive benefits. Social Security Ruling (SSR) 85-15 states that “[w]hile acts of legitimation tend to be given effect retroactive to the birth of the child, acts which confer inheritance rights without legitimating the child operate prospectively only.” SSR 85-17; see also Memorandum, “Louisiana State Law Effective Date of Child Relationship Under Louisiana State Law,” Region VI to ARC-MOS, SSA, July 19, 2010 (Louisiana Memorandum). However, SSR 85-15 focuses on Wisconsin, and state law may change this general rule. See Louisiana Memorandum. As discussed above, we believe a Nebraska court would look to the child support and paternity statutes and case law in considering the relationship of child and parent under intestacy laws.  We believe it is reasonable to conclude that a Nebraska court would find that any retroactive effect a finding of legitimacy had in intestacy proceedings would have the same effect if paternity was established for a nonmarital child. The purpose of evaluating a child’s status under state intestacy laws is to determine whether a child can be deemed dependent. See Matthews v. Lucas, 427 U.S. 495, 514-15 n.17 (1976). Under Nebraska law, both marital and nonmarital children are entitled to support, and therefore dependent, from the time of their birth. See State on Behalf of Joseph F. v. Rial, 554 N.W.2d 769, 777 (Neb. 1996). 

Kristi A. S~

Chief Counsel, Region VII

By

Katherine H~

Assistant Regional Counsel

In Nebraska, courts would consider DNA test results of a paternal aunt and uncle establishing a probability of paternity of a brother of 99.16 percent as part of a package of evidence to rebut the presumption of paternity and establish the claimant's relationship with the number holder by the clear and convincing standard.

You have asked for advice as to whether an illegitimate child can establish paternity and thus be entitled to child's benefits on the record of a deceased number holder based on the results of DNA testing of the child, the child's mother, and the child's alleged paternal aunt and uncle which establishes a probability of paternity of a brother of 99.16 percent. For the reasons discussed below, we believe that Nebraska courts would consider these DNA test results and the additional evidence in the file as establishing paternity by "clear and convincing" evidence within the meaning of Nebraska's intestacy statute such that child's benefits can be paid.

Factual Background

The documents sent with your request indicate that Walter H. A~ (deceased number holder) died on March 7, 1999, domiciled in Nebraska. Nancy B~ filed two prior applications for surviving child's benefits on behalf of her daughter, LaceyJae J. B~, who was born on December 21, 1993. Mrs. B~ protectively filed a third application for surviving child's benefits on August 14, 2007. Mrs. B~ alleged that the deceased number holder was the biological father of LaceyJae. Mrs. B~ and the deceased number holder were never married, had never attempted to marry, and were not engaged to be married. The deceased number holder was never ordered by a court to pay child support or decreed by a court to be the father of LaceyJae.. There are no written acknowledgments of paternity, and the deceased number holder was not living with LaceyJae or contributing to her support at the time of his death.

The materials you sent also include other documents submitted by Mrs. B~. Mrs. B~ submitted a Relationship Report from LabCorp dated March 22, 2006, citing a 99.16 percent probability that the brother of Teresa S~ and Paul E. A~ Jr., (alleged paternal aunt and uncle) could be the biological father of LaceyJae.. This conclusion was based on blood tests of LaceyJae, her mother, and the alleged paternal aunt and uncle (assuming prior probability equals .50). Additional evidence includes statements from Mark S~ and Donnie T~, both of whom indicated that the deceased number holder admitted to them orally that he was the natural father of LaceyJae J. B~.

In documentation related to a previous application, Mrs. B~ stated that she was married to, but separated from Michael B~ at the time LaceyJae was conceived. She stated that she moved back in with her husband about two months before LaceyJae was born. In his recent application for disability benefits, Michael B~ listed LaceyJae as his daughter and noted that he was still married to Nancy B~.

Based on this information, the Field Office requested additional information from Mrs. B~. She reported that she was living with the deceased number holder at the time that LaceyJae was conceived. She reported that she remained married to Michael B~ from 1987 to the present, but that they were separated when LaceyJae was conceived. Mrs. B~ also reported that she did not have a relationship with anyone other than the deceased number holder during the time LaceyJae was conceived. Unsigned statements from the deceased number holder's brothers indicate that neither of them had a relationship with Mrs. B~ and that neither could be the biological father of LaceyJae.. Both of the deceased number holder's brothers also reported that the deceased number holder lived with Mrs. B~ in 1992 and 1993. One of the deceased number holder's brothers stated that the deceased number holder told him that Mrs. B~ was expecting his child in December 1993.

