For purposes of determining whether the agency can deem J2~ to be the number holder’s
child under section 216(h)(3)(C)(ii) of the Act, we believe that the agency may reasonably
conclude that there is satisfactory evidence of a biological relationship between
the number holder and J2~.
If the agency determines there is also sufficient evidence that the number holder
was either living with or contributing to J2~’s support at the time he died, in accordance
with the agency’s POMS instructions regarding the effective date of parent-child relationships
based on section 216(h)(3), we believe that the agency may determine that the effective
date of the relationship is the date of the statements of January XX, 2020, which
together with the paternal grandparent DNA report dated July XX, 2019, provide satisfactory
evidence of the biological relationship. See POMS GN 00306.100(E)(2), GN 00306.125(C).
[1]We considered your first question regarding J2~’s child status upon application of
section 216(h)(2)(A) of the Act and Louisiana intestate succession law. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b); La. Civ. Code Ann. arts.
178, 179, 880, 882, 888, 1096, 3506(8). If a child initiates a court action to establish
paternity (filiation) after the alleged father’s death, the child must prove paternity
by clear and convincing evidence. La. Civ. Code Ann. art. 197; Sudwischer v. Estate of
Hoffpauir, 705 So. 2d 724, 731 (La. 1997). Although alone insufficient to prove paternity,
Louisiana case law states that genetic scientific testing provides persuasive and
objective evidence that can help establish paternity. See LeBlanc v.
LeBlanc, 497 So. 2d 1361, 1364 (La. 1986); State v.
Gibson, 768 So.2d 714, 719 (La. Ct. App. 2000). Genetic testing on a deceased father’s relatives
may be permissible in determining paternity posthumously. Sudwischer, 705 So. 2d at 731. We believe a Louisiana court would find that the paternal grandparent
DNA report showing 99% relatedness between J2~ and the number holder’s mother does
not create a rebuttable presumption of paternity because it does not show a 99.9%
probability that the number holder is J2~’s father. See La. Rev. Stat. Ann. § 9:397.3(B)(2)(b). We believe that a Louisiana court would also
find the paternal grandparent DNA report is inadmissible because it does not include
complete chain of custody information, the qualifications and contact information
of the expert who supervised the tests, or how and where the samples were obtained.
See id. at § 9:397.3(A)(1). We also believe that a Louisiana court would find the remaining
evidence (in the form of statements) does not constitute clear and convincing evidence
that the number holder is J2~’s father. See Ladmirault v. Succession of Humphrey, 206 So. 3d 987, 989-990 (La. Ct. App. 2016); Hines v. Williams, 567 So. 2d 1139, 1142 (La. Ct. App. 1990). Thus, we believe a Louisiana court would
find that J2~ has not proven filiation with the number holder, and consequently, he
has not proven a right to inherit from the number holder under Louisiana intestate
succession law. As such, we believe the agency may find that J2~ is not the number
holder’s child under section 216(h)(2)(A) of the Act.
[2]To satisfy section 216(h)(3)(C)(ii), in addition to proving the biological relationship,
the claimant must provide evidence that the insured individual was either living with
the claimant or contributing to the claimant’s support at the time of the insured’s
death. See 42 U.S.C. § 416(h)(3)(C)(ii); 20 C.F.R. §§ 404.355(b)(4), 404.366; POMS GN 00306.125(A). We note that in the Form SSA-783, K~ reported that J2~ lived with more than one
parent prior to the number holder’s death. She also indicated that the number holder
was J2~’s sole financial supporter. She reported that the number holder was contributing
$500.00 per week toward J2~’s support after he was born and a total of $3,000.00 before
the number holder died (and that she was contributing $0.00 to J2~’s support). In
the Form SSA-795, S~ also reported that the number holder lived with J2~ before he
died. In the Form SSA-2519, J3~ reported that the number holder was making regular
and substantial contributions to the child’s support at the time he died, and that
he provided for the child’s needs. Consistent with your request, the focus of our
legal opinion, however, is only upon whether there is satisfactory evidence of the
biological relationship for purposes of section 216(h)(3)(C)(ii) of the Act.
[3]We do not have a copy of J2~’s birth certificate, and K~ did not mention whether it
lists the number holder as J2~’s father.
[4] You advised that the protective filing date for this claim was August XX, 2019.
[5] We are unaware of J3~’s relationship with the number holder or J2~ as he does not
identify his relationship with either on this form.
