A claimant may qualify for child’s insurance benefits on the earnings record of a deceased insured individual if the claimant is the insured individual’s “child” and was dependent on the insured individual at the time of his death.^[2] See Act § 202(d)(1), 42 U.S.C. § 402(d)(1); 20 C.F.R. §§ 404.350, 404.355. The Act and regulations define “child” as an insured individual’s natural child, legally adopted child, stepchild, grandchild, step grandchild, or equitably adopted child. See Act § 216(e), 42 U.S.C. § 416(e); 20 C.F.R. §§ 404.354 – 404.359. Our inquiry in this opinion focuses on whether the Claimant is NH’s natural child, as there is no evidence that the other terms would apply here. See POMS GN 00306.001O (defining “natural child”).

In assessing a claimant’s status as a natural child, under section 216(h)(2)(A) of the Act, the agency must determine whether the claimant could inherit the insured individual’s personal property as his child under the intestate succession laws of the State where the insured individual was domiciled at the time of his death. See Act § 216(h)(2)(A), 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b).

Alternatively, a claimant is considered the deceased insured individual’s child under section 216(h)(3)(C) of the Act if he or she is a biological child of the insured individual and one of the following is met:

• before his or her death, such insured individual acknowledged in writing that the claimant is his or her son or daughter;

• before his or her death, such insured individual had been decreed by a court to be the mother or father of the claimant;

• before his or her death, such insured individual had been ordered by a court to contribute to the support of the claimant because the claimant is his or her son or daughter; or

• other satisfactory evidence shows that the insured individual is the claimant’s mother or father, and the insured individual was living with or contributing to the support of the claimant at the time such insured individual died.

See Act § 216(h)(3)(C), 42 U.S.C. § 416(h)(3)(C); 20 C.F.R. § 404.355(a)(3), (4).

If a claimant qualifies as a child of the insured individual under the foregoing analysis under section 216(h)(2)(A) or 216(h)(3) of the Act, the claimant is deemed dependent on the insured individual. 20 C.F.R. § 404.361(a); see also POMS GN 00306.002F.

You have asked about the NH’s acknowledgements of the Claimant as his child in Facebook posts and text messages, and thus, we consider the requirements of a written acknowledgment under section 216(h)(3)(C)(i)(I) of the Act.

1. Evidence Establishes a Biological Relationship Between NH and the Claimant

To satisfy section 216(h)(3) of the Act, the claimant must be the insured individual’s biological child. See Act § 216(h)(3), 42 U.S.C. § 416(h)(3); 20 C.F.R. § 404.355(a)(3); POMS GN 00306.100A, GN 00306.105, GN 00306.110. Under the POMS definition for “biological relationship,” a man is “biologically related” to a child if he contributes genetic material, such as sperm or DNA, to the child. POMS GN 00306.001C. The POMS instructs that the agency must consider evidence that the number holder is not the child’s biological parent and must develop additional evidence of a biological relationship when there is a reason to doubt the biological relationship, and this includes situations in which the child’s Enumeration at Birth (EAB) Numident or full birth certificate shows someone other than the number holder as the child’s parent. POMS GN 00306.105D, E. The POMS explains that evidence regarding a biological relationship does not have to be in any specific form. POMS GN 00306.125A. Where the birth certificate and Numident record do not establish the biological relationship, the POMS provides examples of what might qualify as additional evidence to support the biological relationship, as including, but not limited to:

• hospital, church, or school records;

• a court decree or order;

• a statement from the attending physician, relative, or person who knows the child’s relationship to the number holder, e.g., the number holder’s spouse, including the basis for that knowledge;

• evidence that number holder and the child’s other parent were living together when the child was conceived; or

• blood or genetic test results.

POMS GN 00306.125B.1.

It is our understanding that the Claimant’s Numident record and birth certificate identify another man (T2~) as her father. We must determine whether the additional evidence provided here is sufficient evidence of a biological relationship between NH and the Claimant. There is evidence that the NH and the Claimant’s Mother were living together when the Claimant was conceived. Specifically, the Grandmother told the agency that the Claimant’s Mother had been in a long-term relationship with T2~ and had been living with him. However, the Grandmother also said that from the first part of 2019 until June 2019, which would have been during the period of the Claimant’s conception, the Mother had lived with the NH before later returning to live with T2~. The Grandmother stated that everyone knew that the Claimant was not T2~’s child.

Additionally, beyond the Grandmother’s statements supporting the biological relationship between the NH and the Claimant, there is evidence from the NH, the Claimant’s Mother, and the NH’s family that the Claimant is the NH’s daughter. The NH’s family acknowledged that the Claimant was the NH’s child by identifying the Claimant as his survivor in his obituary. The NH’s obituary states that he was survived by “daughter R~, her mother A~ of Nederland, Tex.” The text messages between the NH and the Grandmother and NH’s Facebook posts with comments by the NH and the Mother (discussed in detail next) show that they all unequivocally recognized the Claimant to be the NH’s daughter.

