TN 91 (10-20)

PR 01115.034 New Mexico

A. PR 20-087 Use of Grandparent DNA Report, Court Adjudication, and Birth Certificate to Establish Child Relationship

Date: September 28, 2020

1. Syllabus

New Mexico's Uniform Parentage Act (UPA) governs determinations of parentage in New Mexico. The UPA provides that the father-child relationship is established by:

  • an unrebutted presumption of the man’s paternity of the child per § 40-11A-204;

  • an effective acknowledgment of paternity by the man pursuant to Article 3 of the UPA, unless the acknowledgment has been rescinded or successfully challenged;

  • an adjudication of the man’s paternity;

  • adoption of the child by the man; or

  • the man’s having consented to assisted reproduction by a woman pursuant to Article 7 of the UPA that resulted in the birth of the child.

In this case, considering the totality of the evidence, we believe there is legal support for the agency to find that the NH has been adjudicated to be the Claimant’s father; and, therefore, has established the father-child relationship and the right to inherit from the NH as his descendant under intestate succession law.

2. Questions Presented

You requested an opinion on whether the evidence submitted in this case establishes a parent-child relationship between the deceased number holder J~ (NH) and the claimant L~ (Claimant), a child, for purposes of the Claimant’s application for child’s insurance benefits and the lump sum death payment (LSDP) under the Social Security Act (Act) on the NH’s record as his child. This claim involves evidence of a father-child relationship between the Claimant and the NH, as well as evidence of a father-child relationship between the Claimant and J1~. Applying section 216(h)(2)(A) of the Act, you asked whether, under New Mexico law, a deoxyribonucleic acid (DNA) test report of a paternal grandparent (paternal grandparent DNA report), birth certificate evidence, and evidence from a state court case adjudicating child support and paternity involving both J1~ and the NH is sufficient to establish a parent-child relationship under New Mexico law between the NH and the Claimant. If the evidence establishes a parent-child relationship, you asked what the beginning date of that relationship would be.

3. Answer

We believe that a New Mexico court would find that the Claimant has proven a parent-child relationship with the NH and the right to inherit from the NH under New Mexico intestate succession law with evidence from a state court case disestablishing J1~'s paternity and adjudicating the NH to be the Claimant’s father, paternal grandparent DNA report evidence supporting the NH’s paternity of the Claimant, and a new birth certificate identifying the NH to be the Claimant’s father. Thus, we believe there is legal support for the agency to find that the Claimant has proven a parent-child relationship with the NH under section 216(h)(2)(A) of the Act for purposes of his application for child’s insurance benefits on the NH’s record. Further, the effective date of the parent-child relationship between the NH and the Claimant is the Claimant’s date of birth of June XX, 2010.

4. Background

a. Overview of the Claimant’s Parent-Child Relationship with J1~ – Evidence Consisting of a Birth Certificate and Court Documents

The Claimant was born on June XX, 2010. His mother is R~. It is our understanding that R~ told the agency that she was not married at the time the Claimant was born, but that she was in a relationship with J1~ at that time. Further, she told the agency that J1~ acknowledged the Claimant as his child, and the State listed J1~ as the Claimant’s father on the Claimant’s New Mexico birth certificate. We were provided with a copy of the Claimant’s original New Mexico birth certificate listing J1~ as the Claimant’s father and listing the Claimant’s name as “L~” with J1~'s last name.

Online New Mexico state court case information indicates that in 2015, R~ and the State’s child support enforcement agency filed a petition seeking to require J1~ to pay child support for the Claimant and that the court ordered J1~ to pay child support for the Claimant through 2018. See State of New Mexico, (HSD) and R~ v. J1~, No. XXX, Second Judicial District Court, County of Bernalillo, State of New Mexico (New Mexico State Court Case).[1] We discuss the specifics of this case in a separate section below.

b. Overview of the Claimant’s Parent-Child Relationship with the NH – Evidence Consisting of Court Documents, a Birth Certificate, DNA Testing Report, and Obituary

The NH died on May XX, 2018, in New Mexico. A copy of his online obituary identifies the Claimant as the NH’s only son.[2] The obituary also identifies J3~ as the NH’s father and states that the NH had four surviving brothers.

R~ provided the agency with a motion and order from the New Mexico State Court Case indicating that after the NH died, she sought to have J1~ removed from the Claimant’s birth certificate and the NH declared to be the Claimant’s father on his birth certificate. We discuss the specifics of this case in a separate section below. As noted in the next section, she did not provide a copy of the final court orders entered in this case disestablishing J1~’s paternity and adjudicating the NH to be the Claimant’s father. However, she did provide the agency with a copy of the Claimant’s New Mexico birth certificate - newly issued in October 2019 - listing the NH as his father and listing the Claimant’s name as “L~.”

R~ also provided the agency with a copy of a paternal grandparent DNA report dated October 2018, which tested J3~ (the NH’s father) and the Claimant. The paternal grandparent DNA report concludes that there was a 99.99% probability of grandpaternity and a likelihood of grandpaternity of 96,823 to 1. The report concludes: “This study supports the allegation that a son of the grandfather is the biological father of the child.”

c. Overview of the New Mexico State Court Case Regarding Child Support and Paternity

As noted, online New Mexico state court case information indicates that in April 2015, R~ and the State filed a petition seeking to require J1~ to pay child support for the Claimant and that the court ultimately ordered J1~ to pay child support for the Claimant through 2018. See State of New Mexico, (HSD) and R~ v. J~, No. XXX, Second Judicial District Court, County of Bernalillo, State of New Mexico. The online docket shows orders entered in March 2016, January 2017, February 2017, April 2017, and July 2017 approving of a child support hearing officer’s reports. We do not have a copy of any of the court orders, but assume the orders requiring that J~1 pay child support are based on the acknowledgment and original birth certificate naming J1~ as the Claimant’s father, as described above.

After the NH’s death in May 2018, the online docket reveals that both R~ and J1~ filed various motions seeking paternity testing, seeking to change the child support orders, seeking to remove J1~ from the Claimant’s birth certificate, and seeking to identify the NH as the Claimant’s father, but such motions were unsuccessful throughout 2018. R~ provided SSA with a copy of an “Emergency Motion to Remove J1~ off L~'s Birth Certificate” that she filed in this case on July XX, 2018. In this motion, she stated the following: “J1~ is not the biological father of L~. L~'s biological father is J~ and is deceased. [C]hild support and Social Security do need J1~ removed to d[o] further paper work for L~'s benefits. J1~ does agree to be removed from birth certificate.” However, a docket entry for this case on September XX, 2018, reflects that following a hearing, the court denied a request to “disestablish paternity.” The docket reflects that J1~ filed a motion for paternity testing on December XX, 2018, but that the court entered a memorandum order denying the motion for paternity testing on December XX, 2018. R~ provided SSA with a copy of this December XX, 2018 memorandum order in which the court denied J1~’s motion for paternity testing finding: “Paternity of the child has already been adjudicated (See Hearing Officer Report filed 02/XX/16 and adopted as a Court Order on 03/XX/16. See also Hearing Officer Report filed 09/XX/18 and adopted as a Court Order on 10/XX/18).”

In May 2019, the online docket shows that the State filed a motion to amend/modify child support and to update judgment and both R~ and J1~ were served. On June XX, 2019, the online docket shows that R~ again filed an “Emergency Motion to Remove J1~ from L~'s Birth Certificate and Add Biological Father’s Name and Child’s Name Change.” Docket entries reflect that on September XX, 2019, a hearing was held “on motion to remove/add name on birth certificate and child’s name change” and “on motion to update judgment.” Further, the docket shows that a domestic relations hearing officer report was filed on September XX, 2019, and that “[Respondent’s (J1~'s)] Paternity Disestablished.” On October XX, 2019, the court entered an order approving hearing officer’s report and the child support case was closed. R~ provided SSA with a copy of the Claimant’s new birth certificate - issued in October 2019 - changing the Claimant’s father from J1~ to the NH and changing his last name to the NH’s last name. Although we do not have copies of the September 2019 hearing officer report and the October 2019 court order, it would appear from the final case filings, docket entries, and new birth certificate that the court disestablished J1~'s paternity and established the NH’s paternity of the Claimant ordering the new birth certificate, as requested.

5. Analysis

a. Federal Law: Entitlement to Child’s Insurance Benefits under the Act as a “Child”

Under Title II of the Act, a claimant may qualify for child’s insurance benefits on an insured individual’s earnings record if, among other things, he is the insured individual’s “child” and was dependent on the insured individual at the time of the individual’s death.[3] SeeAct 202(d)(1); 42 U.S.C. § 402(d)(1); 20 C.F.R. §§ 404.350, 404.355. The Act and regulations define “child” as an insured individual’s natural child, legally adopted child, stepchild, grandchild, step grandchild, or equitably adopted child. See Act § 216(e), 42 U.S.C. § 416(e); 20 C.F.R. §§ 404.354 – 404.359. Our inquiry in this opinion focuses on whether the Claimant is the NH’s natural child, as there is no evidence that the other relationships would apply here.

In assessing a claimant’s status as a natural child, the agency must determine whether the claimant could inherit the insured individual’s personal property as his child under the intestate succession laws of the State where the insured individual was domiciled at the time of his death. See Act § 216(h)(2)(A); 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b). If a claimant qualifies as a child of the insured individual under the foregoing analysis, the claimant is deemed dependent on the insured individual. 20 C.F.R. § 404.361(a). Because the NH was domiciled in New Mexico at the time of the NH’s death, we apply New Mexico’s intestate succession laws to determine whether the Claimant could inherit from the NH as his child.

b. New Mexico State Law: Inheritance under New Mexico Intestate Succession Laws

1. New Mexico Intestate Succession Law and Establishment of the Parent-Child under the New Mexico Uniform Parentage Act (UPA)

Article 2, Part 1 of New Mexico’s Uniform Probate Code (UPC), N.M. Stat. Ann. §§ 45-2-101 – 45-2-122, codifies New Mexico’s law of intestate succession. Any part of a decedent’s estate that is not disposed of by a will passes by intestate succession to the decedent’s heirs as provided for in the UPC, which includes the decedent’s surviving spouse and descendants. N.M. Stat. Ann. §§ 45-2-101(A), 45-2-103(A)(1). The UPC defines “descendant” as an individual who has established a parent-child relationship with the decedent. N.M. Stat. Ann. § 45-1-201(A)(9); see also N.M. Stat. Ann. § 45-1-201(A)(6) (defining “child” as “an individual entitled to take as a child pursuant to the [UPC] by intestate succession from the parent whose relationship is involved and excludes a person who is only a stepchild, a foster child, a grandchild or any more remote descendant”). If a parent-child relationship exists or is established, “the parent is a parent of the child and the child is a child of the parent for the purpose of intestate succession.” N.M. Stat. Ann. § 45-2-116. The UPC, however, does not set forth specific methods for establishing the parent-child relationship for purposes of intestate succession. Thus, we look to New Mexico’s Uniform Parentage Act (UPA), N.M. Stat. Ann. §§ 40-11A-101 – 40-11A-903, which determines parentage in New Mexico for all purposes under New Mexico law, including for intestate succession under the UPC.[4] See N.M. Stat. Ann. §§ 40-11A-103(A), 40-11A-203; see also Estate of Swift ex rel. v. Bullington, 309 P.3d 102, 105-106 (N.M. Ct. App. 2013) (recognizing that the UPA governs determinations of parentage in New Mexico, and that a parentage action could be maintained after a putative father’s death).

