The evidence of record, including a State court order declaring the deceased number holder the father of the claimant, does not establish the claimant as the number holder's child for purposes of child's insurance benefits on the number holder's earnings record. The record does not provide clear and convincing evidence that the number holder is the claimant's father for the purposes of Florida intestacy law. 

The record also does not provide sufficient evidence that the claimant could be deemed the number holder's child.  Therefore, the claimant is not the number holder's child for purposes of child's insurance benefits on the number holder's earnings record.

QUESTION

You asked whether the evidence of record, including a State court order declaring the deceased number holder the father of the claimant, establishes the claimant is the number holder's child for purposes of child's insurance benefits on the number holder's earnings record.

OPINION

The record does not provide clear and convincing evidence that the number holder is the claimant's father for the purposes of Florida intestacy law. The record also does not provide sufficient evidence that the claimant could be deemed the number holder's child. Therefore, the claimant is not the number holder's child for purposes of child's insurance benefits on the number holder's earnings record.

BACKGROUND

According to the information provided, Brooklyne M. B~ (Claimant) was born on February 14, 1996, in Florida. Claimant's birth certificate lists Carla G. M~ as her mother.  Claimant's birth certificate does not name her father. The information indicates Claimant's mother was married to Percy P~ when Claimant was born.  Although the record does not include a copy of the marriage certificate, a Joint Stipulation and Marital Settlement Agreement (Agreement) entered into on February 4, 2000, states Claimant's mother (then named Carla M~ P~) and Mr. P~ were married on December 15, 1992. The Agreement states the parties separated on or about March 1995. The Agreement further states two children were born of the marriage, in 1991 and 1993; Claimant is not listed as one of the two children.  On April 3, 2000, a Florida court approved and incorporated the Agreement into a final judgment dissolving the marriage between Claimant's mother and Mr. P~.

Roy B~, the number holder (NH), died on June 1, 1999. NH's death certificate indicates he was a resident of Florida when he died.  On August 23, 1999, Claimant's mother applied on behalf of Claimant for child's insurance benefits (CIB) on NH's earnings record. In connection with Claimant's 1999 application, a Social Security Administration (SSA) claims representative contacted a child support worker to obtain evidence regarding NH's relationship with Claimant. The child support worker reported he had two files for Claimant, one naming Mr. P~ as Claimant's father, the other file naming NH as Claimant's father. The child support worker reported his agency had obtained DNA testing that showed Mr. P~ was not Claimant's father. The child support worker also reported his agency had planned to go to court regarding NH's possible paternity, but NH died before the commencement of any court proceedings.

The SSA claims representative also contacted Tyrone B~, NH's brother, regarding his knowledge of the alleged relationship between NH and Claimant's mother.  NH's brother did not want to discuss the matter, but acknowledged he had heard rumors Claimant was NH's child. NH's brother stated he could never say for certain Claimant was NH's child, and he stated he would never be willing to sign a statement to that effect. Katherine B~, then the wife of NH's brother (i.e., NH's sister-in-law at the time), reported the same information as NH's brother; she also was unwilling to sign any statement. On August 31, 1999, SSA denied Claimant's application because Claimant's mother did not present sufficient evidence that Claimant was NH's child.

Claimant's mother filed a second CIB application on Claimant's behalf on October 15, 2007, which SSA denied on November 15, 2007, because Claimant's mother failed to prove Claimant was NH's child. Claimant's mother filed a third CIB application on Claimant's behalf on February 28, 2006. According to SSA records, the only new evidence Claimant's mother presented was an affidavit from Katherine H~-W~. According to the information provided, SSA no longer has a copy of this affidavit and Claimant's mother reported she did not have copy of the affidavit when contacted by SSA in connection with Claimant's current application. A claims representative found the affidavit suspicious because the affidavit was drafted on November 13, 2007, but not signed by Katherine until November 26, 2007; the affidavit had Katherine's name spelled with a "C" instead of a "K"; and the affidavit did not list any relationship to Claimant or the Claimant mother or provide any contact information.  The claims representative also noted the Katherine who signed the affidavit was supposedly the same Katherine who had previously declined to sign a statement declaring Claimant was NH's child.  SSA again denied Claimant's claim because Claimant's mother failed to prove Claimant was NH's child.

Claimant's mother filed a fourth CIB application on Claimant's behalf on December 22, 2008.  Claimant's mother submitted a child relationship statement in which she claimed NH had admitted orally to his family that Claimant was his child. Claimant's mother indicated she had no documents or other information pertaining to NH's purported relationship with Claimant.  Claimant's mother also submitted an affidavit dated November 23, 2008, from Katherine W~, the ex-wife of NH's brother (i.e., NH's ex-sister-in-law). NH's ex-sister-in-law stated Claimant was NH's daughter.  NH's ex-sister-in-law also indicated NH had acknowledged Claimant was his child and stated NH's family knew Claimant was NH's child. A claims representative contacted NH's ex-sister-in-law on January 16, 2009.  NH's ex-sister-in-law stated she was friends with Claimant's mother before they became involved with NH and his brother.  NH's ex-sister-in-law stated she was aware Claimant belonged to NH and claimed NH's brother, her ex-husband, knew Claimant was NH's child. The claims representative noted the statements by NH's ex-sister-in-law were contradictory to the statements made by her and NH's brother in 1999. On January 23, 2009, SSA denied Claimant's application because Claimant's mother did not provide other information showing Claimant was NH's child.

Claimant's mother filed a fifth CIB application on Claimant's behalf on March 26, 2009. Claimant's mother submitted an affidavit dated February 26, 2009, from NH's brother.  NH's brother stated Claimant was NH's child and "[t]here was never a question of [Claimant's] paternity . . . ." NH's brother also stated NH was in touch with Claimant's mother concerning Claimant's welfare and their relationship was very close.  A claims representative questioned the affidavit from NH's brother based on the 1999 statements of NH's brother that he could never say for certain that Claimant was NH's child and he would never sign a statement to that effect.  SSA denied Claimant's application, and Claimant's mother filed a request for reconsideration. SSA denied the request for reconsideration on August 8, 2009. A claims representative indicated the denial was based on the contradictory and insufficient evidence regarding Claimant's relationship to NH.