Accordingly, in light of the statements, the NH’s obituary, text messages, and Facebook posts and comments, we believe that the agency may find sufficient evidence of the biological relationship between the NH and the Claimant for purposes of considering the relationship under section 216(h)(3) of the Act. See POMS GN 00306.105E, GN 00306.125B.1.b.

2. Evidence Establishes the NH’s Written Acknowledgment of the Claimant as his Child for Purposes of Section 216(h)(3)(C)(i)(I) of the Act

In addition to proving a biological relationship with the child, section 216(h)(3)(C) requires one of the following:

• before his or her death, such insured individual acknowledged in writing that the claimant is his or her son or daughter;

• before his or her death, such insured individual had been decreed by a court to be the mother or father of the claimant;

• before his or her death, such insured individual had been ordered by a court to contribute to the support of the claimant because the claimant is his or her son or daughter; or

• other satisfactory evidence shows that the insured individual is the claimant’s mother or father, and the insured individual was living with or contributing to the support of the claimant at the time such insured individual died.

See Act § 216(h)(3)(C), 42 U.S.C. § 416(h)(3)(C); 20 C.F.R. § 404.355(a)(3), (4); see also 20 C.F.R. § 404.731 (evidence a claimant is a natural parent or child is required). The evidence here indicates that the NH acknowledged the Claimant as his daughter in writing before his death.

The Act and regulations do not further address what is required to constitute an acknowledgment in writing, but the POMS provides further explanation as to the criteria for considering written acknowledgments under section 216(h)(3)(C)(i)(I). The POMS instructs that the number holder’s written acknowledgment made prior to his or her death must both:

• clearly identify the child by name or otherwise reference the specific child in an identifiable manner; and

• clearly acknowledge or identify the child as the number holder’s child.

POMS GN 00306.105B. Thus, the number holder’s written acknowledgment of the child as his son or daughter must be clear and unequivocal. See Mack o/b/o Wesley v. Sullivan, 813 F. Supp. 760, 764-765 (D. Kan. 1993) (for section 216(h)(3) purposes, the “[t]he acknowledgment must consist of a clear and unequivocal statement that the writer is the parent of the child”); Johnson v. Sullivan, 735 F. Supp. 416, 421 (M.D. Fla. 1990) (in considering a written acknowledgment of paternity under section 216(h)(3), the court noted as examples of “unequivocable language of paternity” would be reference to the child as “my daughter” or “our baby”); Vance v. Heckler, 757 F.2d 1324, 1328 (D.C. Cir. 1985) (a writing satisfies the written acknowledgment requirement for section 216(h)(3) when it “is susceptible of only one reasonable construction”).

In terms of the acceptable format for such a written acknowledgment, the POMS instruct that no particular form is required. The POMS instruct that the acknowledgement may:

• be signed or unsigned;

• be either in the number holder’s handwriting or recorded in writing by someone else at number holder’s express direction;

• be in any format or any material;

• not necessarily in line with State laws regarding written acknowledgment for intestacy purposes; and

• may no longer be in existence or be unobtainable (in which case, there must be clear and convincing evidence that this acknowledgment did exist).

POMS GN 00306.105B; see also Garcia o/b/o Garcia v. Sullivan, 874 F.2d 1006, 1007 (5th Cir. 1989) (noting that the written acknowledgment requirement for section 216(h)(3) “has been interpretated by the [Commissioner] in a fashion that gives claimants the utmost favor”); Parker v. Barnhart, No. 3:03-CV-1725-L, 2006 WL 2135754, at *4 (N.D. Tex. June 1, 2006) (noting that for purposes of section 216(h)(3), “courts have held that a document constitutes a written acknowledgment of paternity only if it is written in the insured’s own hand or was authorized by the insured”); Low Dog v. Barnhart, 196 F. Supp. 2d 960, 969 (S.D. 2002) (noting that under SSA’s POMS, “written acknowledgment of paternity need not be made by any one particular document or be in any special form”); Mack o/b/o Wesley v. Sullivan, 813 F. Supp. 760, 765 (D. Kan. 1993) (noting that “letters, tax returns, and public documents” have been found by courts to constitute written acknowledgment of paternity for section 216(h)(3) purposes).

The POMS provides some examples of acceptable evidence of a written acknowledgment for section 216(h)(3) purposes, which includes a Federal or State income tax return where the number holder listed the child as a dependent by name; a number holder’s Social Security application for retirement or disability benefits where the number holder is the applicant and the number holder listed the child as his or her child; the child’s Numident record if certain requirements are met (including that the number holder’s written consent was required by the State during the Enumeration at Birth (EAB) process); and the child’s birth certificate if certain requirements are met (outlined in POMS GN 00306.120). POMS GN 00306.105C.

As noted, the Claimant’s birth certificate and Numident record identify another man as the child’s father. We are unaware of any tax returns in which the NH named the Claimant as his dependent and child. Further, we are unaware of any Social Security applications the NH filed identifying the Claimant as his child. Other evidence provided, however, appears to meet the criteria of a clear and unequivocal written acknowledgment by the NH that the Claimant is his daughter. Specifically, the NH’s Facebook posts and comments and the NH’s text messages with the Grandmother made before his death clearly identify the Claimant by name and clearly identify the Claimant as his daughter.

