The number holder (NH) was domiciled in New York when the application for child’s benefits was filed; therefore, the New York law of intestate succession applies in determining the child’s status under section 216(h)(2)(A) of the Act. New York would recognize the Pennsylvania court order declaring the NH and her spouse as the claimant’s parents. After analyzing the validity of the Pennsylvania judgment, we have concluded that it was valid and established a parent-child relationship between the claimant and the NH and the NH’s wife. Accordingly, the claimant is entitled to child’s benefits on the NH’s account.

QUESTIONS PRESENTED

You have asked for an opinion as to whether S~ (claimant), born to N~ (gestational mother) through the use of in vitro fertilization with anonymous egg and sperm donors, would be eligible for child’s benefits on the account of F~ (NH), who became the parent of the claimant pursuant to a Pennsylvania court order dated August XX, 2013.

You have also asked for an opinion as to whether K~ (K~), the NH’s wife, would be entitled to wife’s benefits on the NH’s account as the parent of the claimant.

OPINION

New York would recognize the Pennsylvania court order declaring the NH and K~ as the claimant’s parents. Under New York intestacy law, a child can inherit as a “non-marital child” if, as here, a court of competent jurisdiction issued an order of filiation declaring parentage. Thus, the claimant could inherit from the NH under the intestacy laws of New York State and, therefore, is considered the child of the NH under the Social Security Act (the Act) for the purposes of entitlement to child’s benefits, assuming the claimant meets all other requirements for these benefits.

Because the NH and K~ have a valid marriage, are both listed as the claimant’s parents in her birth certificate, both became parents pursuant to the Pennsylvania court order, and live together with the claimant, K~ would be entitled to wife’s benefits on the NH’s account, again assuming she meets all other requirements for these benefits.

BACKGROUND

An in vitro fertilization procedure was performed upon a donor egg with donor sperm, and a physician transferred the resulting embryo to the uterus of the gestational mother on February XX, 2013. The gestational mother resided in Pennsylvania, and intended to surrender custody of the resulting child to the NH and her same-sex partner, K~.

The NH and K~ were married in S~, New York, on July XX, 2013. K~ and the NH petitioned the L~ County Court of Common Pleas, Orphans’ Court Division, for a declaration that the NH and K~ are the parents of the child to be born to the gestational mother. On August XX, 2013, the L~ County Court issued an Order and Decree that the NH and K~ are the parents of the child to be born to the gestational mother, and that the child’s birth certificate would reflect such.

The gestational mother gave birth to the claimant on October XX, 2013, in L~ County, Pennsylvania. The claimant’s birth certificate lists the NH and K~ as the parents.

The claimant currently lives with the NH and K~ in S~, New York.

The NH has been receiving social security disability benefits since January 2016. On January XX, 2016, K~ filed an application for child’s benefits on the claimant’s behalf, with a protective filing date of December XX, 2015. At the same time, K~ filed for wife’s benefits on the NH’s record.

ANALYSIS

I. Child’s Benefits Under the Act

A. Federal Law Regarding Child’s Benefits

Section 202(d) of the Act allows the dependent “child” of an insured individual to collect child’s benefits on the record of the insured individual. See Act § 202(d); 42 U.S.C. § 402(d). For purposes of child’s benefits under the Act, a “child” is defined as the natural child, legally adopted child, stepchild, and, in limited instances, grandchild or stepgrandchild of an insured individual. Act §§ 202(d) and 216(e); 42 U.S.C. §§ 402(d) and 416(e).

In determining whether an applicant is the child of an insured individual, the Commissioner applies the law governing the devolution of intestate personal property applied by the courts of the State in which the insured individual is domiciled at the time such applicant filed the application for child’s benefits. Act § 216(h)(2)(A); 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1). Because the NH was domiciled in New York when the applications for child’s benefits were filed, New York’s law of intestate succession applies in determining the child’s status under section 216(h)(2)(A) of the Act.

B. New York State Law Regarding Intestate Succession of Non-Marital Children

New York intestacy law allows “issue” of a decedent to inherit if the individual died without a will. N.Y. Est. Powers & Trusts Law § 4-1.1 (McKinney 2016). “Issue are the descendents in any degree from a common ancestor,” and includes adopted children. N.Y. Est. Powers & Trusts Law § 1-2.10 (McKinney 2016). New York intestacy law also states that a non-marital child is the legitimate child of his mother. N.Y. Est. Powers & Trusts Law § 4-1.2(a)(1) (McKinney 2016).

New York courts have held that the gestational mother is the natural mother of a child. See McDonald v. McDonald, 608 N.Y.S.2d 477 (N.Y. App. Div. 2d Dept. 1994). Even where all parties intend for another individual, including a genetic mother, to be the legal mother, courts have required the genetic mother to obtain either an adoption or a court order to be deemed the legal mother. See T.V. v. New York State Dept. of Health, 929 N.Y.S.2d 139, 150-52 (N.Y. App. Div. 2d Dept. 2011); Doe v. New York City Bd. of Health, 782 N.Y.S.2d 180, 183-84 (N.Y. Sup. Ct. 2004); Arredondo by Arredondo v. Nodelman, 622 N.Y.S.2d 181 (N.Y. Sup. Ct. 1994).

Here, the NH was not the claimant’s gestational mother and therefore, was not the claimant’s natural mother. Additionally, the claimant is not an adopted child of the NH. Thus, at first analysis, the claimant is not the NH’s child under N.Y. Est. Powers & Trusts Law § 4-1.2(a)(1). However, because the NH obtained a Pennsylvania Order and Decree declaring that the NH and K~ are the claimant’s parents, we must determine whether a New York court would give full faith and credit to that decree to recognize that the claimant is the legitimate child of the NH.

C. Full Faith and Credit

Under the full faith and credit clause of the Constitution, states must give full faith and credit to the public acts, records, and judicial proceedings of other states. See U.S. Const. Art. IV, § 1; 28 U.S.C. § 1738; Baker v. Gen. Motors Corp., 522 U.S. 222, 231-32 (1998). Under the full faith and credit clause of the Constitution, a final judgment of one state, “if rendered by a court with adjudicatory authority over the subject matter and persons governed by the judgment, qualified for recognition throughout the land.” Baker, 522 U.S. at 233.

Similarly, under New York law, “full faith and credit establishes a rule of evidence requiring recognition of a prior out-of-State judgment, giving it res judicata effect and ‘thus avoiding relitigation of issues in one State which have already been decided in another.’” Luna v. Dobson, 97 N.Y.2d 178, 182-83 (2001) (internal citations omitted). In effect, New York is “required to give the same preclusive effect” to the Pennsylvania decree that Pennsylvania would under its law. Id. at 183; see also Matter of Doe, 793 N.Y.S.2d 878, 882 (N.Y. Sur. Ct. 2005) (“Where a judgment of a sister state is issued with jurisdiction of all parties, New York must afford it full faith and credit.” (internal citations omitted)).

New York courts have further held that:

If there had been an adjudication of paternity by a court with competent jurisdiction, we would be precluded from looking behind the judgment and we would be required to give full faith and credit to that judgment of our sister state. New York must recognize the validly rendered judgments of our sister states.

Robertson v. Collings, 421 N.Y.S.2d 999, 1001 (N.Y. Fam. Ct., Oneida Cnty. 1979) (citing U.S. Const. Art IV, § 1). Because a New York court would “be precluded from looking behind the judgment” – that is, would not consider whether the judgment conflicted with New York public policy – it would accept the Pennsylvania order for purposes of intestate succession, provided that the Pennsylvania Orphans’ Court had competent jurisdiction and that the judgment was validly rendered.

After analyzing the validity of the Pennsylvania judgment, we have concluded that it was valid and established a parent-child relationship between the claimant and the NH and K~.

Under Pennsylvania law, “[b]efore a court may determine a legal action, it must possess both subject-matter jurisdiction and jurisdiction of the person.” Schifano v. Schifano, 471 A.2d 839, 843 (Pa. Super. Ct. 1984).

A Pennsylvania court may exercise personal jurisdiction over a nonresident (such as the NH and K~) under certain circumstances. 42 Pa. Cons. Stat. § 5322 (2016). One such circumstance is where the nonresident individuals “[c]ontract[] to supply services or things in” Pennsylvania. Id. § 5322(a)(2). In the surrogacy agreement, the parties contracted for the gestational mother to give birth in a Pennsylvania hospital. It would appear, therefore, that the long-arm statute would confer personal jurisdiction over the parties. Moreover, a Pennsylvania court may exercise personal jurisdiction over a nonresident individual in a proceeding to determine parentage of a child if the individual submits to the jurisdiction of Pennsylvania. 23 Pa. Cons. Stat. § 7201 (2016); see also McCullough v. Clark, 784 A.2d 156, 157 (Pa. Super. Ct. 2001) (“A party may expressly or impliedly consent to a court’s personal jurisdiction.”). Here, the NH and K~ filed a joint petition with the gestational mother in the Pennsylvania Orphans’ Court seeking an order by the Orphans’ Court. Therefore, it would appear that the NH and K~ consented to the court’s personal jurisdiction.

Regarding subject-matter jurisdiction, Pennsylvania law vests the Orphans’ Court with jurisdiction over various subject matters, including decedents’ estates, guardianship, adoption, custody, birth records, and marriage licenses. See 20 Pa. Cons. Stat. §§ 711, 712. Section 712(3) provides the Orphans’ Court with jurisdiction over “any case where there are substantial questions concerning matters enumerated in section 711 and also matters not enumerated in that section.” 20 Pa. Cons. Stat. § 712(3). Thus, the Orphans’ Court has subject-matter jurisdiction to issue decrees regarding the parties’ parental rights. See In re I.L.P. & I.L.P. Joint Petition on Assisted Conception Birth Registration, 965 A.2d 251, 258 (Pa. Super. 2009) (Orphans’ Court has jurisdiction to issue a decree regarding the parental rights of the parties involved). We therefore believe that the Pennsylvania decree was valid because it was issued by a court that had both subject-matter jurisdiction and personal jurisdiction over the parties.

Thus, a New York court would give full faith and credit to the Pennsylvania decree that the NH and K~ are the claimant’s mothers. Accordingly, the claimant could inherit under New York’s intestate succession laws as the legitimate child of her mothers. See N.Y. Est. Powers & Trusts Law § 4-1.2(a)(1). Therefore, assuming the claimant satisfied the other statutory and regulatory requirements for such benefits, she is entitled to receive child’s benefits on the NH’s account.

II. Wife’s Benefits Under the Act

A. Federal Law Regarding Wife’s Benefits

Section 202(b) of the Act allows the “wife” of an insured individual to collect wife’s benefits on the record of the insured individual. See Act § 202(b); 42 U.S.C. § 402(b). For purposes of wife’s benefits under the Act, a “‘wife’ means the wife of an individual, but only if she (1) is the mother of his son or daughter, [and] (2) was married to him for a period of not less than one year immediately preceding the day on which her application is filed.” Act §§ 202(b), 216(b); 42 U.S.C. §§ 402(b), 416(b); 20 C.F.R. § 404.330.

SSA looks to the laws of the state where the insured had a permanent home at the time the application for benefits was filed to determine whether the claimant and insured were validly married. Act § 216(h)(1)(A)(i), 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345. Accordingly, we will look to the laws of New York to determine whether the NH and K~ were validly married.

B. New York State Law Regarding Same-Sex Marriage

Effective July 24, 2011, the Marriage Equality Act amended New York Domestic Relations Law to provide that a marriage that is “otherwise valid shall be valid regardless of whether the parties to the marriage are of the same or different sex.” N.Y. Dom. Rel. Law § 10-a (McKinney 2016). Accordingly, the NH’s July 2013 marriage to K~ was valid for purposes of determining K~’s entitlement to wife’s benefits. See Program Operations Manual System (POMS) GN 00210.003B New York.

Further, for the same reasons as discussed above, supra Section I, New York would recognize K~ as the claimant’s mother and therefore, K~ is the NH’s wife and mother of the NH’s daughter for purposes of wife’s benefits on the NH’s account.

CONCLUSION

The NH’s marriage to K~ was valid under New York Law. New York would recognize the Pennsylvania court’s Order and Decree granting parental rights of the claimant to the NH and K~. Accordingly, the claimant is entitled to child’s benefits on the NH’s account and K~ is entitled to wife’s benefits on the NH’s account, assuming the other statutory and regulatory requirements for such benefits have been met.

To determine whether either claimant is the NH’s “child,” we must consider whether, under the intestacy laws of the state the NH was domiciled in at death, each would inherit the NH’s personal property as his natural child. The NH was domiciled in New York, and that State’s laws apply here. Under New York intestacy law, a non-marital child is the legitimate child of his father so that he and his issue inherit from his father and his paternal kindred if any of the following are true. First, a court has made an order of filiation declaring paternity or the mother and father of the child have executed a legally sufficient acknowledgment of paternity. Second, the father of the child has signed a legally sufficient instrument acknowledging paternity. Third, paternity has been established by clear and convincing evidence, which may include, but is not limited to: (i) evidence derived from a genetic marker test, or (ii) evidence that the father openly and notoriously acknowledged the child as his own.

Neither child satisfies the first two alternatives for establishing child status in accordance with New York intestacy law. However, both children have presented clear and convincing evidence that they are the children of the NH. Claimant M. provided DNA testing proving 99.9 percent probability that he is the NH's child along with other corroborating evidence. Claimant W. presented clear and convincing evidence that the NH openly and notoriously acknowledged the child as his own. Under New York intestacy law, the evidence is sufficient to establish that Claimant W. and Claimant M the children of number holder and they are the NH’s children for the purposes of entitlement to child survivor’s benefits.

QUESTION PRESENTED

For the purposes of entitlement to child survivor’s benefits, is the evidence sufficient under New York intestacy law to establish that Wakeen and Missiah are the children of deceased number holder Wakeen?

OPINION

Under New York intestacy law, the evidence is sufficient to establish that Wakeen Jr. and Missiah are the children of number holder Wakeen Sr. As such, they are the NH’s children for the purposes of entitlement to child survivor’s benefits.

BACKGROUND

All facts are based upon evidence provided by the New York Center for Programs Support. To avoid confusion in discussing the numerous parties sharing their surname, this opinion refers to the parties by their first names and Wakeen Sr. as the NH.

a. The Number Holder

The number holder Wakeen Sr. (NH) was born on July. The NH’s birth certificate indicates he was born in B~ to Ruby (Ruby).

The NH died in B~ on March XX, 2013. The NH’s death certificate lists Kamisha (Kamisha) as his sister, New York as his usual residence state, Kings as his usual residence county, and B~ as his usual residence city or town.

The NH’s funeral was held on April XX, 2013. The NH’s obituary indicated that he was survived by his son Wakeen Jr., his mother Ruby, and his sister Kamisha.

b. Wakeen Jr.

Wakeen Jr. (Wakeen Jr.) was born July. Wakeen Jr.’s birth certificate indicates that he was born in B~ to Tasha (Tasha), but does not list a father.

The NH’s obituary stated that the NH’s “favorite role was being a father to his son Wakeen Jr., ‘Boom Boom,’” and that the NH “took great pride in working to provide for his son.”

On September XX, 2013, Tasha filed an application for surviving child’s benefits on behalf of her son Wakeen Jr., claiming that the NH was Wakeen Jr.’s father.

In a notarized letter to the agency dated September 24, 2013, Ruby wrote that her son, the NH, acknowledged that Wakeen Jr. was his son. Ruby pointed out that the child shared his name. Ruby explained that the NH was not available to sign the birth certificate when the child was born.

On September 26, 2013, Tasha completed an SSA “Child Relationship Statement.” Tasha indicated that the NH made and was making regular and substantial contributions to Wakeen Jr.’s support at the time that he died. Tasha indicated there was written evidence that would show that Wakeen Jr. was the NH’s child, including his obituary and Ruby’s statement. Tasha also indicated that the NH admitted orally to his mother that Wakeen Jr. was his child. However, Tasha denied other indicators of a relationship, including any court order, court decrees, or signed statements acknowledging parentage.

On November 6, 2013, Tasha completed a Statement of Claimant or Other Person. Tasha stated that, when she was six months pregnant with Wakeen Jr., in April 2006, the NH went to prison. In May 2010, the NH was released. As soon as he was released, the NH began visiting Wakeen Jr. daily and would take the child every other weekend. Sometimes the NH took Wakeen Jr. for weeks at a time. Within months of his release from prison, the NH also began giving Tasha money, usually $100 to $200 every other week, but sometimes more. Just before the NH died, he gave Tasha $300 to shop for the child, whom he referred to as their son.

c. Missiah

Missiah (Missiah) was born on July. Missiah’s birth certificate indicates that he was born in B~ to Ebony (Ebony), but does not list a father.

On July XX, 2013, Kamisha, Ebony, and Missiah provided specimens for a DNA test.

In a notarized report dated July 11, 2013, DNA Diagnostics Center Laboratory Director Dr. Debra verified the results of the DNA analysis. The report indicated a 99.9 percent probability that Kamisha (described as an alleged paternal aunt) and Missiah were genetically related.

In a notarized letter dated September 5, 2013, Kamisha wrote that she was the NH’s maternal sister. Kamisha stated that the NH’s surviving family members acknowledged that the NH had a romantic relationship with Ebony. Kamisha also stated that a DNA test indicated that she was genetically related to Missiah.

On September 6, 2013, Ebony filed an application for surviving child’s benefits on behalf of her son Missiah, claiming that the NH was Missiah’s father.

In a notarized letter to the agency dated September 22, 2013, Ruby wrote that her son, the NH, had been aware that Missiah was his child prior to his death. Ruby also noted that her daughter, Kamisha, had undergone DNA testing, which indicated that she was genetically related to Missiah.

On November 30, 2013, Ebony completed an SSA “Child Relationship Statement.” Ebony indicated that the NH admitted orally to his mother that Missiah was his child. However, Ebony denied other indicators of a relationship, including any court orders, court decrees, or signed statements acknowledging parentage.

ANALYSIS

To be entitled to benefits as surviving children on the NH’s record, Missiah and Wakeen Jr. must show that they are the NH’s dependent children. See Section 202(d)(1) of the Act; 42 U.S.C. § 402(d)(1). To determine whether either claimant is the NH’s “child,” we must consider whether, under the intestacy laws of the state the NH was domiciled in at death, each would inherit the NH’s personal property as his natural child. See section 216(h)(2)(A) of the Act; 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1). A child who meets the standard that Congress set forth in section 216(h)(2)(A) of the Act is deemed to be legitimate and, therefore, dependent, as required by the Act. See Mathews v. Lucas, 427 U.S. 495, 514-15 n.17 (1976).

SSA defines a person’s “domicile” as the place where a person has his true, fixed, and permanent home to which he intends to return whenever away. Program Operations Manual System (POMS) GN 00305.001. Only New York can meet this standard for the NH. The NH’s birth and death certificates indicate that he was born in B~. The NH’s death certificate listed a B~ address. The death certificate also indicated that his usual state of residence was New York, his usual county of residence was Kings, and his usual city or town of residence was B~. He also reportedly had regular contact with one of his alleged children, Wakeen Jr., whose mother provided a mailing address in B~. In addition, the NH’s funeral was held in B~. There is no indication that he ever lived outside of New York or intended to leave. Thus, the NH was domiciled in New York, and that State’s laws apply here.

Under New York intestacy law, a non-marital child is the legitimate child of his father so that he and his issue inherit from his father and his paternal kindred if any of the following are true. N.Y. Est. Powers & Trusts § 4-1.2; see POMS GN 00306.575(b)(7). First, a court has made an order of filiation declaring paternity or the mother and father of the child have executed a legally sufficient acknowledgment of paternity. Id. at (A)(2)(a). Second, the father of the child has signed a legally sufficient instrument acknowledging paternity. Id. at (A)(2)(b). Third, paternity has been established by clear and convincing evidence, which may include, but is not limited to: (i) evidence derived from a genetic marker test, or (ii) evidence that the father openly and notoriously acknowledged the child as his own. Id. at (A)(2)(c). N.Y. Est. Powers & Trusts § 4-1.2 was significantly altered effective April 28, 2010. A previous version of this statute had been interpreted to require clear and convincing evidence of open and notorious acknowledgement before admitting DNA evidence and also limited the use of posthumous DNA evidence. See Matter of P~, 50 A.D.3d 117 (N.Y. 2008) (reviewing case law). The legislature amended the statute to “facilitate” and clarify the use of DNA evidence to establish paternity. Memorandum in Support of Legislation, New York State Assembly, (Assemb. B. A7899, 233rd Leg. (N.Y. 2010)) (Memo to A7889), available at http://assembly.state.ny.us/leg/?default_fld=&bn=A07899&term=2009&Memo=Y. The phrase “clear and convincing evidence” has been defined as, “evidence which is entirely satisfactory and creates a genuine belief that the [alleged father] is the father of the child.” Matter of Anne R. v. Estate of Francis C., 234 A.D. 2d 375 (N.Y. App. Div. 1996) (quoting Matter of Comm’r of Soc. Services [Patricia A.] v. Philip De G., 59 N.Y. 2d 137, 141-142 (N.Y. 1983)).