On February 14, 2011, Claimant's mother filed the sixth and current CIB application on Claimant's behalf. Claimant's mother submitted an Order of Summary Administration and Adjudicating Paternity from a Florida probate court.  The court noted the cause was before the court based on a petition filed by Claimant's mother on Claimant's behalf for summary administration of NH's estate and for an order adjudicating paternity after the death of the putative father.  The court found NH's estate qualified for summary adjudication, but acknowledged he died leaving no assets to be distributed. The court noted it heard testimony from Claimant's mother and NH's brother and reviewed case law.  The court did not mention other evidence or discuss case law. The court found "clear and convincing evidence to determine that [NH] is the biological father of" Claimant. The court declared NH "the legal and biological father of" Claimant and Claimant "a lineal and lawful heir of" NH.

Claimant's mother also submitted laboratory results of a paternity evaluation performed in October 2008. Testing of genetic samples from Claimant, Claimant's mother, and Mr. P~ showed a zero percent probability of paternity and excluded Mr. P~ as Claimant's biological father. Although not clear from the record, the genetic testing could be the DNA testing obtained by the child support agency referenced by the SSA claims representative investigating Claimant's first CIB application in 1999.

DISCUSSION

A claimant may be eligible for CIB on the earnings record of an individual who dies a fully or currently insured individual 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) (2011). All references to 20 C.F.R. are to the 2011 version unless otherwise noted.

"Child" includes "the child" of an insured individual. See Act § 216(e)(1); 20 C.F.R. § 404.354 (2010). A claimant may show she is "the child" of a deceased insured individual, within the meaning of section 216(e)(1), under section 216(h)(2)(A) or 216(h)(3)(C) of the Act. Under section 216(h)(2)(A), a claimant is considered "the child" of the insured individual if the claimant could inherit the insured individual's intestate personal property under the law of the State in which the insured individual was domiciled when he died. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4); Baker o/b/o Baker v. Sullivan, 880 F.2d 319, 321 (11th Cir. 1989).

According to NH's death certificate, NH was domiciled in Florida when he died. Therefore, we look to Florida intestacy law to determine whether Claimant is NH's child for the purposes of section 216(h)(2)(A) of the Act. Under Florida intestacy law, a lineal descendent of a decedent is entitled to a share of the decedent's estate not effectively disposed of by will. See Fla. Stat. Ann. §§ 732.101(1), 732.103(1) (West 2011); see also Fla. Stat. Ann. § 731.201(9) (West 2011) (defining "descendant" in the Florida Probate Code to include children and noting "descendant" is synonymous with "lineal descendant"); Fla. Stat. Ann. § 731.201(3) ("'Child' includes a person entitled to take as a child under [the Florida Probate Code] by intestate succession from the parent whose relationship is involved"). The Florida Probate Code consists of Chapters 731-735 of Title XLII of the Florida Statutes. See Fla. Stat. Ann. § 731.005 (West 2011).

A strong presumption exists in Florida law that a child born in wedlock is legitimate, i.e., the husband is the father of the child. See Baker, 880 F.2d at 321; Nevitt v. Bonomo, 53 So. 3d 1078, 1081 (Fla. Dist. Ct. App. 2010); In re Estate of Robertson, 520 So. 2d 99, 101 (Fla. Dist. Ct. App. 1988). "This presumption of legitimacy is one of the strongest rebuttable presumptions known to law." Dep't of Revenue v. Cummings, 930 So. 2d 604, 607 (Fla. 2006) (internal quotation marks). A person alleging paternity by someone outside the marriage must present "clear and satisfactory" evidence to overcome the presumption. Robertson, 520 So. 2d at 101. "In general, the presumption will not be overcome 'unless common sense and reason are outraged by applying it to the case at hand.'" Lander v. Smith, 906 So. 2d 1130, 1133 (Fla. Dist. Ct. App. 2005) (quoting Dep't of Health & Rehabilitative Servs. v. Privette, 617 So. 2d 305, 309 (Fla. 1993)). "This means that 'there must be a clear and compelling reason based primarily on the child's best interests to overcome the presumption of legitimacy even after the legal father is proven not to be the biological father.'" Id. (quoting Privette, 617 So. 2d at 309).

Claimant was born during the marriage of her mother and Mr. P~. Therefore, Claimant is presumed to be Mr. P~'s child under Florida law. Furthermore, Florida law at the time of Claimant's birth stated, "If the mother is married at the time of birth, the name of the husband shall be entered on the birth certificate as the father of the child, unless paternity has been determined otherwise by a court of competent jurisdiction." Fla. Stat. Ann § 382.013(6)(a) (West 1996); see 1987 Fla. Sess. Law Serv. 87-387 § 11 (West) (adding the relevant language). Current Florida statute uses the same language. See Fla. Stat. Ann § 382.013(2)(a) (West 2011). The record does not include a court order from before 2011 determining paternity, and because Claimant's mother and Mr. P~ were married when Claimant was born, Mr. P~ would be considered Claimant's "legal father" even though he was not listed as Claimant's father on her birth certificate. See Lander, 906 So. 2d at 1131 n.1.

Nevertheless, the record as a whole, including the fact that Mr. P~ was not listed on Claimant's birth certificate, indicates Mr. P~ was not Claimant's father. The Agreement states Claimant's mother and Mr. P~ separated on or about March 1995, approximately eleventh months before Claimant was born on February 14, 1996. The Agreement states two children were born of the marriage Claimant's mother and Mr. P~, in 1991 and 1993. Claimant, born in 1996, is not one of the children listed, which indicates neither Claimant's mother nor Mr. P~ considered Claimant to be Mr. P~'s child. As discussed below, the record also includes contradictory statements from NH's brother and ex-sister-in-law regarding whether NH is Claimant's father. Although the statements from NH's brother and ex-sister-in-law do not clearly establish that Claimant was NH's child, their statements tend to support a finding that Mr. P~ was not Claimant's father.