2. Establishment of the Father-Child Relationship, UPA Section 40-11A-201(B)

The UPA provides that the father-child relationship is established by:

(1) an unrebutted presumption of the man’s paternity of the child per § 40-11A-204;

(2) an effective acknowledgment of paternity by the man pursuant to Article 3 of the UPA, unless the acknowledgment has been rescinded or successfully challenged;

(3) an adjudication of the man’s paternity;

(4) adoption of the child by the man; or

(5) the man’s having consented to assisted reproduction by a woman pursuant to Article 7 of the UPA that resulted in the birth of the child.

N.M. Stat. Ann. § 40-11A-201(B)(1)-(5). Under the evidence provided here given the New Mexico State Court Case, the paternal grandparent DNA report, and the new birth certificate, the only relevant method to establish the father-child relationship between the NH and the Claimant is an adjudication of the man’s paternity.[5] See N.M. Stat. Ann. § 40-11A-201(B)(3). We next consider the evidence provided with the UPA provisions regarding adjudications of paternity.

3. Adjudication of Paternity, UPA Sections 40-11A-601 – 40-11A-643

Here, the New Mexico State Court Case involves proceedings to adjudicate paternity and child support with regard to both J1~,the NH, and the Claimant. Article 6 of the UPA sets forth the law regarding proceedings to adjudicate parentage. See N.M. Stat. Ann. §§ 40-11A-601 – 40-11A-643. The UPA authorizes civil proceedings to adjudicate the parentage of a child in a district court that has personal jurisdiction. See N.M. Stat. Ann. §§ 40-11A-601, 40-11A-604.

The UPA also authorizes court proceedings to adjudicate child support obligations. See N.M. Stat. Ann. §§ 40-11A-607(A), 40-11A-639(A). District courts have powers to enter orders adjudicating paternity and may enter judgments and orders addressing a variety of issues involving parents and children, including orders for child support. See N.M. Stat. Ann. § 40-11A-636(A), (G). Here, in determining the NH’s status as the Claimant’s parent, we consider the New Mexico State Court Case that relates to J1~’s father-child relationship with the Claimant and the NH’s father-child relationship with the Claimant. See State of New Mexico, (HSD) and R~ v. J!~, No. XXX, Second Judicial District Court, County of Bernalillo, State of New Mexico.[6]

R~ was not married at the time of the Claimant’s birth on June XX, 2010. If the child’s mother is unmarried, New Mexico law requires that the father complete an acknowledgement of paternity in order to be entered on the child’s birth certificate as the child’s father (unless there is a court determination of paternity). N.M. Stat. Ann. § 24-14-13(E), (F). The Claimant’s original birth certificate, which was provided to SSA, lists J1~ as the Claimant’s father and the Claimant’s last name as J1~'s last name. Thus, consistent with New Mexico law and R~'s statements to the agency, it is our understanding that J1~, who was in a relationship with R~ when the Claimant was born, completed such an acknowledgment of paternity.

The online docket for the New Mexico State Court Case shows that in 2015, R~ and the State’s child support-enforcement agency were petitioners in this child support proceeding filed in district court with J1~ as the respondent.[7] The online docket reflects that the court ordered J1~ to pay child support for the Claimant presumably based upon the acknowledgment of paternity, consistent with New Mexico law. See N.M. Stat. Ann. § 40-11A-305(A) (a valid acknowledgment of paternity filed with the bureau is equivalent to an adjudication of paternity of a child); N.M. Admin. Code 8.50.107.8(G) (“[a] determination of parentage is necessary for the establishment of child support” and if a child has an acknowledged, presumed, or adjudicated father, then parentage has been determined and the state agency will pursue the establishment of support on behalf of or against the parent), 8.50.108.8 (if parentage has been determined, and there is no support order in existence, the state agency will pursue the establishment of a support order); see also Human Services department, Child Support Enforcement Division v. Toney, 444 P.3d 1074, 1080 (N.M. Ct. App. 2019) (finding that the unchallenged acknowledgment of paternity was the functional equivalent of an adjudication of paternity,and the UPA authorizes district courts to order retroactive child support when an acknowledgment of paternity has established the parent-child relationship).

In this same New Mexico State Court Case, the online docket indicates that after the NH died in May 2018, both R~ and J1~ sought to have J1~ removed from the Claimant’s birth certificate and the NH declared to be the Claimant’s father on his birth certificate. New Mexico law requires a court order determining paternity to issue a new birth certificate identifying a new father and the law requires a court order to change a child’s last name on the birth certificate.[8] See N.M. Stat. Ann. §§ 24-14-17(A)(2) (new birth certificate following paternity determination), 24-14-25(B) (amendment to name on a birth certificate upon receipt of court order changing name), 40-8-1 (petition and order required for name change), 40-11A-636(E), (F) (order to issue amended birth certificate consistent with order adjudicating parentage), 40-11A-643 (the new birth certificate reflecting the adjudication of parentage is a substitute for the original birth certificate); N.M. Admin. Code 7.2.2.17(D) (amendments to birth certificates). In general, if a proceeding to adjudicate parentage is brought in court, the district court is required to issue an order adjudicating whether a parent alleged or claiming to be the parent is the child’s parent. N.M. Stat. Ann. § 40-11A-636(A). The order adjudicating parentage must identify the child by name and date of birth. N.M. Stat. Ann. § 40-11A-636(B). The court may order that the name of the child be changed and if so, require the issuance of a new birth record, if the existing one is at odds with the adjudication. N.M. Stat. Ann. §§ 40-11A-636(E), (F), 40-11A-643.

In the New Mexico State Court Case, after various unsuccessful filings by R~ and J1~ in 2018, in which the court denied a motion for paternity testing, found that paternity had already been adjudicated, and denied a motion to disestablish J1~’s paternity, the online docket shows that in May 2019, the State filed a motion to amend/modify child support and to update judgment. On June XX, 2019, the online docket shows that R~ again filed an “Emergency Motion to Remove J1~ from L~'s Birth Certificate and Add Biological Father’s Name and Child’s Name Change.” Docket entries reflect that on September XX, 2019, a hearing was held “on motion to remove/add name on birth certificate and child’s name change” and “on motion to update judgment.” Further, the docket shows that a domestic relations hearing officer report was filed on September XX, 2019, and that “[Respondent’s (J1~'s)] Paternity Disestablished.” On October XX, 2019, the court entered an order approving hearing officer’s report and the child support case was closed. R~ provided a copy of the new birth certificate issued in October 2019, changing the Claimant’s father from J1~ to the NH and changing his last name from J1~'s last name to the NH’s last name.

Thus, although we do not have copies of the September 2019 hearing officer’s report or the October 2019 court order to view the court’s exact language, given New Mexico law discussed above requiring court orders to make such changes to birth certificates, it would appear from the 2019 case filings and docket entries, particularly the one expressly noting that J1~'s paternity was disestablished, and the issuance of a new birth certificate for the Claimant that these final 2019 orders both disestablished J1~'s paternity and established the NH’s paternity of the Claimant. Therefore, even though we do not have the September 2019 hearing officer’s report and the October 2019 court order, the law and evidence indicates that a state court has adjudicated the NH to be the Claimant’s father. See N.M. Stat. Ann. 40-11A-201(B)(3).

In addition to the evidence from the New Mexico State Court Case and the birth certificates, R~has also provided DNA testing in support of her claim that the NH is the Claimant’s father. It is unclear whether the October 2018 paternal grandparent DNA report provided to SSA was the basis for the 2019 court order. However, we do know that New Mexico law requires genetic testing results to determine a man to be a child’s father where the child already has can acknowledged or adjudicated father, such was the case here with J~. See N.M. Stat. Ann. § 40-11A-631(A) (the paternity of a child having a presumed, acknowledged, or adjudicated father may be disproved only by admissible results of genetic testing excluding that man as the child’s father or identifying another man as the child’s father). The man identified as the child’s father by the genetic tests shall be adjudicated to be the child’s father, and the man excluded as the child’s father by genetic tests shall be adjudicated not to be the child’s father. N.M. Stat. Ann. § 40-11A-631(D). Given that Jacob was either the Claimant’s acknowledged or adjudicated father, the court would have had to have relied on the paternal grandparent DNA report (or other genetic testing establishing the NH as the father) to adjudicate that the NH was the Claimant’s father.