Neither child satisfies the first two alternatives for establishing child status in accordance with New York intestacy law. See N.Y. Est. Powers & Trusts § 4-1.2 (A)(2)(a),(b). Tasha and Ebony indicated that no court had ever issued any kind of order or decree with respect to these children and that the NH never signed a written statement regarding paternity.

Nissiah, however, has presented clear and convincing evidence, including evidence derived from a genetic marker test. Id. at (A)(2)(c)(i). DNA testing indicated a 99.9 percent probability that the child was genetically related to Kamisha. The NH’s death certificate, the obituary, Kamisha, and Ruby all indicated that Kamisha is the NH’s sister. The test results were certified by a professional and notarized. Posthumous testing of a decedent’s close relative is sufficient to establish paternity. Memo to A7899 (“Thus, proof may be in the form of a genetic marker test administered to the father (or close relative at any time…”); see also In re N~, 748 N.Y.S. 2d 654 (N.Y. Surr. Ct. Sept. 16, 2002) (citing Matter of S~, 612 N.Y.S.2d 756 (N.Y. Surr. Ct. April 26, 1994)) (DNA testing could be done on an identical twin brother of testator to establish paternity of testator where mother of testator’s alleged illegitimate daughter had a sexual relationship exclusively with testator and not his twin during the critical period of conception). Probabilities much lower than 99.9 percent can be clear and convincing. In re S~, 768 N.Y.S. 2d 272, 274 (N.Y. Surr. Ct. July 03, 2003) (“99-100 percent scientifically acceptable certainty” of paternity “clearly meet[s] a ‘clear and convincing’ standard”); Reidy on Behalf of Charlotte P v. Jeffrey K, 125 A.D.2d 825(N.Y. App. Div. 1986) (upholding a finding of paternity based upon DNA testing reflecting an 85.4% probability); King v. Tanner, 545 N.Y.S. 2d 649, 651 (N.Y. Sup. 1989) (“nowhere is there a requirement that blood testing [be] 100% accurate” to establish paternity); see also Palmer v. Carter, 543 N.Y.S. 2d 625, 625-626 (N.Y. Fam. Ct. 1989) (“Although paternity must be supported by more than a mere preponderance, the evidence need not be sufficient to overcome any reasonable doubt”) (citing Hanley v. Wilcox, 57 A.D. 2d 697 (N.Y. App. Div.1977)). Legislative history accompanying the latest amendments to N.Y. Est. Powers & Trusts Law § 4-1.2(a)(2)(C) also indicates that results of genetic marker tests will in most cases be dispositive. See Memo to A7899. We recognize that the test results provide little information regarding the “chain of custody” of the parties’ specimens. However, the lack of such evidence is not dispositive where, as here, other evidence provides a “reasonable assurance” that the specimens are genuine. Thomas v. Astrue, 674 F.Supp.2d 507, 513 (S.D.N.Y. Dec. 9, 2009). The certified and notarized test report indicated that Kamisha, Ebony, and Nissiah provided the specimens. In notarized statements, Kamisha and Ruby also confirmed that Kamisha underwent the DNA testing that indicated a relation to Missiah. There is no indication that any of the specimens were those of an imposter. As the court recognized in Thomas, it would be difficult for an alleged child or a laboratory to skew a DNA test to be positive because “imposters would have to be chosen brilliantly (by the [lab] technicians or by [the claimants], or maybe both) to engineer the three-pronged family footprint shown in the test result.” Id. In contrast, an alleged father could easily skew a DNA test to be negative by obtaining a specimen from a random, unrelated male. Id. Other evidence also indicated that Missiah was the NH’s child. Ebony stated that Missiah was the NH’s child. Ruby stated that the NH acknowledged that Missiah was his child. Kamisha also stated that she, and the rest of her family, acknowledged that the NH had been romantically involved with Ebony.

Wakeen Jr. also presented clear and convincing evidence that the NH openly and notoriously acknowledged the child as his own. N.Y. Est. Powers & Trusts § 4-1.2(A)(2)(c)(ii). Tasha indicated that the NH referred to Wakeen Jr. as his son. Ruby also indicated that her son acknowledged the child. The NH’s obituary indicated that he was a proud father to the child. The NH also demonstrated that he acknowledged the child through his actions. Tasha indicated that, after leaving prison, the NH visited with the child regularly and supported him financially. The NH’s obituary similarly referred to him supporting his son. Paternity has been attributed to fathers for doing little more than telling family members or others in the community about their children. See, e.g. Tumminia v. Savattere, 654 N.Y.S. 2d 676 (N.Y. 2d Dept. 1997) (disclosure to friends and relatives); Matter of Anne R. v. Estate of Francis C., 651 N.Y.S.2d 539 (N.Y. 2d Dept. 1996) (acknowledgment of paternity in the community in which the child lives); Matter of W~, 691 N.Y.S.2d 878 (Sur. Ct., N.Y. County 1999) (disclosure to family). The NH’s words and actions more than met this standard.

CONCLUSION

Wakeen Jr. and Missiah are the NH’s children for the purposes of inheritance under New York intestacy law. As such, they are the NH’s children for the purposes of entitlement to child survivor’s benefits.

In this case, we believe that a New York court would find the DNA test results showing 99.99% probability that the NH is the claimant's biological father to be clear and convincing evidence of paternity. Combined with other evidence including statements showing that the deceased had openly acknowledged the child as his own prior to his death would meet both the "clear and convincing" and "open and notorious" standards of the New York Intestacy law. Based on the evidence listed, the claimant clearly meets the requirements for entitlement to survivor's benefits on the NH's account.

QUESTION PRESENTED

Whether Kendall (claimant), who was born after the death of number holder Christopher (NH), is entitled to survivor’s benefits as the child of the NH.

OPINION

BACKGROUND

Cynthia (Cynthia), claimant’s mother, filed an application for Surviving Child’s benefits on the record of the NH.

The NH died April XX, 2010 in New York, New York. The death certificate lists New York as the NH’s usual place of residence. NH listed New York as his address on the beneficiary designation form he submitted to his employer. Documentation submitted to the DNA testing laboratory accompanying NH’s specimen listed New York as NH’s address. There is no evidence showing that at the time of death the NH was domiciled outside New York.

On May XX, 2010, Cynthia, a resident of M~, New Jersey, gave birth to the claimant in B~ County, New Jersey. DNA testing results dated June XX, 2010, from the DNA Identification Division of Laboratory Corporation of America Holdings (LabCorp) indicate a 99.99% probability that the NH is the claimant’s biological father. LabCorp obtained the NH’s DNA specimen from The Office of the Chief Medical Examiner of New York and collected claimant’s specimen at LabCorp’s New Jersey office.

Cynthia filed a paternity petition in Superior Court of New Jersey in B~ County. On July 6, 2010, that court issued an order finding the NH to be the biological father of the claimant. The court further ordered that the claimant’s Birth Certificate should be amended to reflect the NH’s status as the biological father.

The claimant provided the following further evidence in support of the claim:

Letters from the NH to Cynthia in which the NH mentions the expected baby and states that he wants to marry Cynthia.

A beneficiary designation form executed by the NH naming Cynthia as the primary beneficiary of survivor’s benefits from the NH’s retirement plan.

Correspondence with a law firm indicating that the NH and Cynthia intended to obtain joint representation for purposes of estate planning.

A baby gift registry in the NH and Cynthia’s names indicating May XX, 2010 as the expected date of delivery.

A statement from MorganStanley indicating that the NH and Cynthia held approximately $50,000 in a joint account and a letter instructing that these funds be transferred to Cynthia’s solo account.

ANALYSIS

The Social Security Act (the Act) requires that a person be the dependent “child” of an insured individual to qualify for surviving child’s benefits. See section 202(d)(1) of the Act; 42 U.S.C. § 402(d)(1). Section 216(h) of the Act provides the analytical framework that the agency must follow to determine whether an individual is the “child” of an insured individual. Under section 216(h), a child may be entitled to survivor’s benefits on the earnings record of a deceased insured individual if the child could inherit the insured individual’s personal property as his natural child under the intestacy laws of the state in which the insured individual was domiciled at the time of his death. See section 216(h)(2)(A) of the Act; 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1). A child who meets the standard that Congress set forth in section 216(h)(2)(A) of the Act is deemed to be legitimate and, therefore, dependent. See Mathews v. Lucas, 427 U.S. 495, 514-15 n.17 (1976). Accordingly, to be entitled to survivor’s benefits on the NH’s account, the claimant must be able to inherit the NH’s personal property as his natural child under New York State inheritance law.

New York intestacy law specifies that the “issue” of a decedent are eligible to inherit a decedent’s property. N.Y. Est. Powers & Trusts § 4-1.1 (M~ 2010). The law defines “issue” as “descendants in any degree from a common ancestor,” which would include a decedent’s children. N.Y. Est. Powers & Trusts § 1-2.10 (M~ 2010). Further, the term “issue” includes a “non-marital child” who has inheritance rights from her alleged father under certain conditions. N.Y. Est. Powers & Trusts § 4-1.2 (M~ 2010). Children conceived before the decedent’s death but born alive thereafter are permitted to inherit as though they were born during the decedent’s lifetime. N.Y. Est. Powers & Trusts § 4-1.1(c).

N.Y. Est. Powers & Trusts Law § 4-1.2 governs the rights of inheritance by non-marital children. This section was recently amended to revise the standard used for determining inheritance rights of non-marital children. The amending act specifies that it applies to estates of decedents dying on or after the effective date, April 28, 2010. L.2010 c. 64 § 4. Since the NH died on April XX, 2010, for purposes of intestate distribution New York courts would apply the prior version of the law. However, under 20 C.F.R. § 404.355(b)(4), the agency applies the State law that exists at the time of the final decision on the claimant’s application, unless the previous version would be more favorable to the claimant. Since the prior version of N.Y. Est. Powers & Trusts Law § 4-1.2 would not be more favorable to the claimant, the version as amended is applied in the following analysis in accordance with 20 C.F.R. § 404.355(b)(4).

Under N.Y. Est. Powers & Trusts Law § 4-1.2, as amended, a non-marital child may inherit from the father if paternity can be established under either of the following sections: A third means of establishing paternity, that the father of the child signed an instrument acknowledging paternity, is not applicable in this case. N.Y. Est. Powers & Trusts Law § 4-1.2(a)(2)(B).

1. N.Y. Est. Powers & Trusts Law § 4-1.2(a)(2)(A): Court Orders Declaring Paternity

In New York, non-marital children may inherit from their father when “a court of competent jurisdiction has, during the lifetime of the father, made an order of filiation declaring paternity . . . .” N.Y. Est. Powers & Trusts Law § 4-1.2 (a)(2)(A). The court order issued by the Superior Court of New Jersey declaring the NH as the biological father of the claimant was issued on July 6, 2010, subsequent to the date of death specified in the NH’s death certificate, April XX, 2010. Thus, claimant may not be considered the child of the NH under N.Y. Est. Powers & Trusts Law § 4-1.2 (a)(2)(A).

2. N.Y. Est. Powers & Trusts Law § 4-1.2(a)(2)(C): Clear and Convincing Evidence or Open and Notorious Acknowledgement

Non-marital children may also inherit from their father when “paternity has been established by clear and convincing evidence, which may include, but is not limited to: (i) evidence derived from a genetic marker test, or (ii) evidence that the father openly and notoriously acknowledged the child as his own . . . .” N.Y. Est. Powers & Trusts Law § 4-1.2 (a)(2)(C). This is a disjunctive test: a claimant may establish paternity with clear and convincing evidence of either (1) open and notorious acknowledgment or (2) by the results of a genetic marker test. See Memorandum in Support of Legislation, New York State Assembly, (Assemb. B. A7899, 233rd Leg. (N.Y. 2010)) (hereinafter Memo to A7899).http://assembly.state.ny.us/leg/?default_fld=&bn=A07899%09%09&Summary=Y&Actions=Y&Votes=Y&Memo=Y&Text=Y).

In this case, the submitted DNA test results show a 99.99% probability of a parental relationship. These results would thus be considered clear and convincing evidence of paternity under N.Y. Est. Powers & Trusts Law § 4-1.2 (a)(2)(C). See N.Y. Fam. Ct. § 418(a) (court ordered DNA tests showing a ninety-five percent or greater probability of paternity create a rebuttable presumption of paternity); In re S~, 768 N.Y.S.2d 272, 275 (N.Y. Surr. Ct. July 03, 2003) (“99-100 percent scientifically acceptable certainty” of paternity “clearly meet[s] a ‘clear and convincing’ standard”). Legislative history accompanying the latest amendments to N.Y. Est. Powers & Trusts Law § 4-1.2(a)(2)(C) indicates that results of genetic marker tests will in most cases be dispositive. See Memo to A7899. Although unreliable testing methods or gaps in the chain of custody can preclude the DNA test results from constituting clear and convincing evidence of paternity, there is no indication of unreliability of gaps in the chain of custody in this case. See In re S~, 768 N.Y.S.2d at 275. The evidence presented in this case would therefore be sufficient for a New York court to find that claimant could inherit the NH’s personal property as his child under N.Y. Est. Powers & Trusts Law § 4-1.2(a)(2)(C).

CONCLUSION

Based on the foregoing, an adjudicator could find that the claimant is entitled to survivor benefits on the NH's account because he can inherit personal property from him under New York intestacy law. The effective date on which the claimant could inherit from NH is September 7, 2009.

Stephen P. Conte

Regional Chief Counsel

By: Joanne Jackson

Assistant Regional Counsel

Under New York intestacy law, a Family Court issued Order of Filiation finding that the NH was the claimant's father only permits a non-marital child to inherit from the estate if the order was issued during the father’s lifetime. In this case, however, the Surrogate Court issued a posthumous Kinship Order directing that the claimant was entitled to inherit. The order meets all prerequisites and SSA is bound by that decision.

Under current New York law, a child legitimated after birth is considered to be legitimate from birth. Accordingly, the claimant is considered to have a parent-child relationship with the deceased number holder since September XX, 2009, the child’s date of birth.

QUESTION PRESENTED

Whether Jonathan (the claimant), who was born after the death of number holder Jonathan (NH), is entitled to survivor's benefits as the child of the NH. If so, what is the effective date of paternity/legitimation?

OPINION

The claimant is entitled to survivor's benefits on the NH's account based on a posthumous Kinship Order which found that the child was entitled to inherit from the NH's estate under New York law. The order meets all four prerequisites of Social Security Ruling (SSR) 83-37c and thus, SSA is required to accept the state court's adjudication. The effective date of legitimation is September XX, 2009, the child's date of birth.

BACKGROUND^[1]

The NH died August XX, 2009, in Buffalo, NY. At the time of his death, the NH was engaged to Ingrid. Ingrid resided in B~, Ontario, Canada. On September XX, 2009, Ingrid gave birth to the claimant in H~, Ontario. The claimant's birth certificate listed the NH as his father.

At the time of his death, NH had another child, Joanna. Her mother is Mercedes .

Ingrid filed a paternity petition in New York State Family Court, Erie County. On November 24, 2009, the Family Court issued an order directing that DNA testing, using a preserved sample from the NH, be done to determine the NH's paternity. DNA results showed a 99.99% probability that the NH was the claimant's father. On December 15, 2009, the Family Court issued an Order of Filiation finding that the NH was the claimant's father.

Because the Family Court issued its filiation order months after NH's death, and New York intestacy laws provide that a non-marital child can inherit from his father only if the filiation order was made during the father's lifetime, Ingrid appeared at an evidentiary hearing on February 1, 2010, before New York State Surrogate's Court (Surrogate's Court) to determine the NH's paternity and the claimant's inheritance rights from NH's estate. N.Y. Est. Powers & Trusts Law (EPTL) §§ 4-1.2(a)(2)(A); 4-1.2(a)(2)(C). The following made appearances in the matter: an attorney for the Erie County Public Administrator; an attorney for Ingrid, an attorney for Joanna, the Guardian ad Litem for Joanna, and the Guardian ad Litem for the claimant. The Surrogate's Court found that the DNA test results clearly and convincingly established that the NH was the claimant's father. Based on testimony from a former colleague of the NH that the NH was "very excited" about his expected child, the Court further found that the NH had openly and notoriously acknowledged the claimant as his child well before the claimant was born. On February 2, 2010, the Surrogate's Court issued a Kinship Order declaring that NH was the claimant's father and that the claimant was entitled to inherit from NH's estate.

On December 22, 2009, Ingrid filed an application for child benefits on behalf of the claimant. The NH's other child, Joanna, is currently being paid Social Security Survivor Benefits on the NH's record. In the claim for Joanna, her mother - Joanna - mentioned that the NH had had a pregnant girlfriend at the time he died.

ANALYSIS

A. Kinship Order and Memorandum

SSA is bound by the Kinship Order and Memorandum holding that the NH is the father of the claimant and that the claimant is entitled as his son to inherit from the NH's estate pursuant to EPTL § 4-1.2(a)(2)(C). Pursuant to SSR 83-37c, although the Commissioner is not bound by the decision of a state trial court in a proceeding to which he was not a party, he is not free to ignore an adjudication of a state trial court where the following prerequisites have been 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. SSR 83-37c, adopting the holding of Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973).

Here, the Kinship Order meets all four prerequisites. Regarding prerequisite one, the judgment was issued by the Erie County Surrogate's Court, a State court of competent jurisdiction. The judgment satisfies the second prerequisite because it was contested before the state court by parties with opposing interests. Specifically, the attorney for Joanna, and the Guardian ad Litem for Joanna appeared during the proceedings and had interests that diverged from the interests of Ingrid and the claimant. Regarding prerequisite three, the issue of paternity falls within the general category of domestic relations law.

Finally, regarding prerequisite four, non-marital children may inherit from their father when "paternity has been established by clear and convincing evidence and the father of the child has openly and notoriously acknowledged the child as his own. EPTL § 4-1.2 (a)(2)(C). With respect to this section of the law, New York courts have generally allowed posthumous DNA testing to serve as "clear and convincing evidence." ^[2] As one court explained:

There is no basis in law or logic to exclude the results of posthumously conducted DNA tests on a decedent's genetic material from the category of "clear and convincing" evidence under EPTL § 4-1.2 (a)(2)(C). This is particularly true where the material is available without the drastic remedy of exhumation, comes from a reliable source, and is amenable to accurate testing. To hold otherwise would ignore the precision that DNA testing contributes to the paternity issue.

In re Estate of B~, 745 N.Y.S.2d 813, 815 (N.Y. Surr. Ct. 2002) (citations omitted); see also In re P~, 851 N.Y.S.2d 254, 260-61 (App. Div. 2d Dept. 2008) (discussing evolution of judicial interpretation of EPTL 4-1.2 (a)(2) and describing cases that allowed use of posthumous genetic marker testing as clear and convincing proof of paternity).

Open and notorious acknowledgment is established when the putative father openly acknowledged the child in his community. See In Re P~, 851 N.Y.S.2d at 264; see also Tumminia v. Savattere, 654 N.Y.S.2d 676_(N.Y. 2d Dept. 1997) (disclosure to friends and relatives); Matter of Anne R. v. Estate of Francis C., 651 N.Y.S.2d 539 (N.Y. 2d Dept. 1996) (case decided pursuant to open and notorious requirement for establishing paternity under Family Court Act; acknowledgment of paternity in the community in which the child lives); Matter of W~, 691 N.Y.S.2d 878_(Sur. Ct., N.Y. County 1999) (disclosure to family); cf. Matter of G~, 2002 WL 377024 (Sur. Ct., N.Y. County 2002) (statement made in confidence to spouse and one friend did not constitute open and notorious acknowledgement).

The open and notorious prong of the intestacy statute is a factual one. Examples of open and notorious acknowledgements have included the putative father's acknowledgement that he was the father of his girlfriend's unborn child to his mother, sister, grandmother, and the girlfriend's aunt. In re Estate of T~, 769 N.Y.S.2d 863, 865 (N.Y.Sur. 2003).

Here, the Kinship Order, which noted that posthumous DNA testing provided clear and convincing evidence of the NH's paternity and that the testimony of a witness satisfactorily established that the NH openly and notoriously acknowledged the claimant as his unborn child, is consistent with New York statutory and case law. Accordingly, SSA may not ignore the Kinship Order declaring that NH was the claimant's father and that the claimant was entitled to inherit from NH's estate. SSR 83-37c.