Moreover, genetic testing of samples from Claimant, Claimant's mother, and Mr. P~ in October 1998 showed a zero percent probability of paternity, excluding Mr. P~ as Claimant's biological father. Florida case law indicates genetic testing, at least when considered with other evidence, may provide sufficient evidence to overcome the presumption that a child born in wedlock is the legitimate child of the husband. See Daniels v. Greenfield, 15 So. 3d 908, 914 (Fla. Dist. Ct. App. 2009); Fernandez v. Fernandez, 857 So. 2d 997, 999 (Fla. Dist. Ct. App. 2003). Other courts have noted genetic testing can disprove paternity. See, e.g., Handley v. Schweiker, 697 F.2d 999, 1005 (11th Cir. 1983) ("Blood tests can conclusively disprove paternity . . . without the need for more ordinary forms of testimony"); Families First v. Gooden, 439 S.E.2d 34, 38 (Ga. Ct. App. 1993) (noting genetic tests performed on husband excluded any possibility he was the father and remanding in part for trial court to instruct jury that if they found genetic testing authentic, they must conclude husband was not the natural parent). Furthermore, in any proceeding to determine paternity, "[i]f test results show the alleged father cannot be the biological father, the case shall be dismissed with prejudice." Fla. Stat. Ann § 742.12(4) (West 2011). Given the Agreement, Claimant's birth certificate, and the genetic testing, the record provides clear and satisfactory evidence to rebut the presumption that Claimant is Mr. P~'s child. The record also provides "a clear and compelling reason based primarily on [Claimant's] best interests to overcome the presumption of legitimacy." Lander, 906 So. 2d at 1133 (citing Privette, 617 So. 2d at 309). The Agreement indicates Claimant's mother and Mr. P~ separated approximately eleven months before Claimant was born, and Claimant was not listed as Mr. P~'s child in the Agreement. The record does not indicate Mr. P~ had or maintained any relationship with Claimant or provided any financial support for Claimant. Thus, overcoming the presumption would not sever any relevant relationship between Claimant and Mr. P~. See Privette, 617 So. 2d at 309 (noting overcoming presumption of legitimacy might be in child's best interest where child has been abandoned by mother's husband and was in need of support); Fernandez, 857 So. 2d at 999 (finding it in children's best interests to overcome presumption of legitimacy in part because family was not intact "in a practical sense" and action did not disrupt children's lives because they had never known mother's husband as integral part of their family life).

Excluding Mr. P~ as Claimant's father, however, does not establish that Claimant is NH's child and lineal descendant for the purposes of inheriting NH's intestate estate. Under Florida intestacy law, a person born out of wedlock is the lineal descendant of his or her father if:

a. The natural parents participated in a marriage ceremony before or after the birth of the person born out of wedlock, even though the attempted marriage is void.

b. The paternity of the father is established by an adjudication before or after the death of the father.

c. The paternity of the father is acknowledged in writing by the father.

Fla. Stat. Ann. § 732.108 (West 2011). Although section 732.108 refers to a person born "out of wedlock," Florida courts have applied the statute where a child born in wedlock alleges paternity by someone not a part of the marriage, for inheritance purposes. See Baker, 880 F.2d at 321 (citing Robertson, 520 So. 2d at 99; Williams v. Estate of Long, 338 So. 2d 563 (Fla. Dist. Ct. App. 1976); In re Estate of Jerrido, 339 So. 2d 237 (Fla. Dist. Ct. App. 1976)).

Claimant could not qualify as a NH's lineal descendant under subsection (a) of Fla. Stat. Ann § 732.108(2) because NH and Claimant's mother did not marry and the evidence does indicate they attempted to marry. The evidence provided also does not indicate NH acknowledged in writing that Clamant was his child for the purposes of subsection (c) of Fla. Stat. Ann § 732.108(2). Therefore, the only means by which Claimant could establish she is NH's lineal descendant is by an adjudication of paternity. See Fla. Stat. Ann. § 732.108(2)(b). Claimant's mother submitted an Order of Summary Administration and Adjudicating Paternity from on Florida probate court. The court found "clear and convincing evidence to determine that [NH] is the biological father of" Claimant. The court also declared NH "the legal and biological father of" Claimant and Claimant "a lineal and lawful heir of" NH.

SSA, however, is not bound by the decision of a State court in a proceeding to which SSA was not a party. See Baker, 880 F.2d at 322 ("As a legal matter, the Appeals Council could determine that the state court judgment is not binding on the [Commissioner] on the issue of paternity of the children . . . , particularly when the [Commissioner] was not a party to the state court action, and no opposing interests were presented in the case"). Florida law also indicates a person is not bound by a prior judicial paternity decision when that person was "not a party to the litigation in which the issue was determined." Robertson, 520 So. 2d at 102, quoted in Baker, 880 F.2d at 322; see also Voss v. Shalala, 32 F.3d 1269, 1271 (8th Cir. 1994) (holding ALJ not bound by State probate court judgments of paternity because SSA was not a party to probate proceedings and judgments were only part of broader inquiry into the facts and applicable law). Nevertheless, SSA is not free to ignore an adjudication of a State court where the following prerequisites exist: (1) an issue in a claim for Social Security benefits previously has been determined by a State court of competent jurisdiction; (2) this issue was genuinely contested before the State court by parties with opposing interests; (3) the issue falls within the general category of domestic relations law; and (4) the resolution by the State trial court is consistent with the law enunciated by the highest court in the State. See Social Security Ruling (SSR) 83-37c (adopting Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973), as national policy). In this case, the order does not meet all of the prerequisites in SSR 83-37c. Specifically, parties with opposing interests did not genuinely contest the issues of NH's paternity and Claimant's status as a lineal descendant of NH and the court's order is not consistent with Florida law. The probate court had jurisdiction to determine NH's lineal descendants in intestate proceedings. See Fla. Stat. Ann. § 742.10(1) (West 2011); Fagan v. Cramer, 877 So. 2d 945, 946 (Fla. Dist. Ct. App. 2004) (citing In re Estate of Smith, 685 So. 2d 1206, 1208 (Fla. 1996)). Florida law imposes a four-year statute of limitations on actions relating to the determination paternity, but the time does not begin to run until the child reaches the age of majority. See Fla. Stat. Ann. § 95.11(3)(b) (West 2011); Smith, 685 So. 2d at 1210 (holding § 95.11(3)(b) applies to paternity adjudications under § 732.108(2)(b), but noting § 95.11(3)(b) does not bar a claim after death of putative father where claim filed within four years of child reaching majority). The issue of paternity also falls within the general category of domestic relations law. See Fla. Stat. Ann. § 742.10 (part of Florida's domestic relations statutes).