The Grandmother provided the agency with screenshots of a number of text messages from the NH to her in which he referred to the Claimant by name and as his daughter and asked to visit her. In one text message dated January XX, the NH wrote to the Grandmother, “B~ I wasn’t threatening you by no means I would just like to see my Daughter please I don’t give you no problems . . . I would just like to see R~ please.” He asked in another text message with the Grandmother “to see my daughter.” He said in another message that he “just would like to see R~.” And in another message said that he “was askin NICELY to see my Daughter.” He wrote in another message that he was “just try[ing] to see my Daughters and let them know who there Dad is and that he Loves them!” In other text messages from January XX, XX, XX, and XX, the NH asks the Grandmother, “How is R~?” and then asks for pictures of her and if he could see her. In another text message he said that he would continue to ask “to see R~ or at the very least know what’s going on with her,” referring to her as his “Lil Angel.” He wrote in one message on January XX asking, “How’s R~” and saying to the Grandmother “U always tell me she’s doing good how am I gonna learn or know anything about my daughter if you won’t tell me or let me see her please B~?!” On February XX, the NH sent a text message to the Grandmother asking again to please see the Claimant. The NH’s text messages to the Grandmother clearly identify the Claimant by name and he repeatedly refers to the Claimant as his daughter.

Additionally, the Grandmother provided screenshots of the NH’s Facebook page showing a photo of the Claimant as his profile picture, which he updated on December XX, 2020, with his comment above the photo saying “Daddy’s Lil Angelic Doll!.” The Mother posted a comment under this photo stating, “That’s mommy’s baby girl. We love you more than life.” Using this information regarding his Facebook page, our research on the publicly available information on the NH’s Facebook page shows that on June XX, 2020, the NH updated his cover photo with a photo of himself and this same baby girl. Comments under this photo show that someone asked the NH if she was his baby girl and he said, “Yes Mam that’s my new Lil Angel!!” and “R~ is her name!!!!” The Claimant’s Mother then commented to the NH in reply, “R~** G~ is what she goes by.” The Claimant’s Mother also commented under their photo, “I am obsessed with this” and included a heart. In these postings by the NH on his Facebook page, the NH clearly identifies the Claimant by name and clearly identifies the Claimant as his and the Mother’s daughter.

In terms of the electronic format of the NH’s acknowledgements, the POMS does not expressly address the validity or sufficiency of an electronic writing as a written acknowledgment, such as social media posts, text messages, or emails, and we have not found any cases addressing this specific issue. However, consistent with legal opinions issued by other Regions and POMS GN 00306.105 instructions that the acknowledgment “may be in any format or on any material,” we believe a number holder’s electronic statements in a Facebook post and in text messaging - such as occurred here - may serve as a written acknowledgment for purposes of section 216(h)(3)(C)(i)(I). See POMS PR 01205.007 Colorado, A. PR. 21-018 Genetic Testing (March 15, 2021) (advising that for purposes of deeming the claimant to be the NH’s child under section 216(h)(3)(C)(i)(I), the NH’s Facebook messages and posts showing the child and the NH in photos and with messages and posts identifying the child as his son should be considered the NH’s written acknowledgment that the claimant was his son, and other evidence consisting of a mail-order DNA test kit, corroborating and contemporaneous statements from the NH and his mother, and the NH’s funeral program identifying the child as his son was sufficient to show the NH was the child’s biological father even though another man that the mother was in a relationship with at that the time of his birth was listed on the child’s birth certificate as the father); POMR 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 for purposes of deeming the claimant to be the NH’s child under section 216(h)(3)(C)(i)(I), the NH’s acknowledgement of the child on his Facebook page should be considered the NH’s written acknowledgment that the claimant was his daughter, and other evidence consisting of the NH’s sister’s DNA test results was sufficient to show the NH was the child’s biological father even though another man (the mother’s husband at the time of birth) was listed on the child’s birth certificate as the father).

As such, given the specific evidence provided, we believe the agency may reasonably conclude the Claimant has met the criteria of section 216(h)(3)(C)(i)(I) for a written acknowledgement and that the agency may deem the Claimant to be the NH’s child for Title II benefit purposes.

You asked what the beginning date of the parent-child relationship would be between the NH and the Claimant. POMS GN 00306.105F instructs that the effective date of a parent-child relationship based on a written acknowledgment under section 216(h)(3) is the date of the written acknowledgment, unless the evidence points to an earlier date. Further, if multiple written acknowledgments are available, the agency is to determine which writing is the easiest to obtain and entitle the child based on that writing. Id. The agency is to then obtain the writing that provides the child with the earliest month of entitlement. Id.