Analysis

Section 202(d)(1) of the Social Security Act (Act) establishes the criteria for entitlement to child's insurance benefits. This section provides that every child (as defined in section 216(e)) of an individual who dies fully insured under the Act is entitled to benefits if the child applies for benefits, is unmarried and under 18 (or a full-time elementary or secondary school student and under age 19), or is under a disability that began before age 22, and was dependent on the deceased at the time of death. Id. A child who is "legitimate" or legally adopted by the insured individual is deemed dependent, and is thus entitled to benefits. Social Security Act § 202(d)(3).

An "illegitimate" child can be deemed dependent on a deceased insured individual in several ways. First, section 216(h)(3)(C)(ii) of the Act provides that the child can be deemed dependent on the insured by showing that the insured was his or her parent and was living with or contributing to his or her support at the time of the insured's death. Second, section 216(h)(2)(B) of the Act provides that the child can be deemed dependent on the insured if the child can show that the insured was his or her parent and that his or her parents went through a purported marriage ceremony, but their marriage was invalid because of a legal impediment. Third, section 216(h)(3)(C)(i) of the Act provides that the child can be deemed dependent on the insured if the child can show that the insured had, prior to his death: (a) acknowledged in writing the child as his child; (b) been decreed by a court to be the child's parent; or (c) been ordered by a court to contribute to the support of the child on the basis of parenthood. Section 202(d)(3) of the Act provides that any child who meets the tests in sections 216(h)(2) or (h)(3) "shall be deemed to be the legitimate child of such individual."

In this case, LaceyJae cannot meet any of the above requirements with regard to the deceased number holder. The deceased number holder was not living with or contributing to LaceyJae's support at the time of his death. Mrs. B~ and the deceased number holder were not married at the time LaceyJae was conceived or anytime thereafter. The deceased number holder did not acknowledge LaceyJae as his child in writing, nor was he decreed by a court to be her parent or ordered to pay support.

An "illegitimate" child who does not meet any of the above requirements for showing dependency can also be entitled to benefits under section 216(h)(2)(A) if the child could 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 such insured individual . . . was domiciled at the time of his death . . . ." Id. See also 20 C.F.R. § 404.355(a)(1)(2007); Program Operations Manual System (POMS) GN 00306.055. An illegitimate child who meets the standard which Congress set forth in section 216(h)(2)(A) of the Act is deemed to be legitimate and, therefore, dependent. See Matthews v. Lucas, 427 U.S. 495, 514-15 n.17 (1976). If the insured is deceased, the Social Security Administration applies the law on inheritance rights where the insured had his permanent home when he died. See 20 C.F.R. § 404.355(b)(1). In this case, you have indicated that the deceased number holder was domiciled in Nebraska; therefore, Nebraska intestacy law applies.

Nebraska Revised Statute § 30-2309 states that if, for purposes of intestate succession, a relationship of parent and child must be established to determine succession by, through, or from a person, a person born out of wedlock is a child of the father, if:

1. (i)  

   the natural parents participated in a marriage ceremony before or after the birth of the child, even though the attempted marriage is void; or

2. (ii)  

   the paternity is established by an adjudication before the death of the father or is established thereafter by strict, clear and convincing proof. The open cohabitation of the mother and alleged father during the period of conception shall be admissible as evidence of paternity. The paternity established under this subparagraph (ii) is ineffective to qualify the father or his kindred to inherit from or through the child unless the father has openly treated the child as his, and has not refused to support the child.

LaceyJae can only establish paternity under Nebraska's intestate succession law by "strict, clear and convincing proof." Neb. Rev. Stat. § 30-2309. Nebraska Courts have described clear and convincing evidence in intestate succession cases as "the amount of evidence which produces in the trier of fact a firm belief or conviction about the existence of a fact to be proved."

In re Estate of B~, 603 N.W.2d 688, 693 (Neb. Ct. App. 2000)(citing In re Interest of Joshua M. et al., 558 N.W.2d 548, 563 (Neb. 1997)).

