The Claimant retains inheritance rights from NH under South Carolina law and is considered the NH's child for purposes of intestate succession in South Carolina, therefore the Claimant is the NH's child for determining Claimant's eligibility for child's insurance benefits on the NH's record.

South Carolina law provides that an order terminating the relationship between parent and child divests the parent and child of all legal rights, but the termination does not terminate the child’s right to inherit from the parent. Only a final order of adoption terminates a child’s right of inheritance and in this case, the information provided indicates Claimant has not been adopted.  

QUESTION

You have asked whether the claimant is the child of the number holder for determining the claimant’s eligibility for child’s insurance benefits (CIB) on the number holder’s earnings record where a North Carolina court terminated the number holder’s parental rights. 

 OPINION

We believe Claimant is NH’s child for purposes of determining Claimant's entitlement to CIB on NH’s earnings record.

BACKGROUND

According to the information provided, Melinda and Rodney, the number holder (NH), married in North Carolina on October 27, 2000.  Six months later, on or about April, Haley (Claimant) was born to Claimant’s mother and NH.  Claimant’s mother and NH divorced in North Carolina on September 27, 2004. After Claimant’s mother petitioned a North Carolina court to terminate the NH’s parental rights to Claimant, the court issued an order and judgment on November 17, 2006, terminating NH’s parental rights. NH protectively filed an application for disability insurance benefits (DIB) on June 22, 2008 and the Social Security Administration (SSA) granted NH’s DIB application on November 25, 2008. On October 30, 2012, Claimant’s mother filed an application on Claimant’s behalf for CIB on NH’s earnings record. According to the information provided, the Agency last updated NH’s address in 2004 to South Carolina. NH listed a South Carolina residence on his 2008 DIB application. NH’s November 2012 statement to the Agency contesting Claimant’s status as his child also includes a South Carolina address. 

DISCUSSION

A claimant may be eligible for CIB on the earnings record of an individual entitled to DIB if the claimant is the insured individual’s “child.” See Social Security Act (Act) § 202(d)(1); 20 C.F.R. § 404.350(a)(1) (2013). “Child” includes “the child” of an insured individual. See Act § 216(e)(1); 20 C.F.R. § 404.354 (2013). To determine if a claimant is “the child” of the insured individual, SSA considers whether the claimant could inherit the insured individual’s intestate personal property under State law. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(3) (2013).  If, as here, the NH is living, we look to the State law where the insured has his or her permanent home when the claimant applied for benefits. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(b)(1), (b)(3) (2013).

The information provided indicates that NH had his permanent home in South Carolina when Claimant’s mother filed the CIB application on Claimant’s behalf.  Because NH is alive; we thus look to South Carolina law to determine whether Claimant is NH’s child for the purposes of intestate succession under section 216(h)(2)(A) of the Act. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (4).

South Carolina law provides that an order terminating the relationship between parent and child divests the parent and child of all legal rights, powers, privileges, immunities, duties, and obligations with respect to each other, except the termination does not terminate the child’s right to inherit from the parent. See S.C. Code Ann. §§ 63-7-2590(A); 62-2-109(3) (2013).  Only a final order of adoption terminates a child’s right of inheritance. See S.C. Code Ann. § 63-7-2590(A); Cox v. Cox, 202 S.E. 2d 6, 9 (1974). In this case, the information provided indicates Claimant has not been adopted.   Claimant thus retains inheritance rights from NH under South Carolina law.  

A South Carolina court would be required to accept the North Carolina court’s parental-rights-termination order under the full faith and credit clause if North Carolina had jurisdiction to issue the order and if the order is entitled to receive credit. See U.S. Const. art. IV, § 1; 28 U.S.C. § 1738 (2013). Pursuant to S.C. Code Ann § 63-15-354 (2013), a South Carolina court must recognize and enforce a child custody determination of North Carolina if:  1) North Carolina exercised jurisdiction in “substantial conformity” with the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA); or 2) the determination was made under factual circumstances meeting the jurisdictional standards of the UCCJEA and the determination has not been modified in accordance with the UCCJEA. Id. Here, the North Carolina court analyzed its jurisdiction under N.C. Gen. Stat. § 7B-1101 and the court determined it had proper jurisdiction to terminate NH’s parental rights to Claimant. N.C. Gen. Stat. § 7B–1101 requires that before the court can exercise jurisdiction to terminate a parent’s rights, the court shall find that it has jurisdiction to make a child-custody determination under the provisions of the UCCJEA. See id.; In re H.L.A.D., 646 S.E.2d 425, 429 (N.C. Ct. App. July 3, 2007)(citing In re N.R.M., T.F.M., 598 S.E.2d 147, 149 (2004) and N.C. Gen. Stat. § 50A–101 et seq.).  Additionally, NH does not appear to contest that the North Carolina court had jurisdiction to terminate his parental rights.  None of the information presented to us appear to provide an avenue then for a South Carolina court to modify the North Carolina order. 

In sum, Claimant retains inheritance rights from NH in spite of the North Carolina parental-rights-termination order.  Claimant is therefore considered NH’s child for purposes of intestate succession in South Carolina. Thus, Claimant is NH’s child under section 216(h)(2)(A) of the Act.

CONCLUSION

For the foregoing reasons, Claimant is NH’s child for determining Claimant’s eligibility for CIB on NH’s earnings record.    

Very truly yours, 

Mary Ann Sloan

Regional Chief Counsel

By:_____________

Arthurice T. Brundidge

Assistant Regional Counsel

In a South Carolina claim for Childhood Disability Benefits, statements by the claimant's mother which refute the possibility that the claimant is the deceased number holder's child are sufficient to prevent the establishment of a parent-child relationship when the claimant has not submitted any evidence to support the allegation here.)

QUESTION

You asked whether the oral and written statements of the claimant's mother alleging the claimant was not the child of the number holder are sufficient to prevent the claimant from receiving disabled adult child (DAC) benefits on the account of the number holder where the Social Security Administration previously determined the claimant was the child of the number holder in a prior application for auxiliary benefits. In response to our request for clarification of the issue presented, you also asked whether the evidence was sufficient to establish fraud or similar fault to reopen and revise the prior determination.

OPINION

For the reasons stated below, we believe a Social Security Administration (SSA) adjudicator could find the claimant ineligible to receive DAC benefits on the account of the number holder. Administrative res judicata does not preclude SSA from determining whether the claimant is the child of the number holder based upon the evidence currently available. Since administrative res judicata does not apply, you need not reopen and revise the prior determination to adjudicate the current application for DAC benefits. However, we believe an SSA adjudicator could find a preponderance of the evidence supports a finding of fraud or similar fault sufficient to reopen and revise the prior determination finding the claimant to be the child of the number holder.

BACKGROUND

Chrystal (Claimant) was born on March and received auxiliary benefits as the child of James, the number holder (NH), from January 1977 through March 1984. According to NH's death certificate, NH was domiciled in Greenville, South Carolina when he died on June 6, 1994. Rachel, the claimant's mother (Mother), filed an application for retirement insurance benefits and stated her adult child (Claimant) is disabled and previously received auxiliary benefits on the account of NH. The field office began processing an application for DAC benefits on the account of NH.

Mother subsequently sent a letter to the field office admitting NH and Mother knowingly provided false statements to SSA in the application for auxiliary benefits. Mother alleged Claimant was not the child of NH. Mother stated NH was impotent, they always used birth control, and NH knew Mother was involved with another man. According to Mother, NH was "an older man and didn't have any children and wanted to help [Claimant] out, so he stated she was his child in order for her to receive benefits." Mother stated she offered these admissions because she felt guilty for lying about Claimant's status to obtain auxiliary benefits. Mother claims not to have any information about Claimant's biological father. Claimant currently receives Supplemental Security Income, but not child's insurance benefits, and Mother serves as Claimant's representative payee. Mother offered to repay the auxiliary benefits from her future retirement benefits. The monthly payment Claimant would receive in DAC benefits on the account of Mother would be approximately half that she would receive on the account of NH.

DISCUSSION

Applicability of Administrative Res Judicata

SSA previously determined Claimant to be NH's child in connection with Claimant's application for auxiliary benefits. However, we do not know the basis for that determination because the claims file has been destroyed. SSA is not bound by the prior determination finding Claimant to be the child of NH. Administrative res judicata is a rule of law used to avoid deciding an issue that was previously decided based on the same facts, issues, parties and adjudicative period. See Program Operations Manual System (POMS) GN 03101.160(A). Administrative res judicata cannot be applied to an unadjudicated period, meaning the period after the date of the last determination. See POMS GN 03101.160(B). Therefore, the determination of Claimant's status as the child of NH made in connection with the prior application for auxiliary benefits is not binding on SSA with respect to the current application for DAC benefits.

Entitlement to Child's Insurance Benefits - In General

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. § 404.354 (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. Claimant cannot establish she is the child of NH under either provision.

Section 216(h)(2)(A) of the Act requires a showing Claimant could inherit NH's personal property as his child under the intestacy laws of the state where NH had his permanent home when he died. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (4) (2008). Because NH was domiciled in South Carolina when he died, the question is whether Claimant would be considered NH's child for purposes of intestate succession under South Carolina law.

When the putative father is deceased, South Carolina requires a child born out of wedlock to establish paternity by clear and convincing evidence for purposes of intestate succession. See POMS PR 01115.045(D). South Carolina will consider several forms of admissible evidence regarding paternity including (1) the results of genetic tests, (2) refusal of a party to submit to a genetic or other ordered test (goes to the credibility of the party), (3) test results showing a probability of paternity of nine-five percent or higher, (4) a verified acknowledgment of paternity, (5) a foreign paternity determination whether established through administrative or judicial process, (6) a birth certificate containing the signature of the mother and the putative father, (7) an expert's opinion concerning the time of conception, (8) the testimony of a husband and wife as to any relevant matter, including marriage and parentage, and (9) any other relevant and competent evidence deemed admissible in the discretion of the court. Id. Claimant has not presented any evidence of paternity other than Mother's current statements that NH was not Claimant's father and Mother's recollection of the statements of NH and Mother made in connection with Claimant's prior application for auxiliary benefits.

