Under the laws of both California and Nevada a child cannot inherit from a parent whose rights were terminated.

In this specific case, the child may be able to qualify for benefits under the Federal Deemed Child Provision since a Nevada court decreed the number holder to be the child's father prior to the number holder's death.

You have asked whether Joseph J. C~, formerly known as Bruce R. G~, II, has inheritance rights under California law even though his father, Bruce R. G~, surrendered his parental rights in Nevada in December 1996.

SUMMARY OF EVIDENCE

The claimant was born on November 21, 1994. His birth certificate identifies the NH as his father. On December 16, 1996, the District Court for Clark County, Nevada, issued an order terminating NH's parental rights. The court order also changed the claimant's name to Joseph J. C~. The Court's order identifies the NH as the "natural father" of the claimant. The Claimant was never adopted. The NH died on March 12, 2005, while domiciled in California. Patrice C~, the claimant's mother, applied for child's insurance benefits on his behalf. (Both the claimant and Patrice C~ reside in Florida.)

ANALYSIS

A "child" of an individual who dies fully or currently insured under the Social Security Act is entitled to child's insurance benefits if he or she:

1. (a) 

   is the insured worker's child, as defined in 42 U.S.C. § 416(e);

2. (b) 

   has applied for such benefits;

3. (c) 

   is unmarried;

4. (d) 

   is under the age of 18; and

5. (e) 

   was dependent upon the insured worker at the time of the worker's death.

42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350 (2006); Program Operations Manual System (POMS) GN 00306.001(A). If a child is the worker's child (meeting the first requirement), the child is considered dependent upon the worker, satisfying the fifth requirement. 20 C.F.R. § 404.361(a).

Under 42 U.S.C. § 416(h)(2)(A), a claimant may prove that he or she is the "child" of the insured worker if he or she could inherit the worker's property as the worker's child under the law of intestate succession of the state where the worker was domiciled at the time of his death. See also 20 C.F.R. § 404.355(a)(1); POMS GN 00306.001(C)(1)(a). Here, NH died in the State of California.

In California, a child cannot inherit from a natural parent whose rights have been terminated. Jackson v. Fitzgibbons, 25 Cal. Rptr. 3d 478, 482 (Cal. App. 4th 2005) (where the parent-child relationship has been terminated by the court, the child is no longer considered the "issue" of the natural parent for purposes of intestate succession).

The same is true in the State of Nevada, the state where the NH's rights were terminated. Nevada law provides that a "parent and child relationship" includes all rights, privileges and obligations existing between parent and child, including rights of inheritance. Nev. Rev. Stat. § 128.015. See State by Welfare Div. of Dep't of Human Resources v. Vine, 662 P.2d 295, 297-98 (Nev. 1983) (discussing Nev. Rev. Stats. Chapters 127 (adoption), 128 (termination of parental rights) and 424 (foster homes): "We believe that these various statutory provisions adequately demonstrate the legislative intention to have an order terminating parental rights completely sever the parent-child relationship, terminating all rights and obligations of both parent and child").

However, since the Nevada court decreed NH as the claimant's "natural father" before NH's death, and the claimant has not been adopted by another individual, the claimant can be deemed NH's child under 42 U.S.C. § 416(h)(3)(C)(i)(II), and deemed dependent upon NH at the time of his death pursuant to 42 U.S.C. § 402(d)(3). See Memorandum from Regional Chief Counsel, Kansas City, to Assistant Regional Commissioner, Management and Operations Support, Kansas City, Inheritance Rights of Children Whose Parent's Parental Rights Were Terminated . . ., (June 14, 2006). Thus, the claimant qualifies for child's survivor benefits.

Under California law, while SSA is not bound by a posthumous court order of paternity, that court order can be used in conjunction with other statements and evidence to establish paternity under the state's clear and convincing evidence standard in cases where there is no contradictory evidence.

QUESTION PRESENTED

You have asked whether the claimant, Makaila C~-F~ (hereinafter, "the claimant"), SSN ~ qualifies for child's insurance benefits as the child of the deceased wage earner, Michael P. F~, Jr., under California intestacy law, and whether clear and convincing evidence of paternity can be established by a posthumous court order and statements from the paternal grandparents.

ANSWER

The claimant is entitled to child's insurance benefits because she can establish she is the deceased wage earner's child under the Social Security Act.

SUMMARY OF EVIDENCE

On September 21, 2001, the wage earner, who was nineteen years old, died in a car accident. At the time of his death, the wage earner was domiciled in California. His death certificate lists as his parents Michael P. F~, Sr. and Elvia L~ and states that he was never married.