In determining whether there is clear and convincing evidence that LaceyJae is the deceased number holder's child for purposes of intestate succession, it is important to note that Mrs. B~ was married to Michael B~ at the time LaceyJae was conceived and born. Nebraska law provides that a child born during a marriage is presumed the legitimate child of the parties of the marriage. See Quintela v. Quintela, 544 N.W.2d 111, 115 (Neb. Ct. App., 1996); see also Neb. Rev. Stat. § 42-377. Because LaceyJae was born during the marriage of Mr. and Mrs. B~, she is presumed the legitimate child of the marriage under Nebraska law. Additionally, Mrs. B~ has lived with and remained married to Mr. B~ since before LaceyJae's birth. Mr. B~ also claimed that LaceyJae was his child in his application for disability benefits. However, the presumption favoring legitimacy of children born during a marriage may be rebutted by clear, satisfactory, and convincing evidence. See Perkins v. Perkins, 253 N.W.2d 42, 45 (Neb. 1977); Quintela at 115.

One of the key pieces of evidence in determining whether LaceyJae can establish paternity under Nebraska intestate law and rebut the presumption of legitimacy is the DNA testing performed on LaceyJae, her mother, and two of the deceased number holder's siblings. Nebraska Revised Statute § 43-1415 addresses the admissibility of genetic tests to prove paternity. It states:

1. (a) 

   The results of the tests, including the statistical probability of paternity, shall be admissible evidence and, except as provided in subsection (2) of this section, shall be weighed along with other evidence of paternity.

2. (b) 

   When the results of tests, whether or not such tests were ordered pursuant to section 43-1414, show a probability of paternity of ninety-nine percent or more, there shall exist a rebuttable presumption of paternity.

3. (c) 

   Such evidence may be introduced by verified written report without the need for foundation testimony or other proof of authenticity or accuracy unless there is a timely written request for personal testimony of the expert at least thirty days prior to trial.

Neb. Rev. Stat. § 43-1415; see also POMS GN 00306.550.

Nebraska statutory law only addresses a presumption based on the probability of paternity. The statute does not address testing of collateral relatives. Nebraska courts have not addressed the applicability of the section 43-1415 presumption in cases where the tests were performed on collateral relatives. We do not believe testing of collateral relatives, such as aunts and uncles, falls within the presumption described by this statute. Although there is no Nebraska case law specifically addressing whether aunt or uncle blood tests are probative in establishing clear and convincing evidence of paternity, the results of genetic testing are admissible evidence to be weighed along with other evidence of paternity. See Neb. Rev. Stat. § 43-1415; State v. Snelling, 637 N.W.2d 906, 909-10 (Neb. Ct. App. 2001)(noting that genetic tests are weighed with other evidence of paternity). DNA testing of a deceased father's parents has been allowed in other jurisdictions as evidence to prove paternity. We believe that a Nebraska court would consider the DNA testing submitted in this case in a clear and convincing proof analysis.

Other evidence supporting a finding that the deceased number holder is LaceyJae's father includes statements from two witnesses who indicated that the deceased number holder admitted to them orally that he was LaceyJae's natural father. Additionally, one of the deceased number holder's brothers stated that the deceased number holder told him that Mrs. B~ was expecting a child in December 1993 and that he was the father. Mrs. B~ reported that she was living with the deceased number holder at the time LaceyJae was conceived and did not have a relationship with any other man during that time period. Both of the deceased number holder's brothers confirmed that the deceased number holder was living with Mrs. B~ in 1992 and 1993. LaceyJae was born in December 1993. Under Nebraska law, the open cohabitation of the mother and alleged father during the period of conception "shall be admissible evidence of paternity". Neb. Rev. Stat. § 30-2309.

While the Nebraska courts have not considered this exact situation, the courts have found that the presumption of legitimacy was properly rebutted in similar situations. In State o/b/o Hopkins v. Batt, 573 N.W.2d 425, 433 (Neb. 1998), the court found clear, satisfactory, and convincing evidence to overcome the presumption of legitimacy. The evidence in that case included the mother's testimony that she did not have sexual relations with anyone other than the alleged father during the time period in which the child was conceived. See id. The record also contained results of genetic testing which indicated a 99.98 percent probability that the alleged father was the child's biological father. See id. In Cavanaugh v. deBaudiniere, 493 N.W.2d 197, 210 (Neb. Ct. App. 1992), the court found that a blood test alone, which showed that the husband was not the biological father of the child born during the marriage, was enough to rebut the presumption of legitimacy.

In the fact situation you present, we believe that the Nebraska courts would find that LaceyJae has rebutted the presumption of legitimacy and has provided clear and convincing evidence that she is the daughter of the deceased number holder for intestacy purposes. The DNA evidence is strong evidence supporting a finding that the deceased number holder is LaceyJae's father. Additionally, the deceased number holder made statements to others that he was LaceyJae's biological father and openly cohabitated with Mrs. B~ during the time LaceyJae was conceived.