The court issued its order based on a petition filed by Claimant's mother on Claimant's behalf for summary administration of NH's estate and for an order adjudicating paternity. The court's order does not indicate anyone contested the petition. NH's brother testified before the court, but the court's order does not indicate NH's brother contested the relief sought by Claimant's mother. On the contrary, the court's order suggests NH's brother provided testimony in support of the petition filed by Claimant's mother. NH's brother may have had an interest in NH's estate, but NH died more than eleven years before the court issued its order and the court noted NH died leaving no assets to be distributed. Thus, the evidence does not suggest that anyone genuinely contested the issues of whether NH was Claimant's father or whether Claimant was NH's lineal descendant and lawful heir. See SSR 83-37c; see also Baker, 880 F.2d at 322 (holding "the requirement of section [216(h)] that the [Commissioner] apply such law as would be applied by the courts of the State does not require the [Commissioner] to accept findings of fact made by a state court in an uncontested case").

The court's order also is not consistent with Florida intestacy law. To establish paternity under Fla. Stat. Ann. § 732.108(2)(b) after the death of the putative father, "the standard of proof . . . should be clear, strong and unequivocal, that is, the person born out of wedlock should prove paternity by clear and convincing evidence." Breedlove v. Estate of Breedlove, 586 So. 2d 466, 467 (Fla. Dist. Ct. App. 1991); see Fagan, 877 So. 2d at 946; Robertson, 520 So. 2d at 101. Although we have not found Florida case law that further defines "clear and convincing evidence" in the context of intestacy proceedings, Florida courts have described the "clear and convincing evidence" standard in other contexts as "something more than a simple preponderance and less than the standard applied in criminal cases, and that it is evidence free of substantial doubts or inconsistencies." In re Interest of D.J.S., 563 So. 2d 655, 661 (Fla. Dist. Ct. App. 1990) (citing The Florida Bar v. Rayman, 238 So. 2d 594, 596 (Fla.1970)). Courts also have defined the "clear and convincing evidence" standard as "that intermediate level of proof that entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy." R.S. v. Dep't of Children & Families, 831 So. 2d 1275, 1277 (Fla. Dist. Ct. App. 2002) (quoting In re Davey, 645 So. 2d 398, 404 (Fla. 1994) (indentions and internal brackets omitted).

In Claimant's case, the court stated it considered testimony from Claimant's mother and NH's brother and reviewed case law. The court, however, did not recite the testimony of Claimant's mother or NH's brother, nor did the court explain how their testimony provided clear and convincing evidence that NH was Claimant's father. The court did not indicate it considered any other evidence. The court also did not mention or discuss the case law it considered. The court's order does not provide a sufficient discussion of the evidence or case law to conclude the court reached its conclusions in accordance with Florida law. SSA is not bound by the court's order, and the court's order was not entitled to any deference in determining whether NH was Claimant's father under Florida intestacy law.

Given the record as a whole, including the court's order, we believe a Florida court in a contested case would conclude the record does not provide clear and convincing evidence that NH was Claimant's father. See 20 C.F.R. § 404.355(b)(1), (b)(4); Baker, 880 F.2d at 322 (stating the Commissioner may rely on his own assessment of the evidence, and considering court judgment and other evidence, substantial evidence supported decision that presumption of legitimacy was not rebutted); see also Voss, 32 F.3d at 1271 (indicating Commissioner should consider State court judgments, although not binding, as part of broader inquiry into the facts and applicable law). The minimal discussion and cursory conclusions in the court's order, as discussed above, do not provide noteworthy evidence that NH was Claimant's father. Claimant's birth certificate indicates her last name is the same as NH's, but the birth certificate does not list NH as Claimant's father. The Agreement and genetic testing indicate Mr. P~ was not Claimant's father, but neither the Agreement nor the genetic testing suggests NH was Claimant's father.

The record also includes affidavits from NH's ex-sister-in-law and NH's brother, dated November 23, 2008, and February 26, 2009, respectively. Claimant's mother submitted the affidavits in connection with Claimant's fourth and fifth CIB applications, which the Agency denied. In their affidavits, NH's brother and NH's ex-sister-in-law alleged Claimant was NH's child and claimed NH had acknowledged Claimant was his child. As the Agency noted, however, earlier statements by NH's brother and NH's ex-sister-in-law contradicted their affidavits. In 1999, the same year NH died, an SSA claims representative contacted NH's brother and NH's ex-sister-in-law (then still married to NH's brother) regarding NH's possible paternity. NH's brother and did not want to discuss the matter and merely acknowledged he had heard rumors Claimant was NH's child. NH's brother stated he could not say for certain Claimant was NH's child, and he stated he would never be willing to sign a statement to that effect. NH's ex-sister-in-law similarly reported she had heard unsubstantiated rumors and was unwilling to sign any statement. The reports of NH's brother and NH's ex-sister-in-law in 1999 and their refusal to sign statements regarding NH's relationship with Claimant at that time raise significant questions regarding the veracity of their later affidavits. The Agency also questioned the veracity of another affidavit NH's ex-sister-in-law purportedly signed in 2007.

The statements and affidavits from NH's brother and NH's ex-sister-in-law do not provide clear, strong, and unequivocal evidence that NH was Claimant's child. See Fagan, 877 So. 2d at 946; Breedlove, 586 So. 2d at 467; Robertson, 520 So. 2d at 101. The evidence from NH's brother and NH's ex-sister-in-law raise substantial doubts and inconsistencies, particularly given that their statements from 1999 are closer in time to Claimant's birth and the period when NH and Claimant could have had a relationship before NH's death in 1999. See D.J.S., 563 So. 2d at 661. As noted previously, "clear and convincing evidence" means "[t]he evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy." R.S., 831 So. 2d at 1277. The contrary nature of the evidence from NH's brother and NH's ex-sister-in-law could indicate their memories are not clear or without confusion, and given their statements and the other evidence, we cannot conclude without hesitancy that NH is Claimant's father. Thus, the record does not provide clear and convincing evidence that NH was Claimant's father for the purposes of Florida intestacy law. Therefore, Claimant was not NH's child under section 216(h)(2)(A) of the Act. Claimant could not be deemed NH's child under section 216(h)(2)(B) of the Act because nothing in the record indicates NH and Claimant's mother went through a marriage ceremony that might have resulted in a purported marriage. See Act § 216(h)(2)(B); 20 C.F.R. § 404.355(a)(2).