The claimant was born on June 21, 2002. Her birth certificate did not originally list the name of the father, and no identifying information regarding the father was provided. The claimant and her mother, Lorena C~ (hereinafter, "the mother") never lived with the wage earner. The wage earner lived with his mother and father, who each filed written statements declaring that the wage earner never knew that the claimant's mother was pregnant before he passed away. They also declared their belief that they were the paternal grandparents of the claimant. The wage earner's mother further stated that she assumed that her son and the claimant's mother were having a sexual relationship because her son visited the claimant's mother frequently and she found condoms in his room. She stated that the claimant resembles her son very much and she believes strongly that the claimant is her son's biological daughter. The wage earner's parents are very much involved in the claimant's life and the wage earner's mother takes care of the claimant almost every day after picking her up from daycare. The wage earner's parents also provide for the claimant and the mother financially.

The claimant's mother stated that her relationship with the wage earner started in their junior year of high school. While they never lived together, they frequently visited each other in each other's homes. The mother further stated that she knows the claimant is the wage earner's daughter because she only had a sexual relationship with him.

After the wage earner's death, the claimant's mother brought a court action to have the wage earner's name put on the claimant's birth certificate. On June 8, 2004, the Superior Court of California, County of Stanislaus, issued a judgment finding that the wage earner was the father of the claimant and ordering that the wage earner's name be added as the father to the claimant's birth certificate. This court order was entered as a default judgment because the wager earner's mother did not contest the action.

ANALYSIS

A. Social Security Program Requirements

A "child" of an individual who dies fully or currently insured under the Social Security Act is entitled to child's insurance benefits if he or she:

1. (a) 

   is the insured's child, as defined in 42 U.S.C. § 416(e);

2. (b) 

   has applied for such benefits;

3. (c) 

   is unmarried;

4. (d) 

   is under the age of 18; and

5. (e) 

   was dependent upon the insured individual at the time of the insured's death.

See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350. If a child is the insured's child (meeting the first requirement), the child is considered dependent upon the insured, satisfying the fifth requirement. See 20 C.F.R. § 404.361(a).

The term "child" is further defined by 42 U.S.C. §§ 416(h)(2) and (3). To be considered a "child" under these sections, a claimant must show:

he or she could inherit as the insured's son or daughter under state intestacy law where the insured was domiciled at the time of his death. See Social Security Act § 216(h)(2)(A), 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1); or

1. a. 

   he or she is the insured's son or daughter and the mother and the insured went through a ceremony, which would have resulted in a valid marriage between them except for a "legal impediment." See Social Security Act § 216(h)(2)(B), 42 U.S.C. § 416(h)(2)(B); 20 C.F.R. § 404.355(a)(2); or

2. b. 

   before his death, the insured acknowledged in writing that the child is his son or daughter; the insured was decreed by a court to be the father; or he was ordered by a court to contribute to the child's support because the claimant was his son or daughter. See Social Security Act § 216(h)(3)(C)(i), 42 U.S.C. § 416(h)(3)(C)(i); 20 C.F.R. § 404.355(a)(3); or

3. c. 

   the insured is shown by evidence satisfactory to the Commissioner of Social Security to have been the child's father, and he was living with or contributing to the child's support at the time of his death. See Social Security Act § 216(h)(3)(C)(ii), 42 U.S.C. § 416(h)(3)(C)(ii); 20 C.F.R.§ 404.355(a)(4).

Requirement number one requires application of state intestacy law; requirements numbered two through four require the application of alternative federal standards.

Here, the wage earner and the claimant's mother never went through a wedding ceremony.

Since the wage earner never knew about the claimant, he never acknowledged in writing that the claimant was his child, he was never decreed by a court to be the father (before his death), nor was he ever ordered by a court to support the claimant. Finally, the wage earner never lived with the claimant and he never provided support for her. Thus, to prove that she is entitled to child's insurance benefits, the claimant must show that she qualified under the state law of intestacy.

The Social Security Act provides that a claimant may show entitlement to child's insurance benefits if she can show that she could inherit the wage earner's personal property as his child under the intestacy laws of the state where the wage earner was domiciled at the time of his death. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1). Campbell v. Apfel, 177 F.3d 890, 892 (9th Cir. 1999). Here, California law governs since the wage earner was domiciled in California at the time of his death. Campbell, 177 F.3d at 892.

B. California Law

Under California intestacy law, a child may inherit the intestate estate of his natural parent. CAL. PROB. CODE §§ 6401, 6402, 6450. A natural parent and child relationship is established where that relationship is presumed and not rebutted pursuant to the Uniform Parentage Act, Part 7 (CAL. FAM. CODE § 7600, et seq.). Alternatively, the relationship may be established under any other provision of the Uniform Parentage Act, except that the relationship may not be established by an action under section 7630(c) of the Family Code, unless:

a court order declaring paternity was entered during the father's lifetime; or

paternity is established by clear and convincing evidence that the father has openly held out the child as his own; or

it was impossible for the father to hold out the child as his own, and paternity is established by clear and convincing evidence.