[6] In addition to meeting the definition of “child” under section 216 of the Act, a
claimant must show that he or she “was dependent upon” the insured individual “at
the time of [the insured individual’s] death” in order to be eligible for benefits.
42 U.S.C. § 402(d)(1)(C)(ii); 20 C.F.R. § 404.360. A child is “deemed” dependent on
the insured individual if the child is “legitimate” or was living with or being supported
by the insured individual at the time of his death. 42 U.S.C. § 402(d)(3). A claimant
can satisfy the legitimacy criterion by meeting the requirements of sections 216(h)(2)(B)
or 216(h)(3) of the Act, see id. § 402(d)(3), or by meeting the intestacy requirements of section 216(h)(2)(A) of
the Act, see
Matthews v. Lucas, 427 U.S. 495, 515 n.17 (1976); 20 C.F.R. § 404.361(a). The claimant must also satisfy
other requirements for child’s insurance benefits. See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a). Consistent with the scope of your legal
opinion request, however, we analyze only whether J2~ is the number holder’s “child.”
[7]A claimant will also be deemed a child under section 216(h)(2)(B) of the Act if the
claimant is the insured individual’s biological child, and the claimant’s parents
went through a marriage ceremony that would have been valid but for a legal impediment.
See 42 U.S.C. § 416(h)(2)(B); 20 C.F.R. § 404.355(a)(2). As there is no indication that
the number holder and K~ ever married or attempted to marry, this provision does not
apply.
[8]To satisfy section 216(h)(3)(C)(ii), in addition to proving the biological relationship,
the claimant must provide evidence that the insured individual was either living with
the claimant or contributing to the claimant’s support at the time of the insured’s
death. See 42 U.S.C. § 416(h)(3)(C)(ii); 20 C.F.R. §§ 404.355(b)(4), 404.366; POMS GN 00306.100(C)(3), GN 00306.125(A). As addressed in footnote two, the focus of your legal opinion request is upon
whether there is satisfactory evidence of the biological relationship. You have not
asked for our advice as to whether there is sufficient evidence that the number holder
was living with J2~ or contributing to J2~’s support at the time of the number holder’s
death. However, as noted in footnote two, there is evidence that goes to both the
living with, and contributing to criteria.
[9]Our online research located an obituary for J~ posted only on Facebook by W~ Funeral
Home on July XX, 2019 at XX:XXpm. We believe this to be the number holder based on
the information provided in the obituary. The obituary states that J~ was born on
December XX, 1993, in O~, Louisiana and died on July XX, 2019 in O~. It states that
his father was J4~ and his mother was S~. The obituary lists his survivors as including
his mother S~, his father, and a sister, but does not list any brothers. This is important
as to our concerns about the paternal grandparent DNA report and the lack of information
as to whether S~ had any other sons who could be J2~’s father. Moreover, the obituary
states that he is survived by “two sons, R~ and J2~.” Although the name is spelled
slightly differently, this recognition in the obituary that J2~ was the number holder’s
son is also notable and consistent with the statements made by K~ and S~ to the agency.
[10]See POMS PR 01210.035 New York, A. PR 15-093 B~ - Entitlement to child’s benefits on the record of Number
Holder A~ - New York law (March 5, 2015) (advising that a DNA paternity test showing
a 99% probability of the alleged father’s paternity of the child was sufficient to
establish the biological relationship for purposes of section 216(h)(3)); POMS PR 01210.036 North Carolina, A. PR 13-100 Child Status Based on DNA Testing of Claimant, Claimant’s
Mother, and Number Holder’s Sister – North Carolina (July 9, 2013) (advising that
DNA testing from the number holder’s sister showing a 99.95% probability of relatedness
between the number holder’s sister and the child was sufficient to establish the biological
relationship for purposes of section 216(h)(3)).
[11]We believe this is also consistent with the agency’s instructions in POMS GN 00306.055 concerning the effective date of the relationship for an illegitimate child with
inheritance rights. This provision instructs that “[a]n act/event conferring inheritance
rights generally has effect only from the date of such act/event.” POMS GN 00306.055(A)(3). This provision instructs that the claimant’s status as the number holder’s
child is established effective with the following dates: if one piece of evidence
satisfies the applicable State law standard of proof (such as blood test results),
the date of that piece of evidence; or if more than one piece of evidence is needed
to satisfy the applicable standard of proof, the date of the latest necessary piece
of evidence. Id.