This paternal grandparent DNA report appears to comply with New Mexico law regarding genetic testing in paternity proceedings. See N.M. Stat. Ann. §§ 40-11A-501 – 40-11A-511 (UPA provisions governing genetic testing). New Mexico law allows for genetic testing of a man’s relatives, including his parents, if his specimen is not available. N.M. Stat. Ann. § 40-11A-508(A). Here, the paternal grandparent DNA report reflects that specimen from the NH’s father J3~ was tested. The genetic testing must be the type reasonably relied on by experts in the field of genetic testing and performed in an accredited testing laboratory and meet other certain requirements. N.M. Stat. Ann. § 40-11A-503(A). Here, the paternal grandparent DNA Report reflects that “Testing performed and report generated at Laboratory Corporation of America. Laboratory Corporation of America is accredited by the AABB.” The report of genetic testing must be in a record and signed under penalty of perjury by a designee of the testing laboratory. N.M. Stat. Ann. § 40-11A-504(A). Here, the paternal grandparent DNA report was in a record and signed under penalty of perjury by M~, authorized by Laboratory Corporation of America to execute the report. Further, the laboratory’s documentation must establish a reliable chain of custody by including: (1) the names and photographs of the persons whose specimens have been taken; (2) the names of the persons who collected the specimens; (3) the places and dates the specimens were collected; (4) the names of the persons who received the specimens in the testing laboratory; (5) the dates the specimens were received; and (6) the accreditation of the testing facility. N.M. Stat. Ann. § 40-11A-504(B). Here, the documentation shows the names and photographs of the Claimant and J3~; shows that S~ collected the specimens at LabCorp on September XX, 2018, from J3~ and on September XX, 2018, from the Claimant; shows that A~ received the Claimant’s specimen and another individual (whose signature is illegible) received J3~'s; and that the LabCorp testing facility is accredited by the AABB. Finally, the law provides that results of genetic testing that complies with the UPA showing that a man has at least a 99 percent probability of paternity and a combined paternity index of at least 100 to 1 rebuttably identifies the man as the child’s father. N.M. Stat. Ann. § 40-11A-505. Here, the genetic testing results showed a probability of grandpaternity of 99.99% and that the likelihood of grandpaternity was 96,823 to 1. Further, the report concludes: “This study supports the allegation that a son of the grandfather is the biological father of the child.” Thus, the paternal grandparent DNA report appears to substantially comply with New Mexico law and further supports of the NH’s parent-child relationship with the Claimant.[9] Indeed, as noted, it is likely that the court considered this DNA evidence in disestablishing J1~’s paternity and establishing the NH’s paternity in the New Mexico State Court Case.

In summary, although we do not have copies of the September 2019 hearing officer report and October 2019 court order themselves in this New Mexico State Court Case, in light of the docket entries for the 2019 orders reflected on the online docket, copies of the motion and order filed earlier in the case, the paternal grandparent DNA report, and the birth certificates (both the original and the newly issued one in 2019), it would appear that this court adjudicated the NH to be the Claimant’s father consistent with New Mexico law. Considering the totality of the evidence, we believe there is legal support for the agency to find that the NH has been adjudicated to be the Claimant’s father and therefore, has established the father-child relationship and the right to inherit from the NH as his descendant under intestate succession law. See N.M. Stat. Ann. §§ 40-11A-201(B)(3) (the father-child relationship is established between a man and a child by an adjudication of the man’s paternity), 45-2-101(A) (any part of a decedent’s estate not disposed of by will passes by intestate succession to the decedent’s heirs), 45-2-103(A)(1) (any part of the intestate estate not passing to the surviving spouse passes to the decedent’s descendants), § 45-1-201(A)(9) (a “descendant” is an individual who has established a parent-child relationship with the decedent), § 45-2-116 (if a parent-child relationship exists or is established, “the parent is a parent of the child and the child is a child of the parent for the purpose of intestate succession”).

4. SSR 83-37c: The State Court Adjudication Does Not Bind the Agency

Finally, consistent with Social Security Ruling (SSR) 83-37, we consider whether this state court adjudication of parentage is binding on the agency by considering certain factors (the Gray factors): (1) whether a State court of competent jurisdiction has determined an issue in a claim for Social Security benefits; (2) whether parties with opposing interests genuinely contested the issue before the State court; (3) whether the issue falls within the general category of domestic relations law; and (4) whether the State court’s resolution is consistent with the law enunciated by the State’s highest court. See SSR 83-37c (adopting Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973) as national policy); see also POMS GN 00306.015(B)(2) (providing that when determining a child’s relationship under state law, where the evidence includes a state court decision on the issue, SSA is not necessarily bound by the court decision; referring the agency to SSR 83-37c for the applicable criteria of Gray v. Richardson).

As to the first and third Gray factors, the New Mexico State Court Case order satisfies these Gray factors because a state district court has jurisdiction to adjudicate paternity and order changes to birth certificates as to the father and last name changes, and the NH’s paternity of the Claimant is the issue in this claim for child’s insurance benefits on the NH’s record. See N.M. Stat. Ann. §§ 40-8-1, 40-11A-104, 40-11A-636, 40-11A-643. The issue of parentage falls within the general category of domestic relations law. Thus, the first and third Gray factors appear satisfied.

As to the second Gray factor, while it is clear from the online docket for the New Mexico State Court Case that J1~'s paternity of the Claimant was contested, we are unable to say with certainty that the NH’s paternity as to the Claimant was genuinely contested within the proceedings in the New Mexico State Court Case. Accordingly, we are unable to determine whether the second Gray factor was met.

As to the fourth Gray factor, and as explained above, because we do not have copies of the September 2019 hearing officer report and October 2019 court order, it is unknown if the orders disestablishing J1~'s paternity and adjudicating the NH’s paternity of the Claimant comply with all of the specific New Mexico statutory provisions regarding adjudications of parentage. See N.M. Stat. Ann. §§ 40-11A-601 – 40-11A-643. However, as set out above, we do know that district courts are authorized to make these paternity adjudications based upon genetic testing and to order changes to birth certificates consistent with such paternity determinations. Thus, although we do not have a copy of the underlying orders themselves in this New Mexico State Court Case, in light of the entries for the 2019 orders reflected on the online docket, the paternal grandparent DNA report, the Claimant’s original birth certificate and the Claimant’s new birth certificate identifying the NH as his father, it would appear that this court adjudicated the NH to be the Claimant’s father in a manner consistent with New Mexico law. Without the full court documents, we are unable to determine with certainty whether this fourth Gray factor was met.

Although the state court’s orders are not binding on the agency given the uncertainties as to the second and fourth Gray factors, we believe the agency may reasonably rely upon the 2019 orders, along with the full online docket for the New Mexico State Court Case, the paternal grandparent DNA report, and the new birth certificate naming the NH to be the Claimant’s father, in finding the Claimant to be the NH’s child for purposes of his application for child’s insurance benefits on the NH’s record.[10] See Hanson v. Astrue, 733 F.Supp.2d 214, 218 (D. Mass. 2010) (“It would not be inconsistent with [SSR 83-37c] for the Commissioner to follow a state adjudication even though fewer than all the conditions were met, subject to bounds of reason and good faith.”).

5. The Effective Date of the Parent-Child Relationship

You have asked when the parent-child relationship between the NH and the Claimant began. Agency policy distinguishes among legitimate, illegitimate, and legitimated children and provides for differences in the effective date of the parent-child relationship based on the child’s status. See POMS GN 00306.001(H) (defining “illegitimate child”), (M) (defining “legitimate child”), (N) (defining “legitimizing event”), GN 00306.050(A)(3) (“a child legitimated after birth is considered to be legitimate from birth”), GN 00306.055(A)(1) (distinguishing between a legitimated child and an illegitimate child with inheritance rights), (3) (“An act/event conferring inheritance rights generally has effect only from the date of such act/event. . . . If a provision . . . shows that a State law confers inheritance rights based on an adjudication of paternity (but does not legitimate the child), and the provision is effective prospectively only, the claimant’s status as the NH’s child is established effective with” the dates of the evidence submitted.). However, New Mexico law does not use the terms legitimate or illegitimate or provide a mechanism for legitimating a child. Once the parent-child relationship is established under New Mexico law, the effective date of the parent-child relationship is established as of the child’s birth regardless of the parents’ marital status and regardless of the method or type of evidence establishing the parent-child relationship.[11] See N.M. Stat. Ann. §§ 40-11A-103(A) (the New Mexico UPA applies to determinations of parentage in New Mexico), 40-11A-202 (“A child born to parents who are not married to each other has the same rights pursuant to the law as a child born to parents who are married to each other.”), 40-11A-203 (“a parent-child relationship established pursuant to the New Mexico [UPA] applies for all purposes”), 45-2-116 (“if a parent-child relationship exists or is established” under the Uniform Probate Code, “the parent is a parent of the child and the child is a child of the parent for purposes of intestate succession”), 45-2-117 (“a parent-child relationship exists between a child and the child’s genetic parents, regardless of the parents’ marital status”). Thus, as the Claimant has established a parent-child relationship with the NH under New Mexico law, this relationship began with the Claimant’s date of birth, June XX, 2010.

6. Conclusion

We believe that a New Mexico court would find that the Claimant has proven a parent-child relationship with the NH and thus the right to inherit from the NH under New Mexico intestate succession law. Thus, we believe there is legal support for the agency to find that the Claimant has proven a parent-child relationship with the NH under section 216(h)(2)(A) of the Act for purposes of his application for child’s insurance benefits on the NH’s record. The parent-child relationship between the NH and the Claimant began on June XX, 2010, the Claimant’s date of birth.

B. PR 12-097 New Mexico Law – New Mexico State Law Clarification of Legitimating Acts for Child Relationship (NH Reynel, SSN ~) – REPLY

DATE: May 4, 2012

1. SYLLABUS:

New Mexico state law provides no basis for the agency to establish retroactively the parent-child relationship between Claimant and the number holder. Claimant is not entitled to retroactive benefits under 42 U.S.C. § 416(h)(2)(A).

In this case, the effective date of the parent-child relationship is the date that first met all of the requirements for entitlement to child’s insurance benefits. See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.352(a)(2). 

Following an adjudication of paternity, New Mexico law only confers inheritance rights upon a child born out of wedlock.

Therefore, when adjudicating claimant's relationship to the number holder, the court did not legitimize the claimant, rather the actions of the court only conferred inheritance rights upon the claimant.  Claimant is entitled to child’s benefits beginning March 22, 2011, the date of the DNA test report, but is not entitled to retroactive child’s benefits

The New Mexico state law confers only inheritance rights on children born out of wedlock. Given that inheritance rights operate prospectively, a child born out of wedlock would be entitled to benefits as of the date the child met all the requirements for entitlement to benefits.

2. OPINION

This memorandum is in response to your request for a legal opinion requesting clarification of the recent update to the Social Security Administration’s (SSA or agency) Program Operations Manual System (POMS) GN 00306.570. You asked whether New Mexico state law would legitimize, or only confer inheritance rights upon, a child born out of wedlock. You also asked whether New Mexico state law would operate either prospectively or retroactively to confer either legitimacy or inheritance rights. 