Based on the materials submitted, we believe it is reasonable to conclude that the evidence establishes that the deceased number holder was the father of LaceyJae. Jessica B~ by clear and convincing proof within the meaning of Nebraska's intestacy statute. Therefore, LaceyJae has met the requirements for entitlement to child's benefits under section 216(h)(2)(A).

Kristi A. S~

Acting Chief Counsel, Region VII

By

Angela G. T~-M~

Assistant Regional Counsel

The NH is listed as the father on the child claimant's birth certificate, and he acknowledged in writing that he was the claimant's father. However, genetic testing that clearly showed that the NH was not the child's father is strong evidence that a Nebraska court would likely rely on to find that the NH was not the child's father for purposes of intestate succession.

You have asked whether a claimant would be precluded from establishing entitlement to auxiliary benefits on the record of a number holder domiciled in Nebraska where the number holder's name is shown on his birth certificate but paternity testing showed a low probability that the number holder was the claimant's natural father. A review of Nebraska intestacy statutes indicates that a written acknowledgement of paternity is not binding. A Nebraska court would likely afford considerable weight to genetic testing which clearly showed that the number holder was not the claimant's biological father.

FACTUAL BACKGROUND

Leon D. G~, Jr., (the claimant) was born on December 21, 1999. On his birth certificate Leon D. G~, the number holder (NH), was named as his father. The NH indicated that he signed the birth certificate because he believed he was the claimant's biological father. The NH and the claimant's mother never married or cohabitated. However, according to your February 2004 Memorandum, the NH did acknowledge in writing that the claimant was his son. The claimant applied for benefits in January 2000, and was established as a Section 216(h)(3) child on the account of the NH. His date of entitlement was established as January 2000.

At an unknown date, the claimant was removed from the NH's home. The NH applied for custody of the claimant. In connection with these proceedings, the NH underwent a paternity test in February 2003. Genetic testing revealed that there was a zero percent probability that the NH was the claimant's biological father. However, in November 2003, the Douglas County, Nebraska Juvenile Court appointed the NH as the claimant's guardian.

ANALYSIS

In order to qualify for child's insurance benefits, a child applicant must be the NH's "child" as that term is defined in the Social Security Act (the Act). Section 216(h)(2)(A) of the Act (42 U.S.C. § 416(h)(2)(A)) provides:

In determining whether an applicant is the child or parent of a fully or currently insured individual for purposes of this subchapter, the [Commissioner] shall apply such 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 application, or, if such insured individual is dead, by the courts of the State in which he was domiciled at the time of his death, or, if such insured individual is or was not so domiciled in any State, by the courts of the District of Columbia. Applicants who according to such law would have the same status relative to taking intestate personal property as a child or parent shall be deemed such.

Id. Because there has been no court proceeding to establish paternity, in order to determine if the claimant can be entitled to auxiliary benefits on the NH's record, SSA stands in the shoes of the court to determine if the claimant could inherit an intestate share of NH's personal property. Because the NH is domiciled in Nebraska, we must apply Nebraska law to determine if the claimant can be entitled to benefits on the NH's record.

In Nebraska, "[t]here is no common law right of inheritance. The right of inheritance is purely a creature of statute and must be determined not as a matter of sentiment, but as a matter of law." In re Estate of L~, 291 N.W.2d 235, 238 (Neb. 1980). Nebraska intestacy statutes provide that in cases not involving adoption:

A person born out of wedlock is a child of the mother. That person is also a child of the father, if:(i) the natural parents participated in a marriage ceremony before or after the birth of the child, even though the attempted marriage is void; or (ii) the paternity is established by an adjudication before the death of the father or is established thereafter by strict, clear and convincing proof. The open cohabitation of the mother and alleged father during the period of conception shall be admissible as evidence of paternity. The paternity established under this subparagraph (ii) is ineffective to qualify the father or his kindred to inherit from or through the child unless the father has openly treated the child as his, and has not refused to support the child.

Neb. Rev. Stat. § 30-2309 (2003).

In this case, section (i) clearly does not apply because the NH never participated in a marriage ceremony with the claimant's mother. The second method of establishing paternity is by adjudication before the death of the father or by "strict, clear, and convincing proof" after the father's death. In this case, there has been no adjudication that the NH is the father of the claimant. After testing showed that there was no possibility that the NH was the biological father of the claimant, the Douglas County Court appointed him as the guardian of the claimant. It did not find that he was the father. Further, the NH and the claimant's mother did not cohabitate as described in section (ii) of the statute.