Mother has retracted the prior statements out of guilt and provided a variety of facts to challenge the conclusion Claimant is the child of NH. Mother now claims (1) Mother and NH knew Claimant was not his child, (2) NH was impotent, (3) NH and Mother used birth control, and (4) Mother was involved with another man. According to Mother, NH had no children of his own and identified Claimant as his child so she could receive auxiliary benefits.

Although it is impossible to contact NH to confirm the accuracy of these assertions, NH's acknowledgment of paternity to SSA is not equivalent to the verified voluntary acknowledgment of paternity required to establish clear and convincing evidence under South Carolina law. The South Carolina statute provides the person acknowledging paternity must be given the opportunity to seek legal advice prior to signing the acknowledgment. See POMS PR 01115.045(D). In addition, the acknowledgment must be made in a sworn document and witnessed by a person over the age of eighteen and unrelated to the child. Id. "The witness must attach to the acknowledgment a written certification which specifies that prior to signing the acknowledgment, the provisions of the acknowledgment were discussed with the person acknowledging paternity and that, based upon the discussion, it is the witness' opinion that the acknowledgment is being given voluntarily and that it is not being obtained under duress or through coercion." Id. The claims file for the application for auxiliary benefits has been destroyed and there is no evidence NH executed an acknowledgment of the type required by South Carolina law. Given the absence of an acknowledgement from NH that complies with South Carolina law and the statements from Mother, we do not believe the record contains clear and convincing evidence that Claimant was NH's child. Therefore, we believe Claimant could not inherit as the child of NH under the intestacy laws of South Carolina.

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

Reopening and Revising a Determination on the Basis of Fraud or Similar Fault

It is not necessary to reopen and revise the prior determination finding Claimant was the child of NH to adjudicate the current claim for DAC benefits because the doctrine of administrative res judicata does not apply. However, in response to our request for clarification of the issue presented you specifically asked whether SSA could reopen and revise its prior determination on the basis of fraud.

SSA may reopen a determination at any time if it was obtained by fraud or similar fault. See 20 C.F.R. § 404.988(c)(1) (2008). In deciding whether a determination was obtained by fraud or similar fault, SSA takes into account any relevant physical, mental, educational or linguistic limitations. See 20 C.F.R. § 416.1488(c) (2008). The record contains no evidence Mother or NH suffered from such a limitation. Fraud exists when a person, with intent to defraud, either (1) makes or causes to be made a false statement or misrepresentation of a material fact or (2) conceals or fails to disclose a material fact for use in determining rights to Social Security benefits. See POMS GN 04020.010(A)(1). Similar fault exists when a person knowingly makes an incorrect or incomplete statement or knowingly conceals information that is material to the determination. See POMS GN 04020.010(A)(2). A fraudulent intent is not required for a finding of similar fault. Id. The existence of fraud or similar fault must be established by a preponderance of the evidence. See POMS GN 04020.010(B), (C). Misrepresentations about a claimant's domestic or financial status can constitute "fraud or similar fault" for purposes of reopening a Social Security claim. See POMS PR 01010.045(C).

The facts of this case would support a finding of fraud or similar fault by a preponderance of the evidence. Mother freely admits to knowingly making a false statement to SSA in connection with Claimant's application for auxiliary benefits. SSA cannot contact NH to determine if he would voluntarily retract his admission of paternity. However, the record contains no reason to doubt Mother's admission that NH is not Claimant's father. Mother made this admission against her own interests and the interests of Claimant. Mother serves as Claimant's representative payee. A decision to reopen and revise SSA's prior determination that Claimant was the child of NH would result in a significant overpayment. Mother acknowledges repayment of the auxiliary benefits may be required and has offered to do so from her own retirement benefits. Furthermore, the monthly payment Claimant would receive in DAC benefits on the account of Mother would be approximately half that she would receive on the account of NH.

CONCLUSION

We believe an SSA adjudicator could find Claimant is not eligible for DAC benefits on the account of NH. Although it is not necessary for an SSA adjudicator to reopen and revise the prior determination to adjudicate the current claim for DAC benefits, the evidence presented is sufficient to reopen and revise the prior determination on the basis of fraud or similar fault.

Mary Ann Sloan

Regional Chief Counsel

Christopher G. Harris

Assistant Regional Counsel

In South Carolina, DNA testing of a brother of the deceased number holder showing that there is a 99.96% probability that a sibling of that brother is the father of the claimant is not sufficient to establish a rebuttable presumption of paternity since we cannot rule out the number holder's other brother as parent. In addition, the evidence in this case, even with consideration of the DNA testing, does not satisfy the clear and convincing standard to show that claimant is the child of number holder.

QUESTION

You asked whether DNA testing of the number holder's brother, together with other evidence, is sufficient to show the claimant is the child of the deceased number holder for purposes of determining eligibility for child's insurance benefits.

ANSWER

Because the DNA testing demonstrated a 99.96% probability of paternity for a brother of the number holder's brother and not the number holder specifically, we do not believe the DNA testing in this case would create a rebuttable presumption of paternity or qualify as "clear and convincing" evidence of paternity. A Social Security Administration (SSA) adjudicator could conclude that the claimant is not the child of the number holder and thus is not eligible for benefits as the number holder's child.

BACKGROUND

On December 29, 1993, Donald, the number holder (NH), died while domiciled in South Carolina. On March 8, 1994, Patricia (Claimant's mother), the mother of Devon (Claimant), filed for child's insurance benefits on behalf of Claimant, who was born on January. Claimant's mother was not married to NH. NH was married to Thelma. Thelma filed for child's insurance benefits on January 3, 1994, on behalf of her daughter (C2) on the record of NH. In March 1994, SSA determined Claimant was entitled to benefits on the record of NH. This determination affected the amount of benefits for C2. Thelma requested reconsideration of SSA's determination to award Claimant benefits on NH's record. The reconsideration determination affirmed the initial decision that Claimant was entitled to benefits on NH's record. Thelma requested a hearing, and on May 17, 1996, an administrative law judge (ALJ) issued a fully favorable decision to Thelma and found Claimant was not entitled to benefits on NH's record. In his decision, the ALJ considered that NH was not married to Claimant's mother and that there was no evidence that Claimant's mother was living with NH nor was NH providing monetary support for Claimant. The ALJ also considered that NH's name was not listed on Claimant's birth certificate, and the testimony from NH's brother, Gary , that Claimant was not NH's child. Furthermore, the ALJ considered a photograph that showed NH at the hospital when Patricia gave birth, but concluded the photograph does not establish paternity, noting that if NH was the father of Claimant and present at the hospital, "one would wonder why he was not listed as the father on [Claimant's birth certificate]." Claimant's mother requested review of the ALJ decision, and on September 8, 1997, the Appeals Council denied her request for review. Claimant's mother did not seek judicial review of the ALJ's decision.

In November 2004, SSA awarded Claimant's mother disability benefits on her own earnings record. SSA also found Claimant entitled to benefits on his mother's record.

On April 5, 2006, Claimant's mother filed a new claim for child's insurance benefits on behalf of Claimant on NH's record. Claimant's mother provided the results of DNA testing of Claimant and NH's brother, Darrell , performed on March 14, 2006. The test results indicated "a brother" of NH's brother was estimated to have a probability of paternity of 99.96% as compared to an untested, unrelated man. On October 30, 2006, SSA denied Claimant's claim.

On November 21, 2006, Claimant's mother requested reconsideration. On March 26, 2007, SSA asked for additional information before it could make its decision. On May 9, 2007, Claimant's mother responded to SSA's inquiries, and provided contradictory statements on whether NH was contributing to the support of Claimant prior to his death. Claimant's mother also provided SSA with the names of three blood relatives of NH who were aware of the relationship between him and Claimant and could support her claim. None of these relatives responded to SSA's requests for information. In July 2007, we asked the Atlanta Regional Office to ascertain whether NH had any additional brothers. SSA determined NH had at least two brothers, Gary and Darrell.

DISCUSSION

To be eligible for child's benefits on the earnings record of an insured individual, a claimant must be that individual's child. See Social Security Act (Act) § 202(d), 42 U.S.C. § 402(d); 20 C.F.R. § 404.350(a)(1) (2007). "Child" is defined as the child, adopted child or stepchild of an insured individual. See Act § 216(e), 42 U.S.C. § 416(e); 20 C.F.R. § 404.354. In determining a claimant's status as the child for benefits purposes, the Commissioner applies the inheritance laws of the state in which the insured had his permanent home when he died. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (4). For purposes of intestate succession in South Carolina, a person is a child of the natural father if "the paternity is established by an adjudication . . . if commenced after his death, by clear and convincing proof." S.C. CODE ANN. § 62-2-109(2)(ii) (2007). In Program Operations Manual System (POMS) PR 01115.045C, clear and convincing evidence was defined for South Carolina as "an intermediate standard of proof, more stringent than 'preponderance of the evidence' but less than 'beyond a reasonable doubt.'"

South Carolina law regarding the admissibility and effect of DNA testing to determine paternity, S.C. CODE ANN. § 20-7-956(A)(3), provides, "test results which show a . . . statistical probability of paternity of ninety-five percent or higher creates a rebuttable presumption of the putative father's paternity." The statute is silent as to the weight to be given to genetic testing of other relatives, and we found no South Carolina case law discussing the statute in the context of genetic testing of a putative father's relatives. However, the issue of DNA testing of a relative was addressed in POMS PR 01120.045F. In POMS PR 01120.045F, the Agency asked whether the DNA test results from the parents of the deceased number holder from South Carolina was sufficient to prove the number holder was the child claimant's father. The opinion noted the genetic testing demonstrated a 99.98% probability of grand-paternity, and there was no evidence that contradicted the allegations that the deceased number holder was the father of the child claimant. Rather, the evidence in that case included additional, corroborating statements that were entered into the record. The opinion further indicated that, unless the number holder had a brother whom SSA suspected might be the child claimant's father, the evidence would seem to qualify as "clear and convincing" evidence of paternity. The opinion concluded that a relative's genetic test results may be considered along with the other evidence of the NH's paternity so long as the testing shows paternity (not relatedness). Therefore, the opinion concluded South Carolina law did not create a presumption of paternity based on DNA tests that show anything other than paternity of the putative father.