B. Effective Date of Legitimation

Under current New York law, a child legitimated after birth is considered to be legitimate from birth. POMS GN 00306.050; GN 00306.085.^[3] Further, a non-marital child is the legitimate child of his father so that he and his issue inherit from his father if paternity has been established by clear and convincing evidence and the father has openly and notoriously acknowledged the child as his own. EPTL§ 4-1.2(a)(2)(C); but see POMS GN 00306.575 (noting that EPTL § 4-1.2 only confers inheritance rights, not legitimacy). Therefore, in this case, because paternity has been established by clear and convincing evidence and the father openly and notoriously acknowledged the child as his own, the claimant is the legitimate child of his father and the effective date of legitimation is September 7, 2009, the claimant's date of birth. EPTL 4-1.2(a)(2)(C); POMS GN 00306.050; GN 00306.085.

CONCLUSION

Based on the foregoing, an adjudicator could find that the claimant is entitled to survivor benefits on the NH's account because he can inherit personal property from him under New York intestacy law. The effective date on which the claimant could inherit from NH is September XX, 2009.

Stephen P. Conte

Regional Chief Counsel

By: Joanne Jackson

Assistant Regional Counsel

In this case, we believe that a New York court would find that DNA test results showing a 99.98 percent probability of the claimant’s half siblingship with a known child of the deceased number holder, when combined with other evidence including statements showing that the deceased had openly acknowledged the child as his own prior to his death, would meet both the “clear and convincing” and “open and notorious” standards of New York intestacy law.

Alternatively, the evidence as listed does appear to clearly meet the requirements for entitlement under Section 216(h)(3)(C) of the Social Security Act.

QUESTION PRESENTED

Is Asia (Asia) the daughter of Winston (the NH) for purposes of Social Security survivor's benefits?

OPINION

We conclude that Asia is the daughter of the NH for purposes of Social Security survivor's benefits. Asia could inherit the NH's personal property under New York intestacy laws and, therefore, she is considered his child under section 216(h)(2)(A) of the Social Security Act (the Act). 42 U.S.C. § 416(h)(a)(A). Alternatively, an adjudicator could find that Asia is the NH's child under section 216(h)(3)(C)(ii) of the Act because the NH is shown by satisfactory evidence to be Asia's father and before he died, the NH was living with Asia's mother, who was pregnant with Asia. 42 U.S.C. § 416(h)(3)(C)(ii).

BACKGROUND

The NH died on May XX, 1996, in the State of New York. Asia was born five months later, on November. On February, Dionne, Asia's mother Dionne, filed a survivor's claim for Asia, alleging that Asia is the NH's child. This application was denied. On October 27, 2009, Dionne filed a new application. In support of her assertion that Asia is the NH's daughter, Dionne submitted the following:

• •

  A DNA test report from DNA Diagnostic Center using the genetic markers found in the testing of the alleged half-sibling, Meisha (Meisha). The test revealed a probability of 99.98% that Asia and Meisha are half-siblings. This DNA test was not court-ordered.

• •

  A statement dated October 27, 2009, from Dionne, asserting that the NH is the father of her child, that he had admitted orally that he was the father of her child, and that he bought her clothes and her food and took her to the prenatal clinic.

• •

  A statement dated December 7, 2009, from the NH's mother, Petrona

Petrona, reporting that (1) the NH was living with Dionne at the time of his death, (2) the NH acknowledged that Dionne was pregnant with his child, and (3) that the NH provided for all of Dionne's needs.

• •

  A statement dated December 16, 2009, from the NH's cousin, Patrick Foster, indicating that, before his passing, the NH had announced that Ms. McGregor, with whom he was living, was carrying his child.

• •

  An Order of Filiation by Default, dated November 19, 2009, from the Bronx Family Court, declaring the NH as the father of Asia. Petrona, as executrix of the NH's estate, consented to the allegations of Dionne's petition.

• •

  Child's Birth Certificate - the father's name is unlisted.

• •

  The NH's Death Certificate showing that he died in 1996, domiciled in New York.

• •

  A statement from Dionne on the current application, alleging that she was living with the NH before he died, she was three months pregnant with Asia when the NH died, that the NH knew she was pregnant and took her to prenatal care visits, and that the NH provided Dionne with food and clothing. Moreover, Dionnestated she was advised by the Judge who entered the Order of Filiation that the Order permits her to amend Asia's birth certificate, to name the NH as the father. Dionne stated that she will be making that change.

ANALYSIS

A. Entitlement Under Section 216(h)(2)(A) of the Act

The Social Security Act provides for payment of child's insurance benefits when an applicant meets eligibility criteria that are based in part on the relationship between the wage earner and the child. See Social Security Act § 202(d); see also 20 C.F.R. § 404.350(a). The Act further provides that in determining whether a claimant is the child of a deceased wage earner, the Commissioner is to apply the law that would be applied in determining the inheritance of intestate personal property (i.e. property not disposed of by a valid will) by the courts of the State in which the insured individual had his permanent legal residence at the time of his death. See

Social Security Act § 216(h)(2)(A); see also 20 C.F.R. § 404.355(b)(4). A claimant who would have the status of a child under applicable state intestacy laws will be granted that status in an application for benefits. Social Security Act § 216(h)(2)(A).

The relevant New York statute governing intestate succession provides that a non-marital child may inherit from her father where "a court of competent jurisdiction has, during the lifetime of the father, made an order of filiation declaring paternity..." N.Y. Est. Powers & Trusts Law (E.P.T.L.) § 4-1.2(a)(2)(A) (McKinney's 1998) (emphasis added).

Alternatively, New York State law provides that a non-marital child may inherit from her father where "paternity has been established by clear and convincing evidence and the father of the child has openly and notoriously acknowledged the child as his own." E.P.T.L. § 4-1.2(a)(2)(C) (McKinney's 1998) (emphasis added). Under that statute, both prongs—"clear and convincing" and "open and notorious"—must be proved. We address each section of the statute below.

1. Paternity Under Section 4-1.2(a)(2)(A): the Order of Filiation

Asia does not satisfy section 4-1.2(a)(2)(A) of the E.P.T.L. because the New York State Family Court Order of Filiation was not issued until after the death of Mr. Williams. See E.P.T.L. § 4-1.2(a)(2)(A) (McKinney's 1998); Grivas v. Port Authority of New York and New Jersey, 641 N.Y.S.2d. 646, 647 (N.Y. 1st Dept. 1996). Thus, she cannot establish a relationship with Mr. Williams under this section. We next consider whether she can establish her relationship with Mr. Williams under E.P.T.L. § 4-1.2(a)(2)(C).

2. Paternity Under Section 4-1.2(a)(2)(C): the "Clear and Convincing" and "Openand Notorious" Standards

We believe that Asia satisfies the two prongs of the requirements of E.P.T.L. § 4-1.2(a)(2)(C), the "clear and convincing" standard, and the "open and notorious" standard and, thus, would be entitled to inherit the NH's personal property under New York intestacy law.

a. "Clear and Convincing" Standard

The first prong of section 4-1.2(a)(2)(C) of New York State intestacy statute requires "clear and convincing" evidence of paternity. E.P.T.L. § 4-1.2(a)(2)(C). At least one New York court has stated that the clear and convincing standard required to satisfy the first prong of section 4-1.2(a)(2)(C) is "virtually the same" as that required to prevail in a posthumous paternity proceeding under the New York Family Court Act § 519(d). Grivas v. Port Authority of New York and New Jersey, 641 N.Y.S.2d 646 (N.Y. 1st Dept. 1996) (citations omitted) (concluding that while a posthumous Order of Filiation was insufficient by itself to establish a child's status as a qualified distributee of benefits, the Order of Filiation was proof of paternity sufficient to defeat a motion for summary judgment); see Charles for Charles v. Schweiker, 569 F.Supp. 1341, 1342 (D.C.N.Y. 1983) (stating, in dicta, that a posthumous order of filiation satisfies the clear and convincing standard of section 4-1.2(a)(2)(C)). Thus, we believe that a New York court would find that Asia would satisfy the "clear and convincing evidence" standard of

E.P.T.L. § 4-1.2(a)(2)(C) through reference to the posthumous Order of Filiation entered on

November 19, 2009.

In addition, we note that the DNA testing performed on Asia and her sister, which showed a probability of half-siblingship of 99.98%, lends additional support to Ms. McGregor's allegation of paternity. New York courts have generally allowed posthumous DNA testing conducted on the putative father to serve as "clear and convincing evidence." As one court explained:

There is no basis in law or logic to exclude the results of posthumously conducted DNA tests on a decedent's genetic material from the category of "clear and convincing" evidence under EPTL 4-1.2 (a)(2)(C). This is particularly true where the material is available without the drastic remedy of exhumation, comes from a reliable source, and is amenable to accurate testing. To hold otherwise would ignore the precision that DNA testing contributes to the paternity issue.

In re Estate of B~, 745 N.Y.S.2d 813, 815 (N.Y. Surr. Ct. 2002) (citations omitted); see also In re P~, 851 N.Y.S.2d 254, 260-61 (App. Div. 2d Dept. 2008) (discussing evolution of judicial interpretation of N.Y. Est. Powers & Trusts Law 4-1.2 (a)(2) and describing cases that allowed use of posthumous genetic marker testing as clear and convincing proof of paternity). Although in this case, the DNA testing was performed on a sibling rather than on the deceased putative father, we have found one case where the court ordered testing on a sibling to prove maternity. Estate of Lilian G~, 818 N.Y.S. 2d 747 (N.Y. Sur., Nassau Cty. 2006). The court did, however, acknowledge that

the success rate and conclusiveness of a siblingship test differs between different families and is dependent on the type of genetic markers that are found on the individuals tested. There is generally no method to tell in advance how conclusive the results will be, but in many cases the siblingship test can produce a conclusive determination

Estate of Lilian G~, 818 N.Y.S. 2d at 749. Given the reduced reliability of siblingship DNA tests that G~ acknowledged, we cannot conclude that a New York court would find that Asia has established paternity by clear and convincing evidence based solely on the DNA test conducted on Asia and Meisha. However, we believe that the DNA test, together with the Order of Filiation, do satisfy the clear and convincing evidence standard.

b. "Open and Notorious" Standard

Asia must next establish, in accordance with the second prong of E.P.T.L. § 4-1.2(a)(2)(C), that the NH "openly and notoriously" acknowledged her as his child. Open and notorious acknowledgment is established when the putative father openly acknowledged the child in his community. See In R~, 851 N.Y.S.2d 254, 264 (N.Y. 2d Dept. 2008); see also Tumminia v. Savattere, 654 N.Y.S.2d 676 (N.Y. 2d Dept. of Anne R. v. Estate of Francis C., 651 N.Y.S.2d 539 1997) (disclosure to friends and relatives)Matter ;(N.Y. 2d Dept. 1996) (case decided pursuant to open and notorious requirement for establishing paternity under Family Court Act; acknowledgment of paternity in the community in which the child lives); Matter of W~, 691 N.Y.S.2d 878 (Sur. Ct., N.Y. County 1999) (disclosure to family); cf. Matter of G~,

2002 WL 377024 (Sur. Ct., N.Y. County 2002) (statement made in confidence to spouse and one friend did not constitute open and notorious acknowledgement).

The open and notorious prong of the intestacy statute is a factual one. Examples of open and notorious acknowledgements have included the putative father's acknowledgement that he was the father of his girlfriend's unborn child to his mother, sister, grandmother, and the girlfriend's aunt. In re Estate of T~, 769 N.Y.S.2d 863, 865 (N.Y.Sur. 2003). In a case decided pursuant to the open and notorious requirement for establishing paternity under the Family Court Act, the court found open and notorious acknowledgement with the following: a letter from the alleged father to the mother stating, "I love you and our baby," a hospital record of consent to perform an operation on a child signed by a putative father, the signature of the putative father on a report card in the space indicated for the parent's signature, and a letter stating that he loved the mother of the child, and wanted to see the child at issue. Nadine O. v. Irene B., 648 N.Y.S. 2d 530, 533 (Fam. Ct. Niagara Cty. 1996). Other courts have concluded that the deceased putative father openly and notoriously acknowledged paternity where he requested that an acquaintance be a godfather to his child, attended the baby shower and thanked everyone for the gifts, was present at the delivery, attended every birthday party at which time the child called him "daddy," referred to the child as his daughter, and gave money towards her support. Anne R. v. Estate of Francis, 634 N.Y.S. 2d 339, 342 (Fam. Ct. Suffolk Cty. 1995) (case decided pursuant to open and notorious requirement for establishing paternity under Family Court Act). See Charles for Charles at 1342 (again, in dicta, court stated that decedent's repeated acknowledgements to the child's mother and to the decedent's mother and sister that child was his satisfied the open and notorious prong of section 4-1.2(a)(2)(C). Furthermore, in Matter of S~, N.Y.L.J., Feb. 6, 1996, at 27, the court considered evidence such as decedent's name on the birth certificate, acknowledgment by family members, and attendance at family functions.

Here, Dionne included letters from the NH's mother and cousin attesting that the NH knew that Dionne was pregnant with his child at the time he died. Specifically, Petrona stated that the NH acknowledged that Dionne was carrying his unborn child, that the NH and Dionne lived together, and that the NH furnished Dionne's needs. Patrick asserted that the NH was living with Dionne and that he announced Dionne was carrying his unborn child. We believe that this evidence is sufficient for a New York court to find that the NH had openly and notoriously acknowledged Asia as his unborn child prior to his death. Therefore, because a New York court would find that both prongs of N.Y. E.P.T.L § 4-1.2(a)(2)(C) have been met, we conclude that Asia is entitled to inherit the NH's personal property under New York law.

B. Alternative Entitlement under section 216(h)(3)(C) of the Act

Even if Asia cannot establish her relationship to the NH by section 216(h)(2)(A), we believe that she can do so by section 216(h)(3)(C)(ii) of the Act. The latter section provides that an applicant who is the son or daughter of a currently insured individual, but who is not (and is not deemed to be) the child of such insured individual under paragraph (2) of this subsection, shall nevertheless be deemed to be the child of such individual if - in the case of a deceased individual - such insured individual is shown by evidence satisfactory to the Commissioner of Social Security to be the father of the applicant, and such insured individual was living with or contributing to the support of the applicant at the time such individual died. 42 USC § 416(h)(3)(C)(ii); 20 C.F.R. § 404.355(a)(4); POMS GN 00306.100(B)(2); POMS GN 00306.285.

Here, we have evidence showing that Asia was the NH's child, namely, the Order of Filiation and the DNA testing. In addition, we have evidence showing that the NH was living with Dionne at the time he died, namely, the statements of Petrona, Patrick, and Dionne. Thus, section 216(h)(3)(C) of the Act provides another basis upon which to make a finding that Asia is the NH's child.

CONCLUSION

We conclude that Asia could establish her relationship as the child of the NH under section 216(h)(2)(A) or, in the alternative, under section 216(h)(3)(C) of the Act. Since the NH died while domiciled in New York, and Asia could inherit the NH's personal property under New York intestacy law, therefore, she is the NH's child for purposes of Social Security survivor's benefits. 42 USC § 416(h)(2)(A). In the alternative, because at the time of his death, the NH was living with Asia's mother, who was pregnant with Asia , Asia could establish that she is the NH's child under 42 USC § 416(h)(3)(C).

Stephen P. Conte

Regional Chief Counsel

By: Andreea Lechleitner

Assistant Regional Counsel

Provided that proof is or has been obtained confirming that the number holder died while a resident of New York, the proof in file along with the posthumous Orders of Filiation entered by New York Family Court and evidence that the number holder openly and notoriously acknowledged that the claimants were his children would be sufficient to determine that the children could inherit from him and are eligible for entitlement to child's benefits.

QUESTION PRESENTED

Are Shaliyah (Shaliyah), Aarron, Shamira and Larrell (Larrell) the children of Larry (the NH) for purposes of Social Security survivor’s benefits?

Opinion

We conclude that if the NH died while domiciled in New York, then Shaliyah, Shamira and Larrell could inherit the NH’s personal property under New York intestacy law and thus, are the NH’s children for purposes of Social Security survivor’s benefits.

BACKGROUND

The NH died September XX, 2008. The record does not discuss where the NH was domiciled at his death.

On October 9, 2008, Elthea (Elthea) filed survivors claim for her six children alleging they were the NH’s natural children:

Larry (Larry), date of birth October ;

Shakira (Shakira), date of birth December ;

Shamira, date of birth May;

L., date of birth February;

Shaliyah, date of birth September;

and Larrell, date of birth November 2004.

Elthea had sufficient proof of paternity for two of the six children, Larry and Shakira. Those claims were processed to an allowance; however, Shamira, Shaliyah and Larrell were denied for failure to establish a relationship to Larry. On November 14, 2008,

Elthea filed a second application for the denied children and submitted additional proofs of relationship obtained after the NH’s death. The Agency denied that application, as well. On April 22, 2009, Elthea visited the Field Office for an explanation of the denials. The Agency is now considering reopening of the denied claims and has requested an opinion on whether the evidence currently in the record meets the standard of proof for establishing paternity under New York intestacy laws.

The record contains the following evidence:

The NH’s January 6, 2006 application for disability insurance benefits, stating that he did not have any children under age 18.

October 24, 2008 letter from Diana, the Principal of P.S. 241 The Family Academy (P.S. 241), stating that the NH appeared at P.S. 241 on two occasions involving his children, once in 2005, when he attended a parent-teacher conference and once when he picked up a child in 2006.

Posthumous Orders of Filiation for Shamira, Shaliyah and Larrell filed on October 10, 2008, and entered on November 12, 2008, by the New York County, New York Family Court, New York, finding that the NH was the father of Shamira, Shaliyah and Larrell, who were born out of wedlock to Elthea .

Amended certificates of birth dated January, for Shamira, and Larrell listing Elthea as their mother and the NH as their father.

February 10, 2009 letter from James, a long-time friend of the NH stating that he is certain that the NH is the biological father of eight children, including Shamira, Shaliyah, and Larrell. February 12, 2009 letter from Elthea stating that the NH contributed to his children, Shamira, L., Shaliyah, and Larrell. In a second letter of the same date, Elthea states that she was the NH’s girlfriend for nineteen years, until his death on September XX, 2008, and that the NH took his children, Shamira, Shaliyah, and Larrell to his family reunion and stated that he was their father.

February 12, 2009 letter from Shirley , the sister of the NH, stating that Shamira, Shaliyah, and Larrell are her bother’s children and that her brother “never said or indicted [sic] in any form or fashion that any of the children by Elthea were not his.”

February 12, 2009 letter from Dr. Joel , stating that along with Elthea, the NH had accompanied his children, Shamira, Shaliyah, and Larrell, for their visits with Dr. F~ in the general pediatric practice at Mount Sinai Hospital.

February 13, 2009 letter from Diana , principal at P.S. 241, confirming that the NH came to P.S. 241 on two occasions, a parent-teacher conference in 2005 and to pick up a child in 2006. Diana also stated that Shamira, Shaliyah and Larrell were attending P.S. 241.

February 16, 2009 letter from Betty , the NH’s sister, stating that her brother always acknowledged that he was the father of all of Elthea’s children.

February 16, 2009 letter from Cassandra , stating that the NH stated that Shamira, Shaliyah, and Larrell were his children.

Child Relationship Statements completed February 18, 2009, stating that the NH’s children are Shamira, Shaliyah, and Larrell and stating that the NH listed each child in a family tree or other family record, that he registered the child in school or a place of worship or signed a report card as the child’s parent, that he took the child to a doctor’s or dentist’s office or to a hospital and listed himself as parent, that he had admitted to others orally that he was the parent of the child and that he was making regular and substantial contributions to the child’s support at the time he died.

ANALYSIS

Section 216(h)(2)(A) of the Social Security Act (Act) provides that in determining whether a claimant will be deemed the surviving child of an insured individual, the Commissioner shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which the insured wage-earner was domiciled at the time of his death. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(4).

The relevant New York statute governing intestate succession provides that a non-marital child may inherit from his father where “a court of competent jurisdiction has, during the lifetime of the father, made an order of filiation declaring paternity…” N.Y. Est. Powers & Trusts Law (E.P.T.L.) § 4-1.2(a)(2)(A) (M~ 1998) (emphasis added).

Alternatively, New York State law provides that a non-marital child may inherit from his father where “paternity has been established by clear and convincing evidence and the father of the child has openly and notoriously acknowledged the child as his own.” E.P.T.L. § 4-1.2(a)(2)(C) (M~’s 1998) (emphasis added). Under that statute, both prongs — “clear and convincing” and “open and notorious” — must be proved. We address each section of the statute below.