CAL. PROB. CODE, §§ 6453(a), (b)(1)-(3).

1. Presumed Father Status

The wage earner would not be considered to be the claimant's presumed father under the Uniform Parentage Act. CAL. FAM. CODE §§ 7540, 7570, 7611. For example, the wage earner and the claimant's mother were never married, the two never attempted to marry, and he never signed a voluntary declaration of paternity. Neither did the wage earner receive the child into his home, one of the requirements of section 7611(d).

2. No Court Order of Paternity Entered During Father's Lifetime

Since there was no court order declaring paternity entered during the wage earner's lifetime, the claimant cannot meet the requirements of CAL. PROB. CODE § 6453(b)(1). While there was a court order declaring paternity entered after the wage earner's death, the claimant would still have to prove by clear and convincing evidence that the wage earner was her father (as will be discussed below).

3. Openly Holding the Child Out as One's Own

As there was no court order of paternity entered during the wage earner's lifetime, the claimant could still establish paternity by showing, by clear and convincing evidence, that the wage earner openly held her out as his own child. See CAL. PROB. CODE § 6453(b)(2); Cheyanna M. v. A.C. Nielson Co., 78 Cal. Rptr.2d 335, 342 (Ct. App. 1998). In cases where a putative father has died before the child is born, affirmative efforts by the father to hold the unborn child out as his own shall be credited in the child's favor. See POMS GN 00306.430A(1)(b)(7)(B). Here, the wage earner did not have an opportunity to openly hold the claimant out as his own child since he died without knowing that the claimant's mother was pregnant. Thus, the claimant could not satisfy the provisions of CAL. PROB. CODE § 6453(b)(2).

4. Impossibility of Holding Out and Clear and Convincing Evidence of Paternity

Under CAL. PROB. CODE § 6453(b)(3), the claimant could still establish paternity by demonstrating that it was impossible for the wage earner to have held her out as his own child and that paternity is established by clear and convincing evidence. Legislative history indicates that this section was intended to permit children to establish paternity where the child's parents were not married and the natural father died before having an opportunity to acknowledge the child. See Intestate Succession: Establishing A Parent and Child Relationship, Bill Analysis for Assembly Bill No. 1137, Cal. Leg. 1993-1994 Reg. Sess., at 2 (August 1993); see also POMS GN 00306.430A(1)(c).

Here, it was impossible for the wage earner to have held the claimant out as his child since he died without knowing that the claimant's mother was pregnant and did not have an opportunity to acknowledge the claimant as his child. Although the claimant obtained a state court order of paternity after the wage earner's death, the Commissioner is not necessarily bound by that state court order. The Commissioner is only bound by a state court determination where the following prerequisites are met:

(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.

Social Security Ruling 83-37c (adopting Gray v. Richardson, 474, F.2d 1370 (6th Cir. 1973)). Here, the issue of paternity was decided by a state court of competent jurisdiction and the issue of paternity falls within the general category of domestic relations law. However, the issue of the claimant's paternity was not genuinely contested before the state court by parties with opposing interests. Rather, the state court order was obtained as a default judgment because it was not contested by the wage earner's mother. Accordingly, the Commissioner is not required to accept the state court determination since not all of the prerequisites are met.

If SSA does not give deference to the state court order of paternity, SSA must decide paternity by using the clear and convincing evidence standard of proof. See 20 C.F.R. § 404.355(b)(2). Clear and convincing evidence is evidence that is clear, explicit, and unequivocal, so clear as to leave no substantial doubt, and sufficiently strong to command the unhesitating assent of every reasonable mind. Clear and convincing evidence demands a high probability, not proof beyond a reasonable doubt. See Wilkins v. Barnhart, No. 04-03420 (C.D.Cal. August 11, 2005) (not for publication), citing to In re Angelia P., 28 Cal.3d 908, 919 (1981) and Broadman v. Commission on Judicial Performance, 18 Cal.4th 1079, 1090 (1998)). In Wilkins, the claimant was born two and a half months after the wage earner's death. He applied for child survivor's insurance benefits on the wage earner's record, but benefits were denied at the administrative level. On judicial review, the federal district court determined that the claimant was the deceased wage earner's son under the clear and convincing evidence standard set forth in CAL. PROB. CODE § 6453(b)(3), the same statute applicable here. The court noted that there was no evidence casting doubt on the testimony of the claimant's mother that she had sexual intercourse with no other man during the time period that the claimant was most likely conceived. Also, the claimant's mother listed the deceased wage earner as the father on the claimant's birth certificate.

In the instant case, there are statements from the claimant's mother and the paternal grandparents. Specifically, the claimant's mother stated that her relationship with the wage earner started in their junior year of high school, and she only had a sexual relationship with him. The wage earner's mother stated that she assumed that her son and the claimant's mother were having a sexual relationship because her son visited the claimant's mother frequently and she found condoms in his room. The wage earner's mother also stated that the claimant resembles her son; she and the wage earner's father support the claimant and her mother financially; and she takes care of the claimant every day. There is no contrary evidence.