In this case, the record includes DNA testing demonstrating a 99.96% probability of paternity for "a brother" of Darrell. This would qualify as "clear and convincing" if NH's only brother was Darrell . However, an Agency inquiry revealed that NH had at least two brothers: Darrell and Gary . Therefore, it appears that these tests reveal a 99.96% probability that either NH or Gary is the father and would not create a rebuttable presumption of paternity that NH is the father.

In the absence of a rebuttable presumption of paternity, SSA must still determine whether the evidence in the case file - including the non-presumptive DNA test - is sufficient to qualify as "clear and convincing" evidence of paternity. Unlike the facts in POMS PR 01120.045F, there is evidence that contradicts the allegations of NH's paternity. The record includes a prior ALJ decision, dated May 17, 1996, which concluded that Claimant was not the child of NH. In that decision, the ALJ determined that Claimant's mother was not living with NH nor was NH providing monetary support for Claimant. In May 2007, Claimant's mother provided contradictory statements on whether NH was contributing to the support of Claimant prior to his death. Furthermore, Claimant's mother provided the Agency with the names of three blood relatives of NH who were aware of the relationship between him and Claimant and could support her claim. None of these relatives responded to the Agency's requests for information. Moreover, NH's brother, Gary, had previously testified before the ALJ that Claimant was not the child of NH. Last, Claimant's birth certificate does not list NH as the father, even though there is a photograph showing NH at the hospital at the time of Claimant's birth. The only evidence that NH is the father of Claimant is the DNA test and the statements made by Claimant's mother. Without corroborating evidence that NH is the father, the evidence in the case record appears to fall well below the clear and convincing evidence standard. Ultimately, it is our opinion that the DNA testing in this case, without corroborating evidence, is insufficient to establish paternity by clear and convincing proof.

CONCLUSION

The evidence in this case is not as strong as the facts in POMS PR 01120.045F, and we believe that a SSA adjudicator may conclude that, in this case, the DNA testing does not create a rebuttable presumption of paternity. In addition, the evidence in the case file, even with consideration of the DNA testing, does not satisfy the clear and convincing standard to show that Claimant is the child of NH. We are not saying that DNA testing of a deceased number holder's relative is insufficient to establish paternity in all cases.

Very truly yours,

Mary Ann Sloan

Regional Chief Counsel

Brian Seinberg

Assistant Regional Counsel

In South Carolina, a family court order based on the testimony from Claimant's mother, the personal representative, and the written testimony from other witnesses, including members of both families, neighbors, members of the community, and other independent parties who knew the number holder and the open, notorious, and lengthy relationship between number holder and Claimant's mother is sufficient in combination with other submitted evidence to establish a parent-child relationship between the deceased number holder and the claimant by the clear and convincing standard.

QUESTION

You asked whether a South Carolina (SC) court order declaring the deceased number holder, George (NH), to be the father of Lily (Claimant) is consistent with SC law and should be used by the Social Security Administration (SSA) to establish clear and convincing evidence of a parent-child relationship between NH and Claimant.

ANSWER

The court order in this case is consistent with SC law and should be used by SSA to establish clear and convincing evidence of a parent-child relationship between NH and Claimant, and an SSA adjudicator could reasonably conclude that Claimant is entitled to child's insurance benefits on the record of NH.

BACKGROUND

On June 3, 2002, NH died while domiciled in SC. Kristen gave birth to Claimant on September Claimant's mother timely filed a paternity action against NH's estate. On March 15, 2005, the Family Court of the Ninth Judicial Circuit issued an order declaring that NH was Claimant's father, based on the testimony from Claimant's mother, the personal representative, and the written testimony from other witnesses, including members of both families, neighbors, members of the community, and other independent parties who knew NH and the open, notorious, and lengthy relationship between NH and Claimant's mother. The court further ordered that Claimant's birth record and all other records be amended to reflect her paternity.

On March 9, 2006, Claimant's mother filed an application for child's insurance benefits (survivor's claim) on Claimant's behalf. Claimant's mother submitted, in addition to the SC court order, notarized statements from Michael and Shelley (NH's uncle and aunt), Vickie (NH's aunt), Diane (NH's aunt), George and Barbara (NH's parents), Virginia (NH's grandmother), and Ann (NH's aunt). All of these notarized statements indicate that Claimant is the child of NH. Claimant's mother also provided an unsigned statement from Claimant's grandmother, also indicating that Claimant is the child of NH.

DISCUSSION

In determining entitlement to surviving child's benefits, the Commissioner applies the inheritance laws of the state in which the insured had his permanent home when he died. See §216(h)(2)(A) of the Social Security Act (Act), 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1) (2006). SSA regulations further provide that it will not apply any applicable state inheritance law requirement that an action to establish paternity must be taken within a specified period of time measured from the worker's death. 20 C.F.R. § 404.355(b)(2).

For purposes of intestate succession in SC, a person is a child of the natural father if “the paternity is established by an adjudication . . . commenced after the death of the father . . . by clear and convincing proof.” S.C. Code Ann. § 62-2-109(2)(ii) (time restrictions omitted). In this case, there has been a paternity adjudication by a SC court. The Family Court of the Ninth Judicial Circuit issued its order on March 15, 2005, which indicated that Claimant's mother filed a paternity action within the statutory time period, and declaring that NH is the father of Claimant. The court further ordered that Claimant's birth record be amended to reflect her paternity and that all of her records should be similarly amended. There is no reason to believe that this order is inconsistent with SC law or that the court did not use its own standard of clear and convincing proof when determining paternity in this matter. SC law regarding the admissibility of evidence at a hearing, S.C. Code Ann. § 20-7-956(9), provides that admissible evidence includes “[a]ny other relevant and competent evidence deemed admissible in the discretion of the court.” In this case, the Court considered the oral testimony of Claimant's mother and the personal representative, and the written testimony from other witnesses, including members of both families, neighbors, members of the community, and other independent parties who knew NH and the open, notorious, and lengthy relationship between NH and Claimant's mother. There is nothing in SC law that states that this evidence should have been found “inadmissible” or that the court cannot rely on such evidence to establish paternity after the death of the father.

The court's paternity determination would seem to be due some deference under Social Security Ruling (SSR) 83-37c. Through this SSR, SSA adopted as national policy the rationale from Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973). In G~, the Sixth Circuit held the Commissioner is not free to ignore a state court determination on a domestic relations issue when the state court had jurisdiction over the issue, the issue was genuinely contested by parties with opposing interests, and the decision was consistent with the law set forth by the highest court in the state. Since NH (through his estate) was present and represented before the state court, and since the order reveals no inconsistency with SC law, SSA would not be free to ignore the court's conclusion that NH was Claimant's father.

Furthermore, the precedent in POMS PR 01115.045B is not applicable to the facts of this case. In PR 01115.045B, the claimant had submitted only signed statements from the deceased number holder's alleged parents and there was no paternity adjudication by a SC state court. PR 01115.045B only established that the parents' signed statements alone were not enough to satisfy the state's requirement for clear and convincing proof. PR 01115.045B, however, indicated that:

one could establish paternity by clear and convincing evidence with evidence less convincing than that required to establish a presumption of paternity (such as verified, voluntary acknowledgment). But the stringent requirement for proof of acknowledgment in the statute, absent any indication of deference given lesser acknowledgments, leads us to believe that the scant evidence of oral acknowledgment offered in this case would not qualify as clear and convincing evidence. However, given the broad inclusion of "any other relevant and competent evidence" permitted by the statute, we cannot say that stronger evidence of oral acknowledgment may not suffice under other circumstances, especially when it is considered with other probative evidence.

Id. (emphasis added). In this case, the record includes, in addition to the SC court order, a multitude of unrebutted evidence indicating that NH is Claimant's father. This evidence includes notarized statements from Michael and Shelley (NH's uncle and aunt), Vickie (NH's aunt), Diane (NH's aunt), George and Barbara (NH's parents), Virginia (NH's grandmother), and Ann (NH's aunt). The record also includes unsigned statements from Claimant's mother and grandmother, also indicating that Claimant is the child of NH. Given that (1) the state of SC considers Claimant to be NH's child, (2) the record in this case includes stronger evidence of oral acknowledgment than the facts presented in PR 01115.045B, and (3) SSA is not free to ignore the SC court order establishing NH as the father, we believe that SSA should consider both the state court order and notarized statements as admissible evidence of paternity, and that an SSA adjudicator could reasonably conclude, based on the evidence provided in this particular case, that there is clear and convincing proof that NH is Claimant's father.

CONCLUSION

The SC court order establishing NH as Claimant's father, coupled with the several notarized statements provided to SSA in this case, is sufficient to establish clear and convincing evidence of a parent-child relationship between NH and Claimant.

Very truly yours,

Mary Ann Sloan

Regional Chief Counsel

Brian C. Harris

Assistant Regional Counsel

A genetic testing facility accredited by the American Association of Blood Banks would be considered a qualified testing facility under The State laws of South Carolina, barring any court evidence to the contrary.

Any finding of paternity based on DNA test results is effective with the testing date.

In this case, involving a child status determination using South Carolina (SC) intestacy law, you are considering the evidentiary impact of DNA test results and have asked the following questions:

What are the accreditation requirements for DNA testing laboratories under South Carolina intestacy law?

Does the DNA laboratory used in this case meet these requirements?

If the DNA evidence is acceptable under SC intestacy law, can the child be paid retroactively or prospectively from the date of the evidence?

We conclude that South Carolina has no specific accreditation requirements for DNA testing laboratories. If the laboratory is accredited by the American Association of Blood Banks, that accreditation should be sufficient to establish a presumption that the laboratory is “qualified” to conduct genetic tests. Therefore, the DNA evidence in this case should be acceptable for proof of paternity under the South Carolina intestacy law. Finally, because South Carolina inheritance law does not include retroactivity provisions, the child may be paid only prospectively from the date of the test that established paternity.

BACKGROUND

Bobby (Claimant) was born on January, to Katie. An application for child's benefits has been filed on the wage record of Bobby (Wage Earner), a Title II disability beneficiary. The Wage Earner did not sign the child's birth certificate. Evidence to support the application includes reports that allege that the Wage Earner acknowledged paternity at birth and the results of a DNA test performed by Orchid GeneScreen at the Wage Earner's request. The Wage Earner, mother, and child provided samples and the test results, reported on July 19, 2004, showed a statistical probability of paternity of 99.99%.