1. Paternity Under Section 4-1.2(a)(2)(A): the Order of Filiation

Shaliyah, Shamira and Larrell do not satisfy section 4-1.2(a)(2)(A) of the E.P.T.L. because the New York State Family Court Orders of Filiation were not issued until after the death of Larry. See E.P.T.L. § 4-1.2(a)(2)(A) (M~’s 1998); , 641 N.Y.S.2d. 646, 647 (N.Y. 1st Dept. 1996). Thus, they can not establish a relationship with Larry under this section. We next consider whether Shaliyah, Shamira and Larrell can establish their relationship with Larry under E.P.T.L. § 4-1.2(a)(2)(C). 2.

Paternity Under Section 4-1.2(a)(2)(C): the “Clear and Convincing” and “Open and Notorious” Standards

We believe that Shaliyah, Shamira and Larrell satisfy both prongs of the requirements of E.P.T.L. § 4-1.2(a)(2)(C), the “clear and convincing” standard, and the “open and notorious” standard, and thus would be entitled to inherit the NH’s personal property under New York intestacy law

“Clear and Convincing” Standard

The first prong of section 4-1.2(a)(2)(C) of New York State intestacy statute requires “clear and convincing” evidence of paternity. E.P.T.L. § 4-1.2(a)(2)(C). At least one New York court has stated that the clear and convincing standard required to satisfy the first prong of section 4-1.2(a)(2)(C) is “virtually the same” as that required to prevail in a posthumous paternity proceeding under the New York Family Court Act § 519(d). Grivas v. Port Authority of New York and New Jersey, 641 N.Y.S.2d 646 (N.Y. 1st Dept. 1996) (citations omitted) (concluding that while a posthumous Order of Filiation was insufficient by itself to establish a child’s status as a qualified distributee of benefits, the Order of Filiation was proof of paternity sufficient to defeat a motion for summary judgment); see Charles for Charles v. Schweiker, 569 F.Supp. 1341, 1342 (D.C.N.Y. 1983) (stating, in dicta that a posthumous order of filiation satisfies the clear and convincing standard of section 4-1.2(a)(2)(C)). Thus, we believe that a New York court would find that the children would satisfy the “clear and convincing evidence” standard of E.P.T.L. § 4-1.2(a)(2)(C) through reference to the posthumous Orders of Filiation entered into on November 12, 2008.

B. “Open and Notorious” Standard

Shaliyah, Shamira and Larrell must next establish, in accordance with the second prong of E.P.T.L. § 4-1.2(a)(2)(C), that the wage earner “openly and notoriously” acknowledged them as his children. Open and notorious acknowledgment is established when the putative father openly acknowledged the child in his community. See In Re P~, 851 N.Y.S.2d 254, 264 (N.Y. 2d Dept. 2008); see also Tumminia v. Savattere, 654 N.Y.S.2d 676 (N.Y. 2d Dept. 1997) (disclosure to friends and relatives); Matter of Anne R. v. Estate of Francis C., 651 N.Y.S.2d 539 (N.Y. 2d Dept. 1996) (case decided pursuant to open and notorious requirement for establishing paternity under Family Court Act; acknowledgment of paternity in the community in which the child lives); Matter of W~, 691 N.Y.S.2d 878 (Sur. Ct., N.Y. County 1999) (disclosure to family); cf. Matter of G~, 2002 WL 377024 (Sur. Ct., N.Y. County 2002) (statement made in confidence to spouse and one friend did not constitute open and notorious acknowledgement).

The open and notorious prong of the intestacy statute is a factual one. Examples of open and notorious acknowledgements have included the putative father’s acknowledgement that he was the father of his girlfriend’s unborn child to his mother, sister, grandmother, and the girlfriend’s aunt. In re Estate of T~, 769 N.Y.S.2d 863, 865 (N.Y.Sur. 2003). In a case decided pursuant to the open and notorious requirement for establishing paternity under the Family Court Act, the court found open and notorious acknowledgement with the following: a letter from the alleged father to the mother stating, “I love you and our baby,” a hospital record of consent to perform an operation on a child signed by a putative father, the signature of the putative father on a report card in the space indicated for the parent’s signature, and a letter stating that he loved the mother of the child, and wanted to see the child at issue. Nadine O. v. Irene B., 648 N.Y.S. 2d 530, 533 (Fam. Ct. Niagara Cty. 1996). Other courts have concluded that the deceased putative father openly and notoriously acknowledged paternity where he requested that an acquaintance be a godfather to his child, attended the baby shower and thanked everyone for the gifts, was present at the delivery, attended every birthday party at which time the child called him “daddy,” referred to the child as his daughter, and gave money towards her support. Anne R. v. Estate of Francis, 634 N.Y.S. 2d 339, 342 (Fam. Ct. Suffolk Cty. 1995) (case decided pursuant to open and notorious requirement for establishing paternity under Family Court Act). See Charles for Charles at 1342 (again, in dicta, court stated that decedent’s repeated acknowledgements to the child’s mother and to the decedent’s mother and sister that child was his satisfied the open and notorious prong of section 4-1.2(a)(2)(C). Furthermore, in Matter of S~, N.Y.L.J., Feb. 6, 1996, at 27, the court considered evidence such as decedent’s name on the birth certificate, acknowledgment by family members, and attendance at family functions.

Here, Elthea included letters from the NH’s sisters and friends attesting that the NH was the father of Shaliyah, Shamira and Larrell. Letter from James (February 10, 2009); letter from Shirley (February 12, 2009); letter from Betty (February 16, 2009); letter from Cassandra (February 16, 2009). Principal Diana stated that “[the NH] did appear at P.S. 241 on two occasions involving his children…One occasion was when he attended a Parent-Teacher Conference in 2005, and on the second occasion, he picked up a child in 2006.” Letter from Diana to SSA (October 24, 2008); letter from Diana to SSA (February 13, 2009). Lastly, Joel MD, stated that “[the NH] has accompanied his children…for their visits with me in the general pediatric practice at Mount Sinai Hospital along with their mother, Elthea.” Letter from Joel MD (February 12, 2009).

We believe that this evidence is sufficient for a New York court to find that the NH had openly and notoriously acknowledged Shaliyah, Shamira and Larrell as his children prior to his death. Therefore, because a New York court would find that both prongs of N.Y. E.P.T.L § 4-1.2(a)(2)(C) have been met, Shamira, Shaliyah, and Larrell are entitled to inherit the NH’s personal property under New York law.

CONCLUSION

We conclude that if the NH died while domiciled in New York, then Shaliyah, Shamira and Larrell could inherit the NH’s personal property under New York intestacy law and thus, are the NH’s children for purposes of Social Security survivor’s benefits.

Stephen P. Conte

Acting Regional Chief Counsel Region II

By: Lauren D. Chait

Assistant Regional Counsel

In this case, a claimant who was declared by a New York Family Court Order of Filiation to be the child of another man cannot inherit from our number holder's estate despite the fact that the NH was married to the claimant's mother at the time of birth. As such, that child cannot be entitled under Section 216(h)(2) of the Act. The Lord Mansfield Rule does not apply in New York when Orders of Filiation are involved.

Additionally, the claimant cannot qualify under Section 216(h)(3) of the act because there is no evidence that any one of the following took place:

(1) the NH acknowledged in writing that the Claimant was his child,

(2) court decreed the NH to be Claimant's father,

(3) the NH was ordered to contribute to Claimant's support, or;

(4) the NH was living with, or contributing to, the Claimant's support at the time the application for benefits was filed.

Question

Whether the Order of Filiation declaring that Tyler (Tyler) is Kaylin (Kaylin/Claimant) father, entitles Kaylin to benefits on the record of Evan (Evan, number holder, or NH), where Evan was married to Kaylin's mother at the time of Kaylin's birth?

Opinion

Based on the documents presented to the Agency, the Order of Filiation provides that Tyler is Kaylin's father and as such, Kaylin is not the "child" of Evan for purposes of qualifying for child's benefits on Evan's account.

Facts

Kathleen (Kathleen) and Evan (Evan) were married in 1993.

Kaylin was born in 1998. Kaylin's birth certificate, issued March XX, 1998, listed her parents as Kathleen and Evan, or the NH.

In June 1998, genetic test results revealed that "Tyler is not excluded as the biological father of the child, Kaylin. Based on genetic testing results obtained by FLRP analysis (DNA Probes), the probability of paternity is 99.7%."

On December 4, 2003, an Order of Filiation was issued by the Kings County, New York Family Court declaring that Tyler is Kaylin's father. Tyler did not appear before the court to show cause why the declaration of paternity should not be made. The court based the Order of Filiation on an "inquiry of the facts and circumstances of the case and after hearing the proofs and testimony offered."

On January XX, 2004, Evan and Kathleen were divorced.

A January XX, 2004, Order of Support issued by the Kings County, New York Family Court declares that Tyler is chargeable with the monthly financial support of Kaylin. Tyler was present before the Court and admitted that he was chargeable with Kaylin's support.

Subsequently, on July XX, 2004, an amended birth certificate was issued by Nassau County reflecting Kaylin's parents as Tyler and Kathleen.

In October 2007, Kathleen filed an application for Child's Benefits on Kaylin's behalf and on Evan's record.

Evan and Kathleen are New York State residents.

Discussion

To qualify for child's benefits on the earnings record of an insured individual, a claimant must be the "child" of the insured individual. See Social Security Act (Act) § 202(d)(1), 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a)(2008). "Child" includes the natural child of an insured individual. See Act § 216(e), 42 U.S.C. § 416(e); 20 C.F.R. § 404.355(2008). Generally, a claimant's status as the child of the number holder is governed by either section 216(h)(2)(A) of the Act or section 216(h)(3) of the Act. Here, the Claimant cannot establish she is the child of the NH under either provision.

Section 216(h)(2)(A) of the Act requires a showing that the Claimant could inherit the NH's personal property as his child under the intestacy laws of the state where the NH was domiciled at the time of the application. See Act § 216(h)(2)(A); 20 C.F.R. §§ 404.355(a)(1), (b)(1), (4) (2008). Because the NH in this case was domiciled in New York at the time of the application, the question is whether the Claimant would be considered the NH's child for purposes of intestate succession under New York law.

New York State follows the Lord Mansfield Rule, an English common-law evidentiary rule, which prohibits the use of the testimony of either a husband or wife to non-access to rebut the presumption of legitimacy of a child born within their marriage. POMS GN 00306.026. However, the Lord Mansfield Rule is not followed during a Family Court proceeding to establish paternity that results in an Order of Filiation. Family Court Act § 531. See State of New York ex rel H v. P., 90 A.D.2d 434 (December 30, 1982) (Section 531 of the Family court Act is statutory exemption to the Lord Mansfield Rule). Here, the Family Court issued an Order of Filiation indicating that Tyler is Kaylin's father. Therefore, under New York State law, although Kaylin was born during the mother's marriage to Evan, she falls within the definition of "non-marital child."

Pursuant to N.Y. E.P.T.L. § 4-1.2(a)(2)(A), a non-marital child is the legitimate child of his father so that he and his issue can inherit from his father and his paternal kindred, if a court of competent jurisdiction has, during the lifetime of the father, issued an order of filiation declaring paternity. Here, because the order of filiation declared that Tyler is Kaylin's father, under New York law, Kaylin could not inherit Evan's personal property under New York's intestacy laws.

To establish child status under section 216(h)(3) of the Act, Claimant must show she was the NH's daughter and show one of the following: (1) the NH acknowledged in writing that the Claimant was his daughter, (2) a court decreed the NH to be Claimant's father, (3) the NH was ordered to contribute to Claimant's support, or (4) the NH was living with, or contributing to, the Claimant's support at the time the application for benefits was filed. See Act § 216(h)(3); 20 C.F.R. §§ 404.355(a)(3), (4)(2008). See also, POMS GN 00306.11B.1. The Claimant has not presented any evidence to satisfy these criteria.

In this case, there is an amended birth certificate showing that Tyler, and not Evan, is Kaylin's father.1 Further, the Family Court issued an order of filiation declaring that Tyler is Kaylin's father and also ordered Tyler to contribute to Kaylin's support. In addition, there is no evidence that Evan was contributing to Kaylin's support (and, in fact, the divorce judgment orders him to support another child and does not mention Kaylin). Accordingly, Kaylin is not eligible for benefits on Evan's account under 216(h)(3).

Mary A. Sloan

Acting Regional Chief Counsel

By: Sixtina Fernandez

Assistant Regional Counsel

In New York, in a case where the claimant was born seven months after the number holder's accidental death, the court would find that DNA testing by a properly certified laboratory on the claimant, his mother, and the NH's parents showing 99.999 percent likelihood that the NH was the father to be clear and convincing evidence of paternity.

Since evidence that the number holder "openly and notoriously" acknowledged the claimant as his child prior to his death, both elements needed to establish a parent-child relationship under New York state law are met.

I. Question Presented

You requested a determination of the sufficiency of documentation to establish paternity for a posthumously born, non-marital child.

II. Opinion

On the facts presented, it is our opinion that the child is eligible for survivor benefits on the wage-earner's account. The evidence is sufficient under New York State case law applicable to the inheritance rights of posthumous children to establish that the wage-earner openly and notoriously acknowledged the child. Further, DNA testing established a 99.99% probability of paternity, thus providing clear and convincing evidence that the child is the child of the wage-earner.

III. Summary of Facts

The wage-earner, John II ("John II") died on February XX, 2007. Nicholas ("Nicholas") was born thereafter on September. Elizabeth ("Elizabeth"), Nicholas's mother, filed an application on behalf of Nicholas for survivor benefits based upon the account of the number holder on September 27, 2007 which was denied because Elizabeth had failed to show John II's relationship to the child. Elizabeth filed for reconsideration on November 16, 2007.

In support of Elizabeth's request for reconsideration, she obtained affidavits from two of John II's relatives stating that the wage earner had acknowledged his paternity of Nicholas to them separately. One affidavit, dated November 16, 2007, is signed by Joy , the paternal grandmother of John. The other is signed by John, John's father. The affidavits state the following facts:

John and Elizabeth had been dating at least as far back as November, 2006 and lived together until December, 2006 or early January, 2007. At some point in January, John II and Elizabeth broke up, and each went to live with his own family.

In January, John II went to see his grandmother Joy and told her that Elizabeth was pregnant and that he would be a dad. John II told his grandmother: "Don't be mad at me."

In January, when the couple had broken up, John II went to his father (John I), told his father that Elizabeth was pregnant and that he (John II) was the father. Since John II was no longer living with Elizabeth, he asked his father for advice on gaining custody of his unborn child.

John II was in a car accident on January XX, and died on February XX, 2007, without regaining consciousness. Nicholas was born on September. Counsel for Elizabeth, on behalf of Nicholas, is asserting that Nicholas is entitled to survivor benefits under New York State law, specifically E.P.T.L. 4-1.2(a)(2)(C).

In order to help establish John as Nicholas's father, Elizabeth, Nicholas, and both of John's parents submitted to DNA testing at a laboratory certified by the New York State Department of Health, which determined the probability that John was the father of Nicholas to be 99.999%.

IV. Legal Analysis

An posthumous child may be eligible for Social Security survivor benefits on the earnings record of a deceased number holder if the child could inherit the number holder's property under the intestacy laws of the state in which the number holder was domiciled at the time of his death. See §216(h)(2)(A) of the Act; 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1). Therefore, to be eligible for survivor benefits on John's social security account, Nicholas must be able to inherit John's personal property as his child under New York State inheritance law.

The relevant New York statute governing intestate succession provides that a non-marital child may inherit from his father "where paternity has been established by clear and convincing evidence and the father of the child has openly and notoriously acknowledged the child as his own." N.Y. E.P.T.L. 4-1.2(a)(2)(C) (M~ 1998) (emphasis added). Under that statute, both prongs, i.e. clear and convincing and open and notorious, must be proved. In re W~, N.Y.L.J., Dec. 17, 1996 at 29 (N.Y. Surr. Ct. 1996).

a. Open and Notorious Acknowledgement

New York Appellate Court has held that when attempting to prove paternity under E.P.T.L. 4-1.2 (a)(2)(C), an applicant must first make a showing of some evidence of the open and notorious acknowledgement, prior to the administration of DNA testing which could cause needless delay, expense, and embarrassment. Matter of P~, 851 N.Y.S.2d 254 (partially overruling In re D~, 812 N.Y.S.2d 543, which had set up a more exacting standard). Here, the DNA testing has already been conducted; the clear and convincing portion of the statute's requirement is addressed below.

The evidence provided with this application meets the standard for open and notorious acknowledgement under the relaxed standard for posthumously-born children. In re Estate of T~, 769 N.Y.S.2d 863, 865 (N.Y. Surr. Ct. 2003). Typical examples of open and notorious acknowledgments do not apply in this case since John died before Nicholas was born. In T~, the court held that where the decedent did " all that he might be expected to do to openly and notoriously acknowledge that he was the father," the test may be satisfied. Id. at 865. T~'s acknowledgments included telling his mother, sister and grandmother that he could be the father of the child. Id. (contrasting the facts before the court with Matter of W~, 707 N.Y.S.2d 774, where a surrogate's court refused to find open and notorious acknowledgment when the only testimony before the court was from the child's mother, which the court found "suspect and self-serving"). The court so found even though the decedent initially had reservations about his paternity of the unborn child. T~, at 865.

Here, Elizabeth offers statements from the John's grandmother, Joy, and John's father, John I, that the John acknowledged Nicholas as his child prior to John's death. Given the relatively low burden of proof articulated by the court in T~, we conclude that this evidence is sufficient under current New York State law to establish that John openly and notoriously acknowledged Nicholas.

b. Clear and Convincing Evidence of Paternity

The first prong of the section 4-1.2(a)(2)(C) of New York State intestacy statute requires clear and convincing evidence of paternity. E.P.T.L. 4-1.2(a)(2)(C) (M~1998). As explained below, DNA evidence may be used to satisfy that standard if certain conditions are met.

Since DNA testing confers great persuasive power and is such a complex procedure, the testing must be governed by the highest standards of scientific rigor. Barbara A. W~ v. David WY., 701 N.Y.S.2d 845, 849 (NY. Fam. Ct. 1999). A New York statute allows for automatic admissibility of DNA evidence that was court ordered, performed by an authorized laboratory, if the laboratory is authorized by the Commissioner of the New York State Department of Health to conduct DNA testing and certified or authenticated by the head of the laboratory. C.P.L.R. 4518(d)-(e); see Barbara , 701 N.Y.S.2d at 849. It is presumed that DNA testing conducted pursuant to a court order and properly certified complies with the appropriate New York Department of Health compliance standards. A DNA test conducted according to the requirements of section 4518(d) and which shows a probability of relatedness of at least 95%, establishes a rebuttable presumption of paternity. C.P.L.R. 4518(d).

In the absence of a court order, evidence must be provided to show how the DNA testing was conducted and that the DNA test results were reliably obtained. See Barbara, 701 N.Y.S.2d at 849; Beaudoin v. David R. 543 N.Y.S.2d 557, (N.Y. App. Div. 1989) (a test, properly certified under the provisions of C.P.L.R., requires no further foundational basis).

The DNA test results in this case do not meet the standards for a presumption of paternity since the DNA test does not appear to have been conducted pursuant to a court order. See N.Y. C.P.L.R. 4518(d). Nevertheless, the results of the DNA test should be considered. Secondly, we note that the DNA testing was not performed on the wage-earner, but rather on Elizabeth, Nicholas and John II's parents. The test established a 99.999% probability that John II was Nicholas's father. Because John II died unexpectedly, the DNA test was not performed during his lifetime. Relevant case law has upheld the use of this method of testing (using the decedent's parents to establish familial relationships. Estate of W~, 707 N.Y.S.2d 774, 778 (N.Y. Surr. Ct. Jan. 3, 2000); Estate of S~, 612 N.Y.S.2d 756, 757-59 (N.Y. Surr. Ct. Apr. 26, 1994).

In S~, a non-marital (putative) child of the testator sought to take by intestacy pursuant to E.P.T.L. 4-1.2(a)(2)(C). To disprove paternity, the executors of Mr. S~'s estate sought to test the child, mother and the decedent's two living parents. The court found that such evidence would be probative of the matter and ordered the testing. Id. At 958. The court in W~ cited S~ for the proposition that "posthumous testing of Decedent's collateral living relatives" is authorized under the E.P.T.L. and expanded the permissible use of such testing from E.P.T.L. 4.1-2(a)(2)(C) to include part (D) as well.

Proper certification requires a certification by the head of the laboratory who administered the DNA (or a delegate) and accreditation by the New York State Department of Health. A commentator has suggested that the certification must also demonstrate the foundational elements of C.P.L.R. 4518(a), namely that he report was made in the regular course of the organization operations at or about the time of the test in question. Vincent , Supplemental Practice Commentaries, N.Y. C.P.L.R. 7B, 57 (M~ 2004) (citing People v. Mertz, 497 N.E.2d 657, 663 (N.Y. Ct. App. 1984)). Both of those certification elements are met here.