Although the NH acknowledged in writing that the claimant was his child, this is not determinative. A notarized acknowledgement of paternity creates a rebuttable presumption of paternity against an alleged father. See Neb. Stat. Ann. § 43-1409. However, Nebraska courts have refused to give conclusive effect to written acknowledgements of paternity. See State on Behalf of J.R. v. Mendoza, 481 N.W.2d 165, 173 (Neb. 1992).

Nebraska statutes also address the use of genetic testing in determining paternity. See Neb. Stat. Ann. §§ 43-1411 to -1418. Genetic testing is admissible and a finding of 99 percent probability of paternity establishes a rebuttable presumption of paternity. See id. at § 43-1415. In the present case, genetic testing showed that there was a zero percent probability that the NH was the biological father of the claimant. In Quintela v. Quintela, 544 N.W.2d 111 (Neb. Ct. App. 1996), the Nebraska Court of Appeals held that genetic testing which showed a zero percent possibility of fatherhood, was itself, "clear, satisfactory, and convincing evidence" to rebut the presumption of fatherhood. Id. at 115.

However, in Day v. Heller, 653 N.W.2d 475 (Neb. 2002), the Nebraska Supreme Court addressed the issue of genetic test results in a different context. In Day, an alleged father of a child brought a tort action for fraud, assumpsit, and intentional infliction of emotional distress against his former wife. He sought damages for expenses incurred due to his belief the child was his, as well as general damages for intentional infliction of emotional distress and attorney fees. Id. at 477-78. The Nebraska Supreme Court held that public policy barred a suit to recover such damages. The Court noted that even though the former wife misrepresented the actual paternity of the child, a suit to recover paid child support expenses focused on the burdens of the child-parent relationship while ignoring the benefits of such a relationship. "We do not believe that having a close and loving type of relationship 'imposed' on one because of a misrepresentation of biological fatherhood is a type of 'harm' that the law should attempt remedy." Id. at 479 (citing Nagy v. Nagy, 210 Cal. App. 3d 1262 (Cal. Ct. App. 1989)). The issue in this case, however, is one of paternity, not tort liability. Therefore, the holding in Day is not determinative on these facts.

Consistent with Quintela, a Nebraska court would likely find that the conclusive results of genetic testing rebutted the presumption of fatherhood established by the NH's pre-genetic testing statements. Therefore, the claimant would not be considered a child of the NH under the Nebraska intestacy statutes.

CONCLUSION

Although the NH is listed as the father on claimant's birth certificate and he acknowledged in writing that he was the claimant's father, we believe a Nebraska court would find that the claimant was not a child of the NH for purposes of intestate succession. Genetic testing that clearly showed the NH was not the father of the claimant is strong evidence that a Nebraska court would likely rely on to find that the NH was not the father of the claimant for purposes of intestate succession. Therefore, we believe you would be justified in finding that the claimant was not the child of the NH for purposes of entitlement to auxiliary benefits.

Frank V. S~ III

Chief Counsel

By____________

Sean N. S~

Assistant Regional Counsel

A Nebraska court would not find "clear and convincing proof" that the child claimant is the child of the deceased NH for intestacy purposes. While there is evidence suggesting that the NH was the child's father, it cannot be said that there is "the amount of evidence which produces in the trier of fact a firm belief or conviction about the existence of a fact to be proved." DNA test results show only a probability of 96.8% that the child is a full sibling of the alleged full sibling tested. There is no DNA test establishing that the alleged full sibling was the son of the NH.

You have asked for advice as to whether an illegitimate child can establish paternity and thus be entitled to child's benefits on the record of a deceased number holder based on the results of DNA testing of the child, the child's mother, and the child's alleged sibling which establishes a probability of full-siblingship of 96.8 percent. For the reasons discussed below, we believe that although Nebraska courts would consider these DNA test results as evidence in determining paternity, paternity would not be established by "clear and convincing" evidence within the meaning of Nebraska's intestacy statute such that child's benefits can be paid.

Factual Background

The memorandum you sent with your request indicates that on November 9, 2001, Connie S~ filed for surviving child's benefits on behalf of her son, Jesse K. S~, who was born on March 2, 1989. Ms. S~ alleged that Larry E~, Sr. (deceased number holder) was the biological father of Jesse. Ms. S~ and the deceased number holder were not married when Jesse was conceived or anytime thereafter. The deceased number holder never provided support nor acknowledged paternity in writing.

