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UPA, unless the acknowledgment has been rescinded or successfully challenged;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.