Therefore, in this case, the DNA test provides clear and convincing evidence of paternity, thus meeting the first prong of E.P.T.L. 4.1-2(a)(2)(c).

Conclusion

We conclude that the evidence is sufficient to establish that John II openly and notoriously acknowledged Nicholas. Further, the DNA test results show a very high probability of paternity, sufficient to provide clear and convincing evidence of paternity.

In determining whether a child was legitimate such that he was entitled to inherit from his father’s estate, New York State courts would consider the law of the State in which the legitimating acts occurred. In a case where after a child’s birth in Tennessee, the child’s mother and the deceased number holder married and the deceased signed a Voluntary Acknowledgment of Paternity; New York State courts would uphold the acknowledgement as a legitimating act under Tennessee law and recognize the child as the legitimate son of the wage earner. This is true despite subsequent DNA testing disproving the number holder’s paternity.

Additionally, even if the child was found not to be a legitimate child under Tennessee law, he would likely still be able to inherit from the deceased under New York State law. Under relevant New York State law, a non-marital child may inherit from his father’s estate when “a court of competent jurisdiction has, during the lifetime of the father, made an order of filiation declaring paternity…”. In this case, the Juvenile Court of the State of Tennessee had entered an order of paternity establishing that the deceased was the father.

This office is responding to your inquiry regarding whether Jerry (“Jerry”) can establish a relationship with Bret (“wage-earner”) under New York State law such that Jerry would be entitled to child’s benefits on Bret’s account. We conclude that if Bret died while domiciled in New York, then under New York State law, Jerry would qualify for benefits on Bret’s record.^[4]

Summary of Facts

Jerry was born on April to Victoria (a/k/a Victoria). The wage-earner was listed as Jerry’s father on his birth certificate. On the following day, the wage-earner signed a Voluntary Acknowledgment of Paternity. On June 4, 1997, the Juvenile Court of the State of Tennessee entered an order of paternity establishing that the wage-earner was Jerry’s father. Victoria and the wage-earner were married five months later on November XX, 1997; they divorced on December XX, 2000. The divorce decree ordered the wage-earner to pay child support in accordance with Tennessee state law. DNA testing, performed on July XX, 2001 pursuant to the requirements of New York state law, showed that Jerry was not the biological child of the wage-earner.

The wage-earner died on November XX, 2003. Victoria has filed for child’s benefits on the wage-earner's account. She acknowledges that Jerry was not the biological child of the wage-earner. Victoria has alleged that Jerry was conceived as a result of a rape and that Jerry’s biological father is unknown.

Legal Analysis

Section 216(h)(2)(A) of the Social Security Act (“Act”) provides that in determining whether a claimant will be deemed the surviving child of an insured individual, the Commissioner shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which the insured wage-earner was domiciled at the time of his death. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(4).

Under New York State law, a legitimate child of a man is entitled to inherit from his estate pursuant to N.Y. EST. POWERS & TRUSTS LAW (“E.P.T.L.”) § 4-1.1 (M~’s 1998). In determining whether Jerry was legitimate such that he was entitled to inherit from his father’s estate, New York State courts would consider the law of the state in which the legitimating acts occurred. Estate of B~, 432 N.Y.S.2d 78, 79-80 (N.Y. Sur. 1980); Estate of O~, 383 N.Y.S.2d 502, 504 (N.Y. Sur. 1976). Here, Jerry’s birth, the Acknowledgement and Order of Paternity, and the wage-earner’s marriage to Victoria were all acts that occurred in Tennessee.

Under the Tennessee state law in effect as of June 4, 1997, ^[5] a non-marital child is legitimated as if born in lawful wedlock for the purposes of inheritance if an acknowledgement of paternity had been executed pursuant to Tennessee law. TENN. CODE ANN. § 36-2-206 (1996). Since the wage-earner properly executed an acknowledgement of paternity under Tennessee law, Jerry was legitimate child of the wage-earner and was entitled to inherit his property.

Moreover, even if that is not the case, we believe Jerry was also legitimated under the new law by the subsequent marriage of the wage-earner and his mother. As of July 1, 1997, section 36-2-304 of the Tennessee code provides that an illegitimate child is legitimized if his parents marry after his birth and the father acknowledges the child as his. TENN. CODE ANN. § 36-2-304. The wage earner and Ms. B~ married on November XX, 1997 and the wage-earner acknowledged paternity. Accordingly, applying the new Tennessee law, New York courts would recognize Jerry as the legitimate child of the wage-earner.

However, even if Jerry was found not to be a legitimate child under Tennessee law, he would likely still be able to inherit from the wage-earner under New York State law. Under relevant New York State law, a non-marital child may inherit from his father’s estate when “a court of competent jurisdiction has, during the lifetime of the father, made an order of filiation declaring paternity…” N.Y. EST. POWERS & TRUSTS LAW (“E.P.T.L.”) § 4-1.2(a)(2)(A) (M~’s 1998). Here, Tennessee State Juvenile Court entered an order of paternity on June XX, 1997 while the wage-earner was still alive. ^[6]

Subsequent DNA testing, which showed that Bret was not Jerry’s biological father, would not prevent Jerry from inheriting the wage-earner’s estate either under Tennessee or New York state law. The Tennessee order of paternity is still in effect. Additionally, no court has issued an order delegitimating Jerry subsequent to the marriage of his mother and the wage earner. As far as we are aware, no judicial or legislative action has disturbed Jerry's status as a legitimate child of the wage earner. Further, while DNA evidence could be used to rebut the presumptions of parentage under Tennessee state law, the courts have recognized that public policy should try to make a person legitimate rather than illegitimate. Evans v. Young, 299 S.W. 218 (Tenn. 1957); see Crawford v. Cihlar, 39 S.W.3d 172, 185-86 (Tenn. 2001) (DNA testing could rebut the presumption of parentage that a child born to married woman is the child of the woman’s husband). Given that Jerry’s biological father is unknown and that Victoria’s pregnancy was the result of rape, it is unlikely that the courts in either New York or Tennessee would delegitimate Jerry. Hammack v. Hammack, 291 A.D.2d 718, 720 (N.Y. App. Div. 2002) (The best interests of a child are generally served by maintaining their legitimacy.); see Roth v. Evangelista, 248 A.D.2d 369, 370 (N.Y. App. Div. 1998) (blood tests, which had the potential to brand the child illegitimate without settling the issue of paternity, were clearly not in the best interest of the child.); Evans v. Young, 299 S.W. 218 (Tenn. 1957).

Conclusion

As noted, we believe that Jerry is a legitimate child of the wage-earner and is entitled to inherit under N.Y. E.P.T.L. § 4-1.1. In the alternative, we believe that the order of filiation in this matter has established that the wage-earner is the father of Jerry under N.Y. E.P.T.L. § 4-1.2(a)(2)(A) such that Jerry may inherit from his father. Subsequent DNA testing which shows that the wage-earner was not Jerry’s father would not change that result. Consequently, we believe that Jerry is entitled to child’s benefits under section 216(h)(2)(A) of the Social Security Act, 42 U.S.C. 416(h)(2)(A).

Very truly yours,

BARBARA L. Spivak

Chief Counsel, Region II

By: Margaret A. Donaghy

Assistant Regional Counsel

In New York, in a case where a court of competent jurisdiction did not, during the lifetime of the deceased number holder, make an order of filiation declaring paternity; where the deceased did not openly and notoriously acknowledged the child as his own and where the only other evidence in file is the Petition to Vacate Acknowledgment of Paternity by another individual, DNA testing results showing a 99.99% probability that the number holder is the claimant's father is not sufficient by itself to establish a parent-child relationship.

I. Opinion

We are responding to your inquiry with respect to whether the results of a DNA test performed to establish paternity for another child along with "other evidence" can be used in New York State to establish paternity for MaKenna , alleged by Nicole to be the child of Joseph ("wage earner"). Our answer is that because New York Courts would not grant a paternity determination on this record, the application should be denied.

II. Factual Background

MaKenna was born in New York on April. The wage earner died in New York, his place of domicile, on July XX, 2004.

Trevor was believed by Nicole to be MaKenna's father. However, on March 3, 2004 he filed a petition to vacate acknowledgement of paternity. The Family Court of Franklin County granted the petition on November 29, 2004 based on a DNA test which excluded Trevor as the father of MaKenna.

On August 10, 2005, Nicole filed an affirmation of paternity in Family Court claiming the wage earner as the father of MaKenna. She and the wage earner were not married. Also on August 10, 2005, Nicole asked LabCorp of North Carolina to use DNA specimens previously collected from the wage earner on June 14, 2004, and collected from Nicole and MaKenna on September 21, 2004, to determine if the wage earner could be identified or excluded as MaKenna's father. The letter from the Franklin County Department of Social Services requesting the test claims to have attached a letter from the estate of the wage earner agreeing to the use of the wage earner's previously collected DNA specimen.

A report from LabCorp dated September 13, 2005 states that the DNA test showed that the probability that the wage earner was the father of MaKenna is 99.99%.

Nicole filed an application for Survivor's Benefits on behalf of her daughter, MaKenna, on December 21, 2005. As proof of paternity, MaKenna submitted the DNA test that concluded it was 99.99% probable that the wage earner was MaKenna's father.

In a child relationship statement obtained from Nicole, she reported that the wage earner was never decreed by a court to be MaKenna's parent and was never ordered to contribute to MaKenna's support. Nicole answered "no" to all of the other questions, including that the wage earner never admitted orally or in writing that he was the father of MaKenna. Nicole stated that there was an "order" to have paternity testing done and noted the results of the DNA test. However, Makenna's attorney, Thomas, told Tina of the Oneonta District Office on February 2, 2006 that there was never a court order to conduct the paternity testing because the wage earner's estate voluntarily approved the request for the testing.

III. Legal Analysis

A. Social Security Act - Child Insurance Benefits

The Social Security Act ("Act") provides for payment of child's insurance benefits where a child is unmarried, under 18 years of age, and dependent upon the deceased wage earner at the time of his death. Act § 202(d); 20 C.F.R. § 404.350(a). Section 216(h)(2)(A) of the Act provides that in determining whether a claimant is the child of a deceased wage earner, the Commissioner applies the law that would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual was domiciled at the time of his death. See also 20 C.F.R. § 404.355(b)(4). We have applied the law of New York because you have provided a copy of the wage earner's death certificate showing that he was domiciled in New York at the time of his death. However, we note initially that there is no evidence in the file you provided showing that MaKenna was at any time dependent upon the wage earner. Thus, in order to be entitled to child's insurance benefits, it must be established that MaKenna meets the SSA dependent standards. See 20 C.F.R § 404.360 to 361.

B. New York Law Regarding Paternity Determinations Based on DNA Tests

There are several ways under New York State law that paternity can be established:

a. E.P.T.L. 4-1.2(a)(2)(A): Court Orders Declaring Paternity

In New York, non-marital children may inherit from their father when "a court of competent jurisdiction has, during the lifetime of the father, made an order of filiation declaring paternity…" N.Y. Est. Powers & Trusts Law 4-1.2 (a)(2)(A). There is no court order of filiation declaring the wage earner as the father of MaKenna. MaKenna may not be considered the child of the wage earner under N.Y. Est. Powers & Trusts Law 4-1.2 (a)(2)(A).

b. E.P.T.L. 4-1.2(a)(2)(C): Clear and Convincing Evidence/Open and Notorious Acknowledgement

Non-marital children may also inherit from their father when "paternity has been established by clear and convincing evidence and the father of the child has openly and notoriously acknowledged the child as his own." N.Y. Est. Powers & Trusts Law 4-1.2 (a)(2)(C). Both the "clear and convincing" and "open and notorious" prongs must be met under this statute. In re W~, N.Y.L.J., Dec. 17, 1996 at 29 (N.Y. Surr. Ct. Dec. 12, 1996).

a. Open and Notorious Acknowledgement

In this case, Nicole admits that the wage earner never acknowledged MaKenna as his daughter. There is also no evidence in the file to show that the wage earner ever acknowledged paternity. Moreover, in your memorandum, you state that Nicole believed Trevor to be MaKenna's father.

The evidence provided with this application does not meet the standard for open and notorious acknowledgement. N.Y. Est. Powers & Trusts Law 4-1.2 (a)(2)(C). Thus, although the clear and convincing portion of the statute's requirement is addressed below, this application cannot meet the standard for paternity under E.P.T.L. 4-1.2(a)(2)(C) because the open and notorious prong is not met.

b. Clear and Convincing

With respect to E.P.T.L. 4-1.2(a)(2)(C), New York Courts have generally allowed posthumous DNA testing to show the clear and convincing evidence prong of the statutory requirement. As one Court explained:

There is no basis in law or logic to exclude the results of posthumously conducted DNA tests on a decedent's genetic material from the category of "clear and convincing" evidence under EPTL 4-1.2 (a) (2) (C). This is particularly true where the material is available without the drastic remedy of exhumation, comes from a reliable source, and is amenable to accurate testing. To hold otherwise would ignore the precision that DNA testing contributes to the paternity issue.

In re Estate of B~, 192 Misc. 2d 86, 88 (N.Y. Misc. 2002) (citations omitted); see also In re D~, 812 N.Y.S.2d 543, 546 (2d Dep't 2006)(EPTL 4-1.2 (a) (2) (C) allows for posthumous DNA testing to establish paternity under the clear and convincing standard); Anne R. v. Estate of Francis C., 167 N.Y. Misc. 2d 343, 350 (1995) (disagreeing that posthumously conducted DNA test made the test results inadmissible); In re Estate of J~, 157 N.Y. Misc. 2d 999, 1001 (1993) (noting that EPTL 4-1.2 (a)(2)(C) does not prohibit posthumous genetic marker tests while EPTL 4-1.2 (a)(2)(D) does).

Notwithstanding the issues related to laboratory and DNA sample safeguards addressed below, the DNA test results here, showing a 99.99% probability of parental relationship could be considered under EPTL 4-1.2 (a)(2)(C) as clear and convincing evidence of paternity. However, as noted, MaKenna's application cannot meet the "open and notorious acknowledgement" prong of the statute, and thus, does not satisfy the requirements of proof of paternity under EPTL 4-1.2 (a)(2)(C).

c. EPTL 4-1.2(a)(2)(D): Blood Genetic Marker Test Plus "Other Evidence" to Establish Paternity

Non-marital children may also inherit from their father when "a blood genetic marker test had been administered to the father which together with other evidence establishes paternity by clear and convincing evidence." EPTL 4-1.2(a)(2)(D).

a. Admissibility and Reliability of Blood Genetic Marker Tests

A DNA test conducted according to the requirements of New York Civil Practice Law and Rules Section 4518(d) and either administered pursuant to Family Court Act §§ 418 (child support proceedings), 532 (paternity proceedings) or Social Services Law § 111-k may be admitted into evidence, and, if it shows a probability of relatedness of at least 95%, the test establishes a rebuttable presumption of paternity. N.Y.C.P.L.R. § 4518(d) and (e); NY CLS Family Ct. Act §§ 418, 532; Social Serv. Law § 111-k. To be admissible, the test must bear a certification or authentication by the head of the laboratory or by a qualified physician. N.Y.C.P.L.R. § 4518(d). Further, to be admissible to establish paternity, the test must be performed pursuant to a court or administrative order and must be performed by an accredited laboratory. NY CLS Family Ct Act §§ 418, 532; Social Serv. Law § 111-k

Here, the posthumous DNA test bore a certification pursuant to CPLR 4518(d) and (e) which was dated September 13, 2005 and signed by Karl, Ph.D., the Director of the DNA Identification Testing Division of Laboratory Corporation of America Holdings. Karl certified and authenticated the reports relating to the administration and analysis of DNA tests administered by a court order pursuant to sections 418 and 532 of the Family Court Act or an administrative order pursuant to section 111-k of the Social Services Law relating to Nicole, MaKenna , and Joseph (emphasis added). The certification also stated that Laboratory Corporation of America Holdings is duly approved to perform DNA tests by the New York State Commissioner of Health and is accredited by the American Association of Blood Banks. The certification also noted the report was made in the regular course of business.

Yet, despite the certification, there is no evidence that the DNA test was performed pursuant to court order under sections 418 and 532 of the Family Court Act. Indeed, Nicole 's attorney, Thomas reported that there was no court order. A New York Court has held that a DNA test with a certification stating that the test was administered under court order pursuant to sections 418 and 532 of the Family Court Act or an administrative order pursuant to section 111-k of the Social Services Law, when in fact there was no court or administrative order, along with questions about the chain of custody of the DNA samples, rendered the test results inadmissible. Barbara A. W~ v. David W~, 183 Misc.2d 228, 240 (1999).

Further, despite the certification, there is no evidence that the DNA test was performed pursuant to an administrative order issued under section 111-k of the Social Services Law. Social Services Law § 111-k states that a social services official or designated representative may order the mother, child and alleged father to submit to a DNA test. The administrative order may be issued prior to or subsequent to the filing of a petition with the court to establish paternity, shall be served on the parties, and shall include a sworn statement which either alleges or denies paternity. Soc. Serv. Law § 111-k. The Franklin County Department of Social Services made a letter request of the laboratory to perform the DNA test to establish paternity. However, the letter from the Social Services Department attorney alone does not make clear whether the test was done pursuant to an administrative order as required by Soc. Serv. Law § 111-k.

We note also that New York Courts have found DNA testing is not reliable where there was no evidence of the procedures followed by the laboratory and where the father delivered the samples to the laboratory. Brian B. v. Dionne B., 267 A.D.2d 188, 188-89 (2d Dep't.1999). However, courts have also noted that DNA test results are not inadmissible just because, absent a court order, parties voluntarily submitted to the test. See Salicco v. Salicco, 125 Misc.2d 137, 144 (1984) (admitting voluntarily performed paternity test under CPLR 4518, noting no evidence of fraud, duress or compulsion and suggesting tests undergone voluntarily be given greater weight than court ordered tests).

Here, we have not been provided with any evidence regarding the circumstances under which the wage earner, MaKenna, and Nicole first provided DNA samples to the laboratory. Moreover, the DNA test results do not state where the testing was conducted, by whom, or what methods were used. It is not clear whether proper laboratory procedures were followed. See N.Y.C.P.L.R. § 4518(d); Barbara A. W~, 183 N.Y. Misc.2d 228, 232.

The circumstances of the DNA test do not meet the standards for a presumption of paternity since the DNA test does not appear to have been conducted pursuant to a court order or administrative order. N.Y.C.P.L.R. § 4518 (d). Nevertheless, the DNA test results should be considered. However, further information regarding the laboratory procedures and the chain of custody of the parties DNA samples should be obtained in considering the weight to be given to the DNA test results.

With respect to E.P.T.L. 4-1.2(a)(2)(D), "New York courts have ruled that an application to establish paternity may be made only where a blood genetic marker test had been administered to decedent during his lifetime." Howell v. Barnhart, 265 F. Supp. 2d 268, 272 (S.D.N.Y. 2003) (quotations and citation omitted); see also, In re D~, 812 N.Y.S.2d 543, 545 (2d Dep't. 2006); In re Estate of W~, 184 Misc. 2d 218, 220 (2000); In re Estate of J~, 157 Misc. 2d 999, 1001 (1993).

However, the test need not have been administered to the decedent in relation to the immediate paternity question. In a situation factually analogous to the one you have presented, a court admitted DNA test results from the father based upon the results of an earlier paternity blood test taken by the decedent during his lifetime relating to a different child, unrelated to any of the parties in the case. In re Estate of W~, 184 Misc. 2d 218, 220. The court found the earlier test met the statutory definition of "testing on the putative father prior to his death." Id.

Here, since the DNA test had been administered to the wage earner during his lifetime, it is likely it would be admissible under E.P.T.L. 4-1.2(a)(2)(D). However, the statute also requires "other evidence." The DNA test result itself is not sufficient to prove parentage.

b. Other Evidence

You asked specifically whether the Certification Pursuant to CPLR 4518(d) & (e) issued by the Family Court of the State of New York, and the Petition to Vacate Acknowledgment of Paternity, also issued by the Family Court, could be considered other evidence to establish clear and convincing evidence.

The certification referred to was issued by LabCorp, not by the Family Court as you suggested (it is not signed or ordered by a judge). Further, as noted, the certification is inaccurate, as it claims that the testing was completed pursuant to court or administrative order, when in fact there was no such order and the testing was conducted voluntarily. For these reasons, the certification adds nothing to aid in answering the question of paternity and should not be considered.