The materials you sent also include other documents submitted by Ms. S~. Jesse's birth certificate does not reflect a father's name. The birth certificate of Jesse's alleged full sibling identified Larry E~ as the father. Ms. S~ submitted a DNA Sibship Test Report from the DNA Diagnostics Center dated April 5, 2001, citing a probability of full-siblingship of 96.8 percent based upon blood tests of Jesse, Ms. S~, and his alleged full sibling (assuming prior probability equals .50).

Additional development shows that the deceased number holder died on December 14, 1997, domiciled in Columbus, Nebraska. A statement from Jesse dated March 3, 2000, indicates that the deceased number holder told him that he was his father. Jesse also stated that Ms. S~ and the deceased number holder were previously married. In a letter dated January 10, 2000, Tina S~, Ms. S'~s and the deceased number holder's daughter, indicated that Ms. S~ and the deceased number holder had told her that Jesse was the deceased number holder's child. In a statement dated February 25, 2000, Kristina R~, Ms. S~'s daughter, indicated that she was living with Ms. S~ at the time Jesse was conceived and she believed that the deceased number holder and Ms. S~ had sex. Donna R~ indicated in a statement dated January 20, 2000, that the deceased number holder had told her that Jesse was his son, but he was keeping it quiet because he did not want his recent wife to know. She also stated that the deceased number holder told Jesse before he died that he was his father.

Analysis

Section 202(d)(1) of the Social Security Act (Act) establishes the criteria for entitlement to child's insurance benefits. This section provides that every child (as defined in section 216(e)) of an individual who dies fully insured under the Act is entitled to benefits if the child applies for benefits, is unmarried and under 18 (or a full-time elementary or secondary school student and under age 19), or is under a disability that began before age 22, and was dependent on the deceased at the time of death. Id. A child who is "legitimate" or legally adopted by the insured individual is deemed dependent, and is thus entitled to benefits.

Social Security Act § 202(d)(3).

An "illegitimate" child can be deemed dependent on a deceased insured individual in several ways. First, section 216(h)(3)(C)(ii) of the Act provides that the child can be deemed dependent on the insured by showing that the insured was his or her parent and was living with or contributing to his or her support at the time of the insured's death. Second, section 216(h)(2)(B) of the Act provides that the child can be deemed dependent on the insured if the child can show that the insured was his or her parent and that his or her parents went through a purported marriage ceremony, but their marriage was invalid because of a legal impediment. Third, section 216(h)(3)(C)(i) of the Act provides that the child can be deemed dependent on the insured if the child can show that the insured had, prior to his death: (a) acknowledged in writing the child as his child; (b) been decreed by a court to be the child's parent; or (c) been ordered by a court to contribute to the support of the child on the basis of parenthood. Section 202(d)(3) of the Act provides that any child who meets the tests in sections 216(h)(2) or (h)(3) "shall be deemed to be the legitimate child of such individual."

In this case, none of the above requirements can be met by Jesse.

The deceased number holder was not living with or contributing to Jesse's support at the time of his death. Ms. S~ and the deceased number holder were not married at the time of Jesse was conceived or anytime thereafter. The deceased number holder did not acknowledge Jesse as his child in writing, nor was he decreed by a court to be his parent or ordered to pay support.

An "illegitimate" child who does not meet any of the above requirements for showing dependency can also be entitled to benefits under section 216(h)(2)(A) if the child could 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 such insured individual . . . was domiciled at the time of his death . . . ." Id. See also 20 C.F.R. § 404.355(a)(1)(2001); Program Operations Manual System (POMS) GN 00306.055. An illegitimate child who meets the standard which Congress set forth in section 216(h)(2)(A) of the Act is deemed to be legitimate and, therefore, dependent. See Matthews v. Lucas, 427 U.S. 495, 514-15 n.17 (1976). If the insured is deceased, the Social Security Administration applies the law on inheritance rights where the insured had his permanent home when he died. See 20 C.F.R. § 404.355(b)(1). In this case, you have indicated that the deceased number holder was domiciled in Nebraska; therefore, Nebraska intestacy law applies.

Neb. Rev. Stat. § 30-2309 states that if, for purposes of intestate succession, a relationship of parent and child must be established to determine succession by, through, or from a person, a person born out of wedlock is a child of the father, if:

(i) the natural parents participated in a marriage ceremony before or after the birth of the child, even though the attempted marriage is void; or

(ii) the paternity is established by an adjudication before the death of the father or is established thereafter by strict, clear and convincing proof. The open cohabitation of the mother and alleged father during the period of conception shall be admissible as evidence of paternity. The paternity established under this subparagraph (ii) is ineffective to qualify the father or his kindred to inherit from or through the child unless the father has openly treated the child as his, and has not refused to support the child.