DISCUSSION

South Carolina's parentage statute includes, among the evidence that is admissible at a hearing to determine paternity, “[r]esults of genetic tests as described in Section 20 7 954 from physicians, agencies, hospitals, laboratories, or other qualified testing facilities, properly verified to show the chain of custody of blood samples.” S.C. CODE ANN. § 20-7-956(A)(1) (2005) (emphasis added). Section 20 7 954 explains that genetic “tests must be performed under the supervision of a qualified expert. In all cases, the court shall determine the number and the qualifications of experts, except that the parties may submit for the court's approval a written stipulation regarding experts and facilities to be used for testing.” S.C. CODE ANN. § 20 7 954(A) (emphasis added).

As noted above, South Carolina focuses on whether a testing facility is “qualified” rather than on whether the facility is accredited. We have reviewed South Carolina statutes and have not found any specific requirements for accreditation of DNA testing facilities either in general or specifically related to intestacy issues. Moreover, we have not found any South Carolina statute or case indicating that accreditation of a testing facility establishes that the facility is a “qualified” testing facility. As § 20-7-954(a), above, intimates, the fact of whether a facility is “qualified” is a case-by-case determination, something the trier of fact would establish based on the parties' submissions. See, e.g., State v. Ford, 301 S.C. 485, 392 S.E.2d 781 (S.C. 1990) (finding DNA testing (print identification) admissible because the forensic laboratory technician who conducted DNA forensic testing qualified as an expert in forensic laboratory testing); South Carolina Dep't of Soc. Servs., 280 S.C. 485, 313 S.E.2d 45 (S.C. Ct. App. 1984) (deferring to the discretion of the trial judge regarding the qualification of a expert who performed genetic testing in a paternity case).

Nevertheless, accreditation by the American Association of Blood Banks (AABB) would likely establish a presumption that a testing facility is “qualified” and that genetic test results from an accredited facility are reliable to establish a presumption of paternity, absent evidence to the contrary. Statutes in many states establish that testing must be performed by a facility approved by an accreditation body designated by the United States Department of Health and Human Services (HHS). See, e.g., ALASKA STAT. § 25.20.050(d); CAL. FAM. CODE §§ 7551, 7552; COLO. REV. STAT. ANN. § 13-25-136(b); FLA. STAT. ANN. §§ 409.256(h), 742.12(1); HAW. REV. STAT. § 584-11(a)(2), (e); IOWA CODE §§ 252A.6A.1.c, 252F.3.6d; KAN. STAT. ANN. § 38-1119(d); MASS. GEN. LAW ANN. 209C § 17; NEB. REV. STAT. § 43-1414; N.M. STAT. § 40-11-12C; N.Y. FAM. CT. ACT LAW § 418(a), 532(a); N.Y. SOC. SERV. LAW § 111-k.2.(a); OR. REV. STAT. §109.251; S.D. CODIFIED LAWS § 34-14-25; TENN. CODE ANN. §§ 24-7-112(a)(3), 24-7-113(e)(3). Statutes in some states specifically mention the AABB as an acceptable accrediting organization. See, e.g., DEL. CODE ANN. 13 § 8-503(a); IDAHO CODE § 7-116(1); ME. REV. STAT. ANN. 19-A § 1610.1; MINN. STAT. § 257.62; MONT. CODE ANN. § 40-5-237(2); N.D. CENT. CODE § 14-20-27(503); OHIO REV. CODE ANN. § 3119.963(D); TEX. FAM.CODE ANN. § 160.503(a); UTAH CODE ANN. § 78-45g-503(1); WASH. REV. CODE § 26.26.410(1); WYO. STAT. ANN. § 14-2-703(a). The AABB is an accreditation organization recognized by HHS. See CLIA Program; Continued Approval of the American Association of Blood Banks for Deeming Authority, 69 Fed. Reg. 78,426 (Dec. 30, 2004); CLIA Program; Approval of the American Association of Blood Banks, 60 Fed. Reg. 37,660 (July 21, 1995).

Courts in other states that have considered the admissibility of DNA testing also have indicated that accreditation of a facility by the AABB provides a basis for accepting test results from the facility, absent evidence undermining the reliability of the test results. See, e.g., Overby v. Flannery, 22 Va. App. 293, 469 S.E.2d 79 (1996) (accepting without discussion uncontroverted DNA test results conducted in accordance with accepted standards of the AABB); Fowler v. Napier, 663 N.E.2d 1197 (Ind. 1996) (holding that the trial court did nor abuse its discretion in allowing the testimony of an employee of GeneScreen and the DNA test results from GeneScreen); State v. Spencer, 663 So.2d 271 (La. 1995) (indicating that accreditation by the AABB provided evidence that a testing facility was properly qualified to provide DNA analysis); Kofford v. Flora, 744 P.2d 1343, 1356 (Utah 1987) (holding that before genetic test results can be admitted in a paternity trial, evidence must be produced that the particular tests were conducted as specified by the AABB or in an equally reliable manner, regardless of whether the laboratory conducting the test was AABB accredited).

Therefore, we believe a South Carolina court would find AABB accreditation sufficient for concluding Orchid GeneScreen is a testing facility “qualified” to perform genetic testing, absent evidence to the contrary. If such contradictory evidence were present, the South Carolina court would make an individualized determination of deference due the tests on the basis of all the evidence.

You have already determined that the Claimant would be recognized as Wage Earner's child pursuant to South Carolina intestacy law if the laboratory providing the DNA evidence was “qualified.” South Carolina statutes provide that test results that show a statistical probability of paternity of ninety-five percent or higher creates a rebuttable presumption of the putative father's paternity. S.C. Code Ann. § 20-7-956. The DNA test results in this case exceed that percentage.

The remaining question is the date of entitlement. Under 20 C.F.R. § 404.621(a)(2), an applicant for child's benefits can receive benefits for up to six months immediately before the month in which the application is filed. However, no child is entitled to benefits for any period prior to satisfying all entitlement factors for child's benefits. See § 202(d)(1) of the Act; 42 U.S.C. 402(d)(1); 20 C.F.R. § 404.352(a). Child status is one of the entitlement factors. See § 202(d)(1) of the Act; 20 C.F.R. § 404.350(a)(1). An illegitimate child generally is not entitled to retroactive benefits because the illegitimate child must prove child status under state law and benefits are prospective from the event which conferred the inheritance rights. See POMS GN 00306.055A.3. However, if the state law granting inheritance rights to an illegitimate child makes those rights retroactive for some period prior to the act or event that confers those rights, such as when the child has been legitimated, then benefits would be retroactive. See POMS GN 00306.050. South Carolina does not have a retroactive provision, and South Carolina intestacy law confers only rights of intestate succession, not legitimacy. See S.C. CODE ANN. § 62-2-109. Only under certain circumstances will a child born to unmarried parents be considered legitimate. See S.C. CODE ANN. §§ 20-1-30, 20-1-40, 20-1-50, 20-1-60, 20-1-90. None of the circumstances listed in the statutes apply in this case. Thus, entitlement is based on the date paternity is effectively established. Our prior opinions concerning retroactive benefits for illegitimate children in South Carolina reached the same conclusion. See POMS PR 01115.045; Memorandum from OGC Region IV to A. Leon “Genetic Testing and Retroactive Benefits, South Carolina, Deceased Number Holder - Romodia Claimant - Robert ” p. 2-3 (1/3/05), copy attached. Therefore, the appropriate date of entitlement would be July 2004, when the test results were published.

CONCLUSION

We conclude that a DNA testing laboratory accredited by the AABB would be considered a qualified testing facility by a South Carolina absent court evidence to the contrary. The testing facility used in the case, Orchid GeneScreen, is accredited by the AABB, and given the absence of contrary evidence, would be considered a qualified testing facility. Finally, Claimant is not entitled to benefits prior to July 2004, the date of the tests results.

Very truly yours,

Mary A. Sloan

Regional Chief Counsel

Brian C. Harris

Assistant Regional Counsel

A child born out of wedlock can inherit from and through his father under South Carolina law if paternity is established by an adjudication commenced either before or after the father's death. A standard of clear and convincing proof is required to be met in an adjudication commenced after the father's death stating that the NH told them on several occasions he was claimant's biological father. The NH's alleged oral acknowledgement to his parents would not satisfy the requirements for a verified, voluntary acknowledgement under South Carolina law, and therefore would not qualify as clear and convincing evidence. Under South Carolina law, if a child qualifies as the NH's child with inheritance rights, his entitlement to benefits would be effective as of the date paternity was established.

QUESTION

You have asked whether an oral acknowledgement can be used as clear and convincing evidence under South Carolina intestacy law and Section 216(h)(2)(A) of the Social Security Act (Act), 42 U.S.C. § 416(h)(2)(A). Also, you asked whether there have been any changes in South Carolina law to make a child's inheritance rights effective before the evidence of paternity was secured.

ANSWER

For the reasons set forth below, it is our opinion that the oral acknowledgment(s) provided in this case would not provide a basis for establishing clear and convincing evidence of paternity under South Carolina intestacy law. In reference to the second question, there has not been in a change in South Carolina law to allow an illegitimate child with inheritance rights to be paid retroactively. Therefore, an illegitimate child's entitlement to benefits would be effective as of the date paternity is established.

BACKGROUND

According to your inquiry, number holder, James (N/H) died on July 16, 2004. At the time of his death, he was domiciled in Mountville, South Carolina. On May 23, 2005, Trista filed for benefits on behalf of her son, Nathaniel (Claimant) on N/H's record. To support this claim, Claimant's mother submitted signed statements dated May 12, 2005 from N/H's alleged parents, Walter . and Julia, that N/H told them on several occasions he was Claimant's biological father.

DISCUSSION

1. Oral Acknowledgments

In determining whether an applicant is the child of an insured individual under the Act, 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 individual was domiciled at the time of his death. See Section 216(h)(2)(A) of the Act. Applicants who according to such law would have the same status as a child relative to taking intestate personal property shall be deemed a child for purposes of the Act.