Second, while the Petition to Vacate Acknowledgment of Paternity is probative of the fact that Trevor is not MaKenna's father, it is not evidence of who is MaKenna's father. There is no evidence in the file stating that Nicole had only two sexual partners, Trevor and the wage earner, during the time which Makenna was conceived. Thus, although the Court has recognized Trevor is not MaKenna's father, the so ordered petition is not evidence that the wage earner or anyone else is MaKenna's father. The Petition to Vacate Acknowledgment of Paternity for Trevor should not be considered evidence of paternity of the wage earner.

The file contains no "other evidence" that could be considered to show the wage earner is MaKenna's father. There are no statements from friends or family that the wage earner acknowledged MaKenna as his daughter. Nicole answered "No" to all of the questions on the Agency's Child Relationship Statement. It does not appear from this record that MaKenna's application satisfies the requirements of E.P.T.L. 4-1.2(a)(2)(D).

Alternative Provisions of The Act Providing for Paternity Determinations

The Act also provides that if a child is not deemed the child of the wage earner after application of the State law, a child can still be deemed the child of a wage earner if the wage earner and the child's mother went through a marriage ceremony with a legal impediment (see Act § 216(h)(2)(B)). Here, there is no allegation that Nicole was married to the wage earner. Thus, the application would not meet the requirement of § 216(h)(2)(B).

The Act also provides that if a child is not deemed the child of the wage earner after application of the State law, a child can still be deemed the child of a deceased wage earner if (1) the wage earner acknowledged the daughter to be his daughter in writing, (2) had been decreed the father of the applicant by court order, or (3) had been ordered by a court to contribute to the support of the applicant because the applicant was his daughter, and such acknowledgement, court decree or court order was made before the death of the insured individual; or if the wage earner was shown by evidence satisfactory to the Commissioner of Social Security to have been the father of the applicant and was living with or contributing to the support of the applicant at the time of his death. See Act § 216(h)(3)(C).

Here, there is no evidence that the wage earner acknowledged MaKenna as his daughter in writing. Nor was he, during his lifetime, decreed the father of MaKenna by court order nor had he been ordered by a court to contribute to the support MaKenna. Finally, because there is no evidence that the wage earner was living with or contributing to the support of Makenna at the time of his death, even if the DNA test was deemed to be evidence satisfactory to the Commissioner to establish paternity, the final clause of § 216(h)(3)(C) would not be satisfied.

Conclusion

Under the Act the child applicant must be dependent upon the deceased wage earner at the time of death to collect child's insurance benefits. Act § 206(d). There is no evidence in the documentation provided which shows that MaKenna was ever dependent upon the wage earner. This threshold issue must be determined.

First, the conclusion as to both clear and convincing evidence of paternity and open and notorious acknowledgement are factual determinations. The DNA test results show a very high probability of paternal relatedness between the wage earner and MaKenna. The presence or absence of a court or administrative order for the DNA test and the reliability of the DNA test procedures should be confirmed. However, even if the Agency determines that the DNA test is clear and convincing evidence, because there is no open and notorious acknowledgement, New York courts would likely not grant a petition to establish paternity under E.P.T.L. 4-1.2(a)(2)(C).

Second, aside from the DNA test result, there is no other evidence that goes to show the wage earner was MaKenna's father. Therefore, on this record, New York courts would likely not grant a petition to establish paternity under E.P.T.L. 4-1.2(a)(2)(D).

As noted, MaKenna's application also does not meet the other statutory provision in the Act for deemed paternity.

Because New York Courts would not grant a paternity determination on this record, it is recommended that the application be denied.

Very truly yours,

BARBARA L. Spivak

Chief Counsel, Region II

By: Jennifer S. Rosa

Assistant Regional Counsel

Under New York law, in order to determine if sibling DNA testing can constitute clear and convincing evidence of a parent-child relationship between the deceased number holder and the claimant we must first obtain evidence of the parent child relationship between the deceased number holder and that sibling. Evidence must also be submitted showing how the DNA testing was administered and that the results were reliably obtained.

Even if this evidence is shown to meet the clear and convincing standard outlined above, the claimant must still prove that the deceased openly and notoriously acknowledged him as his child in order to establish paternity.

This office is responding to your inquiry regarding whether Antonio ("Antonio") can establish his relationship to Luis . ("wage earner"). You requested clarification of New York State standards for evaluating paternity, specifically the "clear and convincing" and "open and notorious" standards. You also wanted to know whether the New York State court decision in Colmand v. Dailey, 359 N.Y.S.2d 409 (1974) was still good law.

SUMMARY OF FACTS

The wage earner died on August XX, 1998. Antonio was born thereafter on September. Lori (Antonio's mother) filed an application on behalf of Antonio for survivor's benefits based upon the account of the wage earner on March 8, 1999. That application was denied due to lack of evidence, and Lori did not pursue appeal of the application. She filed a second application on May 6, 2005.

An order of filiation was issued by the Family Court of the State of New York, County of Oneida on March 2, 1999. The wage earner's parents appeared on behalf of their deceased son to state that they believe that Antonio was the wage-earner's child.

A DNA Sibling Test Report dated April 22, 2005 from DNA Diagnostics Center reported that a DNA test was performed using DNA samples from Lori, Antonio's mother, Luis, alleged sibling of Antonio (stated to be the wage earner's son by Lori) and Antonio. The test indicated a 99.999% probability of full-siblingship between Luis and Antonio. The likelihood that the brothers share the same biological mother and father is 167,727 to 1.

Louise, the wage-earner's sister, stated that the wage earner told her that he was father of Lori's unborn child. She stated that the wage earner wondered if the child was a boy or a girl and indicated that if the baby was a boy, he wanted to name him Antonio.

Mary, Mary's mother, reported that on one occasion the wage earner told her that she was going to be a grandmother again. On another occasion, the wage earner wondered if the unborn child would be a boy or a girl. Mary stated that the wage earner admitted that he was the father of the unborn child and that he and Mary were thinking of getting back together.

Janet, the wage earner's mother stated that the wage earner did not acknowledge Antonio before his death. She stated that she based her belief that Antonio is the wage-earner's son on Antonio's likeness to her son and her knowledge that the wage earner was seeing Lori before his death. Janet also stated that the wage earner was living with Mary at the time of his death. Mary found out that she was pregnant with the wage-earner's child after his death. Marisa, Mary’s daughter, is receiving benefits on the wage-earner's account.

No other friends or non-relatives were available to provide any other information about the wage earner's statements about the unborn child.

For the purposes of this opinion, we assume that the wage earner died while he was domiciled in New York. We recommend that the wage earner's death certificate be obtained to confirm that he was domiciled in New York State at the time of his death, as this is an important fact in determining which law to apply. We recommend that the agency obtain a copy of Antonio's birth certificate, and verify that Antonio was born in New York, as this fact also affects the issue of what law applies in determining paternity.

Legal Analysis

Section 216(h)(2)(A) of the Social Security Act ("Act") provides that in determining whether a claimant will be deemed the surviving child of an insured individual, the Commissioner shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which the insured wage earner was domiciled at the time of his death. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(4). In order to consider whether Antonio is the wage earner's child, we have considered the intestacy laws of New York, since you have requested an opinion regarding New York Sate law.

The relevant New York statute governing intestate succession provides that a non-marital child may inherit from his father where "a court of competent jurisdiction has, during the lifetime of the father, made an order of filiation declaring paternity…" N.Y. Est. Powers & Trusts Law § 4-1.2(a)(2)(A) (M~'s 1998) (emphasis added).

Relevant New York State law also provides that a non-martial child may inherit from his father where "paternity has been established by clear and convincing evidence and the father of the child has openly and notoriously acknowledged the child as his own. N.Y. Est. Powers & Trusts Law § 4-1.2(a)(2)(C) (M~'s 1998) (emphasis added). Under that statute, both prongs - "clear and convincing" and "open and notorious" - must be proved. In re W~, N.Y.L.J., Dec. 17, 1996 at 29 (N.Y. Surr. Ct. Dec. 12, 1996).

1. Paternity Under Section 4-1.2(a)(2)(A): the Order of Filiation Antonio does not satisfy section 4-1.2(a)(2)(A) of the Estate Power and Trusts Law because the New York State Family Court Order of Filiation was not issued until after the death of the wage-earner. See N.Y. Est. Powers & Trusts Law § 4-1.2(a)(2)(A) (M~'s 1998); see Grivas v. Port Authority of New York and New Jersey, 641 N.Y.S.2d. 646, 647 (N.Y. App. Div. May 2, 1996).

2. Paternity Under Section 4-1.2(a)(2)(C): the "Clear and Convincing" and "Open and Notorious" Standards

a. Clear and Convincing Evidence of Paternity

The first prong of the section 4-1.2(a)(2)(C) of New York State intestacy statute requires "clear and convincing" evidence of paternity. N.Y. EST. POW. & TRUST LAW § 4-1.2(a)(2)(C) (M~'s 1998). As explained below, DNA evidence may be used to satisfy that standard if certain conditions are met.

Since DNA testing confers great persuasive power and is such a complex procedure, the testing must be governed by the highest standards of scientific rigor. Barbara A. W~ v. David W~, 701 N.Y.S.2d 845, 849 (NY. Fam. Ct. 1999). A New York statute allows for "automatic" admissibility of DNA evidence that was court ordered, performed by an authorized laboratory, and certified or authenticated by the head of the laboratory. N.Y. C.P.L.R. §§ 4518(d) and (e); see Barbara A. W., 701 N.Y.S.2d at 849. These provisions allow for the admission of certified DNA test results without the need for additional evidence explaining the manner in which the DNA test was conducted. Vincent C. A., Supplemental Practice Commentaries, N.Y. C.P.L.R. 7B, 52-53 (M~ 2003). It is presumed that DNA testing conducted pursuant to a court order and properly certified complies with the appropriate New York Department of Health compliance standards. Barbara A. W~., 701 N.Y.S.2d at 849; see N.Y. C.P.L.R. §§ 4518(d) and (e). A DNA test conducted according to the requirements of section 4518(d) and which shows a probability of relatedness of at least 95%, establishes a rebuttable presumption of paternity. N.Y. C.P.L.R. § 4518(d).

In the absence of a court order, evidence must be provided to show how the DNA testing was conducted and that the DNA test results were reliably obtained. See Barbara W~, 701 N.Y.S.2d at 849; Beaudoin v. David "RR", 543 N.Y.S.2d 557, (N.Y. App. Div. 1989) (a test, properly certified under the provisions of C.P.L.R., requires no further foundational basis). Otherwise, the probative value of the test is outweighed by the risk of prejudice. Id.; see Barbara A. v. Gerald J., 553 N.Y.S.2d 638, 641 (N.Y. Fam. Ct. 1990).

We first note that the DNA test results in this case do not meet the standards for a presumption of paternity since the DNA test does not appear to have been conducted pursuant to a court order. See N.Y. C.P.L.R. § 4518(d). Nevertheless, it should be considered.

Secondly, we note that the DNA testing was not performed on the wage-earner and did not purport to establish "paternity." Rather, the DNA test was a "siblingship" test. DNA samples were collected from Lori, Luis (the alleged son of the wage earner by Lori) and A. The test established a 99.999% probability that Luis A. and A. were full-siblings. The likelihood that they share the same biological mother and father is 167,727 to 1. But that does not mean that the wage earner was the father of both children.

New York State case law allows DNA testing to be performed on "collateral" relatives. Estate of W~, 707 N.Y.S.2d 774, 778 (N.Y. Surr. Ct. Jan. 3, 2000); Estate of S~, 612 N.Y.S.2d 756, 757-59(N.Y. Surr. Ct. Apr. 26, 1994); see In re S~, 768 N.Y.S.2d 271, 275 (N.Y. Surr. Ct. 2003); In re N~, 748 N.Y.S.2d 654, 655 (N.Y. Surr. Ct. Sept. 16, 2002).

In Estate of S~, the court allowed the DNA testing of the decedent's parents "inasmuch as [the testing] has scientific validity." See Estate of S~, 612 N.Y.S.2d at 758. In that case, the first New York State cases to allow testing of collateral relatives, a DNA expert testified as to the scientific validity of testing the decedent's parents. Id. Subsequent New York case law has affirmed DNA testing of the decedent's parents and, once, a decedent's identical twin brother. See Estate of W~, 707 N.Y.S.2d 774, 778 (N.Y. Surr. Ct. Jan. 3, 2000); In re S~, 768 N.Y.S.2d 271, 275 (N.Y. Surr. Ct. 2003); In re N~, 748 N.Y.S.2d 654, 655 (N.Y. Surr. Ct. Sept. 16, 2002). In the case involving testing of the identical twin brother, the court was satisfied that both parties conceded that the brothers were identical. In re N~, 748 N.Y.S.2d at 655.

In this case, it is unclear what validity the DNA test results have in establishing the wage-earner's paternity of A. There is no evidence in the record to establish that Luis A. was the child of the wage-earner. Unless this can be established, the DNA test results do not provide any evidence that the wage-earner was the father of A.

Moreover, assuming the paternal relationship between one of the siblings and the wage-earner is established, the weight to be afforded the DNA test in this case depends heavily on the circumstances of the testing procedures. New York courts have found DNA testing is not reliable where there was no evidence of the procedures followed by the laboratory and where the father delivered the samples to the laboratory. Brian B., 699 N.Y.S.2d at 491 (absent evidence of appropriate laboratory procedures, privately-arranged genetic test is inadmissible where reliability depended upon the assurances of the party that the blood samples were not tampered with before delivery to laboratory); Comm. of Social Services ex rel. Ethel L. v. David L., 646 N.Y.S. 2d 706 (N.Y. App. Div. 1996) (blood tests inadmissible where petitioner failed to lay a proper foundation that the testing was done by duly approved laboratory); see Barbara A., 553 N.Y.S.2d at 641 (where interested party transported blood samples without supervision, results were tainted); see also In re S~, 768 N.Y.S.2d 271, 275 (N.Y. Surr. Ct. 2003) (DNA is admissible; however the blood must be drawn under strictly controlled laboratory conditions and chain of custody must be meticulously documented.); Matter of S~, 755 N.Y.S.2d at 557.

Accordingly, relevant factors to consider in weighing a test are whether the testing was conducted by and in a duly accredited laboratory, whether the test was properly certified, and whether interested parties were involved in the transportation of the DNA samples. See e.g. Brian B, 699 N.Y.S.2d at 491; Barbara A., 553 N.Y.S.2d at 641. When a DNA report is barren of any description of the testing procedures, the need for foundational evidence to establish the reliability of testing procedures will likely be greater. Vincent., Supplemental Practice Commentaries, N.Y. C.P.L.R. 7B, 58.

Here, the DNA test was certified by one of six people authorized by the laboratory that performed the test. See N.Y. C.P.L.R. § 4518 (c) and (d). DNA Diagnostics Center, the laboratory that administered the DNA test, was accredited by the New York State Department of Health for the purposes of performing DNA testing.

Despite the fact that the DNA results were certified by a duly-authorized laboratory, the certification may not be appropriate. The DNA Diagnostics certification only states that the interpretation of the results was correct as reported. The certification and test report does not indicate where the testing was conducted, by whom, and using what methods. It is not clear whether proper laboratory procedures were followed. See N.Y. C.P.L.R. § 4518(d); N.Y. Fam. Ct. Act § 532 (M~'s 1999); see Barbara W~, 701 N.Y.S.2d at 849 (in the absence of a court order, DNA testing performed by a duly accredited laboratory is not admissible where the results were obtained in violation of the standard and protocols set forth and the certification of the laboratory director was incomplete.)

Even if the certification is incomplete, the report may still be considered if sufficient information about the laboratory procedures is later provided. Vincent, Supplemental Practice Commentaries, N.Y. C.P.L.R. 7B, 52-53 (M~'s 2003). Lori should be given the opportunity to submit additional evidence about the paternity of Luis A. to establish the relevance of the DNA test report and to provide evidence about the circumstances of the DNA testing.

b. Open and Notorious Acknowledgement

Assuming that the Agency finds "clear and convincing" evidence of paternity, Lori must also establish that the wage earner "openly and notoriously" acknowledged A. in order to establish paternity under N.Y. Est. Powers & Trusts Law § 4-1.2(a)(2)(C) (M~'s 1998).

Typical examples of open and notorious acknowledgments do not apply in this case since the wage earner died before A. was born. However, a New York court has recently held that in cases like this, the open and notorious acknowledgement prong may be satisfied when the "decedent did all that he might reasonably be expected to do to openly and notoriously acknowledge that he was the father of the child that would ultimately be born." In re Estate of T~, 769 N.Y.S.2d 863, 865 (N.Y. Surr. Ct. 2003).

In the T~ case, the decedent father readily acknowledged to his sister, mother, and grandmother that he could be the father of the child. Id. Thereafter, the father visited his mother and his aunt with the child's mother and stated that "they" were going to have a baby. Id. The court found that the decedent had done all he reasonably could have been expected to do to openly and notoriously acknowledge that he was the child's father. Id. The court so found even though the decedent initially had reservations about his paternity of the unborn child. Id. at 865.

Here, statements from the wage-earner's sister, Louise , and Lori's mother indicate that the wage-earner acknowledged A. as his child prior to the child's birth. The wage-earner did not reveal to his mother that A. was his child, but she does not dispute that A. is her son's child. There does not appear to be any other evidence available to determine whether the wage-earner openly and notoriously acknowledged A. as the Agency has been unable to obtain statements from any of the wage-earner's friends. However, given the relatively low burden of proof articulated by the court in T~, it appears that this evidence could establish that the wage-earner openly and notoriously acknowledged A. under current New York State law.

Colmand v. Dailey, 359 N.Y.S.2d 409 (1974)

Colmand v. Dailey is technically still good law in New York State. However, its relevance to this matter is minimal since the C~ case did not evaluate the clear and convincing standard in light of DNA evidence. The C~ case also did not deal with the circumstances of a deceased father or a posthumously born child. In C~, the petitioner (mother) sought to establish that a man other than her husband was the father of her child. 359 N.Y.S.2d at 410. The court considered the testimony of all witnesses and found their testimony credible. Id. at 415. The court then determined that the petitioner-mother had provided clear and convincing evidence to rebut the well-established presumption in the law that a husband is the father of wife's children. Id. at 420. The court then concluded that the respondent (alleged father) was the father of the child.

Certain aspects of the law in C~ may be useful to the development of Antonio's case. In C~, the court found that credible testimony was sufficient to establish clear and convincing evidence to rebut a presumption of paternity and to establish the paternity of the respondent (alleged father). Hence, credible testimony may be considered by the Agency along with the relevant DNA evidence in evaluating whether the clear and convincing standard has been met. The Agency can develop facts as to whether Lori had any other sexual partners and had access to the wage-earner at the time Antonio was conceived. These statements, assuming they are found credible, should be considered in evaluating whether clear and convincing evidence of paternity exists. See C~ v. 359 N.Y.S.2d 409, 418-20.

CONCLUSION

The conclusion as to both clear and convincing evidence of paternity and open and notorious acknowledgment are factual determinations. Although the DNA test results show a very high probability of sibling relatedness between A.A. and Luis A.A. (the purported son of the wage earner), the Agency and Lori should obtain evidence to demonstrate the relationship between Luis A. and the wage-earner. Moreover, assuming that relationship is established, the reliability of the DNA test procedures should be corroborated. Assuming the Agency determines that the DNA test is "clear and convincing" evidence, the agency must make a determination as to whether the statements in the record constitute open and notorious acknowledgment of A. in light of the low burden of proof set forth in the T~ case.

Very truly yours,

Barbara L. Spivak

Regional Chief Counsel

By: Margaret A. Donaghy

Assistant Regional Counsel

Under New York State law, both clear and convincing evidence of paternity and proof that the deceased number holder openly and notoriously acknowledged the claimant as his child prior to his death is required to establish the parent-child relationship.

If the acknowledgement cannot be established, development should be undertaken to determine if the child qualify under the Federal standards, Section 216(h)(3) of the Social Security Act.

This office is responding to your inquiry regarding whether Gabriella ("Gabriella") can establish her relationship to Brian ("wage earner") with the posthumous DNA test result submitted. Based on the information provided to us, the DNA test result, by itself, does not establish Gabriella's relationship to the wage earner.

Summary of Facts

The wage earner died on August XX, 2004 in Orange County, New York. Gabriella was born in New York on November, approximately two and one-half months after the death of the wage-earner on August XX, 2004. The application on behalf of Gabriella for survivor's benefits based upon the account of the wage earner was not in our file.

On November 22, 2004, a doctor at DNA Diagnostics Center signed a notarized document, entitled "DNA Parentage Test Report." The doctor certified that "the interpretation of the results is correct as reported." The DNA test was performed using DNA samples from Maura (Gabriella's mother), which were collected on November 16, 2004; from Gabriella, which were collected on November 16, 2004; and from the wage earner, which were collected on August XX, 2004. The test indicated a 99.9995% probability of relatedness between the wage earner and Gabriella.