Here, there are multiple text messages and Facebook posts that the agency could find to individually constitute the NH’s written acknowledgments. However, the screenshots of the text messages do not appear to provide a year. The Claimant was born in November 2019 and the NH died in February 2021. It is unclear if these messages are from January and February 2020 or 2021 prior to the NH’s death. Based on the content of some of the text messages stating that the Claimant was walking and talking, it is likely that the messages are from January and February 2021. The screenshot of the NH’s Facebook post that the Grandmother provided the agency is dated December XX, 2020. With this information, we located the NH’s Facebook page and an earlier publicly available post made by the NH updating his cover photo in which he acknowledged the Claimant by name and as his child on June XX, 2020 (as discussed above). Given the NH’s multiple written acknowledgments, we believe the agency could rely on the NH’s acknowledgment in this earlier June XX, 2020 Facebook post as the date that the parent-child relationship began.^[3] See POMS GN 00306.105E.

Under Title II of the Act, a claimant may be entitled to child’s insurance benefits on an insured individual’s account if, among other things, she is the insured number holder’s child.^[5] See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350. The Act and regulations define “child” as an insured number holder’s natural child, legally adopted child, stepchild, grandchild, step grandchild, or equitably adopted child. See 42 U.S.C. § 416(e); 20 C.F.R. §§ 404.354˗.359. Consistent with the scope of your request, our inquiry focuses on whether Z~ is the number holder’s natural child. To determine a claimant’s status as a natural child, SSA must determine whether the claimant could inherit the insured number holder’s personal property as his child under the intestacy laws of the State where the insured number holder had his permanent home at the time of his death. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b). Texas law controls because the number holder’s permanent home was in Texas when he died. Therefore, we apply Texas intestate succession laws to determine whether Z~ could inherit from the number holder as his child.

Texas law allows a child to inherit property from her deceased parent by intestate succession. See Tex. Estates Code Ann. §§ 201.001˗.003 (if a person who dies intestate does not have a spouse, the person’s estate passes to the person’s children), 201.051 (maternal inheritance), 201.052 (paternal inheritance). Section 201.052 of the Estates Code, provides as follows for paternal inheritance under intestate succession:

(a) For purposes of inheritance, a child is the child of the child’s biological father if:

(1) the child is born under circumstances described by Section 160.201, Family Code;

(2) the child is adjudicated to be the child of the father by court decree under Chapter 160, Family Code;

(3) the child was adopted by the child’s father; or

(4) the father executed an acknowledgment of paternity under Subchapter D, Chapter 160, Family Code, or a similar statement properly executed in another jurisdiction. ….

(c) A person may petition the probate court for a determination of right of inheritance from a decedent if the person:

(1) claims to be a biological child of the decedent and is not otherwise presumed to be a child of the decedent; or

(2) claims inheritance through a biological child of the decedent who is not otherwise presumed to be a child of the decedent.

(d) If under Subsection (c) the court finds by clear and convincing evidence that the purported father was the biological father of the child:

(1) the child is treated as any other child of the decedent for purposes of inheritance; and

(2) the child and the child’s issue may inherit from the child’s paternal kindred, both descendants, ascendants, and collateral kindred in all degrees, and they may inherit from the child and the child’s issue.

Tex. Estates Code Ann. § 201.052.

As explained next, a court adjudication of paternity is most relevant to the present situation and can establish the right to inherit under section 201.052(a)(1), (2), (c), and (d) of the Texas Estates Code.

1. Texas Court Adjudication of Paternity and the Right to Paternal Inheritance under Section 201.052(a)(1), (2), (c), and (d)

Section 201.052(a)(3) and (4) of the Texas Estates Code do not apply here because the number holder did not adopt Z~ or execute an acknowledgment of paternity. Section 201.052(a)(1) of the Texas Estates Code refers us to section 160.201 of the Uniform Parentage Act (UPA), which is in the Texas Family Code. The only relevant method for establishing paternity under section 160.201(b) of the Texas Family Code that might apply in the present situation is a court adjudication.^[6] See Tex. Fam. Code Ann. § 160.201(b)(3). Section 201.052(a)(2) of the Texas Estates Code also provides for paternal inheritance on the basis of a court adjudication under the provisions of Chapter 160 of the UPA in the Texas Family Code. Additionally, section 201.052(c) and (d) of the Texas Estates Code provides that for purposes of determining the right to inherit, a probate court can make a paternity determination based on clear and convincing evidence. Thus, all three of these methods under section 201.052(a)(1), (2), (c), and (d) provide for inheritance based on a court determination establishing paternity.

Here, there is no court order declaring the number holder to be Z~'s parent. However, SSA regulations do not require an applicant to obtain a State court adjudication. See 20 C.F.R. § 404.355(b)(2). Instead, SSA “decide[s a child’s] paternity by using the standard of proof that the State court would use as the basis for a determination of paternity.” Id. Thus, to establish that Z~ has a right to paternal inheritance from the number holder under section 201.052(a)(1), (2), (c), and (d), Z~ must do so under the standard of proof a Texas court would use to determine paternity.