When claimant was born, no father was listed on her birth certificate. However, the state court has ordered that her birth certificate be amended to show Michael P. F~, Jr., as her father. CAL. FAM. CODE § 7639 ("If the judgment or order of the court is at variance with the child's birth certificate, the court shall order that a new birth certificate be issued . . . .").

Based on the evidence here, SSA could conclude there is a "high probability" that Makaila C~-F~ is the daughter of Michael P. F~, Jr.

The NH cannot be considered the child claimant's father under California law because there is no clear and convincing evidence that he openly held out the child as his own; and there is no indication that "holding out" was impossible, in which case the child must produce other clear and convincing evidence of paternity. Therefore, the child cannot inherit from the NH under California law.

ISSUE

You have asked whether there is sufficient evidence to establish a parent-child relationship, under California law effective November 27, 1998, between Claimant Lori J. N~ and the WE Ronnie D. M~.

SUMMARY

No. Under the applicable California law, to qualify as a natural child of a deceased father, an out-of-wedlock child must produce "clear and convincing" evidence that the alleged father openly "held out" the child as his own; or, if "holding out" was impossible, the child must produce other clear and convincing evidence of paternity. A biological father who has neither married nor attempted to marry the child's biological mother must not only openly and publicly admit paternity, "but must also physically bring the child into his home" in order to create the parental rights of a "presumed father." There is no evidence in the record that the WE physically brought the child into his home. It does not appear that the WE openly held out the child as his own or that such "holding out" was impossible.

You may wish to further develop the record by recontacting Claimant's mother to determine whether there is evidence that WE lived with Claimant's mother and/or provided support during the pregnancy, or otherwise held out the Claimant as his child during the pregnancy. If such evidence exists, it may be sufficient to establish "holding out" under the "clear and convincing" evidence standard. You may also wish to ascertain more information concerning how and when the alleged note from WE came to be placed with the ashes, as well as whether there was any reason that made it impossible (serious illness, etc.) for WE to acknowledge Claimant as his child during WE's life. If you obtain such evidence, we recommend you return the file to us for further review prior to decision.

SUMMARY OF EVIDENCE

You have advised us that Rebecca N. N~ ("Ms. N~") was never married to Ronnie D. M~ ("the WE"), and there is no evidence in the record that they were ever married.

According to a California birth certificate filed on May 16, 1996, Lori J. N~ ("Claimant") was born in California on April 6, 1996. The WE is named as the father.

According to a death certificate, the WE died in California on August 6, 1998. You told us that he was neither living with Ms. N~ nor contributing to Claimant's support when he died.

On November 9, 1999, Ms. N~ applied for child's insurance benefits and a lump-sum death payment on behalf of Claimant. The applications were based the WE's account.

In a November 9, 1999 Child Relationship Statement form, Ms. N~ indicated that no court had declared the WE to be Claimant's father or had ordered him to contribute to Claimant's support. She indicated that Claimant had never visited the WE at his home and that the WE did not make regular and substantial contributions for Claimant's support. Ms. N~ stated, "The only written evidence I am aware of is the note Ronnie [the WE] wrote on the paper that was wrapped around my father's box of ashes." There is no indication as to when this note was written or how it came to be wrapped around the ashes.

Ms. N~ submitted that note. It stated:

 

Hi Larry,

I hope you like it up there or where you may be. I'll see ya one of these day's may be soon you think. I love you Larry & Me and your Dauther have a pretty little girl just like you said we would. I miss you, so much. I will soon see you. Love Ronnie.

Ms. N~ also submitted a "cremation record" indicating that her father had died on January 31, 1994 and was cremated on February 4, 1994. This was more than two years before Claimant was born.

There is no information regarding whether WE and Claimant's mother lived together during the pregnancy, or whether he provided support during the pregnancy, or otherwise held out the Claimant as his child during the pregnancy.

ANALYSIS

A. SOCIAL SECURITY REGULATIONS

The Commissioner's regulations on applying state law, effective November 27, 1998, apply to this claim. See 20 C.F.R. §§ 404.354 and 404.355 (1999). Under these regulations, a "natural child" of unmarried parents may be eligible for benefits if she could inherit the insured's personal property under state intestacy law. See 20 C.F.R. § 404.355(a) (1999). If state intestacy law requires a court order of paternity, SSA will not require a claimant to obtain a state court order, but will evaluate the evidence and apply the state's standard of proof to determine if the claimant can establish a right to intestate succession. 20 C.F.R. § 404.355 (1999). In addition, if the insured is deceased, SSA applies the state's current law at the time of adjudication, or the version of the law at any time since the insured's death, whichever is most favorable to the claimant. 20 C.F.R. § 404.355(b)(4) (1999).