The evidence also does not establish Claimant as NH's child under section 216(h)(3)(C) of the Act. To qualify as "the child" of a deceased insured individual under section 216(h)(3)(C), a claimant must be the son or daughter of the insured individual and meet one of several other requirements. See Act § 216(h)(3)(C); 20 C.F.R. § 404.355(a)(3), (a)(4); POMS GN 00306.100.A, B. To show he or she is the son or daughter of an insured individual, the claimant must show he or she is the biological child of the insured individual. See Program Operations Manual System (POMS) GN 00306.100.D.1. The record does not indicate Claimant met the threshold requirement of section 216(h)(3)(C) of being NH's biological child. See Act § 216(h)(3)(C); 20 C.F.R. § 404.355(a)(3), (a)(4); POMS GN 00306.100.D.1. Moreover, Claimant did not provide evidence to satisfy the other requirements of section 216(h)(3)(C)—the record does not include a written acknowledgement of paternity by NH, a court order issued before NH's death, or evidence that NH lived with or contributed to the support of Claimant. See Act § 216(h)(3)(C); 20 C.F.R. § 404.355(a)(3), (a)(4). Therefore, Claimant could not qualify as NH's child under section 216(h)(3)(C) of the Act.

CONCLUSION

The evidence does not establish that Claimant is NH's child for the purposes of CIB on NH's earning record.  

Sincerely,

Mary Ann. S~
Regional Chief Counsel

By:
Brian C. H~
Assistant Regional Counsel

The evidence provided by the Claimant does not establish that the Claimant is the number holder’s child under Florida intestacy law.

To establish the claimant's status as the NH’s natural child under section 216(h)(2)(A) of the Act, the Claimant must show that she could inherit NH’s intestate personal property as his child under the law of the state in which NH was domiciled when he died. According to the NH's death certificate, he was a resident of Florida when he died. Therefore, we look to Florida intestacy law to determine whether Claimant is NH’s child for purposes of section 216(h)(2)(A) of the Act. Under Florida intestacy law, the part of a deceased intestate’s estate not passing to a surviving spouse descends to the deceased’s lineal descendents. A person born out of wedlock is the lineal descendent of his or her father for the purposes of intestate succession if:

(a) The natural parents participated in a marriage ceremony before or after the birth of the person born out of wedlock, even though the attempted marriage is void.

(b) The paternity of the father is established by an adjudication before or after the death of the father.

(c) The paternity of the father is acknowledged in writing by the father.

Claimant could not qualify as NH’s descendant under subsection (a) (b) or (C) of section 732.108(2). There is no evidence to indicate NH and Claimant’s mother married or attempted to marry. Additionally, the evidence provided to establish paternity does not establish paternity by clear and convincing evidence because it does not clearly identify NH and the authenticity of the documents were questionable. The written documents in this case do not satisfy Florida law for a written acknowledgment of paternity.

Based on the evidence presented and Florida’s statute and case law, we conclude an SSA would not find the Claimant has proven that the NH is her father under Florida law

OPINION:

QUESTION

In connection with a legal opinion you are preparing for your regional office, you asked whether the evidence presented in this case establishes the claimant as the number holder’s child under Florida law. As explained below, the relevant portion of Florida law is that state’s intestacy law.

Therefore, we understand your question to be whether the claimant can qualify as the number holder’s child under Florida intestacy law. You explained that your office will be responding directly to your client, incorporating our guidance on applicable Florida law. While we understand that a complete analysis of whether the claimant can qualify for child’s insurance benefits under the Social Security Act (Act) requires consideration of both sections 216(h)(2)(A) and 216(h)(3) of the Act, the analysis of 216(h)(3) issues involves no particular consideration of Florida or 11th Circuit law.

Therefore, we limit our discussion to the Florida law aspects of the matter and assume your office will flesh out the remaining issues considering the law of your circuit.

The evidence does not establish that the claimant is the number holder’s child under Florida intestacy law.

BACKGROUND

On June 19, 2002, Jerry J~, the number holder (NH), died in Florida. NH’s death certificate states he was a resident of Florida when he died. NH’s death certificate also states he never married. Alyssa L. B~ (Claimant) was born on June 10, 1994. According to the information provided, Claimant’s birth certificate does not list a father. On July 10, 2010, Claimant’s mother, Darcy B~, applied on Claimant’s behalf for child’s insurance benefits on NH’s earnings record.

Claimant’s mother reported that no court has decreed NH to be Claimant’s father. She indicated she did not know whether a court had ordered NH to contribute to Claimant’s support. Claimant’s mother alleged NH had referred to Claimant as his daughter or had referred to himself as Claimant’s father in a baby book and in a Christmas card. She also said that NH had listed Claimant in a family tree or other family record, and that NH admitted orally to his father, Ronnie W~, that he was Claimant’s father. Claimant’s mother denied having other evidence or documents regarding a possible relationship between NH and Claimant.

Claimant’s mother also stated that NH “filled out parts” of the baby book when Claimant was a few months old. Claimant’s mother said NH came to New York to visit Claimant and stayed at the home where she lived with Claimant. In a report of contact, Claimant’s mother said NH completed the family tree information in the baby book.

The record also includes a statement from Claimant’s maternal grandmother. She said NH told her he was Claimant’s father. Claimant’s maternal grandmother also alleged NH visited Claimant and lived with her, Claimant and Claimant’s mother. She further said that after NH’s death, NH’s father also acknowledged paternity. It seems likely she meant NH’s grandfather had acknowledged his son’s paternity of Claimant.

Claimant’s mother also submitted pages from a baby book. The one-week old, four-month-old, and five-month-old diary entries discuss NH’s alleged visits with Claimant. The four-month and five-month entries are signed only “daddy” and do not name NH. However, the one-week-old entry in the baby book is signed, “Love your Daddy Jerry.” The family tree portion for the father’s side of the family lists NH as Claimant’s father and names paternal aunts and uncles, but does not list a paternal grandfather. According to Claimant’s mother, the handwriting used to list both sides of the family tree differs because she and NH completed their respective sections of the family tree.