2. Whether a Texas Court Would Find the Paternal Grandparent DNA Report Rebuttably Identifies the Number Holder as Z~'s Father Such that He Must be Adjudicated as the Father

B~has provided a paternal grandparent DNA test to support Z~'s relationship with the number holder. Thus, we first consider the standard of proof under Texas law as to genetic tests.

a. 99% Probability of Paternity

In general, under Texas law, if the DNA testing and report satisfy the reliability and authenticity requirements, and the testing reveals at least a 99% probability of paternity with a combined paternity index of at least 100 to 1, a man is rebuttably identified as the child’s father. See Tex. Fam. Code Ann. § 160.505(a); see also Tex. Estates Code Ann. § 204.102 (the presumption under section 160.505 of the Family Code applies to the results of genetic testing ordered under the Estates Code in proceedings to declare heirship), § 204.152 (same). “[T]he man identified as the father of a child under Section 160.505 shall be adjudicated as being the father of the child.” Tex. Fam. Code Ann. § 160.631(b). The results of genetic testing can only be rebutted by other genetic tests. See Tex. Fam. Code Ann. §§ 160.505(b), 160.631; Tex. Estates Code Ann. §§ 204.102, 204.152. Thus, Texas law sets a threshold of 99% probability of paternity that must be met to require a court to adjudicate paternity.

When a man has died and cannot provide a specimen for genetic testing, the court may consider the results of genetic testing of the man’s parents. See Tex. Fam. Code Ann. § 160.508(a)(1); Tex. Estates Code Ann. § 204.054; see also Tipps v. Metro. Life Ins. Co., 768 F.Supp. 577, 579-80 (S.D. Tex. 1991) (after death of purported father, a Texas court may draw inferences from grandparent DNA testing to determine paternity). Texas law does not explicitly require that both purported paternal grandparents participate in DNA testing for the court to determine paternity. See Tex. Fam. Code Ann. § 160.508(a). Thus, the DNA test of only one purported grandparent may, in certain instances, be sufficient to establish a parent-child relationship with the deceased. See Tex. Fam. Code Ann. §§ 160.505(a), 160.508(a)(1); Tex. Estates Code Ann. § 204.054. Research has also revealed no Texas statutes or case law indicating that the required percentage of probability of paternity is less for single grandparentage testing. Thus, we will apply the same 99% probability threshold.

Here, as Texas law allows because the number holder is deceased, the evidence includes grandparent DNA testing. With regard to the grandparent DNA testing, P2~, the number holder’s mother, but not his father, underwent grandparent DNA testing. The DNA report for P2~ and Z~ established a 99.96% probability of relatedness between P2~ (the alleged paternal grandmother) and Z~. See Tex. Fam. Code § 160.505(a)(1) (requiring paternity to be established at least at 99% probability). However, even though this satisfies the probability requirement, the grandparent DNA report does not identify the number holder specifically as Z~'s father. Rather, it shows only a familial relationship between P2~ and Z~. B~reported to the agency that the number holder did not have any brothers. P2~'s report of contact does not reflect any information as to whether the number holder was her only son. It is possible that a Texas court would find this 99.96% probability of relatedness between the number holder’s mother, P2~, and Z~ supportive of the number holder’s paternity of Z~ in light of B~'s statement alone that the number holder had no brothers. However, it is also possible that a court would require at a minimum a statement from P2~ signed under penalty of perjury confirming that she had no other sons. Although the grandparent DNA test report could satisfy the probability provisions of the Texas Family Code, the DNA test report and chain of custody documentation do not satisfy Texas law requirements to establish reliability and authenticity, as discussed next.

b. Reliability and Authenticity Requirements

In addition to the 99% probability of paternity threshold, Texas law requires the genetic testing and reports must meet specific statutory requirements showing reliability and authenticity. See Tex. Fam. Code Ann. §§ 160.503, 160.504, 160.631; see also Tex. Estates Code Ann. §§ 204.001˗.201 (genetic testing in proceedings to declare heirship; the genetic testing report must comply with section 160.504 of the Texas Family Code). P2~'s grandparent DNA report did not meet all of the Texas Family Code’s reliability and authenticity requirements. See Tex. Fam. Code Ann. § 160.504(a), (b)(1)-(5).

First, the DNA testing must be in a laboratory accredited by the AABB or another accrediting body designated in the Texas statute. Tex. Fam. Code Ann. § 160.503(a). DNA Diagnostics Center is accredited by the AABB.

Second, the genetic testing results must be in a record and a laboratory designee must sign the DNA report “under penalty of perjury” in order for the report to be admissible as self-authenticating. Tex. Fam. Code Ann. § 160.504(a). J~, Laboratory Director, signed the DNA test report. However, J~ did not declare that she signed the report “under penalty of perjury.” Because the grandparent DNA test report was not signed under penalty of perjury as mandated by the statute, it would not be admissible evidence on its own in a Texas court to establish paternity. See Tex. Fam. Code Ann. § 160.504(a) (stating that genetic reports must be signed under penalty of perjury); L.J. v. Texas Dept. of Family and Protective Services, 2012 WL 3155760, at *5 (Tex. App. – Austin 2012, pet. denied) (noting that the phrase “under penalty of perjury” is statutorily mandated to be included in a genetic report and that the phrase “imposes significant legal consequences”).