The Nebraska statute allows a presumption of paternity in cases where there has been a marriage or attempted marriage between the alleged father and mother. See Neb. Rev. Stat. § 30-2309(2)(i). Although Ms. S~ and the deceased number holder may have been previously married, the evidence does not show that Ms. S~ and the deceased number holder were married or attempted to marry during the time Jesse was conceived or thereafter.

Jesse can only establish paternity under Nebraska's intestate succession law by "strict, clear and convincing proof." Neb. Rev. Stat. § 30-2309. Nebraska Courts have described clear and convincing evidence in intestate succession cases as "the amount of evidence which produces in the trier of fact a firm belief or conviction about the existence of a fact to be proved." In re Estate of B~, 603 N.W.2d 688, 693 (Neb. Ct. App. 2000)(citing In re Interest of Joshua M. et al., 251 Neb. 614, 636, 558 N.W.2d 548, 563 (1997)).

Nebraska law provides that genetic tests are admissible evidence and create a rebuttable presumption of paternity when the results of the genetic tests show a probability of paternity of 99 percent or higher. See Neb Rev. Stat. § 43-1415; POMS GN 00306.550. Nebraska statutory law only addresses a presumption based on the probability of paternity. Sibship testing is not addressed. Here, the DNA test results established the probability of full-siblingship by testing Jesse, Jesse's mother, and Jesse's alleged full sibling. We do not believe sibship testing falls within this statute. Furthermore, even if sibship testing did fall with this statute, the probability of full-siblingship was only a 96.8 percent likelihood of such a relationship. Thus, the results of this DNA testing do not create a presumption of paternity by the deceased number holder under Nebraska statutory law.

Although there is no Nebraska case law specifically addressing whether sibling blood tests are probative in establishing clear and convincing evidence of paternity, the results of genetic testing are admissible evidence to be weighed along with other evidence of paternity. See Neb. Rev. Stat. § 43-1415; State v. Snelling, 637 N.W.2d 906, 909-10 (Neb. Ct. App. 2001)(noting that genetic tests are weighed with other evidence of paternity). Other jurisdictions have noted the possible relevance of sibling blood and DNA testing. DNA testing of a deceased father's parents has been allowed in other jurisdictions as evidence to prove paternity. We believe that a Nebraska court would consider the DNA testing submitted in this case in a clear and convincing proof analysis.

A general understanding of the probability of paternity estimates is required to determine the significance of the DNA testing performed in this case.

The POP [(Probability of Paternity)] is an estimate of the likelihood that the putative father is the biological father of the child. It is determined by calculating the chance that the putative father could produce a single sperm containing all the genetic information a given child must have received from its biological father, as compared to the chance that a random unrelated man of the same-race could provide the necessary genetic information. . . . A testing laboratory's methodology is to run a battery of tests in order to exclude the alleged father.

If the exclusion occurs based on the absence of necessary genetic information, then the testing ceases and the POX [(probability of exclusion)] is 100 percent. If exclusion does not occur, then more tests are introduced. Eventually, if exclusion does not occur, the POP is calculated based on the frequency which the specific gene or genes occurs in the general population. However, this calculation may sound weighter than it is. For example, a PI [(Paternity Index)] of five thousand to one would translate to a probability of paternity of 99.98%. Yet courts are reluctant to find paternity based on such figures because in a city with a same-race population of 500,000, or even 500,001, one hundred other men might theoretically be the father.

See E. Donald S~, Stewart R~, & Claudia L. P~, The DNA Paternity Test: Legislating the Future Paternity Action, 7 J.L. & Health 1, 26-28 (1993) (footnotes and citations omitted). DNA testing, combined with other genetic marking tests, can raise the POP to above 99.999999 percent. See id. at 30. See also Memoradum from the Office of General Counsel, Region VII, to ARC, Management and Operations Support, SSA re: Use of Blood Testing with a Probability Factor of 95.89% to Establish Inheritance Rights of a Child Under Nebraska Law- - Daniel J. C~, ~ (May 20, 1997).