Additionally, Claimant’s mother submitted a Christmas card that is allegedly from NH to Claimant. The card does not mention NH by name and is only signed “Daddy.” The Christmas card says, “Merry Christmas Baby Girl. Daddy loves you.” The card also says, “Remembering you with best wishes at Christmas time Alyssa.” The card further contains a handwritten note expressing the writer’s love and regrets about being absent from Claimant on the holidays. However, the handwriting on this card differs from the handwriting in the baby book entries that NH allegedly completed. Claimant’s mother also submitted a Valentine’s Day card signed “Grandpa Ronnie W~,” NH’s father. The card came in an unstamped envelope addressed to Claimant with “Grandpa W~” written in the corner of the envelope.

Claimant’s mother also submitted a letter Claimant wrote to NH’s father stating her desire to learn his whereabouts and to reach him. The record also includes pictures purportedly showing Claimant and NH. We note that the copies of the pictures are not clear and, therefore, we cannot determine whether the pictures would support a finding of paternity. Based on information Claimant’s mother provided, an SSA employee contacted NH’s former supervisor who said NH acknowledged Claimant as his daughter more than once.

Claimant’s mother also submitted letters from an attorney who represented Claimant in a worker’s compensation claim related to NH’s death. In one letter, the attorney acknowledged potential problems with the case given that the “support” NH allegedly provided to Claimant “was minimal, at best.” The attorney also noted “there is no birth certificate or court order regarding paternity,” but he believed “there is sufficient evidence to establish [that NH] had acknowledged paternity of [Claimant].” However, the attorney further noted Claimant’s mother had told him “there was very little contact between” NH and Claimant, and Claimant mother “had initiated support proceedings several times, but was never able to get a court order regarding support.” The attorney also provided a memorandum in which he noted as “facts” that NH had a daughter. He also stated no court had determined paternity, but NH allegedly acknowledged socially that Claimant was his daughter. The attorney further stated Claimant apparently did not rely on NH for support, but Claimant allegedly received occasional birthday cards or phone calls from NH. The attorney concluded NH’s alleged acknowledgment of paternity would suffice for a worker’s compensation claim, but noted the acknowledgment was a de minimis requirement, and he ultimately concluded Claimant could not recover under the worker’s compensation statute because she was not dependent on NH. A report of contact indicates the attorney(s) were unable to establish dependency. The evidence provided does not include any information indicating Claimant recovered under a worker’s compensation claim as NH’s child.

Finally, Claimant’s mother submitted NH’s obituary as evidence of paternity. NH’s obituary indicates Claimant as NH’s surviving daughter. According to the office manager of the funeral home, NH’s parents would have provided the information for the obituary.

DISCUSSION

To qualify for child’s insurance benefits on the earnings record of an insured individual who has died, a claimant must be the insured individual’s “child.” See Act § 202(d); 20 C.F.R. § 404.350(a)(1) (2010). “Child” includes the natural child of an insured individual. See Act § 216(e); 20 C.F.R. § 404.354 (2010). If the putative father is deceased and never married the child’s mother, the child’s status as the natural child of the putative father is governed by either section 216(h)(2)(A) of the Act or section 216(h)(3)(C) of the Act. Because the section 216(h)(3)(C) analysis does not involve questions of Florida law, we only address the section 216(h)(2)(A) analysis here.

To establish her status as NH’s natural child under section 216(h)(2)(A) of the Act, Claimant must show that she could inherit NH’s intestate personal property as his child under the law of the state in which NH was domiciled when he died. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4) (2010). According to his death certificate, NH was a resident of Florida when he died. Therefore, we look to Florida intestacy law to determine whether Claimant is NH’s child for purposes of section 216(h)(2)(A) of the Act.

Under Florida intestacy law, the part of a deceased intestate’s estate not passing to a surviving spouse descends to the deceased’s lineal descendents. See Fla. Stat. Ann. §§ 732.101, 732.103 (West 2010). A person born out of wedlock is the lineal descendent of his or her father for the purposes of intestate succession if:

(a) The natural parents participated in a marriage ceremony before or after the birth of the person born out of wedlock, even though the attempted marriage is void.

(b) The paternity of the father is established by an adjudication before or after the death of the father.

(c) The paternity of the father is acknowledged in writing by the father.

Fla. Stat. Ann. § 732.108(2) (West 2010). Claimant could not qualify as NH’s descendant under subsection (a) of section 732.108(2) because the evidence provided does not indicate NH and Claimant’s mother married or attempted to marry. Consequently, we review the evidence to determine whether Claimant could establish NH’s paternity under subsections (b) or (c) of section 732.108(2).

a. Subsection (b) of Section 732.108(2)

Under subparagraph (b), one must establish paternity by an adjudication before or after the death of the father. Although there has been no state paternity adjudication here, SSA regulations requires SSA adjudicators to apply Florida intestacy law under these circumstances: provide,

If applicable State inheritance law requires a court determination of paternity, we will not require that you obtain such a determination but will decide your paternity by using the standard of proof that the State court would use as the basis for a determination of paternity.

20 C.F.R. § 404.355(b)(2) (2010); see also Drake v. Apfel, No. Civ. 300CV1540H, 2001 WL 705784, *2 (N.D. Tex. June 18, 2001) (notes 20 C.F.R. § 404.355(b)(2) removes obligation to obtain an actual state court determination of paternity).

To be adjudicated a descendant after the father’s death, a child born out of wedlock must prove paternity by clear and convincing evidence. See Doe v. Suntrust Bank, 32 So. 3d 133, 141 (Fla. Dist. Ct. App. 2010) (citing Berkey v. Odom (In re Estate of Odom), 397 So. 2d 420 (Fla. Dist. Ct. App. 1981)); Breedlove v. Estate of Breedlove, 586 So. 2d 466, 467 (Fla. Dist. Ct. App. 1991). Clear and convincing is something “more than a simple preponderance” and less than the beyond-a-reasonable-doubt standard applied in criminal cases. See Doe v. Dep’t of Health & Rehab. Servs. (In re Interest of D.J.S. and J.S.G.), 563 So. 2d 655, 661 (Fla. Dist. Ct. App. 1990).

Clear and convincing evidence is that intermediate level of proof [that] entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.