Third, testimony or documentation must establish a reliable, five-part chain of custody meeting these requirements: (1) the names and photographs of the persons whose specimens have been taken; (2) the names of the persons who collected the specimens; (3) the places and dates the specimens were collected; (4) the names of the persons who received the specimens in the testing laboratory; and (5) the dates the specimens were received. Tex. Fam. Code Ann. § 160.504(b)(1)˗(5). Here, the paternal grandparent DNA report did not establish a reliable chain of custody of genetic testing pursuant to the statute in order to be admissible without testimony. See Tex. Fam. Code Ann. § 160.504(b)(1)-(5). With respect to the chain of custody for the DNA specimen from P2~, the chain of custody includes P2~'s photograph and signature, and this page is signed by A~, who collected P2~'s DNA specimen. The form also contains the date and place where A~ collected the specimens; and the name of person who received P2~'s DNA specimen. However, the chain of custody form for Z~'s DNA specimen does not indicate what happened to the specimen after S~ collected it. Although a person signed a separate, unnamed form on May 28, 2020, affirming that he or she received a specimen at DNA Diagnostics Center and the specimen container was received sealed and secure, this form contains a space for the printed name and signature of the person who received the specimen but there is no printed name on the form and the signature is illegible.^[7] This form also does not contain any identifying information specific to Z~'s DNA specimen. In addition, the photograph included in the documentation does not identify who is in the picture. Therefore, the paternal grandparent DNA test report does not document a reliable chain of custody, as required by law for admissibility. See Tex. Fam. Code Ann. § 160.504(b)(1)-(3), (5). See Tex. Fam. Code Ann. § 160.504(b)(1)-(5) (providing that documentation from testing laboratory must be sufficient to establish a reliable chain of custody of genetic testing).

c. The Paternal Grandparent DNA Report Does Not Rebuttably Identify the Number Holder as Z~'s Father

In summary, the paternal grandparent DNA report establishes a 99.96% probability of relatedness between P2~ and Z~, but there is no evidence from P2~ as to whether she has any other sons. The parental grandparent DNA test report was not signed “under penalty of perjury,” and the DNA test report does not comport with the proper chain of custody guidelines required for admissibility. Because the testing and report do not meet all of the Texas statutory requirements for genetic testing, the paternal grandparent DNA report does not rebuttably identify the number holder as Z~’s father and would not require a court to adjudicate the number holder as Z~'s father. See Tex. Fam. Code Ann. § 160.631(c) (“the man identified as the father of a child under Section 160.505 shall be adjudicated as being the father of the child.”).

Our analysis does not end here, however. If a court finds that genetic testing does not identify (or exclude) a man as the child’s father, the test results along with other evidence are still admissible to adjudicate the issue of paternity. Tex. Fam. Code Ann. § 160.631(e); Tex. Estates Code Ann. § 204.153. While section 160.631(e) of the Texas Family Code does not speak to the standard of proof, Texas courts have determined that under Texas law, a child’s paternity after the death of the father is established under the clear and convincing evidence standard of proof. See In re Interest of A.S.L., 923 S.W.2d 814, 818 (Tex. App. – Amarillo 1996, no writ) (applying the clear and convincing evidence standard of proof to determine paternity under the Texas Family Code after the father’s death). Additionally, as noted above, section 201.052(c) of the Texas Estates Code expressly provides that for determining the right to inherit, a probate court may make a paternity determination based on clear and convincing evidence of paternity. See Tex. Estates Code Ann. § 201.052(c), (d). Thus, we next consider whether the totality of the evidence, including the paternal grandparent DNA report, satisfies the clear and convincing standard of proof to establish that the number holder is Z~'s father and that Z~ has the right to inherit from the number holder as his child.

3. Whether a Texas Court Would Find Clear and Convincing Evidence that the Number Holder is Z~ Father

Clear and convincing evidence is “the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.”^[8] Villery v. Solomon, 16 S.W.3d 106, 107 (Tex. App. – Houston [1st Dist.] 2000, no pet.); see Tex. Fam. Code Ann. § 101.007. In cases involving proof of paternity, the fact finder must decide in each case whether the evidence presented is clear and convincing. Garza v. Maverick Mkt., Inc., 768 S.W.2d 273, 275-76 (Tex. 1989) (holding that in a wrongful death action an alleged child must have the opportunity to prove by clear and convincing evidence that he is the deceased’s child). In Garza, the Texas Supreme Court listed some of the potential evidence an alleged child may use to prove paternity, including: blood or genetic tests; evidence of physical resemblance of the child to the alleged father; prior statements by the alleged father that he was the father of the child; or other admissions by him bearing on his relationship to the child; and evidence of periods of conception and gestation. Id. at 276; see also In re Interest of B.M., 570 S.W.2d 493, 501 (Tex. Civ. App.—Texarkana 1978, no writ). However, the Texas Supreme Court concluded that it could not predict whether some or all of this evidence would rise to the level of clear and convincing evidence in any particular case. Id. Therefore, we must determine whether a Texas court would find that the totality of the evidence provided here satisfies the clear and convincing evidence standard to establish that Z~ is the number holder’s child.