It is our opinion that, under New Mexico state law, New Mexico makes no distinction between legitimate and illegitimate children. Thus, New Mexico state law contains no provision that would legitimize a child born out of wedlock.  Accordingly, New Mexico state law confers only inheritance rights on children born out of wedlock. Given that inheritance rights operate prospectively, a child born out of wedlock would be entitled to benefits as of the date the child met all the requirements for entitlement to benefits. [12]

In the past, our office has issued opinions consistent with the principles adopted by Regions III and V. See Louisiana Filiation with Deceased NH (D~ – Dec. 15, 2011) (concluding that, where Louisiana law provided no basis for the agency to establish a parent-child relationship retroactive to birth, the child was not entitled to retroactive benefits); Texas State Law Effective Date of Child Relationship (Boston – Aug. 7, 2007) (concluding that, where Texas law conferred inheritance rights, but did not legitimate a child, the child was not entitled to retroactive benefits).  After discussing this regional split with OGC Headquarters, we conclude that SSA policy, our precedent opinions, and Regions III and V’s opinions properly direct that, when the state does not confer legitimacy upon a child, any inheritance rights must operate prospectively only.  

BACKGROUND

As we understand the facts, the agency awarded Title II disability insurance benefits to Reynel (number holder), effective January 2009. In his application for benefits, the number holder reported no marriages or children. 

On September, Tanaya gave birth to Ivory . In July 2011, Tanaya filed an application for child’s insurance benefits on Ivory’s behalf on the number holder’s account, claiming that the number holder was Ivory’s father.  In support of her application, Tanaya provided a deoxyribonucleic acid (DNA) test report showing a 99.99 percent probability that the number holder was Ivory’s natural father.  Further, on August 29, 2011, a New Mexico District Court issued an Order to Withhold Income for Child Support (Withholding Order), which directed the number holder to pay $100.00 per month in child support payments for Ivory’s benefit.  Pursuant to the Withholding Order, the agency currently withholds $100.00 a month from the number holder’s Title II benefits to fulfill this child support obligation. 

Based on the DNA test report and the Withholding Order, the agency approved Tanaya’s application for child’s insurance benefits. Specifically, the agency concluded that Ivory was the number holder’s legitimate child and authorized fully retroactive benefits, effective July 2010, one year prior to the application date. Even though the agency concluded that Ivory was the number holder’s legitimate child and authorized retroactive benefits, you now ask whether the agency’s conclusion conforms with New Mexico state law.

DISCUSSION

To be entitled to child’s benefits on an insured number holder’s account, a child must: 

(1) be the number holder’s child; (2) be dependent upon the number holder; (3) apply for benefits; (4) be unmarried; and (5) be under the age of 18. See 20 C.F.R. § 404.350(a)(1)-(5). Here, Tanaya applied for benefits on Ivory’s behalf on the number holder’s account. Ivory is unmarried and under the age of 18. Further, using the evidence Tanaya submitted, the field office concluded that Ivory is the number holder’s natural child and dependent upon the number holder. See 20 C.F.R. §§ 404.350(a)(1)-(2); 404.361(a). Thus, Ivory is entitled to child’s benefits on the number holder’s account.  We must next determine whether Ivory is entitled to benefits either prospectively or retroactively.

After the agency determines a child’s entitlement to child’s benefits on an insured number holder’s account, the agency must determine when the child’s entitlement to benefits began. See 20 C.F.R. § 404.352.  When the number holder is still living, a child becomes entitled to benefits the first month covered by the application for benefits in which the child meets all the requirements for entitlement. See 20 C.F.R. § 404.352(a)(2).  However, agency policy provides that certain acts used to establish paternity will legitimize a child, and those acts generally operate retroactively to the child’s birth.  Social Security Ruling (SSR) 85-17; POMS GN 00306.050A(3); Texas State Law Effective Date of Child Relationship – REPLY (Boston – Aug. 7, 2007). Thus, a legitimate [13] child will meet the requirements for entitlement to child’s insurance benefits from its date of birth. See POMS GN 00306.050A(3); see also POMS GN 00306.010B (a number holder’s natural, legitimate children are considered to be both dependent upon a number holder and have inheritance rights in a number holder’s estate). Accordingly, a legitimate child is entitled to a period of retroactive benefits.  See POMS GN 00204.030B (authorizing retroactive benefits for a period of up to 12 months prior to the application date).

However, when a child is born out of wedlock, her birth raises a question as to whether the child has been legitimized or has inheritance rights in the number holder’s estate. POMS GN 00306.010C(4). An illegitimate child is a number holder’s child if the child has inheritance rights under the applicable state intestacy law. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1); POMS GN 00306.055A(1).  However, inheritance rights generally operate prospectively and take effect only from the date of the event conferring inheritance rights, such as a court’s determination of paternity. See SSR 85-17; POMS GN 00306.055A(3); Louisiana Filiation with Deceased NH – REPLY (W~ – Dec. 15, 2011); Texas State Law Effective Date of Child Relationship – REPLY (B~ – Aug. 7, 2007). 

Having established this background information, we turn now to your first question: whether, when establishing a child’s paternity, New Mexico state law legitimizes, or merely confers inheritance rights upon, a child born out of wedlock.  New Mexico’s Uniform Parentage Act controls paternity determinations. See, e.g., N.M. Stat. Ann. §§ 40-11A-101 et seq. Under the New Mexico Uniform Parentage Act, a father-child relationship is established between a man and a child by:  (1) an unrebutted presumption of the man’s paternity of the child pursuant to Section 2-204 of the New Mexico Uniform Parentage Act;[14]

(2) an effective acknowledgment of paternity by the man; (3) an adjudication of the man’s paternity; (4) adoption of the child by the man; or (5) the man’s consent to assisted reproduction by a woman that resulted in the child’s birth. N.M. Stat. Ann. § 40-11A-201. However, this provision provides no mechanism to legitimize a child after a paternity determination is made. Rather, New Mexico state law specifically states that “a child born to parents who are not married to each other has the same rights pursuant to the law as a child born to parents who are married to each other.” N.M. Stat. Ann. § 40-11A-202.  Thus, the New Mexico Uniform Parentage Act makes no distinction between legitimate and illegitimate children and prescribes no acts that will legitimize a natural child. See id. 

Further, the New Mexico Uniform Probate Code, which controls an heir’s inheritance rights, provides no mechanism to legitimize a child entitled to inherit from its parent. See, e.g., N.M. Stat. Ann § 45-1-102 et seq.  The New Mexico Uniform Probate Code provides that, if a parent-child relationship exists, the parent is a parent of the child and the child is a child of the parent for the purposes of intestate succession. N.M. Stat. Ann. § 45-2-116.  However, similar to the New Mexico Uniform Parentage Act, the New Mexico Probate Code makes no distinction between legitimate or illegitimate children, stating instead that a parent-child relationship exists between a child and the child’s genetic parents – and that child is entitled to inherit from that genetic parent – regardless of the parents’ marital status. See N.M. Stat. Ann. § 45-2-117. The New Mexico Uniform Probate Act defines “genetic parent” as a child’s genetic father or mother. N.M. Stat. Ann. § 45-2-115(G). The New Mexico Uniform Probate Act defines “genetic father” as the man for whom the father-child relationship was established pursuant to the New Mexico Uniform Parentage Act. See N.M. Stat. Ann. § 45-2-115(E), citing N.M. Stat. Ann. § 40-11A-201. Thus, when a parent-child relationship is established under New Mexico state law, New Mexico state law confers inheritance rights upon the child, regardless of marital status.  However, the provisions cited above, which allow a child born out of wedlock to inherit property from its parent, do not legitimize the child.[15]  

Therefore, in response to your general question regarding whether New Mexico state law legitimizes, or merely confers inheritance rights upon, a child born out of wedlock, we conclude that no provision of New Mexico state law prescribes an act that would legitimize a child born out of wedlock. Rather, when establishing a child’s paternity, New Mexico state law only confers inheritance rights upon the child.

We turn now to your next question regarding the specific facts in this matter and whether, when the court established that the number holder was Ivory’s father, Ivory became the number holder’s legitimate child.  Because New Mexico state law prescribes no act that would legitimate Ivory, she cannot be considered the number holder’s legitimate child. Thus, Ivory cannot establish an entitlement to benefits dating back to her birth based on legitimation.  See POMS GN 00306.050A(3) (a legitimized child meets the requirements for entitlement to child’s insurance benefits from its date of birth). 

If New Mexico conferred only inheritance rights upon Ivory, you asked whether New Mexico state law would only prospectively recognize Ivory’s relationship to the number holder, or whether New Mexico state law would retroactively recognize Ivory’s relationship to the number holder back to the date of her birth. In order for a child to be entitled to retroactive benefits extending prior to the date the claimant proved the parent-child relationship, the state law that granted legitimacy or inheritance rights to the child must make those rights retroactive for some period. See 42 U.S.C. § 416(h)(2)(A); POMS RS 00203.010, GN 00306.050, GN 00306.085.  The provision of New Mexico state law that allows an illegitimate child to inherit property from his father neither legitimizes the child nor confers retroactive inheritance rights. N.M. Stat. Ann. § 45-2-117.  Because New Mexico state law provides no basis for the agency to establish retroactively the parent-child relationship between Ivory and the number holder, Ivory is not entitled to retroactive benefits under 42 U.S.C. § 416(h)(2)(A). 

Therefore, we must determine when Ivory’s entitlement to benefits began. Because New Mexico state law provides no basis for the agency to establish retroactively the parent-child relationship between Ivory and the number holder, the effective date of the parent-child relationship is the date that Ivory first met all of the requirements for entitlement to child’s insurance benefits. See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.352(a)(2). 

In this case, the act that conferred inheritance rights upon Ivory was the March 22, 2011, DNA test report. In determining paternity under the New Mexico Uniform Parentage Act, a New Mexico court will consider the results of genetic testing, provided the DNA testing and the DNA test report meet specific requirements to establish reliability and authenticity, and the testing reveals at least a 99 percent probability of paternity with a combined paternity index of at least 100 to 1. See N.M. Stat. Ann. §§ 40-11A-503, 40-11A-504, 40-11A-505. In this case, the DNA test report showed a 99.99 percent probability that the number holder was Ivory’s biological father, with a combined paternity index of 232,179,488 to 1, which satisfied the probability provision of the New Mexico Uniform Parentage Act. See N.M. Stat. Ann. § 40-11A-505(A).  Further, on August 29, 2011, a New Mexico District Court issued a Withholding Order, directing the number holder to pay $100.00 per month in child support payments for Ivory’s benefit, and the agency currently withholds $100.00 a month from the number holder’s Title II benefits to fulfill this child support obligation.[16]  Thus, we can conclude that the March 22, 2011, DNA test report constitutes sufficient evidence to establish Ivory’s relationship to the number holder, as the New Mexico courts already concluded the DNA test report constituted such evidence. 