R.S. v. Dep’t of Children & Families, 831 So. 2d 1275, 1277 (Fla. Dist. Ct. App. 2002) (quoting In re Davey, 645 So. 2d 398, 404 (Fla. 1994)).

In considering the evidence as a whole under subsection (b) of Section 732.108(2), we note the record contains no evidence that someone other than NH is Claimant’s father. The greeting card from NH’s father also lends some support to the alleged paternity, because, like the greeting card in Estate of Broxton v. Johnson, 425 So. 2d 23, 25 (Fla. Dist. Ct. App. 1982), the card and the envelope in which it came demonstrate NH’s father acknowledged being Claimant’s grandfather.

Likewise, NH’s obituary is additional evidence of paternity as it lists Claimant as NH’s daughter. According to the office manager at the funeral home, NH’s obituary would have been completed using information provided by NH’s parents. Some federal district courts have noted that recognition of the child by the family of the putative father is additional evidence tending to establish paternity. See e.g., Giblin v. Astrue, No. 09-218, 2010 WL 3811433, *6 (W.D. Pa. Sept. 22, 2010) (finding the ALJ erred in rejecting an obituary that listed the claimant as the decedent’s son where the son testified that the decedent’s siblings were responsible for providing the information for the obituary); J~ v. Apfel, 105 F. Supp. 2d 1220, 1223 (N.D. Ala. 2000) (noting decedent’s family accepted claimant as decedent’s son by continuing relationship with the claimant and listing him in decedent’s obituary, and taking judicial notice that it would be contrary to human nature for the decedent’s family to acknowledge child as decedent’s child were it not so). In fact, out-of-state courts have held that a written acknowledgment by a putative father’s relatives is highly probative of the father’s acknowledgment of paternity since the family’s perception of paternity likely resulted from communications with the putative father. See e.g., Fuller by Fuller v. Schweiker, No. 82-3768, 1983 WL 44256, at *4 (E.D. Pa. 1983) (citing Cooper v. Harris, 499 F. Supp. 266 (N.D. Ill.1980) and Wrenn v. Harris, 503 F. Supp. 223 (Mass. 1980)).

Furthermore, NH’s oral acknowledgements of paternity to his supervisor provide some evidence paternity. Indeed, a child can use evidence of oral acknowledgments to support a paternity claim because subsection (b) of Fla. Stat. Ann. § 732.108(2) expands the method of proof of paternity to include evidence other than written acknowledgment. See Berkey, 397 So. 2d at 423. A Florida court would also give NH’s oral acknowledgments to his supervisor some weight. See e.g., In re Estate of Robertson, 520 So. 2d 99, 100 (Fla. Dist. Ct. App. 1988) (upholding trial court’s conclusion that substantial competent evidence of paternity existed where putative father had a relationship with child’s mother, acknowledged child both in writing and orally on numerous occasions subsequent to child’s birth, resided with child and child’s mother for five years as a family unit prior to his death, contributed to their support, and said he wanted child to inherit from him). Claimant has thus presented some evidence of paternity.

However, we do not believe Claimant has presented clear and convincing evidence of paternity. We note Claimant’s worker’s compensation lawyer admitted Claimant’s mother was unable to establish paternity in court and obtain court-ordered child support. Further, unlike the putative father In re Estate of Robertson, 520 So. 2d at 100, NH provided “minimal support, at best” to Claimant, had ”very little” contact with her, and failed to acknowledge Claimant on any official documents.

Furthermore, the greeting card allegedly by NH to Claimant does not establish paternity by clear and convincing evidence because it does not clearly identify NH. We also doubt its authenticity. Under Florida law, authentic written acknowledgement of paternity by the father settles paternity issues for intestate succession purposes. See Sanders ex. Rel. Wakefield v. Apfel, 85 F. Supp. 2d 1275, 1280 (M.D. Fla. 1999) (citing Holmen v. Holmen by Rahn, 697 So. 2d 866, 867 (Fla. Dist. Ct. App. 1997)). Written acknowledgement of paternity does not have to assume any particular formality and thus can be an informal document, such as a letter. See Sanders, 85 F. Supp. 2d at 1280; In re Estate of Jerrido, 339 So. 2d 237, 240 (Fla. Dist. Ct. App. 1976). Paternity has been demonstrated when the document in question clearly identified the child and the father, and the father acknowledged the child as his. See, e.g., Wall v. Altobello, 49 So. 2d 532, 534 (Fla. 1950) (hotel registration card signed by decedent with “L. E. M~ and daughter” in the presence of hotel clerk was sufficient acknowledgement of paternity); In re Horne’s Estate, 7 So. 2d 13, 14 (Fla. 1942) (father had written letters to the daughter’s college registrar identifying himself and his daughter by their full names, acknowledging the child as his daughter, and accepting financial responsibility for her college expenses); Sanders, 85 F. Supp. 2d at 1277, 1280-81 (birth certification was satisfactory written acknowledgment within the meaning of Section 732.108(2)(c) where the child’s birth certificate listed decedent as father and father signed birth certificate as parent).

Unlike the evidence in Wall, In re Horne’s Estate, and Sanders, the Christmas card in this case does not clearly identify NH. The Christmas card says, “Merry Christmas Baby Girl. Daddy loves you.” The card also says, “Remembering you with best wishes at Christmas time Alyssa.” The card further contains a handwritten note to Claimant expressing the writer’s love, affection, and regrets about being absent as a parent. However, this card is only signed “daddy.” Further, the handwriting on this card differs from the handwriting seen on the baby book entries that NH allegedly completed. We further question the placement of Claimant’s first name at the end of the card’s message because a card “to” a person would typically have that person’s name written prior to the card’s message. There is no independent, reliable evidence that NH wrote this card. Because the card does not clearly identify NH as the writer and because the card’s authenticity is questionable, we do not believe this card satisfies the clear and convincing evidence standard. See e.g., Hager v. Bowen, No. 88-0857-CIV-T-17B, 1988 WL 252389, at *2 (M.D. Fla. Nov. 17, 1988) (finding no clear and convincing evidence of paternity in part because there was misleading and fraudulent information surrounding the insurance form claimant offered as a written acknowledgment).