Although a Texas court will consider grandparent DNA test results when deciding whether the evidence in a particular case is clear and convincing, the test results must demonstrate by clear and convincing evidence that the number holder was or was not Z~’s biological father. See Tipps, 768 F.Supp. at 579-80. As discussed above, the grandparent DNA test report was not signed under penalty of perjury and did not meet all of the Texas Family Code’s reliability and authenticity requirements. See Tex. Fam. Code Ann. § 160.504(a), (b)(1)-(5). Additionally, the grandparent DNA test report establishes only relatedness between P2~ and Z~, and there is no evidence from P2~ confirming the number holder is her only son. Thus, the paternal grandparent DNA test report cannot alone constitute clear and convincing evidence that the number holder was Z~'s biological father.

We believe the other evidence submitted also does not meet the clear and convincing standard. Z~'s Texas birth certificate does not support the paternity claim as B~ did not identify the number holder as Z~'s father on her birth certificate. B~ has not offered any statements or other types of written evidence from the number holder indicating he believed himself to be Z~'s father. B~ has offered only her statements and P2~ has provided statements to the agency over the phone. However, statements from B~ and P2~ to the agency are conflicting, and P2~ has not confirmed that the number holder is her only son.

B~ stated that she became pregnant with the number holder’s child before he died on September XX, 2017. Z~ was born on June XX, 2018, which is 8 months and 20 days after the number holder’s death. B~ also stated the number holder knew she was pregnant because they had discussed it. She also stated she was living with the number holder when he died, and that she never had sexual relations with anyone else other than the number holder. However, B~ has offered conflicting statements about when she told the number holder she was pregnant with his child. For example, B~ initially told a SSA field office employee that she was two months pregnant when she told the number holder that she was pregnant with his child. When questioned how this could be possible when Z~ was born nine months after the number holder died, B~ stated that she remembered telling him that she thought she was pregnant, but she had not taken a pregnancy test at the time. B~ also initially stated that the number holder did not tell his mother that she was pregnant, and that the number holder’s mother did not even know B~ or know that she was pregnant. Yet, this statement is at odds with P2~'s statement that the number holder told her shortly before he died that B~ was pregnant with his child, and that she knew B~ was living with the number holder because she saw B~ when she visited the number holder. As noted, P2~ did not provide any information as to whether she has other sons. Additionally, there is no other evidence offered on this point, such as a funeral program or obituary.

In summary, the statements from B~ and P2~ contain conflicting information; the parental grandparent DNA report was not signed under penalty of perjury and contained chain of custody deficiencies undermining its reliability; and there is no evidence that the number holder acknowledged or believed that Z~ was his child, other than what P2~ claims the number holder orally told her. Further, P2~ did not inform the agency as to whether the number holder was her only son. Given the inconsistencies in the witness statements, the lack of other evidence showing that B~and the number holder were living together before the number holder’s death, and the lack of evidence corroborating B~'s claim that P2~ did not have other sons, we believe a Texas court would find that the totality of the evidence did not instill a firm belief or conviction that the number holder was Z~’s biological father. See Tipps, 768 F. Supp. at 579 (noting that the clear and convincing evidence standard requires greater proof than the “preponderance” standard, but less proof than the “beyond a reasonable doubt” standard used in criminal proceedings). For these reasons, we believe a Texas court would find that Z~ has not proven by clear and convincing evidence that the number holder is her father.^[9]

Therefore, we believe a Texas court would find that Z~would not inherit from the number holder as his child under Texas intestate succession laws. See Tex. Estates Code Ann. § 201.052(a)(1), (2), (c), (d). As a result, SSA may reasonably conclude Z~ is not the number holder’s natural child under section 216(h)(2)(A) of the Act for purposes of her application for child’s insurance benefits on the number holder’s record.

You also asked whether there was enough evidence to establish a biological relationship between the number holder and Z~ under section 216(h)(3) of the Act. Under section 216(h)(3)(C)(i), the biological child of a deceased number holder may be deemed to be the number holder’s child if, before the deceased number holder’s death: (1) the number holder acknowledged in writing that the child was his child; (2) a court decreed the number holder to be the child’s father; or (3) a court ordered the number holder to contribute to the child’s support. See 42 U.S.C. § 416(h)(3)(C)(i); 20 C.F.R. § 404.355(a)(3)-(4); Program Operations Manual System (POMS) GN 00306.100. None of these circumstances is present here.