Accordingly, Ivory met all requirements for entitlement on March 22, 2011, the date of the DNA test report. We therefore conclude that she became entitled to benefits as of that date.  However, because Ivory did not meet all requirements for entitlement until March 22, 2011, and because actions that confer inheritance rights operate only from the date of their occurrence, she is not entitled to a retroactive award of benefits on the number holder’s account.

CONCLUSION

In summary, New Mexico state law prescribes no act that would legitimize a child born out of wedlock. Instead, following an adjudication of paternity, New Mexico law only confers inheritance rights upon a child born out of wedlock.  Therefore, when adjudicating Ivory’s relationship to the number holder, the court did not legitimize Ivory. Rather, New Mexico state law confers only inheritance rights upon Ivory, and New Mexico state law provides no basis for the agency to establish retroactively the parent-child relationship between Ivory and the number holder. As such, Ivory is not entitled to retroactive child’s benefits; rather, Ivory is entitled to child’s benefits beginning March 22, 2011, the date of the DNA test report.  

Michael McGaughran

Regional Chief Counsel

By: _____________

Nicole Dana

Assistant Regional Counsel

C. PR 11-018 New Mexico Law – Status of Child Relationship (NH Joseph, SSN ~) – REPLY

DATE: November 17, 2010

1. SYLLABUS:

In the state of New Mexico a deoxyribonucleic (DNA) test report involving a deceased number holder, the child’s mother, and the child is sufficient to establish a parent child relationship between the child and the deceased number holder when the DNA Report shows a 99.99 percent probability that the number holder and the child are related.

In this case, although the DNA satisfied the probability provision for genetic testing under New Mexico law, the DNA test report did not meet the statutory requirements for genetic testing to establish paternity because the documentation was insufficient to establish a reliable chain of custody.

2. OPINION

This memorandum is in response to your request for a legal opinion on whether, under New Mexico law, a deoxyribonucleic acid (DNA) test report involving a deceased number holder, the child’s mother, and the child is sufficient to establish a parent-child relationship between the child and the deceased number holder when the DNA test report shows a 99.99 percent probability that the deceased number holder and child are related. It is our opinion that, under New Mexico law, the facts presented here are insufficient to establish the child’s paternity. Although the DNA test report satisfies the probability provision for genetic testing under New Mexico law, the DNA test report did not meet the New Mexico statutory requirements for genetic testing to establish paternity because the documentation is insufficient to establish a reliable chain of custody.

As we understand the facts, Joseph (number holder) died on February 9, 2010, while domiciled in New Mexico. The number holder had been receiving Title II Disability Insurance Benefits from November 1998 until his death on February 9, 2010. Joshua was born to Julie in April. The number holder never married Julie, and he did not live with, support, or acknowledge Joshua during his lifetime. Joshua’s birth certificate does not list a father.

On March 11, 2010, Julie filed for child’s benefits on Joshua’s behalf on the number holder’s account, claiming that the number holder was Joshua’s father. In support of her application, Julie provided an April 26, 2010, DNA report. The report tested DNA samples from the number holder, Julie, and Joshua. With the consent of the number holder’s family, Julie obtained a muscle sample from the number holder secured after his death. The DNA test showed that there was a 99.99 percent probability that the number holder was Joshua’s biological father. On June 30, 2010, the Social Security Administration (agency) denied the March 2010 application for child’s benefits because of a name discrepancy on the DNA report, which incorrectly listed the number holder as Joseph, and because Julie failed to provide any other evidence to establish a biological relationship between the number holder and Joshua.

On July 1, 2010, Julie requested reconsideration of the agency’s denial. In support of her request for reconsideration, Julie provided a corrected DNA report showing the number holder’s correct name and a 99.99 percent probability that the number holder was Joshua’s biological father. She also provided a statement from the number holder’s sister, Diane, who stated that she was aware of Joshua’s birth, believed that Joshua was the number holder’s child, and that she had encouraged Julie to obtain a DNA test to establish the biological relationship.

To be entitled to child’s benefits on an insured number holder’s account, a child must:

(1) be the number holder’s child; (2) be dependent upon the number holder; (3) apply for benefits; (4) be unmarried; and (5) be under the age of 18. See 20 C.F.R. § 404.350(a)(1)-(5). Here, Julie applied for benefits on Joshua’s behalf on the number holder’s account. Joshua is unmarried and under the age of 18. The agency will consider Joshua to be dependent upon the number holder if Joshua is the number holder’s natural child. See 20 C.F.R. § 404.361(a). Thus, the only remaining criterion Joshua must establish is that he is the number holder’s natural child.

To determine whether an applicant is a deceased number holder’s child, the agency will apply the intestacy laws of the state in which the number holder had his permanent home at the time of death. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b). New Mexico law controls because the number holder’s permanent home was in New Mexico when he died. Thus, Joshua’s eligibility for child’s benefits on the deceased number holder’s account depends upon whether he could inherit property under New Mexico intestacy laws as the number holder’s child. See id.

The New Mexico Probate Code provides the framework for determining father-child relationships for inheritance purposes. N.M. Stat. Ann. §§ 45-2-114, 45-2-401. For purposes of inheritance, an individual is the child of his natural parents, regardless of their marital status, and the father-child relationship may be established under the New Mexico Uniform Parentage Act. N.M. Stat. Ann. §§ 40-11A-201, 45-2-114. Under the New Mexico Uniform Parentage Act, a father-child relationship is established between a man and a child by: (1) an unrebutted presumption of the man’s paternity of the child pursuant to Section 2-204 of the New Mexico Uniform Parentage Act;[17] (2) an effective acknowledgment of paternity by the man; (3) an adjudication of the man’s paternity; (4) adoption of the child by the man; or (5) the man’s having consented to assisted reproduction by a woman that resulted in the birth of the child. N.M. Stat. Ann. § 40-11A-201. The first, second, fourth, and fifth methods set forth in the New Mexico Uniform Parentage Act are not applicable in this case, as an unrebutted presumption of the number holder’s paternity does not exist in this case, the number holder neither executed an acknowledgment of paternity nor adopted Joshua, and Joshua was not born via assisted reproduction. Thus, for Julie to establish that Joshua had a father-child relationship with the number holder, it must be under the third method.. The first, second, fourth, and fifth methods set forth in the New Mexico Uniform Parentage Act are not applicable in this case, as an unrebutted presumption of the number holder’s paternity does not exist in this case, the number holder neither executed an acknowledgment of paternity nor adopted Joshua, and Joshua was not born via assisted reproduction. Thus, for Julie to establish that Joshua had a father-child relationship with the number holder, it must be under the third method.

Under the third method, if a court adjudicated Joshua to be the number holder’s child, he would be entitled to child’s insurance benefits on the number holder’s account. See N.M. Stat. Ann. § 40-11A-201(B)(3) (father-child relationship is established between a man and a child by an adjudication of the man’s paternity). Although we are unaware of an adjudication of paternity in this case, Social Security regulations provide that, if applicable state inheritance law requires a court determination of paternity, “we will not require that you obtain such a determination.” 20 C.F.R. § 404.355(b)(2). Instead, the agency “decide[s a child’s] paternity by using the standard of proof that the State court would use as the basis for a determination of paternity.” Id.

In determining paternity under the New Mexico Uniform Parentage Act, a New Mexico court will consider the results of genetic testing, provided the DNA testing and the DNA test report meet specific requirements to establish reliability and authenticity, and the testing reveals at least a 99 percent probability of paternity with a combined paternity index of at least 100 to 1. See N.M. Stat. Ann. §§ 40-11A-503, 40-11A-504, 40-11A-505, 40-11A-509. In this case, the DNA test report showed a 99.99 percent probability that the number holder is Joshua’s biological father, which satisfies the probability provision of the New Mexico Uniform Parentage Act. See N.M. Stat. Ann. § 40-11A-505(A). However, the DNA testing and the DNA test report do not meet the New Mexico statutory requirements for genetic testing to establish paternity because the documentation is insufficient to establish a reliable chain of custody.

First, under New Mexico law, the DNA testing must take place in a laboratory accredited by the American Association of Blood Banks, the American Society for Histocompatibility and Immunogenetics, or another accrediting body designated by the Secretary of the United States Department of Health and Human Services. See N.M. Stat. Ann. § 40-11A-503(a)(1)-(3). Second, a laboratory designee must sign the DNA test report under penalty of perjury. See N.M. Stat. Ann. § 40-11A-504(a). Third, a reliable chain of custody of the DNA samples must be established through testimony or documentation by: (1) the names and photographs of the persons whose specimens have been taken; (2) the names of the persons who collected the specimens; (3) the places and dates the specimens were collected; (4) the names of the persons who received the specimens in the testing laboratory; and (5) the dates the specimens were received. See N.M. Stat. Ann. § 40-11A-504(b)(1)-(6).

In this case, DNA testing took place at Genetica DNA Laboratories, Inc. Although the laboratory is accredited by the American Association of Blood Banks, and Maria , Ph.D., the assistant laboratory director, certified the DNA analysis report, the report does not include the additional documentation required under New Mexico law to satisfactorily document the chain of custody of the DNA samples. See N.M. Stat. Ann. §§ 40-11A-503(a)(1), 40-11A-504(a), (b)(1)-(6). For instance, although the report contains Julie’s, Joshua’s, and the number holder’s names, the report does not state that their photographs were obtained. N.M. Stat. Ann. § 40-11A-504(b)(1). Additionally, although the report states the date the specimens were collected, it does not contain the name of the person who collected the specimens, the place where the specimens were collected, the name of the person who received the specimens in the testing laboratory; or the date the specimens were received. See N.M. Stat. Ann. § 40-11A-504(b)(2)-(6). Consequently, without further evidence satisfying all of the reliability and authenticity provisions of the New Mexico Uniform Parentage Act, a New Mexico court would not consider the April 26, 2010, DNA test report as evidence of the number holder’s paternity.