Here, the WE died on August 6, 1998 while domiciled in California. If Claimant could inherit the WE's personal property under California intestacy law, she would establish that she was eligible for child's benefits as the WE's "natural child" under the Regulations. See 20 C.F.R. § 04.355(a)(1) (1999).

B.CALIFORNIA LAW

Under California intestacy law, a parent-child relationship is established when (1) the relationship is "presumed" and not rebutted under the California Family Code §§ 7600-7700, or (2) the relationship is established under any other provision of the California Family Code, §§ 7600-7700. See California Probate Code § 6453(a) and (b).

1. The WE could not be "presumed" to be Claimant's father under the California Family Code

California law provides that a man is presumed to be the father of a child if he "receives the child into his home and openly holds out the child as his natural child." California Family Code § 7611(d); Spencer W. v. Leonard , 56 Cal. Rptr.2d 524, 526 (App. Dist. 4, 1996). To qualify as a natural child of a deceased father, an out-of-wedlock child must produce "clear and convincing" evidence that the alleged father openly "held out" the child as his own; or, if "holding out" was impossible, the child must produce other clear and convincing evidence of paternity. See California Probate Code §§ 6453(b)(2) and (3); California Family Code § 7611 (1999); Cheyanna M. v. A.C. Nielson Company, 78 Cal. Rptr.2d 335, 342-43 (Cal. App. Dist. 2, 1998).

In this case, it does not appear that the WE openly held out the child as his own or that such "holding out" was impossible. It should be noted that Claimant's birth certificate naming the WE as her father is not binding evidence of paternity. See California Health and Safety Code § 103550; Griffith v. Gibson, 142 Cal. Rptr. 176 (Cal. App. Dist. 4, 1977). Also, the letter allegedly written by the WE to Claimant's deceased maternal grandfather does not constitute clear and convincing evidence of "holding out." The WE could not be presumed to be Claimant's father under California intestacy law.

2. The WE was not Claimant's father under any other provision of the California Family Code, §§ 7600-7700

The only other way that the WE could be considered Claimant's father under the California Family Code, §§ 7600-7700, would be via a state court order declaring him to be her father. See California Family Code § 7630(c). Under the revised regulations, the WE could be considered Claimant's father if the state law requirements for obtaining such a state court order were satisfied. See 20 C.F.R. § 404.355(b) (1999).

In this case, Claimant does not satisfy the state intestacy law requirements for obtaining a court order of paternity. There is no clear and convincing evidence that the WE openly held out Claimant as his own child and received her into his home. See California Family Code §§ 7630(c), 7611(d). There is no clear and convincing evidence of paternity coupled with the impossibility for the WE to hold out Claimant as his own. See id. Thus, Claimant cannot obtain a state court order declaring the WE to be her father.

CONCLUSION

Since the WE could not be considered Claimant's father under California Family Code, §§ 7600-7700, he could not be considered to be Claimant's father under the California Probate Code § 6453(a). Thus, Claimant is unable to inherit the WE's personal property under California intestacy law. Consequently, under Social Security regulations, Claimant cannot establish that she is the WE's "natural child" for the purposes of claiming benefits on the WE's account.

As discussed above, you may wish to further develop the record by recontacting Claimant's mother to determine whether there is evidence that WE lived with Claimant's mother and/or provided support during the pregnancy, or whether WE otherwise held out the Claimant as his child during the pregnancy. If such evidence exists, it may be sufficient to establish "holding out" under the "clear and convincing" evidence standard. You may also wish to ascertain more information concerning how and when the alleged note from WE came to be placed with the ashes, as well as whether there was any reason that made it impossible (serious illness, etc.) for WE to acknowledge Claimant as his child during WE's life. If you obtain such evidence, we recommend you return the file to us for further review.

The totality of the circumstances in this case does not indicate that the NH had made a consistent commitment to assume the burdens of parenthood. Since he never took any action to declare his paternity when there might have been some cost to him, the NH would not be found to have held the child out as his child under California law. Also, the evidence does not indicate that it was impossible for the NH to openly hold out the child as his own child. The child was 14 years old at the time of the NH's death, and the evidence establishes that the NHhad been well aware that the child may have been his child during his lifetime.

QUESTION

You asked (1) whether the claimant is entitled to child's insurance benefits as the child of the wage earner under California law; and (2) whether it was “impossible” for the wage earner to hold the claimant out as his own child under California Probate Code section 6453(b)(3), when he did not know with certainty that the claimant was his child.