As N/H died domiciled in South Carolina, South Carolina law is the relevant law in this case. The South Carolina statute providing for the intestate inheritance rights is found at S.C. Code Ann. § 62-2-109 (2005). As relevant here, a child born out of wedlock can inherit from and through his father if paternity is established by an adjudication commenced either before the father's death or within the later of eight months after the death of the father or six months after the initial appointment of a personal representative of his estate. See S.C. Code Ann. § 62-2-109(2)(ii). A standard of “clear and convincing proof” is required to be met in an adjudication commenced after the father's death. See Id. Clear and convincing evidence is defined as “an intermediate standard of proof, more stringent than 'preponderance of the evidence' but less than 'beyond a reasonable doubt.'” Random House Webster's Pocket Legal Dictionary 43 (2nd ed. 1998).

In South Carolina, the evidence admissible at a hearing to determine paternity is outlined in S.C. Code Ann. § 20-7-956(A)(2005). Admissible evidence includes (1) the result of genetic tests, (2) refusal of a party to submit to a genetic or other ordered test (goes to the credibility of the party), (3) genetic tests resulting in a statistical probability of paternity of ninety-five percent or higher (creates a rebuttable presumption of the putative father's paternity), (4) a verified voluntary acknowledgment of paternity (creates a rebuttable presumption of the putative father's paternity except that a verified voluntary acknowledgment of paternity executed after January 1, 1998, creates a conclusive presumption of the putative father's paternity subject to the provisions of Section 20-7-958), (5) a foreign paternity determination whether established through administrative or judicial process (creates a conclusive presumption of paternity), (6) a birth certificate containing the signature of the mother and the putative father (creates a rebuttable presumption of paternity), (7) an expert's opinion concerning the time of conception (this evidence is admissible in the same manner as other expert testimony), (8) the testimony of a husband and wife as to any relevant matter, including marriage and parentage, and (9) any other relevant and competent evidence deemed admissible in the discretion of the court.

Since we are considering oral acknowledgments, we initially look to the section of statute covering verified voluntary acknowledgments. See S.C. Code Ann. § 20-7-956(A)(4). According to this section, “the person acknowledging paternity must be given the opportunity to seek legal advice prior to signing a verified voluntary acknowledgment. A verified voluntary acknowledgment must be made by a sworn document, signed by the person acknowledging paternity and witnessed by (1) that person's attorney, parent, or guardian or (2) a person eighteen years of age or older who is not related to the child and not employed or acting under the authority of the Department of Social Services. The witness must attach to the acknowledgment a written certification which specifies that prior to signing the acknowledgment, the provisions of the acknowledgment was discussed with the person acknowledging paternity and that, based upon this discussion, it is the witness' opinion that the acknowledgment is being given voluntarily and that it is not being obtained under duress or through coercion.” Id.

Here, N/H did not sign any type of document that would be considered an acknowledgement of Claimant as his son. See Mitchell v. Hardwick, 374 S.E. 2d 691 (S.C. 1988) (A deed signed and recorded by the father that specifically acknowledged the parent-child relationship was proof of paternity.). N/H's alleged oral acknowledgement to his parents, Julia and Walter, would not satisfy the requirements for a verified, voluntary acknowledgment. See Pinckney v. Warren, 544, S.E. 620 (S.C. 2001).

In P~, the Court found that the rules in M~ controlled even though family members did not contest paternity. Id. at 626. While M~ deals with the rules for obtaining retroactive benefits, the proof required to establish paternity is the same regardless if retroactivity is an issue. The P~ Court reasoned that “fraudulent assertions of paternity would be much less likely to succeed, or even to arise, where proof of paternity was established by either a court order issued prior to the father's death or by an instrument signed by the father.” Id. citing, Lalli v. Lalli, 439 U.S. 259 (1978)(holding public policy supports a rule where paternity must be established by an order of filiation issued during the putative father's lifetime for an illegitimate child to recover as an heir at law).

While the statute says admissible evidence includes “any other relevant and competent evidence deemed admissible in the discretion of the court,” we found no cases discussing what other types of evidence would establish clear and convincing evidence under this section of the statute. See S.C. Code Ann. § 20-7-956(A)(9). Clearly, one could establish paternity by clear and convincing evidence with evidence less convincing than that required to establish a presumption of paternity (such as verified, voluntary acknowledgment). But the stringent requirement for proof of acknowledgment in the statute, absent any indication of deference given lesser acknowledgments, leads us to believe that the scant evidence of oral acknowledgment offered in this case would not qualify as clear and convincing evidence. However, given the broad inclusion of “any other relevant and competent evidence” permitted by the statute, we cannot say that stronger evidence of oral acknowledgment may not suffice under other circumstances, especially when it is considered with other probative evidence.

2. Retroactivity

Under 20 C.F.R. § 404.621(a)(2) (2005), an applicant for child's benefits can receive benefits for up to six months immediately before the month in which he files his application. If a child proves he is the legitimate child of an insured individual and entitled to benefits, that entitlement will extend through the full retroactive period of his application (that is, from six months before the application or the child's birth, whichever occurs later), because a child is considered legitimate from birth. See, POMS GN 00306.050 and GN 306.085. On the other hand, an illegitimate child would not be entitled to retroactive benefits because an applicant is not entitled to benefits before he proves he meets all entitlement factors, and an illegitimate child has not proved child status (in this case, has not proved his ability to inherit a child's share of NH's intestate estate) until he meets the evidence requirements for proving that status under state law. So, “[a]n act/event conferring inheritance rights generally has effect only from the date of such act/event.” POMS GN 00306.055A. The only exception to this policy is for cases where the state law granting inheritance rights on an illegitimate child also accords those rights for periods before the act or event that confers those rights, such as when the child has been legitimated (see, POMS GN 00306.050). You asked whether, if Claimant qualified as NH's child, the evidence would entitle Claimant to benefits before paternity was established. In essence, you asked whether Claimant might be entitled to retroactive benefits.

The South Carolina statute does not confer legitimation rights on an illegitimate child, but only rights of intestate succession. See S.C. Code Ann. § 62-2-109. The statute only allows an illegitimate child to inherit from and through his father when paternity is established by an adjudication commenced either before the father's death or within the later of eight months after the death of the father or six months after the initial appointment of a personal representative of his estate. Id. As Claimant would still be considered the illegitimate child of N/H, if Claimant qualified as N/H's child with inheritance rights, his entitlement to benefits would be effective as of the date paternity was established.

CONCLUSION

It is our opinion, that under South Carolina law the oral acknowledgement(s) offered in this case would not constitute clear and convincing proof of paternity. Consequently, Claimant would most likely not be considered the illegitimate child of N/H with entitlement to child insurance benefits. As the oral acknowledgment offered in this case would not be effective in establishing paternity, the issue of retroactivity is not relevant.

Very truly yours,

Mary Ann Sloan

Regional Chief Counsel

Simone D. Pereira

Assistant Regional Counsel

Under South Carolina law, DNA test results showing the claimant has a 99.2 percent probability of being the full sibling of a child already determined to be a child of the number holder is clear and convincing proof that the claimant is also the child of the number holder.

Since this is not a legitimating act in South Carolina, the relationship is established as of the date of the determining test.

QUESTION

You asked whether Alexander (Alexander) is entitled to benefits on the record of South Carolina (SC) resident Edward (NH) on the basis of DNA testing of Adrianne, who is already entitled to child's benefits on NH's record.

ANSWER

One can establish parent-child relationship on the basis of DNA testing between two siblings in SC when one of the siblings already qualifies as the NH's child under SC law, and a Social Security Administration (SSA) adjudicator could conclude that Alexander is entitled to benefits as NH's child.

BACKGROUND

On December 24, 2003, NH died while domiciled in SC. Owen is the maternal grandfather of Alexander and Adrianne and has custody of both children. He applied for child's insurance benefits for Alexander on July 23, 2004^[1] . The claim was denied on July 30, 2004 because Owen had not shown Alexander was NH's child. Owen requested reconsideration of this decision and submitted a November 14, 2002 court order from the Eighth Judicial Circuit of SC granting Owen custody of Alexander and Adrianne and finding Adrianne was NH's child based on NH's acknowledgment. In January 2005, Owen submitted the results from a DNA siblingship test performed on December 16, 2004 by DNA Diagnostics Center. This report, verified by Michael, Ph.D., reports that there is a 99.2% probability of full-siblingship between Alexander and Adrianne, and that there is a likelihood of 125 to 1 that they share the same biological father. This 125-to-1 ratio translates into a 99.2% probability that Adrianne's father is Alexander's father (125 ?? 126 = .992 = 99.2%). The record also includes copies of Alexander and Adrianne's birth certificates, neither of which lists a father. However, Adrianne is already receiving benefits as NH's child.

DISCUSSION

In determining entitlement to surviving child's benefits, the Commissioner applies the inheritance laws of the state in which the insured had his permanent home when he died. See §216(h)(2)(A) of the Social Security Act (Act), 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1) (2004). Agency regulations further provide that if applicable state inheritance law requires a court determination of paternity, the Agency will not require a court determination, but will decide paternity by using the standard of proof that the state court would use. 20 C.F.R. § 404.355(b)(2) (2004).

For purposes of intestate succession in SC, a person is a child of the natural father if "the paternity is established by an adjudication . . . if commenced after his death, by clear and convincing proof." S.C. Code Ann. § 62-2-109(2)(ii). SC law regarding the admissibility and effect of DNA testing to determine paternity, S.C. Code Ann. § 20-7-956(3), provides that "test results which show a . . . statistical probability of paternity of ninety-five percent or higher creates a rebuttable presumption of the putative father's paternity." Although the statute is silent as to the weight to be given to DNA tests on siblings, there is no controlling caselaw precluding the use of such testing to establish paternity.