Because the DNA testing and the DNA test report did not meet the New Mexico statutory requirements for genetic testing to establish paternity because the documentation was insufficient to establish a reliable chain of custody, Joshua would not be entitled to inherit from the number holder under the third method for determining paternal inheritance rights. For these reasons, we cannot conclude that Joshua is the number holder’s child for child’s benefits purposes. Thus, Julie has not established paternal inheritance rights under any of the methods provided under the New Mexico intestacy laws. Consequently, Julie cannot establish that the number holder is Joshua’s father, and the agency should not consider Joshua to be the number holder’s child for Social Security purposes.

Michael McGaughran

Regional Chief Counsel

By: _____________

Carolyn E. Whitson

Assistant Regional Counsel

D. PR 03-085 Acceptability of Navajo Nation District of Ramah, New Mexico Number Holder Frank, SSN

DATE: January 27, 2003

1. SYLLABUS

A Navajo Nation paternity decree issued almost three years after the NH's death, for the sole purpose of establishing eligibility for governmental benefits, does not establish the child claimant's inheritance rights under New Mexico law.

2. OPINION

You have asked whether a paternity decree by the family court of the Navajo Nation, District Court of Ramah, New Mexico, rendered almost three years after the death of the purported father is sufficient to establish inheritance rights for Social Security benefit purposes. It is our view that, even after considering the doctrine of full faith and credit under federal and state law, the Navajo Nation decree is not sufficient to establish inheritance rights of the child claimant to the purported father.

According to the information provided with your request for a legal opinion, Frank began receiving retirement benefits under Title II of the Social Security Act (the Act) around June 1990. At that time, the number holder indicated that he was married to Dorothy and had no dependent children. Frank died on March 13, 1996, while domiciled in New Mexico. Dorothy is currently receiving widow's insurance benefits on her husband's record. The deceased number holder was not of Navajo descent.

Jordan, the child claimant, was born in August. Jordan is considered to be one-half degree Navajo Indian blood. He is an enrolled member of the Navajo Tribe. Julia is Jordan's mother, and she is also a member of the Navajo Tribe. Jordan initially filed a claim for child's insurance benefits on April 9, 1996. The claim was denied due to a lack of evidence establishing a relationship to the deceased number holder. Jordan filed a new claim for child's insurance benefits on September 21, 2000. The only documentary evidence presented with the current claim for benefits consisted of: (1) a “stipulated” paternity decree from the Navajo Nation, District Court of Ramah, New Mexico, issued on March 11, 1999, almost three years after the number holder's death; and (2) a New Mexico birth certificate dated in September, listing Frank as the father of the child claimant.

Section 216(h)(2)(A) of the Act provides that in determining whether an applicant is the child or parent of a deceased insured individual, the Commissioner of Social Security shall apply the law that 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 death. 42 U.S.C. § 416(h)(2)(A). Since Frank was domiciled in New Mexico at the time of his death, we must apply New Mexico law. Agency regulations provide that the Social Security Administration will not apply any state inheritance law requirement that an action to establish paternity must have been started or completed before the worker's death. 20 C.F.R. § 404.355(b)(2) (2002). Accordingly, for Social Security benefit purposes, Jordan may still establish his relationship to the number holder after his death./

Under New Mexico law, for the purposes of intestate succession, an individual is considered to be the child of his natural parents regardless of their marital status. N.M. Stat. Ann. § 45-2-114 (1978). Under State law, the parent-child relationship for intestate succession can be established under the Uniform Parentage Act. Id. New Mexico has adopted the Uniform Parentage Act. N.M. Stat. Ann. § 40-11-1 (1978).

The Uniform Parentage Act statute states that, “Full faith and credit must be given to determination of paternity made by other states, including acknowledgements of paternity.” N.M. Stat. Ann. § 40 -11-5F (1978). While the statute itself does not define whether the phrase “other states” applies to tribal court determinations, the Supreme Court of New Mexico has ruled in other situations that the laws of the Navajo Tribe are entitled by federal law to full faith and credit in the courts of the State because the Navajo Nation is a territory within the meaning of 28 U.S.C. § 1738, which requires such treatment./ See Allen v. CIT Financial Services Corp., 533 P.2d 751, 752 (N.M. 1975); see also Halwood v. Cowboy Auto Sales, Inc., 946 P.2d 1088, 1090-91 (N.M. Ct. App. 1997)./ Thus, if the Navajo tribal court has subject matter jurisdiction, New Mexico precedents appear to require granting full faith and credit to a judgment issued within that jurisdiction. See H~, 946 P.2d at 1090-91. However, as will be discussed herein, there is an issue as to what the Navajo Nation decree actually conveyed to the child claimant.

Under State law, a person who has sexual intercourse within New Mexico submits to the jurisdiction of the courts of the State with respect to any child who may have been conceived by that act of intercourse. N.M. Stat. Ann. § 40-11-8 (1978). While any interested party may bring an action for the purpose of determining the existence and non-existence of paternity, the district court has jurisdiction over the action, usually in the county where one of the parties resides. N.M. Stat. Ann. §§ 40-11-7, 40-11-8 (1978). We note that State law apparently does not provide district courts with exclusive jurisdiction over paternity actions. Id. New Mexico law is silent as to the specific treatment of paternity determinations made by tribal courts; however, New Mexico law is not silent as to the requirement of giving full faith and credit to tribal court orders and decrees in general. See N.M. Stat. Ann. §§ 40 -11-1 to 40-11-23.

New Mexico law provides some guidance on the jurisdictional limits of tribal courts for Native American children within the state. Under the general provisions of the Children's Code, New Mexico law states that exclusive tribal court jurisdiction exists in proceedings where the child is a delinquent child, a child in need of family services, a neglected child, an abused child, a child subject to adoption, or a child subject to placement for a mental disorder or developmental disorder. N.M. Stat. Ann. § 32A-1-8A (1978). In addition, a tribal court has exclusive original jurisdiction to emancipate a minor under the children's code. N.M. Stat. Ann. § 32A-1-8B (1978). It appears that New Mexico's recognition of original exclusive tribal jurisdiction within the state applies to Native American children whose paternity has been established.

The United States Supreme Court has ruled that, absent governing acts of Congress, the question has always been whether a state action has infringed on the right of reservation Indians to make their own laws and be ruled by them. See Williams v. Lee, 358 U.S. 217, 220 (1959). This test is applicable in situations involving a non-Indian party. See Fort Mojave Tribe v. San Bernardino County, 543 F.2d 1253, 1258 (9th Cir. 1976), cert. den., 430 U.S. 983 (1977). We have found no acts of Congress that give Indian tribes the exclusive or concurrent rights to determine paternity, especially with regard to the Act. However, there is a large body of law and legal commentary on the use of jurisdictional ambiguity in order to benefit Native American children, as well as preserve tribal sovereignty and cultural survival. See Barbara, Fighting Over Indian Children: The Uses and Abuses of Jurisdictional Ambiguity, 36 UCLA L. Rev. 1051 (1989).

In addition, we have found that the Department of Interior's Bureau of Indian Affairs created a regulation that states, “The Court of Indian Offenses shall have jurisdiction of all suits brought to determine the paternity of a child and obtain judgment for the support of the child. A judgment of the court establishing the identity of the father of the child shall be conclusive of that fact in all subsequent determinations of inheritance by the Court of Indian Offenses or by the Department of the Interior.” 25 C.F.R. § 11.609 (2000). However, it is clear from both the regulation's language and history, that it applies only to the Department of Interior or the Court of Indian Offenses, and not to the state of New Mexico. Id.; see 58 Fed. Reg. 54411 (1993). Our research has found no federal or New Mexico cases that have interpreted this particular regulation.

The states and the federal government are generally required by federal law to give full faith and credit to judicial tribal proceedings relating to Indian child custody issues where the child resides or is domiciled within the reservation of such tribe. See Indian Child Welfare Act of 1978 (ICWA), §§ 4, 101; codified 25 U.S.C. §§ 1903, 1911./ New Mexico law complies with the ICWA. N.M. Stat. Ann. § 32A-1-8 (1978). The ICWA gives tribal courts exclusive jurisdiction over state courts regarding issues relating to adoption and foster care of Indian children. 25 U.S.C.A. § 1911. The ICWA says nothing about paternity proceedings. Id. Nonetheless, it is clear that the common purpose is to benefit the child.

New Mexico evidentiary standards for proving paternity are generally permissive to include “all other evidence relevant to the issue of paternity of the child.” N.M. Stat. Ann. § 40-11-13 (1978). This standard may very well incorporate the stipulated facts contained in the Navajo Nation paternity decree. Id. Assuming arguendo that it does, a reading of the stipulated facts contained Navajo Nation paternity decree reveal that the order was entered, “… for the sole purpose of establishing eligibility of governmental benefits and petitioner has waived any claims for child support or inheritance.” See Navajo Nation Paternity Decree at paragraph No. 8 (District Court of Ramah, No. RM-FC-05-98, ordered March 11, 1999). The Navajo Nation paternity decree by its own wording has failed to establish inheritance rights for the child claimant. Id. Even if the New Mexico courts were to give full faith and credit to this decree, it would fail to establish the very inheritance rights critical to a determination of relationship and benefit entitlement under the Act. 42 U.S.C. § 416(h)(2)(A).

Apart from the issue concerning full faith and credit for the Navajo Nation paternity decree, there are serious credibility concerns with the evidence submitted by the claimant in this case. For instance, the Navajo Nation paternity decree was a “stipulated order” issued almost three years after the death of Frank. Obviously, the number holder could not have stipulated to the order since he was deceased. In addition, the Navajo Nation paternity decree stated that Chris provided for Jordan until his death on March 13, 1996. However, the claimant has not provided any documentary evidence to support the legal conclusions as stated in the Navajo Nation paternity decree. While the New Mexico evidentiary standard for proving paternity is generally permissive, such evidence must still be relevant to the issue of paternity. N.M. Stat. Ann. § 40-11-13 (1978).

Agency policy states that while the Commissioner is not bound by a decision of a state trial court where the Agency is not a party, the Commissioner must still recognize a state court adjudication where all of the following prerequisites are found: (1) an issue in a claim for Social Security benefits previously has been determined by a state court of competent jurisdiction; (2) this issue was genuinely contested before the state court by parties with opposing interests; (3) the issue falls within the general category of domestic relations law; and (4) the resolution by the state trial court is consistent with the law enunciated by the highest court in the state. See Social Security Ruling 83-37c (SSR); Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973). Assuming that the Navajo Nation paternity decree would come under the ambit of SSR 83-37c (if the State of New Mexico gave it full faith and credit as the order of a court of competent jurisdiction), the decree would not be determinative under the facts because the issues were not genuinely contested by parties with opposing interests. Id. Therefore, the Agency would not be required to recognize the paternity decree.