ANSWER

The claimant is not entitled to child's insurance benefits on the wage earner's account because (1) under California law, the claimant would not be considered the child of the wage earner, and (2) it does not appear that the claimant can establish paternity under applicable federal methods (42 U.S.C. § 416(h)(3)(c)). It was not “impossible” for the wage earner to hold the child out as his own because there is no requirement that the putative father know with certainty of his address paternity. The wage earner knew of the child's existence, knew that he might be the father, and could have taken various actions to establish his paternity.

SUMMARY OF EVIDENCE

The wage earner died in a work-related accident on March 22, 2001. At the time of his death, he was domiciled in California.

The claimant, Robin S~, was born in California on July 8, 1986. In April 2001, the claimant's mother, Tina S~, filed an application on behalf of the claimant for child's insurance benefits on the wage earner's account. The wage earner is survived by Pamela C~, his widow, who is receiving widow's insurance benefits, and their two children, who are receiving child's insurance benefits on the wage earner's account.

According to statements by the claimant's mother, the wage earner had acknowledged the claimant as his child at the time of her pregnancy. The claimant's mother said she and the wage earner were together during her entire nine-month pregnancy. The wage earner and the claimant's mother were never married. The claimant's mother apparently was unmarried during the nine months before the claimant was born.

According to your folder notes, another man, not the wage earner, was named as her father on the claimant's birth certificate. Your folder notes also indicated a Christopher L. P~ was named as the father when an application for a social security card was filed on behalf of the claimant when she was two and one-half years old. The record includes genetic test results, dated January 15, 2002, which demonstrated a probability of 99.99% that the wage earner was the claimant's biological father. The claimant also submitted genetic test results showing non-paternity for two other men, Christopher L. P~ and James O~, dated July 10, 1998, and December 20, 1997, respectively.

According to her March 11, 1998 affidavit in support of establishing paternity to Nevada State Welfare Services, the claimant's mother indicated that she did not tell the wage earner that he was the father of the claimant or name him on the claimant's birth certificate. The affidavit also indicated that the wage earner did not admit being the father of the child, sign an acknowledgment of paternity, send cards/letters regarding the pregnancy and/or about the child, attend the birth of the child, visit the child at the hospital following her birth, offer to pay for an abortion/medical expense, or pay for birth related expenses. Moreover, the claimant's mother indicated that the wage earner did not claim the child on his tax returns, provide food, clothing, gifts or financial support for the child, or live with or visit the child, and that the child did not resemble the wage earner.

According to statements provided by the claimant's mother in a “Child Relationship Statement,” dated February 10, 2002, when she, her friend, and the claimant met the wage earner in Burbank, California on July 8, 1998 to celebrate the claimant's birthday, the wage earner told her that he had known the claimant was his child the day she was born and that he was very happy about that. The claimant's mother said the claimant had never visited the wage earner's home because the area where the wage earner lived was apparently unsafe, although the wage earner and his wife had wanted the claimant to do so. She said visits by the wage earner always had been at her house and that the wage earner had called her and the claimant every day. She also said that the wage earner had told the claimant that he would always be there for her and that he would get her whatever she needed. The claimant's mother said the wage earner had told the claimant and the claimant's mother that he would pay for whatever the claimant needed, that he had sent the claimant “Christmas stuff, birthday stuff, food, shoes, (and a) pager,” that he had taken the claimant snowboarding at Lake Tahoe, and that he and his family had made many visits to her home to see the claimant.

According to an October 17, 2001 declaration filed by the claimant's mother, as part of a state action to establish paternity and for child support, the claimant's mother said that, although the wage earner had acknowledged that he was the claimant's father, she was not sure who the father was because she also had had sexual relations with another man (Christopher P~) around the same time. The claimant's mother also said that, after the claimant was born, she moved away and she and the wage earner lost touch with each other. The claimant's mother reported that, about five years before (in 1996), during a visit from her brother, he told her that the claimant looked like the wage earner and that he had to be her father. The claimant's mother said that, around the same time, she became reacquainted with the wage earner, who was then married, with three children, living in Southern California. She said the wage earner had visited the claimant about four times and that she and the claimant had visited the wage earner twice from 1996 to 2001. The claimant's mother said that these visits included a July 2000 visit by her, her friend, and the claimant to Southern California to celebrate the claimant's birthday and a February 2001 visit by the wage earner and his family to Dayton, Nevada (where the claimant and her mother lived), during which time the wage earner had taken his family, the claimant and her brother snowsledding at Lake Tahoe.

According to Julie A. K~, the claimant's mother's friend and neighbor, the wage earner had told her in 1999 that he believed he was the claimant's father and that he had acknowledged the claimant as his child. She said the wage earner had paid for vacations to see the claimant and for her school supplies and “other things.”