The baby book entries also would not meet the clear and convincing evidence standard. The one-week-old, four-month, and five-month-old entries are only signed “daddy” or “Daddy Jerry.” Therefore, these entries do not clearly identify NH. Cf. Wall, 49 So. 2d at 534; In re Horne’s Estate, 7 So. 2d at 14; Sanders, 85 F. Supp. 2d at 1277, 1280-81. The family tree information, however, does list NH as Claimant’s father. Claimant’s mother said that NH completed the baby book entries when he visited Claimant. Yet, the baby book entries, including the family tree information, that are allegedly completed by NH, all appear to contain different handwriting and thus, we question whether these entries are authentic. We also question the use of “Daddy Jerry” as seemingly contrived. Other signatures in the baby book refer to only “daddy.”

Additionally, Claimant’s mother’s and grandmother’s statements that NH acknowledged paternity and visited Claimant are self-serving and therefore not entirely credible. See Hager, 1988 WL 252389, at *2 (holding that self-serving statements made for the purpose of receiving benefits are not credible evidence). Claimant’s mother’s and grandmother’s statements are also questionable in light of the different handwriting seen in the record. See Hager, 1988 WL 252389, *2 (M.D.Fla. Nov. 17, 1988) (noting that the veracity of the statements of witnesses regarding certain subjects is pertinent in evaluating the veracity of their comments directly on point about who is the father of the child). This is particularly true because the handwriting of Claimant, Claimant’s mother, and Claimant’s grandmother appear to match the handwriting seen on the greeting card that is allegedly by NH and the parts of the baby book that were allegedly completed by NH.

In considering the evidence as a whole, we believe a fact finder could find some support for the alleged paternity in that the absence of evidence that someone other than NH is Claimant’s father, the greeting card NH’s father sent Claimant, the NH’s obituary, and the claims by NH’s family and supervisor that NH had acknowledged Claimant orally. However, the unsuccessful attempts to establish NH’s paternity or child support obligation in state courts, the questionable handwritten documents, and the absence of further acknowledgment by NH of Claimant on other official documents, shows the evidence as a whole does not meet the clear and convincing evidence standard defined above.

b. Subsection (c) of Section 732.108(2)

A person born out of wedlock is the lineal descendent of his or her father for the purposes of intestate succession if the putative father acknowledges paternity in writing. See Fla. Stat. Ann. § 732.108(2)(c). As previously discussed, the written documents in this case do not satisfy Florida law for a written acknowledgment of paternity. The greeting cards and baby book entries allegedly from NH do not clearly identify NH and/or do not appear to be authentic. Cf. Sanders ex. Rel. Wakefield, 85 F. Supp. 2d at 1280 (citing Holmen, 697 So. 2d at 867); In re Estate of Jerrido, 339 So. 2d at 240; Wall, 49 So. 2d at 534; In re Horne’s Estate, 7 So. 2d at 14. Furthermore, subsection (c) requires the putative father to acknowledge paternity in writing. See Fla. Stat. Ann. § 732.108(2)(c). The greeting card by NH’s father in no way demonstrates NH’s written acknowledgment of paternity. See In re Broxton’s Estate, 425 So. 2d at 25. Likewise, NH’s obituary was based on NH’s family’s statements, so the obituary does not prove NH acknowledged paternity. Because Claimant has not establish that NH is her father under Florida intestacy law, she has not demonstrated her status as NH’s natural child under section 216(h)(2)(A).

CONCLUSION

Based on the evidence presented and Florida’s statute and case law, we conclude an SSA adjudicator would not find Claimant has proven NH is her father under Florida law

Sincerely,

Mary A. S~

Regional Chief Counsel

By:____________________

Arthurice T. B~

Assistant Regional Counsel

FLORIDA — In Florida written acknowledgement of paternity or a court order is necessary for a father's name to be included on the original birth certificate of a child born out of wedlock. A legal name change does not alter the original birth certificate. (State law on Father's Name on Birth Certificate of Illegitimate Child — RAIV [S~] to ARC, Prog., 01/28/91)

You have requested that we review the attached documentation, the Florida statutes, and the POMS entry at GN 00306.176 (Florida) to determine whether or not the presence of a father's name on a birth certificate acknowledges paternity and thereby vests inheritance rights and, subsequently, entitlement to social security benefits for the illegitimate child. You also want to know if the entry in the POMS at GN 00306.176 (Florida) needs to be revised and whether a legal change of name can constitute acknowledgment of paternity on the part of a wage earner.

We have reviewed the statements of Mr. Kenneth T. J~, Program Administrator, Office of Vital Statistics, whose office issues birth certificates for the state of Florida, as set out in his letter of May 23, 1990, as follows:

"(1) Father goes to hospital at the time of birth and both he and the mother acknowledge paternity by signing a statement on the reverse side of the birth certificate. The father's name is then placed on the face of the certificate as the father of the child.

"(2) After the certificate is officially filed with our office [Office of Vital Statistics] and parents wish to acknowledge paternity, an amendment fee together with a form signed by both parents in the presence of a notary public is required. The [original] certificate will then be amended to show the name of the father. All paper pertaining to the amendment are then placed in a sealed file to be opened only by court order.

"(3) A court order specifically directing us to add the name of the father. The original certificate will be amended and any pertinent papers are then placed in a sealed file to be opened only by court order."

We followed through by contacting Mr. J~ and asking him to clarify any conflict between those three items and the information contained in the first paragraph on page two of his letter. [We felt something must have occurred in the transcription.] In a subsequent telephone conversation, Mr. J~ reiterated that written acknowledgement of paternity as set out in (1) and (2) or a court order as specified in (3), would be necessary to include the father's name on the original birth certificate (his words were "birth record").

He further stated that a "legal change of name" would not alter the original birth record/certificate. He also said that inasmuch as the "legal change of name" would be an entity by itself, any request for a birth record/certificate would not automatically include any information about the change of name but the legal change of name would be available upon request.

As far as changing the POMS entry at GN 00306.176 (Florida), it would appear that no correction is necessary. Section 382.016, Florida Statutes Annotated, was reviewed earlier as the basis for the current entry. This section has been amended by Chapter 87-387, Laws of Florida, and renumbered as § 382.013. However, Chapter 87-387, supra, strengthened the requirements for the name of the father on a birth certificate, especially those requirements which concern unmarried but cohabiting parents and those requirements for mothers who retain their maiden or former name when marrying.