In addition, the New Mexico birth certificate does not suffice to establish Jordan's paternity to Frank. New Mexico law allows for the issuance of a new birth certificate upon the order of a New Mexico Court or request by a court of another jurisdiction. N.M. Stat. Ann. § 40-11-22 (1978). Under the facts of this case, Jordan did not produce a birth certificate until after the Navajo Nation paternity decree was issued. The state registrar signed the birth certificate on September 6, 2000, just over two weeks prior to Jordan filing for benefits. It appears from the statute that the issuance of the new birth certificate is simply a clerical act by the state of New Mexico with little probative value. The relevance of the New Mexico birth certificate is negligible at best.

It is our opinion that the Navajo Nation paternity decree issued almost three years after the number holder's death does not establish Jordan's inheritance rights as to Frank under New Mexico law. Consequently, Jordan cannot establish entitlement to child's insurance benefits under section 216 (h)(2) of the Act.

Tina M. Waddell

Regional Chief Counsel

By: ____________________________

Thomas C. Strafuss

Assistant Regional Counsel

E. PR 00-499 New Mexico Law Regarding The Use of DNA Testing to Establish Child Relationship (NH Chris, SSN ~)

DATE: June 14, 2000

1. SYLLABUS

Since New Mexico does not require accreditation for laboratories engaging in genetic testing to determine parentage and there is no apparent basis for questioning the credibility of Blood Systems Laboratories (BSL), SSA may accept the results of tests performed by BSL.

There is authority under New Mexico State law which supports the valid use of genetic tests performed on a deceased's relatives. If SSA is satisfied that there are no male siblings of the deceased who could have fathered the child, then a lab report which concludes that the deceased is the biological father of a child based on genetic tests which show a 99.5% probability that the deceased's parents are the biological grandparents of the child are sufficient to prove paternity for Social Security benefit purposes.

Note: To clarify paragraph 4, section 216(h)(3)(c)(ii) requires other satisfactory evidence of paternity in addition to living with or contributions to support to establish paternity.

2. OPINION

On January 24, 2000, you requested a legal opinion on whether a genetic test using samples from the parents of a deceased number holder, Chris, is sufficient to legitimate a purported child of Chris under New Mexico state law. In our opinion, the genetic test is sufficient.

Chris, died March 12, 1999, while domiciled in New Mexico. A claim for Christopher (Christopher), was filed in December 1999, with a protective filing of October 1999. Christopher was born in September. No father's name was shown on the birth certificate at the time of Christopher's birth. The mother, Jody, was not married at the time of conception or birth of Christopher. There is no court order for support or court order for paternity, and Chris made no written acknowledgment of Christopher. Chris's parents have signed a statement that Chris and Jody lived together. It was also reported by Chris's mother that chris verbally acknowledged the child.

Section 216(h)(3) of the Social Security Act (the Act) provides that a child such as Christopher can be entitled as Chris's child if Chris (1) had acknowledged the child in writing, (2) had been decreed by a court to be the child's father, or (3) had been ordered by a court to contribute to his support. See 42 U.S.C. § 416 (h)(3)(C)(i). Under the facts noted above, none of these requirements were met.

However, section 216(h)(3)(C)(ii) of the Act states that a child such as Christopher can be entitled as Chris's child if chris had been living with or contributing to Christopher's support at the time of his death. See 42 U.S.C. § 416 (h)(3)(C)(ii). Although Chris died before Christopher was born, he lived with Jody while she was pregnant and financially supported her. Chris's mother reported that Chris would accompany Jody on visits to the doctor's office, and was present when she underwent an ultrasound. Social Security Ruling 68-22 states that where the deceased insured worker, at the time of his death, was living with and contributing to the support of the mother of his unborn illegitimate child, the worker's contributions to the support of the child's mother and his living with the mother constitute contributions to the support of, and living with, the unborn child within the meaning of section 216(h)(3)(C)(ii) of the Act, provided that the child was born alive. See SSR 68-22; see also Wolfe v. Sullivan, 988 F.2d 1025, 1028 (10th Cir. 1993)(Support may be shown either by proof that contributions such as baby clothes or a crib were made to the unborn child, or that contributions such as food, shelter, or medical care were made to the mother). Arguably, the facts of this case support a finding that Christopher qualifies Chris's child under section 216(h)(3)(C)(ii) of the Act.

If Christopher does not qualify as a child of Chris under section 216(h)(3) of the Social Security Act, then Section 216(h)(2) of the Social Security Act provides that in determining whether an applicant is the child or parent of a deceased insured individual, the Commissioner of Social Security 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 was domiciled at the time of death.

42 U.S.C. § 416(h)(2) (1999). Since Chris was domiciled in New Mexico at the time of his death, we apply New Mexico law.

A DNA lab report (lab report) dated November 22, 1999, from Blood Systems Laboratories (BSL), shows a 99.5 percent probability that Chris's parents, Dorothy and Alfonso, are the biological grandparents of Christopher. The file states that the two brothers of the NH are ruled out as being the father of the child. The lab report concludes that the NH is the biological father of the child. In our opinion, the lab report is sufficient to establish paternity under New Mexico law. We were asked to address two questions concerning the lab report:

(1) Is accreditation by the American Association of Blood Banks (AABB) for Parentage Testing sufficient to meet New Mexico state law requirements?

(2) Are results based on testing of relatives sufficient under New Mexico State law to legitimate the child and establish paternity?

According to our research, there is no federal law that addresses the required accreditation of laboratories engaged in genetic testing to determine parentage. There is a Federal law that prohibits any person from accepting materials derived from the human body for laboratory examination or other procedures unless the laboratory has obtained a certificate from the Secretary of the Department of Health and Human Services (the Secretary). See 42 U.S.C. § 263a. However, this law, and its accreditation requirements, do not apply to components or functions of any "facility or component of a facility that only performs testing for forensic purposes". See 42 CFR § 493.3. Genetic testing to determine parentage is considered forensic testing rather than clinical, diagnostic, or medical evaluation.

New Mexico has adopted the Uniform Parentage Act, which states that a blood test is admissible if it is performed by a "qualified individual" and "evaluated by an expert." N.M. Stat. Ann.§ 40-11-13 (C). Regarding genetic tests,

"The court shall admit into evidence, for purposes of establishing paternity, the results of any genetic test that is of a type generally acknowledged as reliable by accreditation bodies designated by the secretary of human services and performed by a laboratory approved by such an accreditation body".

N.M. Stat. Ann. § 40-11-12 (C).

However, 40-11-12 (C) concerns the admissibility of genetic testing evidence in court proceedings. It does not directly address the issue of required accreditation. In fact, although 40-11-12 (C) mentions "accreditation bodies designated by the secretary of human services", there are no such accreditation bodies designated by the New Mexico Secretary of Human Services, nor is there a list of accredited laboratories used by the New Mexico Department of Human Services.

Therefore, because there are no state or federal laws that require accreditation for laboratories engaging in genetic testing to determine parentage, and there is no apparent basis for questioning the credibility of this laboratory, the results of tests performed by BSL may be used by the agency.

As noted above, SSA will decide the child's paternity by using the standard of proof that the State court would use as the basis for a determination of paternity. 20 C.F.R. § 404.355(b)(2). Although New Mexico has no statute or case law specifically stating that genetic tests performed on a deceased's relatives are admissible, there is authority which supports the valid use of such tests. At least one New Mexico court has ordered that tests be performed on a deceased individual's parents for the purposes of proving paternity. See Abalos v. Pino, 115 N.M. 759, 761, 858 P.2d 426, 428 (Ct.App.1993). In A~, plaintiff filed a petition to establish paternity which named six individuals as potential fathers. Five were excluded through blood testing but the sixth died before testing could commence. Medical personnel asserted that testing the decedent's parents would achieve conclusive results, and the state district court ordered the decedent's parents to submit to blood testing, which they appealed. The Court of Appeals dismissed and remanded the interlocutory appeal of the testing order because it was not a final order in the case. This had the effect of upholding the testing order. The Court of Appeals commented that the blood test performed on the deceased's parents "is a part of the probate proceeding initiated by [the mother] to determine whether [the daughter] is an heir of [the deceased]." A~, 858 P.2d at 428.

The willingness of the state district court to rely on forensic evidence similar to the evidence in this case supports the use of genetic test results performed on a decedent's relatives in this instance. Therefore, if the agency is satisfied that the Chris's two brothers have been properly ruled out as fathers, it is our opinion that the lab report, which concludes that Chris is the biological father of the child, is sufficient to prove that Chris is Christopher's father for benefit purposes under section 216(h)(2) of the Act. Alternatively, it is our opinion that based on Chris's support of Jody and the live birth of Christopher, that he may be considered the father under section 216(h)(3)(C)(ii) of the Act.


Footnotes:

[1]

 

R~ provided SSA with a copy of a motion and order filed in this case in 2018, and we were able to locate the online docket with this case information. The full online docket for this case with docket entries describing case filings and orders is accessible through New Mexico State Judiciary Case Lookup, but the underlying case documents are not accessible. Seehttps://caselookup.nmcourts.gov/caselookup/app (last visited August 13, 2020).

[2]

 

See XXX (last visited August 3, 2020).

[3]

The Claimant must satisfy other criteria for his application for benefits as the NH’s child that are outside the scope of this legal opinion request. See Act § 202(d)(1); 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350. Consistent with your legal opinion request, we focus only on the requirement of whether the Claimant and the NH have a parent-child relationship. See 20 C.F.R. § 404.350(a)(1).

[4]

The current version of the UPA, effective January 1, 2010, applies to the facts here where the Claimant was born in June 2010 and the New Mexico State Court Case proceedings were commenced in 2015. The New Mexico Supreme Court described the history of this statute: “New Mexico first enacted the Uniform Parentage Act in 1986. See Uniform Parentage Act (UPA), NMSA 1978, §§ 40-11-1 to -23 (1986, as amended through 2004) (repealed 2009). The Legislature repealed the original UPA in 2009 and adopted the New Mexico Parentage Act, effective January 1, 2010. See NMSA 1978, §§ 40-11A-101 to -903 (2009).” Tue Thi Tran v. Bennett, 411 P.3d 345, 351 (N.M. 2018).

