QUESTIONS PRESENTED
On December 20, 2007, you requested our opinion as to (1) whether a parent-child relationship
exists between Chris F. S~ (Number Holder) and Cayden J. S~; (2) the effective date
of the parent-child relationship, if any; and (3) whether retroactive benefits should
be paid.
On January 22, 2008, we requested additional evidence consisting of the following
documents that were referenced in the file: (1) a copy of the lease showing that the
mother and child had lived with the Number Holder; (2) a copy of the letter from the
landlord confirming that the mother and child had lived in the same home as the Number
Holder; (3) statements from family members addressing the Number Holder's acknowledgment
of paternity; and (4) a copy of the acknowledgment of paternity form signed by the
Number Holder and referenced on the "Social Security & Paternity & Acknowledgment"
form dated March 27, 2006. In response, on June 5, 2008, you provided us with copies
of affidavits from eight family members confirming that the Number Holder had acknowledged
paternity.
CONCLUSION
We have reviewed the information you provided and have researched the relevant provisions
of Pennsylvania law as it pertains to paternity. We have also reviewed the relevant
regulations to determine the effective date of the parent-child relationship and whether
retroactive benefits should be paid. Based on our review, we believe that a Pennsylvania
court would likely determine that the evidence is sufficient to constitute clear and
convincing evidence of a parent child relationship between the Number Holder and Cayden.
BACKGROUND
According to the information that you have provided, Cayden was born on March 27,
2006. Cayden's birth certificate indicates that his mother is Casey L. N. O~. The
birth certificate does not include the name of his father, indicating only that the
information was not recorded. It does, however, include his full name, Cayden J. S~,
identifying his surname as that of the Number Holder. At the time of his birth, Ms.
O~ and the Number Holder were not married.
On March 27, 2006, the Pottstown Memorial Medical Center issued a record of birth
which certified that Cayden was born on that date to Ms. O~ and Chris F. S~, Jr.,
the Number Holder. The record of birth was signed by an authorized official and an
attending physician, and affixed with the official hospital seal. According to the
Pennsylvania Department of Health, Division of Vital Records, a record of birth such
as this one is considered a hospital memento and is not an official record of birth.
Also on March 27, 2006, on a hospital form titled "Social Security & Paternity & Acknowledgment,"
a hospital official certified that the mother and father of Cayden J. S~ had signed
acknowledgment of paternity forms. The hospital form provides for, and contains, the
name of the mother, Ms. O~, but does not provide for the name of the father. The acknowledgment
of paternity that the Number Holder allegedly signed was not itself included in the
documents that you have forwarded to us. In addition, a memo from the New York regional
office indicates that the hospital could not verify paternity from its records.
According to an Agency worksheet, on April 10, 2006, and March 14, 2007, Ms. O~ filed
applications for a social security number on Cayden's behalf. Both applications included
the name of Cayden's mother, but indicated that the name of his father was unknown.
On or about March 22, 2007, Ms. O~ and Cayden moved to the state of New York. On April
17, 2007, Ms. O~ filed a paternity petition with the family court in New York. At
a default hearing on June 28, 2007, Ms. O~ testified that the Number Holder had signed
an acknowledgment of paternity in the Commonwealth of Pennsylvania. The matter was
adjourned for thirty days to await further notice from the department of social services
regarding any prior paternity.
One month later, on July 27, 2007, the Number Holder died in the Commonwealth of Pennsylvania.
On August 14, 2007, Ms. O~ filed an application for surviving child's benefits on
behalf of Cayden and for a lump sum death payment. This application is not contained
in the materials that you have forwarded to us.
On August 22, 2007, a family court judge in the state of New York entered an order
dismissing Ms. O~'s paternity petition. The judge indicated that there was no need
for the matter to proceed because the Number Holder had acknowledged paternity.
An Agency worksheet also shows that Ms. O~ submitted as evidence a letter from a landlord,
as well as a copy of a lease, indicating that she and Cayden had lived with the Number
Holder until March 2007. Neither of these documents is contained in the materials
that you have forwarded to us.