In addition, under section 216(h)(3)(C)(ii) of the Act, a biological child of a deceased number holder may be deemed to be the number holder’s child if SSA finds “by other satisfactory evidence” that the number holder was the child’s biological father, and the number holder was living with or contributing to the child’s support at the time of his death (or if the child was in the womb when the number holder died, the number holder must have been either living with or contributing to the support of the mother at the time of the number holder’s death). See 42 U.S.C. § 416(h)(3)(C)(ii); 20 C.F.R. § 404.355(a)(4); POMS GN 00306.100(C)(3), GN 00306.125.

As to what might satisfy the requirement for “other satisfactory evidence” of the biological relationship, SSA policy instructs, “[t]he evidence must identify the child in question and establish that the NH is the child’s biological parent,” but “[i]t does not have to be in any specific form.” POMS GN 00306.125(A) (“Use judgment in evaluating the evidence, remember that it must establish biological parentage.”). Where, as here, the child’s Numident record and birth certificate do not identify the number holder as the parent, the agency may consider the following in determining other evidence of a biological relationship: hospital, church, or school records; a court decree or order; a statement from the attending physician, relative, or person who knows the child’s relationship to the NH, including the basis for that knowledge; evidence that the NH and the child’s other parent were living together when the child was conceived; or blood or genetic test results. POMS GN 00306.125(B)(1)(b). Here, the only evidence we are aware of is the grandparent DNA report and statements from both B~ and P2~.

As stated above, B~ did not have the number holder listed as Z~'s father on Z~'s birth certificate when she was born approximately nine months after the number holder’s death. The grandparent DNA report does show a 99.96% probability of relatedness between the number holder’s mother (P2~) and Z~, but it does not identify the number holder in particular, was not signed under penalty of perjury, and does not have reliable chain of custody documentation. Although B~ stated that the number holder had no brothers, she has also presented several inconsistent statements, and we have no information from P2~ confirming whether the number holder was her only son. As we have outlined above, the statements from B~ and P2~ present a number of inconsistencies about the pregnancy and living situation prior to the number holder’s death. B~ stated only that the number holder knew that she was pregnant with his child, she was living with him at the time of his death, and she did not have sexual relations with anyone else other than the number holder. P2~ told a SSA field office employee that the number holder told her orally that B~ was pregnant with his child, but she could not remember exactly when, but it was likely shortly before the number holder died. B~ also provided inconsistent statements about her being two months pregnant when she told the number holder that she was pregnant with his child. Had she been two months pregnant at the time she told the number holder, the baby would have been born before June, when Z~ was born. B~ also stated that P2~ did not even know her or know that she was pregnant, and yet, P2~ stated she knew B~ and that she was pregnant. Given the inconsistencies in their statements, the absence of information from P2~ as to whether the number holder is her only son, and the lack of other information to support a biological relationship between Z~ and the number holder in particular, we believe it would be reasonable for the agency to conclude that this evidence is not “other satisfactory evidence” of a biological relationship. See 42 U.S.C. § 416(h)(3)(C)(ii); 20 C.F.R. §§ 404.355(a)(4), 404.366(c); POMS GN 00306.125(B)(1).^[10]

In addition to the biological relationship, as stated, the evidence must show either that the number holder was living with or contributing to the support of the child at the time of the number holder’s death (or in the case of a child that was in the mother womb when the number holder died, the number holder must have either been living with or contributing to the support of the mother at the time of his death). See 20 C.F.R. §§ 404.355(a)(4), 404.366; POMS GN 00306.125(B)(2). Here, we are unaware of any evidence that the number holder was contributing to B’s support at the time of his death. See 20 C.F.R. § 404.366 (defining contributions for support); see also POMS RS 01301.005 (the agency is to obtain a statement regarding contributions if the number holder was contributing to support at the time of his death). As to the living with requirement, the agency is to obtain a statement from the applicant and a person with personal knowledge of the number holder’s and the child’s living arrangement at the pertinent time. POMS RS 01301.002(E)(4). If development raises doubt, the agency is to obtain a statement from a knowledgeable person other than the person whose statement was already obtained. Id. Although both B~ and P2~ stated to the agency that B~ and the number holder were living together at the time of his death, there is conflicting evidence raising doubts as to their statements. Specifically, as noted earlier, B~ told the agency that P2~ did not know even know her or that she was pregnant with P~'s child. If P2~ did not know B~ or that she was pregnant, P2~ could not have personal knowledge of their living arrangement before the number holder’s death. In the absence of another statement or other evidence confirming that B~ was living with the number holder at the time of death, it would be reasonable for the agency to find that the evidence did not establish the requirement of living with the number holder at the time of death. See 42 U.S.C. § 416(h)(3)(C)(ii); 20 C.F.R. §§ 404.355(a)(4), 404.366(c); POMS GN 00306.125(B)(2), RS 01301.002(E)(4).

Therefore, under the specific evidence provided with this claim and given the deficiencies with such evidence as noted above, we believe SSA may reasonably conclude Z~ has not provided other satisfactory evidence that she is the number holder’s biological child nor has she proven that B~ and the number holder were living together for purposes of section 216(h)(3)(C) of the Act.