According to an October 17, 2001 declaration filed by Ms. K~ as part of the same state action noted above, she said she had known the claimant's mother and the wage earner for the past three years (since 1998), and that they had been in “constant contact” from the time she met them until the wage earner's death. She said the wage earner had called the claimant's mother “all the time.” She also said that, because the claimant's mother did not have internet access, the wage earner had emailed the claimant's mother at her house. Ms. K~ said the wage earner had told her that the claimant was his child, that he had stayed with the claimant and her mother when he visited Nevada on numerous occasions, and that she had no doubt that the wage earner was the claimant's father based on “their mannerisms together and how close they were.”

According to Helen L. J~, the claimant's maternal grandmother, in December 1986 (five months after the claimant was born), the wage earner had told her that he believed he was the claimant's father and was excited and happy about it. Ms. J~ said the claimant had never visited the wage earner because the wage earner lived in a “dangerous” area. Ms. J~ also said that, during a visit by the wage earner, she had overheard him telling the claimant he loved her and that she was his first-born. Ms. J~ said the claimant had told her that the wage earner had visited her at least ten times in the past two years (since March 2002).

According to Floyd S~, the claimant's uncle on her mother's side, on one occasion when the wage earner had visited the claimant when she was an infant, he had asked whether the claimant was his child. Mr. S~ reported that in or around 1997 or 1998, the wage earner had confided in him that the claimant looked like his sisters. Mr. S~ said the wage earner had asked him whether the claimant was his child, to which he had responded that he did not know.

According to Pamela C~, the wage earner's widow, the wage earner had acknowledged that he could be the claimant's father, that he had considered his financial responsibilities to the claimant if he was her father, that he had made some calls and rare visits to see the claimant, that he had given her no financial support, and that he had agreed to take a paternity test. Ms. C~ said that, contrary to the claimant's mother's suggestion that the claimant's birthday celebration in California had been planned, the wage earner had told her that they (the claimant, her mother, and the mother's friend) had been in town on the claimant's birthday, and had asked him to go out with them that evening. Ms. C~ specifically noted two occasions when the wage earner had visited the claimant: one in 1998, after the claimant's mother had contacted the wage earner, and the other in January 2001, when the wage earner had taken his family, the claimant and her brother “to the snow" because wage earner had wanted the claimant to meet his two children. Ms. C~ said that the wage earner had told her that the claimant's mother's statements Adidn't add up and (she) kept changing her story.” The wage earner also had said he did not remember having a relationship with the claimant's mother (other than having sexual relations with her once), and he was living with someone else at that time.

After the wage earner's death, the claimant's mother filed a state action against the wage earner and his widow, successor in interest, to establish paternity and for child support. According to your folder notes, a report of contact with a social worker noted that no court order ever had been entered.

In April 2001, the claimant's mother filed an application for child's insurance benefits on the claimant's behalf. The Social Security Administration denied the claim on July 27, 2001. The claimant's mother requested reconsideration, which is pending.

ANALYSIS

Under the Social Security Act, a claimant is entitled to child's insurance benefits if he can show that he could inherit the wage earner's personal property as his child under the intestacy laws of the state where the wage earner was domiciled at the time of his death. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1) (2002). Here, the wage earner died while domiciled in California.

A. California Law

The Commissioner's regulations on applying state intestacy law, effective November 27, 1998, apply to this claim. 20 C.F.R. § 404.354-404.355 (2002). According to section 404.355(b)(4), we apply any version of state law from the time of the wage earner's death through the time of adjudication, whichever is most favorable to the claimant.

Under California intestacy law, a parent-child relationship is established (a) when that relationship is presumed and not rebutted under the Uniform Parentage Act (Cal. Fam. Code § 7600, et. seq.), or (b) the relationship may be established under any other provision of the Uniform Parentage Act, except that the relationship may not be established by an action under section 7630(c) of the Family Code, unless (1) a court order declaring paternity was entered during the father's lifetime, (2) paternity is established by clear and convincing evidence that the father has openly held out the child as his own, or (3) it was impossible for the father to hold out the child as his own, and paternity is established by clear and convincing evidence. Cal. Prob. Code § 6453(a) and (b) (West 2001).

1. Presumed Father Status

The wage earner was not the claimant's presumed father under the Uniform Parentage Act. Cal. Fam. Code § 7540, 7570, 7611 (West 2001). He was not married to the claimant's mother, they never attempted to marry, and he never signed a voluntary declaration of paternity. He did not receive the child into his home, one of the requirements of section 7611(d).

2. Openly Holding the Child Out as One's Own

There was no court order of paternity entered during the wage earner's lifetime. Thus, the claimant must show, by clear and convincing evidence, that the wage earner openly held her out as his own child or that it was impossible for the wage earner to openly hold her out, and establish paternity by clear and convincing evidence. Cheyanna M. v. A.C. Nielson Co., 66 Cal.App.4th 855, 867 (2nd Dist. 1998). A putative father's statements admitting paternity to some family and friends are not sufficient evidence of “openly holding out.” Spencer W. v. Leonard B., 48 Cal.App.4th 1647, 1654 (4th Distr. 1996). Rather, a putative father openly holds a child out as his own by declaring paternity when there may be some cost to him (for example, consequent liability for child support). Id.