Finally, at our request, you have provided additional documents consisting of affidavits
from eight relatives of the Number Holder and Ms. O~. These affidavits include individual
statements from the Number Holder's parents and brother, as well as Ms. O~'s parents
and brother, that the Number Holder had acknowledged that Cayden was his son. Both
the Number Holder's parents and Ms. O~'s parents also stated that they and the Number
Holder had been present at Cayden's birth. Sherry W~, the Number Holder's mother,
stated that for approximately one year, Ms. O~ and the Number Holder had lived in
the apartment above her home, and that the Number Holder had cared for Cayden in his
first year before Ms. O~ took Cayden to live in New York. Chris F. S~, Sr., the Number
Holder's father, confirmed that the Number Holder had supported Cayden until Ms. O~
had moved to New York.
James O~, Ms. O~'s brother, stated that he had known the Number Holder for several
years and that the Number Holder had been present at Ms. O~'s baby shower.
DISCUSSION
The Social Security Act provides that, in determining whether an applicant is the
child of an insured individual, the Commissioner will apply the inheritance law of
the state in which the individual was domiciled at the time the application was filed
or, if the insured individual is dead, of the state in which the insured individual
was domiciled at the time of his death. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1)(2007).
Because the Number Holder was domiciled in Pennsylvania at the time of his death,
Pennsylvania intestacy law applies.
The Pennsylvania intestacy statute addressing persons born out of wedlock, 20 Pa.
Cons. Stat. Ann. § 2107(c), indicates that an individual will be considered to be
the child of a putative father if one of the following conditions is met:
-
(a)
If the parents of a child born out of wedlock shall have married each other.
-
(b)
If during the lifetime of the child, the father openly holds out the child to be his
and receives the child into his home, or openly holds the child out to be his and
provides support for the child which shall be determined by clear and convincing evidence.
-
(c)
If there is clear and convincing evidence that the man was the father of the child,
which may include a prior court determination of paternity.
In this case, the first condition has not been met because the Number Holder and Ms.
O~ were not married. We believe, however, that a Pennsylvania court would likely find
that the second condition has been met. That is, we believe that a court would find
that there is clear and convincing evidence that the Number Holder openly held out
Cayden as his child, received him into his home, and provided support for him. Under
Pennsylvania law, the clear and convincing evidence standard requires "'proof greater
than a mere preponderance, but less than beyond a reasonable doubt.'" Estate of Vanoni, 798 A.2d 203, 209 (Pa. Super. Ct. 2002) (citations omitted). "'Clear and convincing
evidence' is the highest burden in our civil law and requires that the fact-finder
be able to 'come to clear conviction, without hesitancy, of the truth of the precise
fact in issue.'" In re Estate of Heske, 647 A.2d 243, 244 (Pa. Super. Ct. 1994) (citing Lessner v. Rubinson, 592 A.2d 678, 681 (Pa. 1991)). Here, the strongest evidence that the Number Holder
openly held out Cayden as his child consists of affidavits from eight members of both
his and Ms. O~'s families, including all four grandparents, in which they confirm
that the Number Holder had acknowledged that Cayden was his child. In addition to
the Number Holder's acknowledgment of paternity to his family, the parents of both
the Number Holder and Ms. O~ stated that they and the Number Holder had been present
at Cayden's birth. Furthermore, Ms. O~'s mother specifically stated that the Number
Holder had acknowledged paternity to the hospital staff as well as to all who had
been present.
In addition to evidence that the Number Holder openly held out Cayden to be his child
by acknowledging paternity, the evidence shows that the Number Holder received Cayden
into his home and provided support for him. Pennsylvania courts have considered providing
a home and support for a child to be relevant factors in establishing that a father
has openly held out a child as his under 20 Pa. Cons. Stat. Ann. § 2107(c)(2). See In re Estate of Simmons-Carton, 644 A.2d 791, 797 (Pa. Super. 1994) (finding, among other factors, that evidence
that a relationship between the alleged father and the mother began several years
before the child's birth, that the parties continued to live together after the birth,
and that the alleged father treated the child as his and provided support for her
met the criteria for determining paternity under § 2107); In re Montenegro, Jr., 528 A.2d 1381, 1384 (Pa. Super. 1987) (holding that a putative father was estopped
from denying paternity where he had held himself out to be the child's father by marrying
the mother and assuming responsibility for the care of their child).
In this case, Agency notes reference a copy of a lease which shows that Cayden and
his mother lived with the Number Holder until March 2007. Although the copy of the
lease was not included in the documents that we received, sworn affidavits from several
family members attest to the fact that Cayden and his mother lived with the Number
Holder for approximately the first year of Cayden's life. For example, the Number
Holder's mother testified in her affidavit that the Number Holder and Ms. O~ lived
together for approximately one year before Ms. O~ became pregnant. Similarly, Ms.