We believe an adjudicator could reasonably conclude, based on the facts you provided, that there is clear and convincing proof that NH Alexander's father. NH admitted during custody proceedings that he was Adrianne's father and the state court confirmed NH's paternity of Adrianne in its order court order dated November 14, 2002.^[2] Furthermore, the unrebutted DNA test results show a 99.2% that Alexander and Adrianne are full siblings and share the same biological father. We distinguish this case from one where a claimant proves he shares a father with a beneficiary who qualified as a child under section 216(h)(3) of the Act, since Adrianne has established her paternity under the appropriate state intestacy law, while a child who qualifies for benefits under §216(h)(3) of the Act might not be able to inherit as a child under state intestacy law. Moreover, we distinguish this case from instances where DNA siblingship tests which show relatedness, but not paternity, since SC law does not create a presumption of paternity based on DNA tests that show anything other than paternity. The following chain of reasoning leads us to conclude that Alexander could qualify as NH's child: § 216(h)(2)(A) of the Act requires SSA to apply the standards of proof a SC court would use to determine whether Alexander could inherit a child's share of NH's property through intestacy; SC would consider Adrianne to be NH's child; DNA tests showing a more than 95% probability that Alexander's father is Adrienne's father (that is, NH) establish a presumption, unrebutted under the facts presented, that NH is Alexander's father. Even if Alexander could not qualify for the SC presumption of paternity based on the DNA test results, one could still find the DNA test results and other evidence presented here provide clear and convincing proof that NH is Alexander's father. The Fourth Circuit held in Veeney ex rel. Strother v. Sullivan, 973 F.2d 326 (4th Cir. 1992), that there was clear and convincing evidence of paternity where DNA testing revealed that the child in question was the sibling of an acknowledged child of the putative father, had a genetic relationship to other male family members of the putative father, and probably had the same biological father as the acknowledged child. See id. at 328, 332.

Though we find support for a determination that Alexander could qualify as NH's child under SC law and § 216(h)(2)(A) of the Act, Alexander's ability to inherit from NH does not alter his status as an illegitimate child. Only under certain circumstances, not found in this case, will a child born to unmarried parents be legitimated. See generally S.C. Code Ann. §§ 20-1-30, 20-1-40, 20-1-60, 20-1-80. This conclusion affects the effective date of the parent-child relationship. As explained in POMS, where a state law confers inheritance rights based on an adjudication of paternity (but does not legitimate the child), and the law has no retroactive effect, the claimant's status as the nameholder's child is established effective with the date of the latest necessary piece of evidence (if more than one piece of evidence is needed to satisfy the applicable standard of proof). POMS GN 00306.055. Since, as stated above, South Carolina law confers inheritance rights based on an adjudication of paternity, but does not legitimate the child, and the DNA test was the latest necessary piece of evidence establishing paternity under South Carolina, the parent-child relationship is effective December 16, 2004, the date of the DNA test.

CONCLUSION

The DNA testing performed in this case between two siblings, one of whom is considered NH's child under SC law, can provide clear and convincing proof of a parent-child relationship between NH and the other sibling and can therefore provide a basis for concluding the second sibling is NH's "child" for purposes of the Act.

Mary A. Sloan

Regional Chief Counsel

By: _____________________

Brian Seinberg

Assistant Regional Counsel

DNA test results showing a 99.99 percent probability that the NH is the child claimant's father establish a rebuttable presumption of paternity under South Carolina law. Evidence from the man listed as father on the child's BC, and from the NH's relatives, supports this presumption and contradict any presumption established by the presence of the other man's name on the child's BC. The DNA and other evidence qualify as clear and convincing evidence of paternity, giving the child inheritance rights from the NH under South Carolina law. Because the statute does not confer legitimation rights on the child, but only inheritance rights, her entitlement is based upon the date of the DNA test report.

You have requested our opinion as to whether there is sufficient evidence to entitle Caden to benefits as the child of Melvin, III (NH), deceased. We conclude that the evidence presented is sufficient to entitle Caden to benefits; but entitlement would begin with the date paternity was established, not at birth.

NH died February 2, 2001 domiciled in South Carolina. Caden's mother filed for benefits on his behalf in June 2002 with a protective date in April 2002. She submitted a copy of DNA testing indicating a 99.99 percent probability that NH was Caden's father; but the copy was not notarized. She also submitted a short-form birth certificate for Caden listing John as the father. Caden's mother stated that John was not the father, but was merely at the hospital with her when Caden was born. She first stated that NH had not provided for the child because he was not sure that he was the father. She later stated that he had provided support to her and Caden. Statements from three of NH's relatives were submitted indicating that NH had acknowledged Caden as his child and had provided support to Caden and his mother. Caden's mother later provided a written statement from John indicating that he was not Caden's father, along with a long-form birth certificate for Caden and a notarized copy of the DNA testing report. This information was submitted in June 2002 and was notarized in May 2002. GeneScreen, a testing laboratory in Dallas, Texas, conducted the testing. Copies of these documents were not provided to OGC.

For purposes of intestate succession in South Carolina, a person is a child of the natural father if “the paternity is established by an adjudication … if commenced after his death, by clear and convincing proof.” S.C. Code Ann. § 62-2-109(2)(ii) (2001). South Carolina law regarding the admissibility and effect of genetic testing to determine paternity, S.C. Code Ann. § 20-7-956 (2001), provides that “test results which show a … statistical probability of paternity of ninety-five percent or higher creates a rebuttable presumption of the putative father's paternity.” Thus, the blood test results establish a rebuttable presumption that NH is Caden's father.

In this case, however, the presence of another man's name on Caden's birth certificate seems to contradict the test results. John' name on the certificate can create a presumption of the existence of a written acknowledgement or court order of paternity. See GN ATL00306.120; see also S.C. Code Ann. §20-7-956(3) (2001) (evidence establishing a presumption of paternity includes DNA testing, a verified acknowledgement of paternity, a birth certificate containing the signature of the mother and the putative father, or a foreign paternity determination). Because the birth certificate was not sent to us, we do not know what information is on the certificate or who signed the certificate. However, here, Caden and his mother are not attempting to establish that John is Caden's father so these provisions have limited applicability. Moreover, the presumptions described above are rebuttable. Evidence from John and from NH's relatives support the presumption established by the DNA testing and contradict any presumption established by the presence of John' name on Caden's birth certificate, especially in light of John' statement denying paternity. The DNA and other evidence of paternity would seem to qualify as “clear and convincing.” It is therefore our opinion that Caden could inherit from the NH under South Carolina law. However, Caden's ability to inherit from the NH does not alter his status as an illegitimate child. Only under certain circumstances, not found in this case, will a child born to unmarried parents be legitimated. See generally, S.C. Code Ann §§ 20-1-30, 20-1-40, 20-1-60, 20-1-80 (2001). None of these circumstances apply here.

Because the statute does not confer legitimation rights on Caden, but only rights of intestate succession, her entitlement is based upon the date that paternity was effectively established. In this case, paternity would have been established by the date of the report of DNA testing.

Very truly yours,

Mary A. Sloan

Regional Chief Counsel

Laurie G. Remter

Assistant Regional Counsel

Under South Carolina law, the results of genetic tests performed on the NH's parents, showing a 99.98% probability of grandparentage, create a presumption that the child is the NH's child. This presumption can be rebutted by a preponderance of the evidence. There has been no evidence in this case to contradict the allegations of paternity. Therefore, unless the NH had a brother whom SSA suspects might be the child's father, the child can inherit from the NH under South Carolina law. Because the statute does not confer legitimation status on the child, but only inheritance rights, her entitlement is established as of the date of the report of DNA testing.

You have asked whether DNA test results from the parents of the deceased number holder (NH), Eric , are sufficient to prove his paternity of Erica, and, if so, the date of entitlement. Applying South Carolina law, we conclude that the results of genetic tests performed the NH's parents create a presumption that Erica is the NH's child, but that this presumption can be rebutted by a preponderance of the evidence.

On July 20, 1995, the NH died, domiciled in South Carolina. Mary, the mother of Erica, applied for child's insurance benefits in February 1996, and the claim was denied on March 5, 1996 based upon a finding that Erica had not established that Erica was the child of the NH. Erica did not appeal this decision. In August 1998, Odell , Erica's putative paternal grandmother, filed a new application for benefits on Erica's behalf. Because no new evidence of paternity was submitted with this application, it was dismissed. Odell filed a third application for child's insurance benefits in June 2001 with a protective filing date of April 5, 2001. With this application, Odell presented new evidence consisting of a "DNA Grandparentage Report" performed on May 16, 2001 by DNA Diagnostics Center. This report, verified by Susannie, Ph.D., the Center's Associate Director, reports that there is a 99.98 percent probability that Odell and Charles , the parents of the NH, are the grandparents of Erica. Erica also provided a copy of Erica's birth certificate, which does not list a father, and a statement from Mary that the NH "always made sure I got to the doctor on time and made sure that I had all the things that I need at home."

S.C. Code Ann. § 62-2-109(2)(ii) (2001) provides that, for purposes of intestate succession, a person is a child of the natural father if "the paternity is established by an adjudication if commenced after his death, by clear and convincing proof."

South Carolina law regarding the admissibility and effect of genetic testing to determine paternity, S.C. Code Ann. § 20-7-956 (2001) provides that "test results which show a statistical probability of paternity of ninety-five percent or higher creates a rebuttable presumption of the putative father's paternity." The statute is silent as to the weight to be given to genetic testing of grandparents or other relatives. Although we find no caselaw discussing the statute in the context of genetic testing of a putative father's parents, it is our opinion that the grandparents' genetic test results may be considered along with the other evidence of the NH's paternity.

In this case, there has been no evidence presented that would contradict the allegations of paternity. The genetic testing demonstrated a 99.98 percent probability of grand-paternity, and there have been additional, corroborating statements entered into the record. Unless the NH had a brother whom SSA suspects might be Erica's father, this evidence would seem to qualify as "clear and convincing." It is therefore our opinion that Erica could inherit from the NH under South Carolina law. However, Erica's ability to inherit from the NH does not alter her status as an illegitimate child. Only under certain circumstances, not found in this case, will a child born to unmarried parents be legitimated. See generally, S.C. Code Ann §§ 20-1-30, 20-1-40, 20-1-60, 20-1-80 (2001).

With respect to the month of Erica's entitlement, because the statute does not confer legitimation rights on Erica, but only rights of intestate succession, her entitlement is based upon the date that paternity was effectively established. In this case, paternity would have been established by the date of the report of DNA testing, May 16, 2001.