Legal Analysis-State Standard

Section 216(h)(2)(A) of the Social Security Act ("Act") provides that in determining whether a claimant will be deemed the surviving child of an insured individual, the Commissioner shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which the insured wage earner was domiciled at the time of his death. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(4). In order to consider whether Gabriella is the wage earner's child, we have considered the intestacy laws of New York, since the wage earner died while domiciled in New York.

1. NY EPTL §4-1.2(a)(2)(D)

Section §4-1.2(a)(2)(D) of the New York State inheritance statute states that a non-marital child may inherit from her alleged father where "a blood genetic marker test had been administered to the father which together with other evidence establishes paternity by clear and convincing evidence." N.Y. Est. Powers & Trusts Law §4-1.2(a)(2)(D) (emphasis added).

New York courts have interpreted "had been administered" to mean that only blood genetic marker tests administered during the lifetime of the alleged father would satisfy this section. In re Estate of B~, 745 N.Y.S.2d 813, 814-15 (Sur. Ct., N.Y. Co. 2002); In the Matter of W~, 707 N.Y.S.2d 774, 776 (Sur. Ct., Niagra Co. 2000); see In re Estate of J~, 600 N.Y.S.2d 416, 418 (Sur. Ct., N.Y. Co. 1993). Here, the DNA testing was not administered until after the death of the wage earner. Hence, the DNA Parentage Test Report does not satisfy section 4-1.2(a)(2)(D).

However, DNA testing performed after the death of the decedent may be used to establish clear and convincing evidence under section 4-1.2(a)(2)(C) of the Estate Powers and Trust Law. Estate of Seekins, 755 N.Y.S.2d 557, 558 (Sur. Ct., Westchester Co. 2002); In re Estate of B~, 745 N.Y.S.2d 813, 814-15 (Sur. Ct., N.Y. Co. 2002); see In re Estate of J~, 600 N.Y.S.2d at 418; Matter of M~ R., 2004 N.Y. Misc. LEXIS 2908 (December 31, 2004); see also Matter of James E. D~, 2005 N.Y. Misc. LEXIS 218 (January 24, 2005);

2. NY EPTL §4-1.2(a)(2)(C)

Section 4-1.2(a)(2)(C) states that a non-marital child may inherit from her father where "paternity has been established by clear and convincing evidence and the father of the child has openly and notoriously acknowledged the child as his own. N.Y. Est. Powers & Trusts Law § 4-1.2(a)(2)(C) (McKinney's 1998) (emphasis added). Under that statute, both prongs - "clear and convincing" and "open and notorious" - must be proved. In re W~, N.Y.L.J., Dec. 17, 1996 at 29 (N.Y. Sur. Ct. Dec. 12, 1996).

Accordingly, in order to establish paternity with DNA evidence obtained after the death of the wage earner, Gabriella must establish clear and convincing evidence of paternity along with open and notorious acknowledgement. In addition to considering the DNA evidence, the Agency must determine whether evidence of open and notorious acknowledgment can be obtained in this case. The information provided to us in the request for legal opinion indicated that the DNA test report was the only proof of paternity. Without any evidence of open or notorious acknowledgement, Gabriella cannot establish paternity. See Matter of S~, 755 N.Y.S.2d 557, 558-59 (N.Y. Sur. Ct. 2002) (court would not rule on reliability of DNA evidence until factual issues about whether the decedent open and notoriously acknowledged his sons was resolved); but see Estate of M~, 794 N.Y.S.2d 205 (April 29, 2005).

a. Clear and Convincing Evidence of Paternity

The first prong of the relevant New York State intestacy statute requires "clear and convincing" evidence of paternity. N.Y. Est. Pow. & Trust Law § 4-1.2(a)(2)(c) (McKinney's 1998). As explained below, the DNA evidence may be used to satisfy that standard if certain conditions are met.

Since DNA testing confers great persuasive power and is such a complex procedure, the testing must be governed by the highest standards of scientific rigor. Barbara A. W~ v. David W~, 701 N.Y.S.2d 845, 849 (NY. Fam. Ct. 1999). A New York statute allows for "automatic" admissibility of DNA evidence that was court ordered, performed by an authorized laboratory, and certified or authenticated by the head of the laboratory. N.Y. C.P.L.R. §§ 4518(d) and (e); see Barbara A. W~, 701 N.Y.S.2d at 849. These provisions allow for the admission of certified DNA test results without the need for additional evidence explaining the manner in which the DNA test was conducted. Vincent C. A~, Supplemental Practice Commentaries, N.Y. C.P.L.R. 7B, 52-53 (M~'s 2003). It is presumed that DNA testing conducted pursuant to a court order and properly certified complies with the appropriate New York Department of Health compliance standards. Barbara A. W~, 701 N.Y.S.2d at 849; see N.Y. C.P.L.R. § 4518(d) and (e). A DNA test conducted according to the requirements of section 4518(d) and which shows a probability of relatedness of at least 95%, establishes a rebuttable presumption of paternity. N.Y. C.P.L.R. § 4518(d).

In the absence of a court order, evidence must be provided to show how the DNA testing was conducted and that the DNA test results were reliably obtained. See Barbara W~, 701 N.Y.S.2d at 849. Otherwise, the probative value of the test is outweighed by the risk of prejudice. Id.; see Barbara A. v. Gerald J., 553 N.Y.S.2d 638, 641 (N.Y. Fam. Ct. 1990).

We first note that the "DNA Parentage Test Report" does not meet the standards for a presumption of paternity since the DNA test does not appear to have been obtained pursuant to a court order. See N.Y. C.P.L.R. § 4518(d). Nevertheless, it should be considered.

Secondly, we note that the weight to be afforded the DNA test in this case depends heavily on the circumstances of the testing procedures. New York courts have found DNA testing is not reliable where there was no evidence of the procedures followed by the laboratory and where the father delivered the samples to the laboratory. Brian B., 699 N.Y.S.2d at 491 (absent evidence of appropriate laboratory procedures, privately-arranged genetic test is inadmissible where reliability depended upon the assurances of the party that the blood samples were not tampered with before delivery to laboratory); Comm. of Social Services ex rel. Ethel L. v. David L., 646 N.Y.S. 2d 706 (N.Y. App. Div. 1996) (blood tests inadmissible where petitioner failed to lay a proper foundation that the testing was done by duly approved laboratory); see Barbara A., 553 N.Y.S.2d at 641 (where interested party transported blood samples without supervision, results were tainted); see also In re S~, 768 N.Y.S.2d 271, 275 (N.Y. Sur. Ct. 2003) (DNA is admissible; however the blood must be drawn under strictly controlled laboratory conditions and chain of custody must be meticulously documented.); Matter of S~, 755 N.Y.S.2d at 557.

Accordingly, relevant factors to consider in weighing the test are whether the testing was conducted by and in a duly accredited laboratory, whether the test was properly certified, and whether interested parties were involved in the transportation of the DNA samples. See e.g. Brian B, 699 N.Y.S.2d at 491; Barbara A., 553 N.Y.S.2d at 641. When a DNA report is barren of any description of the testing procedures, the need for foundational evidence to establish the reliability of testing procedures will likely be greater. Vincent , Supplemental Practice Commentaries, N.Y. C.P.L.R. 7B, 58.

Here, DNA test was certified by one of six people authorized by the laboratory that performed the test. See N.Y. C.P.L.R. § 4518 (c) and (d). DNA Diagnostics Center, the laboratory that administered the DNA test, was accredited by the New York State Department of Health for the purposes of performing DNA testing.

Despite the fact that the DNA results were certified by a duly-authorized laboratory, the certification may not be appropriate. The DNA Diagnostics certification only states that the interpretation of the results was correct as reported. The certification and test report does not indicate where the testing was conducted, by whom, and using what methods. It is not clear whether proper laboratory procedures were followed. See N.Y. C.P.L.R. § 4518(d); N.Y. Fam. Ct. Act § 532 (M~'s 1999); see Barbara W~, 701 N.Y.S.2d at 849 (in the absence of a court order, DNA testing performed by a duly accredited laboratory is not admissible where the results were obtained in violation of the standard and protocols set forth and the certification of the laboratory director was incomplete.)

The DNA Parentage Test Report was made shortly after DNA samples were collected from Gabriella and her mother on November 16, 2004 (the report was dated November 22, 2004). The wage earner's DNA sample was collected two days after his death on August XX, 2004 and almost three months prior to DNA test report. We have no information about the chain of custody of the wage earner's DNA sample, including where it was collected, by whom, and how it was transported to the DNA Diagnostics Center. Evidence should be obtained to establish the chain of custody for the wage earner's DNA sample. Estate of S~, 755 N.Y.S.2d at 558.

b. Open and Notorious Acknowledgement

Assuming that you find "clear and convincing" evidence of paternity, Gabriella's mother (Maura ) must also establish that the wage earner "openly and notoriously" acknowledged Gabriella in order to establish paternity under N.Y. Est. Powers & Trusts Law § 4-1.2(a)(2)(C) (M~'s 1998).

Typical examples of open and notorious acknowledgments do not apply in this case since, here, the wage earner died before Gabriella was born. However, a New York court has recently held that in cases like this, the open and notorious acknowledgement prong may be satisfied when the "decedent did all that he might reasonably be expected to do to openly and notoriously acknowledge that he was the father of the child that would ultimately be born." In re Estate of T~, 769 N.Y.S.2d 863, 865 (N.Y. Sur. Ct. 2003). In that case, the decedent father readily acknowledged to his sister and grandmother that he could be the father of the child. Id. Thereafter, the father visited his mother and his aunt with the child's mother and stated that "they" were going to have a baby. Id. The court found that the decedent had done all he reasonable could have been expected to do to openly and notoriously acknowledge that he was the child's father. Id. Similar facts should be developed here.

Legal Analysis-Federal Standard

Gabriella may also establish her relationship with the wage earner by meeting the criteria of the federal standard set out in section 216(h)(3)(c)(ii) of the Social Security Act. The Act provides that a claimant can be paid Surviving Child's Insurance Benefits if it is shown by evidence satisfactory to the Commissioner that the insured individual was the father of the child and was living with or contributing to the support of the child at the time of his death. See 42 U.S.C. § 416 (h)(3)(C)(ii); Programs Operations Manual (POMS) GN 00306.100B.2.

Hence, although the DNA evidence may not be sufficient to establish paternity under New York State law for the purposes of intestacy, the Agency may consider the DNA and other evidence submitted to determine that the wage earner is Gabriella's father. If the evidence is found sufficient, the Agency must then determine whether the wage earner was living with or contributing to the support of Gabriella.

The POMS state that a father contributed to the support of a posthumously born child if he was living with or contributing to the support of the child's mother when he died. POMS GN 00306.100 B.2.b. Moreover, the Second Circuit has held that section 216(h)(3) of the Act must "be construed broadly and applied liberally." Adams v. Weinberger, 521 F.2d 656, 659 (2d Cir. 1975); Wharton v. Bowen, 710 F.Supp. 903, 906 (E.D.N.Y. 1989). Hence, "the terms of the Act requiring a potential claimant to show dependency should not be construed in such a manner as to withhold benefits in marginal cases." Adams, 521 F.2d at 559.

As noted, Gabriella was not born at the time of the wage earner's death so there is no direct documentation that the wage earner contributed to her support. However, the wage earner's death certificate and Gabriella's birth certificate show the same address. This evidence suggests that Gabriella's mother and the wage earner were living together when the wage earner died. The Agency should further develop the facts to determine whether this is the case. If the wage earner and Gabriella's mother were living together at the time of the wage earner's death, Gabriella would satisfy this section of the Act.

Conclusion

The conclusion as to both clear and convincing evidence of paternity and open and notorious acknowledgment are factual determinations. Further facts must be developed as to the chain of custody of the DNA samples and as to whether the decedent open and notoriously acknowledge Gabriella. As such, the "DNA Parentage Test Report" should be considered, but it is not sufficient by itself to establish Gabriella's relationship to the wage earner under New York State intestacy laws.

If Gabriella cannot establish paternity under the New York state intestacy statute, but the Agency finds that the evidence satisfactorily establishes that the wage earner is Gabriella's father, Gabriella may meet the requirements of section 216(h)(3)(C)(ii) of the Act.

Very truly yours,

BARBARA L. Spivak

Chief Counsel, Region II

By: Margaret A. Donaghy

Assistant Regional Counsel

The facts in this case do not satisfy the requirement of New York intestacy law that a child born out of wedlock will be considered the child of his/her father if there is clear and convincing evidence of paternity and the father of the child has openly and notoriously acknowledged the child as his own. The DNA test do not meet the standards for a presumption of paternity since the test do not appear to have been conducted pursuant to a court order and was not performed by a duly accredited laboratory. If the child cannot establish paternity under the New York intestacy statute, but the Agency finds that the evidence satisfactorily establishes that the wage earner is the child's father, the child may meet the requirements under 216(h)(3)(C).

This office is responding to your inquiry regarding whether Kylie ("Kylie") can establish her relationship to Kenneth ("wage earner").

Summary of Facts

Renée (Kylie's mother) filed an application on behalf of Kylie for survivor's benefits based upon the account of the wage earner. The application for child's insurance benefits, Kylie's birth certificate, and the decedent's death certificate were not included in our file. The wage earner died on March XX, 2003. Kylie was born thereafter.

For the purposes of this opinion, we assume that the wage earner died while he was domiciled in New York. We recommend that the wage earner's death certificate be obtained to confirm that he was domiciled in New York State at the time of his death, as this is an important fact in determining which law to apply. We recommend that the agency obtain a copy of Kylie's birth certificate, and verify that Kylie was born in New York, as this fact also affects the issue of what law applies in determining paternity.

Gregory, director of DNA Identity Testing Laboratory, signed a document, which was notarized on December 23, 2003. The document stated that a DNA test was performed using DNA samples from Gene , Kylie's alleged paternal grandfather, and Vicki, Kylie's alleged paternal grandmother. The test indicated a 99.7766% probability of relatedness between the wage earner and Kylie.

We were provided with the following additional evidence: (1) a June 15, 2003 The Hartford Insurance Services statement for Renée 's account, which showed a balance of $15,052.09 and is annotated in handwriting as "Kenneth's life insurance"; (2) an Eastern New York Federal Credit Union statement showing Kenneth and Renée as joint owners of the Regular Share account; (3) a North Fork bank statement showing that Kenneth and Renée jointly obtained a loan to finance the purchase of a car; (4) a newspaper obituary for Kenneth stating that Renee was his fiancée; (5) a Colonial Memorial Funeral Home bill on which Renee's name and address appear; (6) a bill of sale signed in September 2002 by Renée and Kenneth for a mobile home; (7) a Security Agreement for the purchase of the mobile home listing Renée and Kenneth as borrowers and indicating that they lived together. (Once obtained, the death certificate may help corroborate this address).

Legal Analysis-State Standard

Section 216(h)(2)(A) of the Social Security Act ("Act") provides that in determining whether a claimant will be deemed the surviving child of an insured individual, the Commissioner shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which the insured wage earner was domiciled at the time of his death. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(4). In order to consider whether Kylie is the wage earner's child, we have considered the intestacy laws of New York, since you have requested an opinion regarding New York Sate law.

The relevant New York statute governing intestate succession provides that a non-marital child may inherit from her father where "paternity has been established by clear and convincing evidence and the father of the child has openly and notoriously acknowledged the child as his own. N.Y. Est. Powers & Trusts Law § 4-1.2(a)(2)(C) (M~'s 1998) (emphasis added). Under that statute, both prongs- "clear and convincing" and "open and notorious" - must be proved. In re Walsh, N.Y.L.J., Dec. 17, 1996 at 29 (N.Y. Sur. Ct. Dec. 12, 1996).

1. Clear and Convincing Evidence of Paternity

The first prong of the relevant New York State intestacy statute requires "clear and convincing" evidence of paternity. N.Y. Est. Pow. & Trust Law § 4-1.2(c) (M~'s 1998). As explained below, DNA evidence may be used to satisfy that standard if certain conditions are met.

Since DNA testing confers great persuasive power and is such a complex procedure, the testing must be governed by the highest standards of scientific rigor. Barbara A. W~ v. David W~., 701 N.Y.S.2d 845, 849 (NY. Fam. Ct. 1999). A New York statute allows for "automatic" admissibility of DNA evidence that was court ordered, performed by an authorized laboratory, and certified or authenticated by the head of the laboratory. N.Y. C.P.L.R. §§ 4518(d) and (e); see Barbara, 701 N.Y.S.2d at 849. These provisions allow for the admission of certified DNA test results without the need for additional evidence explaining the manner in which the DNA test was conducted. Vincent, Supplemental Practice Commentaries, N.Y. C.P.L.R. 7B, 52-53 (M~'s 2003). It is presumed that DNA testing conducted pursuant to a court order and properly certified complies with the appropriate New York Department of Health compliance standards. Barbara, 701 N.Y.S.2d at 849; see N.Y. C.P.L.R. §§ 4518(d) and (e). A DNA test conducted according to the requirements of section 4518(d) and which shows a probability of relatedness of at least 95%, establishes a rebuttable presumption of paternity. N.Y. C.P.L.R. § 4518(d).

In the absence of a court order, evidence must be provided to show how the DNA testing was conducted and that the DNA test results were reliably obtained. See Barbara W~, 701 N.Y.S.2d at 849. Otherwise, the probative value of the test is outweighed by the risk of prejudice. Id.; see Barbara A. v. Gerald J., 553 N.Y.S.2d 638, 641 (N.Y. Fam. Ct. 1990).

We first note that the DNA test results in this case do not meet the standards for a presumption of paternity since the DNA test does not appear to have been conducted pursuant to a court order. Also, the testing was not performed by a duly accredited laboratory. Accordingly, the DNA test report does not establish a rebuttable presumption of paternity. See N.Y. C.P.L.R. § 4518(d). Nevertheless, it should be considered.

Secondly, we note that the weight to be afforded the DNA test in this case relies heavily on the circumstances of the testing procedures. New York courts have found DNA testing is not reliable where there was no evidence of the procedures followed by the laboratory and where the father delivered the samples to the laboratory. Brian B., 699 N.Y.S.2d at 491 (absent evidence of appropriate laboratory procedures, privately-arranged genetic test is inadmissible where reliability depended upon the assurances of the party that the blood samples were not tampered with before delivery to laboratory); Comm. of Social Services ex rel. Ethel L. v. David L., 646 N.Y.S. 2d 706 (N.Y. App. Div. 1996) (blood tests inadmissible where petitioner failed to lay a proper foundation that the testing was done by duly approved laboratory); see Barbara A., 553 N.Y.S.2d at 641 (where interested party transported blood samples without supervision, results were tainted); see also In re S~, 768 N.Y.S.2d 271, 275 (N.Y. Sur. Ct. 2003) (DNA is admissible; however the blood must be drawn under strictly controlled laboratory conditions and chain of custody must be meticulously documented.); Matter of S~, 755 N.Y.S.2d 557 (N.Y. Sur. Ct. 2002).

Dr. S~, the director of the laboratory, certified that the DNA test results were correct and that "these analyses have been conducted according to the standard protocols of the DNA Identity Testing Laboratory, BioSynthesis, Inc., and are in accordance with AABB guidelines." However, the DNA Identity Testing Laboratory is not accredited by the New York State Department of Health for the purposes of performing DNA testing. It is accredited only by the American Association of Blood Banks (AABB).

Since the DNA test was not court-ordered and was not performed by a laboratory duly accredited by the New York State Department of Health, it is essential to establish a clear "chain of custody" to ensure the validity of the DNA test results. Vincent, Supplemental Practice Commentaries, N.Y. C.P.L.R. 7B, 58 (M~'s 2004) (When a DNA report is barren of any description of the testing procedures, the need for foundational evidence to establish the reliability of testing procedures will likely be greater.).

Here, the DNA test report states that the DNA samples were collected from the alleged paternal grandparents on December 12, 2003 and were "received" on December 15, 2003. Neither the test report nor the certification establishes how the DNA samples were collected or how the samples were transported to the DNA Identity Testing Laboratory.

Similarly, the DNA test report does not indicate where the testing was conducted, by whom, and using what methods. It is not clear whether proper laboratory procedures were followed. See N.Y. C.P.L.R. § 4518(d); N.Y. Fam. Ct. Act § 532 (M~'s 1999); see Barbara W~, 701 N.Y.S.2d at 849 (in the absence of a court order, DNA testing performed by a duly accredited laboratory is not admissible where the results were obtained in violation of the standard and protocols set forth and the certification of the laboratory director was incomplete.)