O~'s mother testified in her affidavit that the Number Holder and her daughter had
been in a relationship since 2002, and had lived together in her home before moving,
together, to another home in October 2005. Moreover, separate affidavits from the
Number Holder's mother and father, as well as from Ms. O~'s mother, show that the
Number Holder provided support for Cayden until Ms. O~ moved to New York. Based on
these affidavits, we believe that a Pennsylvania court would find that there is clear
and convincing evidence that the Number Holder openly held out Cayden as his child,
received him in his home, and provided support for him.
Finally, although we need not reach the third condition, we believe that a court would
likely find that the evidence also satisfies the requirements of § 2107(c)(3). To
meet this provision, Cayden must show by clear and convincing evidence that the Number
Holder was his father, and such evidence may include a prior court determination of
paternity. In this case, the evidence in support of paternity includes a hospital
record of birth which certifies that the Number Holder was Cayden's father. Although
this document is a hospital memento rather than an official birth record, it is consistent
with the family members' affidavits stating that the Number Holder was Cayden's father.
The evidence also includes a hospital form indicating that the Number Holder had signed
an acknowledgment of paternity. Similarly, although this form is not the official
acknowledgment of paternity, it too provides additional evidence consistent with the
affidavits in support of the Number Holder's paternity. The evidence further includes
a New York family court order dismissing Ms. O~'s petition for paternity based on
evidence that the Number Holder had acknowledged paternity. Although the court order
dismissing Ms. O~'s paternity petition does not meet the requirements of a court determination
of paternity under § 2107(c)(3), it does show that a court considered the Number Holder's
acknowledgment of paternity sufficient to render Ms. O~'s paternity petition moot.
Finally, as discussed above, the evidence includes sworn affidavits from eight family
members who attested to the Number Holder's acknowledgment of paternity. Based on
the considerable favorable evidence, and in the absence of any directly contradictory
evidence, it is our opinion that a Pennsylvania court would likely find clear and
convincing evidence that the Number Holder was Cayden's father.
You have also requested our opinion as to the effective date of the parent-child relationship,
if any, and whether retroactive benefits should be paid. Regarding the effective date
of the parent child relationship, the regulations provide that, if the insured is
deceased, the child is entitled to benefits beginning with the first month covered
by the application in which he meets all other requirements for entitlement. 20 C.F.R.
§ 404.352(a)(1). The requirements for entitlement include establishing that you are
the insured's child. 20 C.F.R. § 404.350(a)(1). Here, the date of Cayden's application
for benefits is August 14, 2007. Although there is other evidence in the file to support
a finding that Cayden was the Number Holder's child, the strongest evidence in support
of paternity consists of affidavits from the Number Holder's family members which
establish that the Number Holder openly held out Cayden as his child. Accordingly,
the date of the latest necessary piece of evidence establishing the Number Holder's
paternity is November 5, 2007, the latest date of the affidavits from the family members.
It is our opinion, therefore, that a parent-child relationship was established effective
November 5, 2007.
Regarding retroactive benefits, the regulations further provide that if a child files
an application for benefits after the first month in which he could have been entitled
to them, he may receive retroactive benefits for up to six months preceding the month
in which his application was filed. 20 C.F.R. § 404.621(a)(2). Benefits may begin
with the first month in this six-month period in which the claimant meets all the
requirements for entitlement. 20 C.F.R. § 404.621(a)(2). In this case, Cayden did
not file his application after the first month in which he could have been entitled
to them. Rather, he filed his application for benefits on August 14, 2007, and met
all of the requirements for entitlement to benefits on November 5, 2007. Therefore,
because he filed his application for benefits three months before he met all of the
requirements for entitlement, retroactive benefits are not applicable.
CONCLUSION
For the reasons stated above, it is our opinion that a Pennsylvania court would likely
find the evidence sufficient to establish that the Number Holder was Cayden's father
under Pennsylvania law. Therefore, the Agency should find that there was a parent-child
relationship between the Number Holder and Cayden, with an effective date of November
5, 2007, but that retroactive benefits are not applicable.
Michael M~
Regional Chief Counsel
By: ___________________________
Anne von S~
Assistant Regional Counsel