In this case, we believe that the sibship DNA tests results alone are not "clear and convincing proof" that Jesse is the son of the deceased number holder. Initially, we note that genetic tests have not been performed to prove that the alleged full sibling was the biological son of the deceased number holder. Even if Jesse's alleged full sibling was the biological son of the deceased number holder, DNA test results show only a probability of full-siblingship of 96.8 percent. A review of relevant case law also shows that Jesse has not established "clear and convincing proof" of paternity based on additional facts in this case.

In S~, 835 F.2d at 168-69, the Eighth Circuit Court of Appeals held that the plaintiff had failed under Missouri's intestacy statute to establish by clear and convincing evidence that the deceased number holder was the father of her child. The plaintiff did not name a father on the child's birth certificate.

She had alleged that the deceased number holder had brought money, toys, and food for the child but she had kept no records. She alleged that the deceased number holder had taken out an insurance policy for the child but it was never produced and she stated that she did not know whether she or the child was the designated beneficiary. Inconsistently, in a signed statement taken in conjunction with her application for benefits, she stated that the deceased number holder had never taken out an insurance policy on the child. The deceased number holder's widow testified that she had been married to him for three years and they had two children. She stated that she had no knowledge of the child he allegedly fathered, and that he had never made any support payments to the child. The evidence included a notarized statement by the deceased number holder's mother stating the he had acknowledged that the child was his and had brought the child to her home regularly. She stated that she did not know why she had not mentioned the child until twelve years after her son's death. Id. at 167. The court agreed with an administrative law judge that there was not clear and convincing evidence of paternity as required by the Missouri intestacy statute. There was no evidence proving that the deceased number holder was not the child's father, but neither was there "clear and convincing evidence" showing that he was the father. Testimony at the hearing was inconsistent with documentary evidence, there were vague allegations twelve years after the death of the deceased number holder, and there was a failure to produce records and vital documents which cast the plaintiff's testimony in a "particularly doubtful light." Id. at 168.

In Cooper v. Sullivan, 985 F.2d 390 (8th Cir. 1993), the Eighth Circuit Court of Appeals found that the evidence supported the Commissioner's denial of surviving child benefits where paternity was not proved by clear and convincing evidence under an Illinois intestacy statute, despite the child's mother testimony that the deceased number holder was the child's father and affidavits of the mother's mother, sister, and brother-in-law which supported her testimony. Id. at 391. The Commissioner stated that although the affidavits submitted constituted some evidence that the claimant was the child of the deceased number holder, other circumstances, particularly the claimant's mother's acknowledgment that the deceased number holder did not support the claimant at the time of his death nor acknowledged in writing that the claimant was his child, precluded the existence of clear and convincing evidence that the claimant was the child of the deceased number holder. Id.

In re Estate of B~, 603 N.W.2d at 694-95, a Nebraska Appeals Court found clear and convincing proof of paternity during a probate proceeding of two children born out of wedlock.

Decedent's alleged daughter's evidence of paternity was based on testimony that decedent had treated her as his daughter, a birth certificate that listed decedent as the father, testimony indicating a significant relationship between decedent and daughter, and testimony indicating that decedent had lived with the daughter's mother. See id. at 694. Decedent's alleged son's paternity was established based on testimony by son's mother that he was decedent's son, testimony that son had kept in contact with decedent throughout his lifetime, and decedent and son shared the same first and middle name. See id. at 694-95.

In the fact situation you present, we believe a Nebraska court would not find "clear and convincing proof" that Jesse K. S~ is the child of the deceased number holder for intestacy purposes. While there is evidence suggesting that the deceased number holder was the father of Jesse, we cannot say that there is "the amount of evidence which produces in the trier of fact a firm belief or conviction about the existence of a fact to be proved."

See In re Estate of B~, 603 N.W.2d at 693. We do not have DNA testing establishing that the alleged full sibling was the son of the deceased number holder. DNA test results show only a probability of full-siblingship of 96.8 percent. Ms. S~ and the deceased number holder were not married and did not live together when Jesse was conceived or anytime thereafter. The deceased number holder never provided support nor acknowledged paternity in writing during the eight years of Jesse's life that he was alive. Jesse's birth certificate does not reflect that the deceased number holder was his father. The statements written about Jesse were written eleven years after Jesse's birth. Based on the materials submitted, we believe it is reasonable to conclude that the evidence does not establish paternity by "clear and convincing proof" within the meaning of Nebraska's intestacy statute, and the requirements for entitlement under section 216(h)(2)(A) are not met

Frank V. S~ III

Chief Counsel, Region VII

By

Christina S. Y~

Assistant Regional Counsel