Very truly yours,

Mary Ann Sloan

Regional Chief Counsel

 

By: Michael S. Feinstein

Assistant Regional Counsel

The enactment of Section 62-2-109 of the Come of Laws of South Carolina, which became effective July 1,1987, will necessitate an amendment, to the South Carolina entry in Program Operations Manual System (POMS) GN00306.135.

(State Laws On Legitimation And inheritance Rights - South Carolina - RAIV [W~] - to ARC, Progs., Atl., 11/03/88)

You have requested our opinion as to the impact on the South Carolina entry at Program Operations Manual System (POMS) GN00306.135 of Section 62-2-109 of the Code of Laws of South Carolina. Section 21-3-30 of the Code (inheritance by or from illegitimates) was repealed by the 1986 Act No. 539, and the superceding provision, which became effective July 1, 1987, is found in Section 62-2-109 (meaning of child and related terms).

Section 62-2-109 states, in pertinent part:

If, for purposes of intestate succession, a relationship of parent and child must be established to determine succession by, through, or from a person: ...

(2)... That person is also a child of the father, if: (i) ... (ii) the paternity is established by an adjudication commenced before or within six months after the death of the father and, if after his death, by clear and convincing proof, except that the paternity established under the subparagraph (ii) is ineffective to qualify the father or his kindred to inherit from or through the child unless the father has really treated the child as his and has not refused to support the child.

The Reporter's Comments accompanying Section 62-2-109 in the Code note that:

"Section 62-2-109(2)(ii) allows an illegitimate child to inherit from and through his father if paternity is established by an adjudication commenced either before the father's death or within six months thereafter. A standard higher than usual, clear and convincing proof, is required to be met in an adjudication commenced after, but not in an adjudication before, the latter's death. The imposition of a required adjudication and a higher standard of proof upon illegitimate children seeking to inherit from their fathers as compared with legitimates not similarly burdened, should pass constitutional muster under the decision of Lalli v. Lalli, 439 U.S. 259 (1978)."

Thus, the South Carolina entry in POMS GN00306.135 should be amended to read:

child or father acquires status of child or father if:

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

(2) the child is legitimated by the Family Court, or

(3)(1) effective April 26, 1977 through June 19, 1985, paternity is established by a preponderance of the evidence, or

(4)(1) effective June 20, 1985, through June 30, 1987, paternity is established: (a) by order or decree of a court of competent jurisdiction during the lifetime of the father, or (b) by order or decree of the family court or by a court of competent jurisdiction during the life of the child and if the child had been reasonably supported by the father within the last 3 years of the child's life as a minor, or (c) if the father has signed an instrument acknowledging the child as his, or

(5)(1) effective July 1, 1987, paternity is established by an adjudication commenced before or within six months after the death of the father. If the adjudication is commenced before the death of the father, the burden of proof is a preponderance of the evidence; if after his death, the standard is clear and convincing proof. It is noted that the paternity established under this subparagraph is ineffective to qualify the father to inherit from or through the child unless the father has openly treated the child as his and has not refused to support the child.

If we may be of additional service with respect to amending this POMS entry, please advise.

Under South Carolina law, as amended effective June 20, 1985, an illegitimate child may inherit from his father's estate if paternity was established by order or decree of a court of competent jurisdiction during the lifetime of the father or if the father signed an instrument acknowledging the child as his. With respect to the period between April 26, 1977, and June 19, 1985, the correct evidentiary standard for establishing paternity remains a preponderance of the evidence.

(Inheritance Rights for Illegitimate Children Under South Carolina State Law - RAIV [W~] - to OHA, Arlington, VA., 11/16/87)

You have requested our opinion as to the appropriate legal standard to be used in determining a child's inheritance rights under South Carolina law. Specifically, you have inquired as to whether, in light of the preamble language to 20 C.F.R. §404.354(b) and the South Carolina legislature's actions in 1985 and 1986, some kind of court adjudication prior to the wage earner's death is required for an illegitimate child to establish inheritance rights. Further, you have inquired as to the standard to be applied in determining whether an illegitimate child has inheritance rights under South Carolina law during the period from April 26, 1977, through 3une 20, 1985, in view of the decision of the United States District Court for the District of South Carolina in Quattlebaum v. Bowen, C.A.No.3:85-2952-3 (8/7/86).

In our opinion of March 12, 1985 (Mazie, - RAIV [W~] - to ARC, Progs., Atl.), we noted that the South Carolina Supreme Court in Wilson v. Jones, 314 S.E.2d 341 (1984), held that pursuant to Trimble v. Gordon, 430 U.S. 762 (1977), the limitation in Section 21-3-30 of the Code of Laws of South Carolina 1976 allowing illegitimate children to inherit only from their mother's estates was unconstitutional. The W~ court further held that T~ should not be given retroactive effect and, therefore, that only those illegitimate children whose fathers died after April 26, 1977, would inherit from their fathers' estates. We concluded that an illegitimate child could inherit from his father if the father died on or after April 26, 1977, and paternity was established by a preponderance of the evidence, the evidentiary standard applied by South Carolina courts in paternity actions.

Effective July 1, 1987, the South Carolina statute governing inheritance by illegitimates, Section 21-3-30, was amended by the 1986 South Carolina legislature. The amended statute, in pertinent part, provides that:

"Any illegitimate child whose father dies intestate possessed of any real or personal property is an heir-at-law if paternity has been established by order or decree of a court of competent jurisdiction during the lifetime of the father or the father has signed an instrument acknowledging the child as his."

This 1986 amendment follows an earlier amendment effective June 20, 1985, which had made grammatical changes in the preceding statute and which had added the above-referenced paragraph. Neither the 1985 nor the 1986 amendment was given retroactive application by the South Carolina legislature.

With respect to whether the amended statute should be applied in determining whether an illegitimate child has inheritance rights under South Carolina law during the period from April 26, 1977 (the date of the T~ decision), through June 20, 1985 (the effective date of the 1985 amendment to Section 21-3-30), our opinion is that it should not, but rather that the preponderance of the evidence standard set forth in our March 12, 1985, opinion should be applied when the wage earner died during said period. As referenced in your opinion request, the comments segment prefacing the final rule found in 49 F.Reg. 21513, May 22, 1984, amending 20 C.F.R. §404.354(b), reads, in pertinent part:

"... Therefore, while our starting point is always the State law that was in effect when the worker died, we will also look to see if that law was later declared unconstitutional by the State court. If it has been, then, in those limited situations, we will apply the State's later interpretation of what that date-of-death law should have been."

We have found no cases involving an interpretation by the South Carolina courts as to what the date-of-death law should have been during the interim period 1977 to 1985. Thus, the Secretary is under a statutory compulsion, as provided in 42 U.S.C. §416(h)(2)(A), to determine what the courts of South Carolina would find if addressing this issue. As stated in Cain v. Secretary of Health, Education, and Welfare, 377 F.2d 55 (S.Ca. 1967), §416(h) contemplates that the Secretary determine the law of the State as it has been determined by the Supreme Court of the State, or where, the Supreme Court has not, as here, had occasion to declare the law, the Secretary may base his decision on what the "Supreme Court" would find were the issue before it.

You have also referenced the above-cited Q~ case wherein the United States District Court for the District of South Carolina discussed the cumulative evidence including photographs and a writing of the wage earner who died in 1982 and found this evidence insufficient to meet the requirement of a written acknowledgment of paternity. The district court judge, without specifically considering South Carolina's intestacy law, adopted and incorporated the Magistrate's findings and recommendation affirming the Secretary's decision to deny child's insurance benefits. The Magistrate, in his Report and Recommendation, did discuss South Carolina's intestacy law and indicated that the remand of a Fourth Circuit case, Jones v. Schweiker, 668 F.2d 755 (4th Cir. 1981), cert. granted, 459 U.S. 965 (1982), vacated and remanded, 460 U.S. 1077 (1983),

"suggests to this Magistrate that when a State's intestacy statute is declared unconstitutional, but is subsequently amended, one should reconsider the situation under the amended statute (emphasis added)."

The Magistrate concluded that under the 1985 amendment to South Carolina's intestacy statute the plaintiff could be eligible to inherit from her father if she could present either a court order or decree establishing paternity; however, the Magistrate noted that the plaintiff, having neither, did not press her eligibility under this provision. The Magistrate proceeded to address the written acknowledgment of paternity issue upon which the Q~ case was ultimately decided.

The federal district court's holding in the Q~ case denying the plaintiff benefits is not, in our view, based upon an application of South Carolina's intestacy law but rather on consideration of written acknowledgment and, further, is not determinative of what a South Carolina court would find were the instant issue before it. State courts are not bound to follow the decision of a federal court dealing with State law, although a federal decision dealing with State. law may have persuasive effect in the respective State jurisdiction. Glenn v. Field Packing Company, 290 U.S. 177; Hawks v. Hamill, 288 U.S. 52; Re Nearing Before Joint Legislative Committee, 196 S.E. 164 (S.C. 1938).

In our opinion, during the period from April 26, 1977, through June 20, 1985, any child who could establish paternity by the appropriate evidentiary standard, a preponderance of the evidence, could inherit from his father in an intestate proceeding as if he were a legitimate child there being no constitutional statute providing otherwise. The United States Supreme Court recently held in Rivera v. Minnich, 107 S.Ct. 3001 (1987) that due process was satisfied by preponderance of evidence standard in paternity proceedings. Although the case arose in the State of Pennsylvania, the Supreme Court observed, at 3003, that the preponderance of the evidence standard,

"... is the same standard that is applied in paternity litigation in the majority of American jurisdictions that regard such proceedings as civil in nature."

In keeping with the majority of American jurisdictions, in South Carolina, on appeal from the Family Court, the issue of paternity is determined in keeping with the court's view of a preponderance of the evidence. Albert v. Blackwell, 311 S.E.2d 101 (S.C. App. 1984). Further, it is noted that our opinion is in accord with that of the Office of the Attorney General for the State of South Carolina as set forth in Attorney General's Opinion No. 85-9 (copy attached). With respect to the issue raised therein of possibly requiring a higher degree of proof following the death of the putative father, as no South Carolina cases are cited for the proposition and no definite conclusion is reached, a preponderance of the evidence apparently continues to be the appropriate standard.