[5]

None of the circumstances giving rise to a presumption of paternity apply to the facts here as to the NH and the Claimant because there was no marriage or attempted marriage between Rebecca and the NH and no evidence that the NH resided with the Claimant for the first two years of his life. See N.M. Stat. Ann. §§ 40-11A-201(B)(1), 40-11A-204(A). There is no evidence that the NH and Rebecca executed an acknowledgment of the NH’s paternity as to the Claimant in accordance with the UPA. See N.M. Stat. Ann. §§ 40-11A-201(B)(2), 40-11A-301. There is no adoption here. See N.M. Stat. Ann. § 40-11A-201(B)(4). Further, there is no evidence indicating that this case involves a child resulting from assisted reproduction. See N.M. Stat. Ann. §§ 40-11A-201(B)(5), 40-11A-703.

[6]

The docket reflects entries of reports by a child support hearing officer and a domestic relations hearing officer, both of whom are authorized to act in proceedings related to child support and paternity matters. See N.M. Stat. Ann. §§ 40-4B-1 – 40-4B-10 (Child Support Hearing Officer Act); N.M. R. Civ. Pro. Rule 1-053.2 (provisions relating to requirements and duties of domestic relations hearing officers).

[7]

R~ and the State of New Mexico, Human Services Department (HSD) are listed as petitioners in this child support case. New Mexico HSD’s Child Support Enforcement Division can help establish paternity and child support obligations. See N.M. Stat. Ann. § 27-2-27 (HSD is the single state agency for New Mexico to bring an action to establish child support orders); see also https://www.hsd.state.nm.us/LookingForAssistance/Child_Support.aspx (last visited Aug. 5, 2020).

[8]

The New Mexico State Registrar does not amend the original birth certificate, but issues a new birth certificate to change the parents identified on the birth certificate. Specifically, New Mexico law provides that the State Registrar shall establish a new birth certificate when he or she receives a request that a new certificate of birth be established and evidence proving that a court has determined paternity of the person. N.M. Stat. Ann. §§ 24-14-17(A)(2), 40-11A-643. The new birth certificate is substituted for the original birth certificate. N.M. Stat. Ann. §§ 24-14-17(B), 40-11A-643. In addition, as to last name changes, upon receipt of a certified copy of a court order changing the name of a person born in New Mexico and upon request of the person’s parent, guardian, or legal representative, the State Registrar shall amend the birth certificate to reflect the new name. N.M. Stat. Ann. § 24-14-25(B); see also N.M. Stat. Ann. §§ 40-8-1, 40-8-2 (process for obtaining a court order for a name change); N.M. Admin. Code 7.2.2.17(D)(1) (any application for an amendment to change a last name shall be accompanied by a court order).

[9]

We note that the NH’s obituary indicates that he had four surviving brothers, and we do not have evidence regarding the brothers’ relationship with R~. However, this is not a claim in which the sole evidence of paternity is DNA testing and where it is questionable as to whether one of the NH’s brothers could be the Claimant’s father. Here, we have the evidence from the New Mexico State Court Case, the newly issued birth certificate naming the NH as the father, and the NH’s obituary identifying the Claimant as his son. It is the totality of all of this evidence that supports the NH’s paternity as to the Claimant.

[10]

The Fifth

Circuit’s test for determining when a state court order binds the agency is generally consistent with SSR 83-37c, but it places an emphasis upon the fourth Gray factor. See Warren v. Sec’y of Health & Human Servs., 868 F.2d 1444, 1446-47 (5th Cir. 1989); Garcia v. Sullivan, 883 F.2d 18, 19-20 (5th Cir. 1989). In Garcia , the Commissioner declined to accept a state court determination regarding paternity because parties with opposing interests did not genuinely contest the issue. Garcia , 883 F.2d at 20. Thus, the agency relied upon the second Gray criteria to find that the state court order did not bind the agency. The Fifth Circuit stated in Garcia that because the agency is required to determine how the state courts would decide the matter, “where a state trial court has adjudicated the issue in an adversarial setting the [agency’s] inquiry is manifestly simplified: the [agency] should follow the decision of the state court, absent extraordinary reasons.” Id. (citing Warren , 868 F.2d at 1444). The Fifth Circuit further noted it that the agency should only disregard a state court’s decision when the agency is convinced that the decision is in conflict with what the state supreme court has held or would hold were it presented with the issue. Id. In reversing the Commissioner’s decision to disregard the state court order, the Fifth Circuit thus emphasized that the agency should disregard a state court order only when the order does not meet the fourth Gray criteria.

 

[11]

New Mexico first adopted the UPA in 1986, N.M. Stat. Ann. 1978, §§ 40-11-1 to -23 (1986, as amended through 2004) (repealed 2009). The Legislature repealed the original UPA in 2009 and adopted the present version of the UPA, effective January 1, 2010. See N.M. Stat. Ann. 1978, §§ 40-11A-101 to -903 (2009). Present New Mexico intestacy laws and UPA laws do not use the language of legitimacy, do not provide methods for legitimating a child, and provide for equal rights for children regardless of their parents’ marital status. Similar to our interpretation of Texas and Oklahoma laws (both of which adopted the UPA, as New Mexico did), we have determined that once the parent-child relationship is established under New Mexico UPA and thus, under New Mexico intestacy law, it is established as of the child’s birth and not prospectively only from the date of the act/evidence provided to prove that parent-child relationship. See N.M. Stat. Ann. § 40-11A-901 (“In applying and construing the Uniform Parentage Act, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.”). This legal opinion supersedes any prior opinions issued on the effective date of the parent-child relationship under New Mexico law. See POMS PR 01115.034 New Mexico, A. PR 12-097 New Mexico Law – New Mexico State Law Clarification of Legitimating Acts for Child Relationship (NH Reynel, SSN~) – REPLY (May 4, 2012).

[12]

Currently, a split in the regions exists on whether a child is entitled to retroactive benefits when, as in New Mexico, state law makes no distinction between legitimate and illegitimate children, but provides no avenue to legally legitimize a child.  As discussed in more depth below, a legitimate child will meet the requirements for entitlement to benefits from the date of its birth. POMS GN 00306.050A(3); POMS GN 00306.010B.  Conversely, an illegitimate child will only have inheritance rights in the number holder’s estate, and inheritance rights operate prospectively from the effective date of the parent-child relationship. See SSR 85-17; POMS GN 00306.055A(3).  Region III and Region V have both issued opinions concluding that, where the state law is silent on whether inheritance rights are prospective, state law must be narrowly construed as permitting only prospective inheritance rights from the effective date of the relationship. See e.g., Entitlement to Surviving Child’s Benefits Based on DNA Results as Clear and Convincing Evidence in the Commonwealth of Pennsylvania (A~ – Oct. 6, 2005) (finding entitlement to benefits begins with the effective date of the parent-child relationship); Wisconsin Posthumous Paternity Action (R~ – Mar. 22, 2001) (reaffirming SSR 85-17’s statement that an act that confers inheritance rights operates prospectively only).  Conversely, Region IV and Region VII have concluded that, when the state makes no distinction between legitimate and illegitimate children, all children are entitled to retroactive benefits back to their date of birth. See, e.g., Genetic Testing of Relatives, Florida (W~ – Feb. 21, 2006) (a natural out-of-wedlock child qualifies for the same retroactive rights as a legitimate child under Florida law); Status of H~ O~-P~’s Entitlement to Child’s Insurance Benefits (P~ – Aug. 17, 2011) (holding that, because Nebraska does not distinguish between legitimate and illegitimate children, Nebraska state law establishes that the parent-child relationship began at birth).  Region VII also noted that, because Nebraska state law awarded retroactive child support payments after adjudicating paternity, this finding of retroactive child support payments further indicated that Nebraska state law would confer retroactive benefits. See Status of H~ O~-P~’s Entitlement to Child’s Insurance Benefits (P~ – Aug. 17, 2011).

[13]

Agency policy defines a legitimate child as one born of a valid marriage. See POMS GN 00306.010.

[14]

Under Article 2-204 of the New Mexico Uniform Parentage Act, a man is presumed to be the child’s father if: (1) he and the child’s mother are married to each other and the child is born during the marriage; (2) he and the mother of the child were married to each other and the child was born within three hundred days after the marriage was terminated by death, annulment, declaration of invalidity or divorce or after a decree of separation; (3) before the birth of the child, he and the mother married each other in apparent compliance with law, and the child was born during the invalid marriage; (4) after the child’s birth, he and the mother married each other in apparent compliance with law, and he voluntarily asserted his paternity; or (5) for the first two years of the child’s life, he resided in the same household with the child and openly held out the child as his own. See N.M. Stat. Ann. § 40-11A-204(A)(1)-(5). Ivory does not meet any of these circumstances.

[15]

We recognize that POMS GN 00306.085 provides a list of states in which a child is “Legitimate from the Date of Birth” according to each state’s laws. However, there is no basis in New Mexico state law to allow a father to formally legitimize a child born out of wedlock. Thus, we cannot rely upon this POMS provision.

[16]

We note that Region VII concluded that, when a state awards retroactive child support following a paternity determination, state law would direct payment of retroactive benefits to the child. See Status of H~ O~-P~’s Entitlement to Child’s Insurance Benefits (P~ – Aug. 17, 2011).  However, we discussed the relevance of child support payments with respect to a retroactive benefits determination with OGC Headquarters, and they encouraged us to avoid basing a retroactive benefits determination on a state’s child support laws. Therefore, we conclude that Ivory’s entitlement to child support does not impact our retroactive benefits determination.

[17]

Under Article 2-204 of the New Mexico Uniform Parentage Act, a man is presumed to be the child’s father if: (1) he and the child’s mother are married to each other and the child is born during the marriage; (2) he and the mother of the child were married to each other and the child was born within three hundred days after the marriage was terminated by death, annulment, declaration of invalidity or divorce or after a decree of separation; (3) before the birth of the child, he and the mother married each other in apparent compliance with law, and the child was born during the invalid marriage; (4) after the child’s birth, he and the mother married each other in apparent compliance with law, and he voluntarily asserted his paternity; or (5) for the first two years of the child’s life, he resided in the same household with the child and openly held out the child as his own. See N.M. Stat. Ann. § 40-11A-204(A)(1)-(5). Joshua does not meet any of these circumstances.


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1501115034
PR 01115.034 - New Mexico - 10/26/2020
Batch run: 10/26/2020
Rev:10/26/2020