Even if the certification is incomplete, the report may still be considered if sufficient information about the laboratory procedures is later provided. Vincent, Supplemental Practice Commentaries, N.Y. C.P.L.R. 7B, 52-53 (M~'s 2003). Renee should be given the opportunity to submit additional evidence concerning laboratory procedures.

2. Open and Notorious Acknowledgement

Assuming that the Agency finds "clear and convincing" evidence of paternity, Renee must also establish that the wage earner "openly and notoriously" acknowledged Kylie in order to establish paternity under N.Y. Est. Powers & Trusts Law § 4-1.2(a)(2)(C) (M~'s 1998).

Typical examples of open and notorious acknowledgments do not apply in this case since, here, the wage earner died before Kylie was born. However, a New York court has recently held that in cases like this, the open and notorious acknowledgement prong may be satisfied when the "decedent did all that he might reasonably be expected to do to openly and notoriously acknowledge that he was the father of the child that would ultimately be born." In re Estate of T~, 769 N.Y.S.2d 863, 865 (N.Y. Sur. Ct. 2003).

In the T~ case, the decedent father readily acknowledged to his sister and grandmother that he could be the father of the child. Id. Thereafter, the father visited his mother and his aunt with the child's mother and stated that "they" were going to have a baby. Id. The court found that the decedent had done all he reasonably could have been expected to do to openly and notoriously acknowledge that he was the child's father. Id.

Renee states that the wage earner became ill suddenly and that she did not find out she was pregnant until he was already in the hospital. The wage earner, thus, may not have even known about the pregnancy. In that case, he couldn't have openly and notoriously acknowledged that he was the child's father. However, Renee has produced documents showing that she and the wage earner had a joint bank account, financed and bought a car together, and bought a home together. We should develop whether the wage earner knew about the pregnancy. The wage-earner's obituary names Renee as his fiancée. The Agency must consider this evidence along with any other facts that are developed as to the relationship between the wage earner and Renee, which would tend to establish open and notorious acknowledgment of Kylie.

3. Federal Standard

Kylie may also establish her relationship with the wage earner by meeting the criteria of the federal standard set out in section 216(h)(3)(c)(ii) of the Social Security Act. The Act provides that a claimant can be paid Surviving Child's Insurance Benefits if it is shown by evidence satisfactory to the Commissioner that the insured individual was the father of the child and was living with or contributing to the support of the child at the time of his death. See 42 U.S.C. § 416 (h)(3)(C)(ii); Programs Operations Manual (POMS) GN 00306.100B.2.

Hence, although the DNA evidence may not be sufficient to establish paternity under New York State law for the purposes of intestacy, the Agency may consider the evidence submitted sufficient to determine that the wage earner is Kylie's father. If that is the case, the Agency must also determine whether the wage earner was living with or contributing to the support of Kylie.

The POMS state that a father contributed to the support of a posthumously born child if he was living with or contributing to the support of the child's mother when he died. POMS GN 00306.100B.2.b. Moreover, the Second Circuit has held that section 216(h)(3) of the Act must "be construed broadly and applied liberally." Adams v. Weinberger, 521 F.2d 656, 659 (2d Cir. 1975); Wharton v. Bowen, 710 F.Supp. 903, 906 (E.D.N.Y. 1989). Hence, "the terms of the Act requiring a potential claimant to show dependency should not be construed in such a manner as to withhold benefits in marginal cases." A~, 521 F.2d at 559.

As noted, Kylie was not born at the time of the wage earner's death so there is no direct documentation that the wage earner contributed to her support. However, there is ample evidence that the wage earner and Renee lived with each other and shared finances during her pregnancy. The evidence submitted to us shows that the wage earner and Renee were living together, had bought a home together, and had financed a car together. They had a joint bank account and Renee apparently paid for the wage earner's funeral. Renee also alleges that she was the recipient of the wage earner's life insurance policy. In the wage earner's obituary, Renee was described as his fiancée. See Howell v. Barnhart, 265 F.Supp.2d 268, 272 (S.D.N.Y. 2003) (in denying paternity, the court considered that mother and alleged father had not contemplated marriage, did not live together, and that there was little evidence of support by the wage earner). Hence, since the wage earner and Renee were living together during her pregnancy, Kylie appears to satisfy this section of the Act.

Conclusion

The conclusion as to both clear and convincing evidence of paternity and open and notorious acknowledgment are factual determinations. Although the DNA test results show a very high probability of relatedness between Kylie and the wage earner, the reliability of the test results should be corroborated. The DNA test result is not sufficient, by itself, to establish Kylie's relationship to the wage earner under New York State law. The agency must also further develop the evidence with respect to open and notorious acknowledgment and domicile at the time of death.

If Kylie cannot establish paternity under the New York state intestacy statute, but the Agency finds that the evidence satisfactorily establishes that the wage earner is Kylie's father, Kylie may meet the requirements of section 216(h)(3)(C)(ii), thus entitling her to child's insurance benefits.

Very truly yours,

BARBARA L. Spivak

Chief Counsel, Region II

By: Margaret A. Donaghy

Assistant Regional Counsel

Although New York is a state which follows the Lord Mansfield Rule prohibiting the use of the testimony of either a husband or a wife to non-access to rebut the presumption of legitimacy of a child born within their marriage, Section 531 of its Family Law Act is a statutory exemption to that rule.

An Order of Filiation issued under that Act based on testimony from the husband and wife is sufficient to rebut the presumption of paternity and to establish that the children involved are eligible to inherit from the number holder and qualify as his children under Section 216(h)(2) of the Social Security Act.

Additionally this same Order of Filiation, issued with the active participation and acknowledgement of the number holder would also qualify the children for benefits on his record under Section 216(h)(3) of the Social Security Act.

Question and Short Answer

You have asked whether Elissa and David may receive child's benefits on the account of David, pursuant to Section 216(h) (3) of the Social Security Act. 42 U.S.C. Section 416 Section (h) (3). New York State Family Court has issued Orders of Filiation that adjudged David, the wage earner (and not Albert, the husband of their mother) to be Elissa and David's father. You questioned the Order of Filiation because, contrary to the Lord Mansfield Rule, the Family Court permitted the mother and her husband (Albert) to give testimony that, during their marriage, Elissa and David were fathered by David .

The Lord Mansfield Rule, an English common law evidentiary rule adopted by many American courts, prohibits the use of the testimony of either a husband or a wife to non-access to rebut the presumption of legitimacy of a child born within their marriage. We conclude that when the New York State Family Court has issued an Order of Filiation, the presumption of legitimacy has been rebutted and the Lord Mansfield Rule excluding husband or wife testimony of non-access to rebut the presumption does not apply.

Further, the Family Court Act of New York State specifically permits a husband or wife to testify to non-access. In addition, under New York State Estates, Powers and Trusts Law ("N.Y.E.P.T.L.), an Order of Filiation for a non-marital child establishes inheritance rights.

The Orders of Filiation are sufficient evidence to meet the statutory requirements of either Sections 216(h) (2) or 216(h) (3). Therefore David and Elissa could be eligible under either of those sections.

Facts

David and Elissa were born to Maria during her marriage to Albert. Maria and Albert were married in 1983 in Florida and divorced in Florida in 2002. In 1995 Maria moved to Buffalo and Albert remained in Florida. Elissa was born on July and David was born on January.

On August 19, 2004, Maria petitioned Family Court in Buffalo for a finding that David was the father of both Elissa and David. Maria states that she, David, and Albert participated in a three-way phone call in front of the judge. On September 29, 2004, Orders of Filiation were issued for Elissa and for David, adjudging David to be their father. Subsequently, the birth certificates of Elissa and David were amended to show David as their father.

Discussion

a. Section 216(h)(2)

Section 216(h)(2) provides that in determining whether an applicant is the child of an insured individual, the Commissioner applies state intestacy law. Since the wage earner, David, is domiciled in New York, New York State law applies.

As currently set forth in the POMS GN 00306.026, New York follows the Lord Mansfield Rule. However, our research shows that the Lord Mansfield Rule is not followed, i.e. testimony of non-access by the husband or wife is permitted, during a Family Court proceeding to establish paternity that results in an Order of Filiation. Further, we have concluded that under New York State law both Elissa and David may inherit from David as non-marital children who are the subjects of Orders of Filiation. Therefore, both may receive child's benefits on David ' account pursuant to Section 216(h)(2) of the Social Security Act.

The most important fact here is that the Orders of Filiation in this matter were lawfully issued in accordance with New York State Law. Under the Family Court Act (and directly contrary to the Lord Mansfield Rule), both a husband and a wife may testify regarding non-access to rebut the presumption of legitimacy. Family Court Act, Section 531. See State of New York ex rel H v. P.,90 A.D. 2d 434. (December 30, 1982). (Section 531 of the Family Court Act is statutory exemption to the Lord Mansfield Rule). See also Anonymous v. Anonymous, 43 Misc. 2d (Family Court, September 1, 1964). (A married woman may bring a paternity action as well as an unmarried woman. The term "child born out of wedlock" means not only a child born to a mother who is not married, but also a child born to a married woman where the father is not the husband. Otherwise Section 531 of the Act, permitting a married woman to bring a paternity action, would be rendered meaningless.)

The fact that the proceedings took place on a telephone conference call does not present any problems since Section 531-a of the Family Court Act provides that testimony may be taken by telephone or other electronic means. Further, an Order of Filiation may be issued in the absence of DNA testing based on clear and convincing evidence of non-access. Joan G. v. Robert W., 83 A.D. 2d. 838 (3d Department 1971).

The Orders of Filiation in this case provide inheritance rights from David to Elissa and David. Pursuant to N.Y. E.P.T.L.Section 4-1.2 (a) (2) (A), a non-marital child is the legitimate child of his father so that he and his issue can inherit from his father and his paternal kindred, if a court of competent jurisdiction has, during the lifetime of the father, issued an order of filiation declaring paternity. Although Elissa and David were born during their mother's marriage to Albert, they fall within the definition of "non-marital child."

While the presumption of the legitimacy of children born during a marriage continues to apply in the State of New York, the presumption is rebutted, as in this case, when the Family Court has issued an Order of Filiation.

b. Section 216(h)(3)

Section 216(h)(3) and 20 C.F.R. 404.355(a)(3) provide that a child may be eligible for benefits as the insured's natural child if the child has been decreed by a court of competent jurisdiction to be the child's father. See also POMS GN 00306.100B.1. In this case, the Family Court has decreed that David is the father of Elissa and David. David participated in the Family court proceeding and acknowledged Elissa and David as his children . No other evidence showing David to be the biological father is required. Therefore, Elissa and David are eligible as David ' natural children on his account.

Under New York law, a "DNA Reconstruction Test Report" which was not court ordered and does not meet the 95% probability standard required does not constitute clear and convincing evidence and does not establish a rebuttable presumption of paternity. It may, however, be considered along with other evidence to determine if the clear and convincing standard can be met.

This office is responding to your inquiry regarding whether Destiny ("Destiny") can establish her relationship to Albert, Jr. ("wage earner"). To answer your specific question - whether the "DNA Reconstruction Test Report" is sufficient to establish paternity - it is not.

Summary of Facts

On March 12, 2004, Theresa filed an application on behalf of Destiny for survivor's benefits based upon the account of the wage earner. The application for child's insurance benefits indicates that the wage earner died on September XX, 1993. The opinion request indicated that he died while domiciled in New York. We recommend that the wage earner's death certificate be obtained to confirm that he was domiciled in New York State at the time of his death, as this is an important fact in determining which law to apply. The application for benefits also states that Destiny was born on February to the claimant. We recommend that the agency obtain a copy of Destiny's birth certificate, and verify that Destiny was born in New York, as this fact also affects the issue of what law applies in determining paternity.

Destiny's application for benefits was denied on March 28, 2004 because the evidence did not show that Destiny was Albert Jr.'s child. A request for reconsideration was filed on June 1, 2004.

Michael, laboratory director of DNA Diagnostics Center, signed a document, which was notarized on May 12, 2004, entitled "DNA Reconstruction Test Report." The DNA test was performed using DNA samples from Robert , the deceased wage earner's brother, and Sonia, the wage-earner's mother. The test indicated a 94.4% probability of relatedness between the wage earner and Destiny.

The file also contains a March 14, 2004 letter from Sonia, the wage earner's mother. Sonia stated that in October 1992, the wage earner introduced Theresa to her as his girlfriend. In June 1993, the wage earner told her that he and Theresa were expecting a baby. Her son died three months later, five and one half months before Destiny was born.

Legal Analysis-State Standard

Section 216(h)(2)(A) of the Social Security Act ("Act") provides that in determining whether a claimant will be deemed the surviving child of an insured individual, the Commissioner shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which the insured wage earner was domiciled at the time of his death. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(4). In order to consider whether Destiny is the wage earner's child, we have considered the intestacy laws of New York, since you have advised us that the wage earner died while domiciled in New York.

The relevant New York statute governing intestate succession provides that a non-marital child may inherit from her father where "paternity has been established by clear and convincing evidence and the father of the child has openly and notoriously acknowledged the child as his own. N.Y. Est. Powers & Trusts Law § 4-1.2(a)(2)(C) (McKinney's 1998) (emphasis added). Under that statute, both prongs - "clear and convincing" and "open and notorious" - must be proved. In re W~, N.Y.L.J., Dec. 17, 1996 at 29 (N.Y. Sur. Ct. Dec. 12, 1996).

1. Clear and Convincing Evidence of Paternity

The first prong of the relevant New York State intestacy statute requires "clear and convincing" evidence of paternity. N.Y. Est. Pow. & Trust Law § 4-1.2(c) (M~'s 1998). As explained below, DNA evidence may be used to satisfy that standard if certain conditions are met.

Since DNA testing confers great persuasive power and is such a complex procedure, the testing must be governed by the highest standards of scientific rigor. Barbara A. W~ v. David W~, 701 N.Y.S.2d 845, 849 (NY. Fam. Ct. 1999). A New York statute allows for "automatic" admissibility of DNA evidence that was court ordered, performed by an authorized laboratory, and certified or authenticated by the head of the laboratory. N.Y. C.P.L.R. §§ 4518(d) and (e); see Barbara A. W~, 701 N.Y.S.2d at 849. These provisions allow for the admission of certified DNA test results without the need for additional evidence explaining the manner in which the DNA test was conducted. Vincent C. A~, Supplemental Practice Commentaries, N.Y. C.P.L.R. 7B, 52-53 (M~'s 2003). It is presumed that DNA testing conducted pursuant to a court order and properly certified complies with the appropriate New York Department of Health compliance standards. Barbara A. W~, 701 N.Y.S.2d at 849; see N.Y. C.P.L.R. §§ 4518(d) and (e). A DNA test conducted according to the requirements of section 4518(d) and which shows a probability of relatedness of at least 95%, establishes a rebuttable presumption of paternity. N.Y. C.P.L.R. § 4518(d).

In the absence of a court order, evidence must be provided to show how the DNA testing was conducted and that the DNA test results were reliably obtained. See Barbara W~, 701 N.Y.S.2d at 849. Otherwise, the probative value of the test is outweighed by the risk of prejudice. Id.; see Barbara A. v. Gerald J., 553 N.Y.S.2d 638, 641 (N.Y. Fam. Ct. 1990).

We first note that the "DNA Reconstruction Test Report" does not meet the standards for a presumption of paternity since the DNA test does not appear to have been ordered pursuant to a court order and because the test results did not show a 95% probability of relatedness. Accordingly, the DNA test report does not establish a rebuttable presumption of paternity. See N.Y. C.P.L.R. § 4518(d). Nevertheless, it should be considered.

Secondly, we note that the weight to be afforded the DNA test in this case relies heavily on the circumstances of the testing procedures. New York courts have found DNA testing is not reliable where there was no evidence of the procedures followed by the laboratory and where the father delivered the samples to the laboratory. Brian B., 699 N.Y.S.2d at 491 (absent evidence of appropriate laboratory procedures, privately-arranged genetic test is inadmissible where reliability depended upon the assurances of the party that the blood samples were not tampered with before delivery to laboratory); Comm. of Social Services ex rel. Ethel L. v. David L., 646 N.Y.S. 2d 706 (N.Y. App. Div. 1996) (blood tests inadmissible where petitioner failed to lay a proper foundation that the testing was done by duly approved laboratory); see Barbara A., 553 N.Y.S.2d at 641 (where interested party transported blood samples without supervision, results were tainted); see also In re S~, 768 N.Y.S.2d 271, 275 (N.Y. Sur. Ct. 2003) (DNA is admissible; however the blood must be drawn under strictly controlled laboratory conditions and chain of custody must be meticulously documented.); Matter of S~, 755 N.Y.S.2d 557 (N.Y. Sur. Ct. 2002).

Accordingly, relevant factors to consider in weighing the test are whether the testing was conducted by and in a duly accredited laboratory and whether interested parties were involved in the transportation of the DNA samples. See e.g. Brian B, 699 N.Y.S.2d at 491; Barbara A., 553 N.Y.S.2d at 641.

Here, DNA test was certified by the head of the laboratory that performed the test. See N.Y. C.P.L.R. § 4518 (c) and (d). However, the laboratory may not have been accredited by the New York State Department of Health for the purposes of performing DNA testing until July 28, 2004. See Exhibit 1, DNA Center Accreditation. Moreover, pursuant to C.P.L.R. § 4518, the certification must contain a statement that the report was made in the regular course of the laboratory's operation at or about the time of the test in question. See N.Y. C.P.L.R. § 4518(a); Vincent , Supplemental Practice Commentaries, N.Y. C.P.L.R. 7B, 52-53 (M~'s 2003). Dr. B~'s certification states only that the testing was conducted in accordance with American Association of Blood Banks (AABB) guidelines. It is unclear what those guidelines require. The certification does not state that the DNA report was made in the course of the laboratory's normal operation at or about the time of the DNA test. The certification indicates that the report was prepared the same day the certification was signed, but there is no indication when the DNA test was conducted. Accordingly, the certification here is inadequate. If the certification is incomplete, the report may still be considered if sufficient information about the laboratory procedures is later provided. Vincent , Supplemental Practice Commentaries, N.Y. C.P.L.R. 7B, 52-53 (McKinney's 2003).

In addition to not establishing when the testing was conducted, neither the certification nor the test report establishes where the testing was conducted, by whom, and using what methods. It is not clear whether proper laboratory procedures were followed. See N.Y. C.P.L.R. § 4518(d); N.Y. Fam. Ct. Act § 532 (M~'s 1999); see Barbara W~, 701 N.Y.S.2d at 849 (in the absence of a court order, DNA testing performed by a duly accredited laboratory is not admissible where the results were obtained in violation of the standard and protocols set forth and the certification of the laboratory director was incomplete.)

Thirdly, the DNA testing here does not even show a 95% probability of relatedness. See N.Y. C.P.L.R. § 4518(d). Therefore, the DNA test must be weighed along with other relevant evidence to determine whether the "clear and convincing" standard is met in this case.

The wage earner's mother stated that her son acknowledged that he and Theresa were going to have a baby. The agency should further develop the facts to obtain a statement from Theresa regarding the date of her last menstruation and the dates of intercourse with the wage earner and any other men during the relevant period. Such facts, together with the DNA test results and Sonia's statement, must be weighed in determining whether clear and convincing evidence of paternity exists here.

2. Open and Notorious Acknowledgement

Assuming that you find "clear and convincing" evidence of paternity, Theresa must also establish that the wage earner "openly and notoriously" acknowledged Destiny in order to establish paternity under N.Y. Est. Powers & Trusts Law § 4-1.2(a)(2)(C) (M~'s 1998).

Typical examples of open and notorious acknowledgments do not apply in this case since, here, the wage earner died before Destiny was born. However, a New York court has recently held that in cases like this, the open and notorious acknowledgement prong may be satisfied when the "decedent did all that he might reasonably be expected to do to openly and notoriously acknowledge that he was the father of the child that would ultimately be born." In re Estate of T~, 769 N.Y.S.2d 863, 865 (N.Y. Sur. Ct. 2003). In that case, the decedent father readily acknowledged to his sister and grandmother that he could be the father of the child. Id. Thereafter, the father visited his mother and his aunt with the child's mother and stated that "they" were going to have a baby. Id. The court found that the decedent had done all he reasonable could have been expected to do to openly and notoriously acknowledge that he was the child's father. Id. Similar facts should be developed here.

Conclusion

The conclusion as to both clear and convincing evidence of paternity and open and notorious acknowledgment are factual determinations. Although the "DNA Reconsideration Test" result should be considered, it is not sufficient by itself to establish Destiny's relationship to the wage earner.

Very truly yours,

BARBARA L. Spivak

Chief Counsel, Region II

By: Margaret A. Donaghy

Assistant Regional Counsel