It is our conclusion that the amended statute allowing an illegitimate child to inherit from his father's estate if paternity was established by order or decree of a court of competent jurisdiction during the lifetime of the father or if the father signed an instrument acknowledging the child as his is applicable to all such claims wherein the insured worker died on or after June 20, 1985. 20 C.F.R. §404.354(b). With respect to the period between April 26, 1977, and June 19, 1985, it is our opinion that the correct evidentiary standard for establishing paternity remains a preponderance of the evidence.

Under South Carolina law, illegitimate children must prove the paternity of the putative father by a "preponderance of the evidence" in order to establish inheritance rights as contemplated by Section 216(h) (2) (A) of the Social Security Act.

(Mazie - A/N ~ - RAIV [W~] - to ARC, Progs., Atl., 03/12/85)

You have requested our opinion in order to establish general guidelines for applying the appropriate evidence standard in South Carolina child relationship cases. With respect to this particular claim, you have requested our opinion as to whether the statements contained in the file are sufficient, under South Carolina law, to establish the deceased wage earner's paternity of the claimant, Derek.

The record contains statements from the deceased wage earner's (DWE) mother, grandmother and sister indicating that the DWE verbally acknowledged his paternity of Derek . Derek’s mother also alleges that the DWE was the claimant's father. The claimant was born April. The wage earner died April 18, 1984.

As noted in your letter of November 1, 1984, the United States District Court for the Middle District of Pennsylvania, in the case of Mitchell v. Harris, held that the South Carolina intestacy statute was unconstitutional in light of the T~ case. More recently, the South Carolina Supreme Court has held that, "The limitation in §21-3-30 of the (S.C.) Code allowing illegitimate children to inherit only from their mothers' estates is ... violative of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.' Wilson v. Jones, 314 S.E.2d 341 (S.C. 1984). The W~ court further held that, "only those illegitimate children whose fathers died after April 26, 1977, the date of the T~ decision, may inherit from their fathers' estates."

Inasmuch as the putative father in this case died approximately five years after the date of the T~ decision, the claimant, an illegitimate child, could inherit from his alleged father's estate if he is able to establish paternity by the requisite burden of proof. As indicated in the Program Operations Manual System (POMS) at 00306.125,

Many States have enacted a version of the Uniform Probate Code (UPC) which provides that if paternity is not established by a court adjudication before the death of the father, it may be established after his death by "clear and convincing proof." Other States have enacted a statute which states that paternity may be established after the death of the purported father by "clear and convincing evidence." In other States, paternity may be established after death by a "preponderance of the evidence". The standard of proof in these cases is a matter of State law.

Since the above-referenced UPC was approved by the American Bar Association in 1969, the UPC has been enacted either in whole or in part by fourteen States. Bynum v. Sharpe, 279 S.C. 586, 310 S.E.2d 662 (1984). Other States have had the UPC under study or consideration and South Carolina continues to remain in this latter group. 29 S.C.L.Rev. 397. South Carolina has not adopted the "clear and convincing" burden of proof either by incorporating the UPC or by otherwise enacting by statute said evidentiary standard. Although an earlier Office of the General Counsel (OGC) precedent opinion from this office, ( Ronnie DNH ~ - RAIV [J~], to OHA, Greenville, S.C., 02/17/84), indicated the "clear and convincing" standard of proof would be required in order to establish paternity, the appropriate standard of proof was not the focus of said opinion as it is in the instant claim, and we herewith modify our earlier opinion.

Our current examination of South Carolina law with respect to actions involving the issue of paternity indicates that the South Carolina courts, both at the trial level and on appeal, apply the evidentiary standard of "preponderance of the evidence", a less stringent standard than that of "clear and convincing" evidence. Under South Carolina law, a paternity action is an action in equity and is heard by the Family Court judge alone, not having been tried first by a master or special referee. South Carolina Department of Social Services v. Johnson, 266 S.E.2d 878 (S.C. 1980). In an equity action tried by the judge alone, the court makes its findings in accordance with its own views of the preponderance or greater weight of the evidence. Townes Associates Ltd. v. City of Greenville, 221 S.E.2d 73 (S.C. 1976). Similarly, on appeal from the Family Court, the issue of paternity is determined in keeping with the court's view of a preponderance of the evidence. Albert v. Blackwell, 311 S.E.2d 101 (S.C.App. 1984); Baro___~n v. D~, 309 S.E.2d 767 (S.C. App. 1983). The Court of Appeals or the Supreme Court of South Carolina may reverse a finding of paternity if the appellant convinces the court that paternity has not been established by a preponderance of the evidence. White v. Boseman, 275 S.C. 184, 268 S.E.2d 287 (1980).

Thus, it is our opinion that, under South Carolina law, illegitimate children must prove the paternity of the putative father by a preponderance (or greater weight) of the evidence in order to establish inheritance rights as contemplated by Section 216(h) (2) (A) of the Social Security Act. Further, it is our opinion that the uncontroverted statements contained in this file exceed the preponderance of the evidence standard and that you would be warranted in finding the deceased wage earner, Larry , is the biological father of the claimant, Derek.

LEGITIMACY AND LEGITIMATION — SOUTH CAROLINA

An illegitimate child can acquire the status of child in South Carolina if: (I) the parents of the child intermarry; or, (2) child is legitimated by the Family Court upon petition of reputed father; or, (3) on or after September 13, 1982, paternity is established by clear and convincing evidence.

In your memorandum you asked our office to provide your office with appropriate language to be included in the South Carolina entry GN 00306.135 (Digest of State Law on Legitimation and Inheritance Rights). Your office concluded that the subject entry needed revising in light of Mitchell v. Harris, Civil No. 80-0591 (M.D. Penn. September 13, 1982). We concur with your conclusion.

The new entry should read as follows:

South Carolina

Child acquires status of child if:

(i) Parents intermarry, or

(2) Child is legitimated by the Family Court upon petition of reputed father, or

(3)(I) On or after September 23, 1982, paternity is established by clear and convincing evidence

PARENT AND CHILD — FEDERAL DEFINITION OF CHILD — COURT DECREE OF PATERNITY — SOUTH CAROLINA

Since the South Carolina intestacy statute has been declared unconstitutional by a Federal District Court, the T~ case should be applied in determining whether an illegitimate child can qualify for benefits under Section 216(h)(2)(A) of the Act.

( Ronnie, DNH ~ ) - RAIV [J~] - to OHA, Greenville, S.C., 2/17/84)

You have asked whether a Nunc Pro Tunc Order issued by the Family Court one year after the birth of the claimant and 14 months after the insured's death, meets the criterion for determining whether the applicant is the child of the wage earner under Section 216(h)(2)(A) of the Social Security Act, as amended (42 U.S.C. §416(h)(2)(A)).

According to the information contained in the case file, the facts are as follows:

Brenda filed an application for surviving child's benefits on August 3, 1982, on behalf of her illegitimate daughter, Elizabeth, on the record of the deceased wage earner (Ronnie). The mother had never married the insured, either ceremonially or under the common law. There is no evidence that the deceased wage earner ever acknowledged the child in writing. The wage earner died fully insured on January 29, 1982, domiciled in South Carolina.

Elizabeth was born on March. A copy of the birth certificate shows Brenda as the mother but it does not name the father.

In a paternity proceeding the Family Court of Cherokee County, South Carolina, by a Nunc Pro Tunc Order, dated March 9, 1982, decreed the wage earner (William ) to be the legal and natural father of Elizabeth, the claimant.

The question before us is whether the Nunc Pro Tunc Order establishing paternity is sufficient to establish the inheritance rights of the illegitimate child so as to qualify the child for benefits under Section 216(h)(2)(A) of the Social Security Act, as amended (42 U.S.C. §416(h)(2)(a)).

Section 216(h)(2)(A) of the Social Security Act, as amended (42 U.S.C. §416(h)(2)(A)), provides in pertinent part as follows:

In determining whether an applicant is a child or parent of a fully or currently insured individual for the purpose of this Title, the Secretary shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual is domiciled at the time such applicant files application, or, if such insured individual is dead, by the courts of the State in which he was domiciled at the time of his death Applicants who according to such law would have the same status relative to taking intestate personal property as a child or parent shall be deemed such.

The law in South Carolina which regulates the taking of intestate personal property by an illegitimate child is found at §21-3-30 of the Code of Laws of South Carolina (1977). It reads:

Any illegitimate child or children whose mother shall die intestate possessed of any real or personal property shall be, so far as such property is concerned, an heir or heirs at law as to such property, notwithstanding any law or usage to the contrary .... "

It must be noted that Section 21-3-30 does not specifically provide for an illegitimate child to inherit from the father nor does the statute expressly forbid an illegitimate child from inheriting from the intestate father, but the negative implication of the statute is that the child does not have a right to inherit from the father. Although the South Carolina statute is worded slightly differently from the Illinois statute which was struck down in Trimble v. Gordon, 430 U.S. 762 (1977), the effect is the same. The South Carolina Supreme Court has never ruled on the constitutionality of the statute nor has it ever acknowledged that the implication exists. However, the District Court for the Middle District of Pennsylvania in the case of Onnie M. Mitchell v. Patricia Robert Harris, Civil No. 80-0591 (M.D. Penn. September 13, 1982), an unpublished opinion, declared the South Carolina statute to be unconstitutional in light of Trimble v. Gordon, supra. The South Carolina Attorney General was given the opportunity to defend the South Carolina statute pursuant to 28 U.S.C. §2403(b) (1976). He declined to do so. The District Court specifically held the following:.

a South Carolina court faced with an equal protection challenge to its own intestacy laws would be compelled to strike down restrictions on the inheritance of illegitimate children. In applying South Carolina law as the standard for entitlement to Federal child insurance benefits, the Social Security Administration may not overlook the State's duty to conform its law to the Constitution. Since the State of South Carolina could not exclude these children from a share in the wage earner's intestate estate and still comply with the Constitution under its present laws, the Social Security Administration may not refuse to pay benefits on the basis of those same laws.

Since the statute has been declared unconstitutional by a United States District Court and it is our opinion a South Carolina court would also if presented with the issue, you should apply Trimble in resolving the issues in this case. That is, the child can qualify for benefits if paternity is established by clear and convincing evidence. The conclusions drawn in this opinion have been cleared with the Social Security Division, Office of the General Counsel.