The claimant's mother and other family members reported that the wage earner had orally admitted that he was the baby's father and that he would take care of the claimant's needs. The wage earner's widow reported that, prior to his death, the wage earner had intended to assume financial responsibility for the claimant if a paternity test had shown him to be her biological father. Apart from these statements, the totality of the circumstances does not indicate that the wage earner had made a consistent commitment to assume the burdens of parenthood. For instance, there is no evidence that he was present at the claimant's birth, tried to place his name on the claimant's birth certificate, completed a written declaration of paternity, initiated a court action to declare paternity, was willing to assume custody, tried to provide for the claimant financially by paying any pregnancy or birth expenses commensurate with his circumstances, or that he named her as insurance beneficiary. See Julia U. v. Ramon O., 64 Cal.App.4th 532, 541 (2nd Dist. 1998); Spencer W. v. Leonard B., 48 Cal.App.4th at 1654; Sarah C. v. Paul D., 8 Cal.App.4th 964, 973 (4th Dist. 1992). Thus, since he never took any action to declare his paternity when there might have been some cost to him, the wage earner would not be found to have held the claimant out as his child under California law. See, e.g., Spencer W. v. Leonard B., supra.

3. Impossibility Provision

The evidence does not indicate that it was impossible for the wage earner to openly hold out the claimant as his own child. The claimant was fourteen years old at the time of the wage earner's death, thus, the wage earner had ample opportunity to acknowledge the claimant as his own child. The evidence establishes that the wage earner had been well aware that the claimant may have been his child since her birth, and thus it was not “impossible” for him to take affirmative steps to hold her out as his child during his lifetime. As noted above, the wage earner did not place his name on the claimant's birth certificate, complete a written declaration of paternity, initiate a court action to declare paternity, indicate a willingness to assume custody or support, try to provide for the claimant financially by paying any pregnancy or birth expenses commensurate with his circumstances, or name her as an insurance beneficiary. The “impossibility” provision was added to the Probate Code by the California legislature to address cases where a natural father dies or goes into a coma before his child is born, and thus, never has an opportunity to acknowledge the child as his own. See Cheyanna v. A.C. Nielson Co., 66 Cal.App.4th 855, 875 (2nd Dist. 1998); see also Intestate Succession: Establishing Paternity, Report for Assembly Bill No. 1137 for the Senate Rules Comm., Cal. Leg., 1993-1994 Reg. Sess., at 2 (August 1993). Because the wage earner died after the claimant was born, the “impossibility” provision cannot be applied in this case, as he had ample opportunity to hold her out as his own child prior to his death.

B. Federal Methods under 42 U.S.C. § 416(h)(3)(c)

Under 42 U.S.C. § 416(h)(3)(c), a claimant who cannot satisfy the requirements of state law may try to qualify under the applicable federal methods by showing:

in the case of a deceased wage earner, either:

(i)

I.   The deceased wage earner had acknowledged in writing that the claimant is his son or daughter, or

II The deceased wage earner had been decreed by a court to be the mother or father of the claimant, or

III. The wage earner had been ordered by a court to contribute to the support of the claimant because the claimant was his son or daughter;

and such acknowledgment, court decree, or court order was made before the death of the wage earner, or

(ii) the wage earner is shown by evidence satisfactory to the Commissioner to have been the father of the claimant, and the wage earner was living with, or contributing to, the support of the claimant at the death of his death.

The claimant cannot establish paternity under section 416(h)(3)(c)(i) because there was no court order declaring paternity or ordering the wage earner to provide support nor did the wage earner acknowledge paternity in writing.

The claimant also does not meet the requirements under section 416(h)(3)(c)(ii). The claimant must show (1) by evidence satisfactory to the Commissioner, that the wage earner was her father, and (2) that the wage earner was living with or contributing to her support at the time of his death. The claimant's mother has presented genetic test results, dated January 15, 2002, showing that there is a probability of 99.99% that the wage earner was the claimant's father. This evidence, along with the wage earner's widow's statements that the wage earner admitted having sexual relations with the claimant's mother, likely constitutes acceptable evidence that a biological relationship exists between the claimant and the wage earner. See generally, Mendoza v. Secretary of HHS, 655 F.2d 10, 13-14 (1st Cir. 1981). Thus, we will assume that the claimant meets the first requirement under section 416(h)(3)(c)(ii).

With respect to the second requirement under section 416(h)(3)(c)(ii), the claimant must show that the wage earner was living with or contributing to her support at the time of his death. Some courts, including the U.S. Court of Appeals for the Ninth Circuit, have held that the support requirement must be considered in light of the father's circumstances and ability to pay, and the needs of the child. Smith v. Heckler, 820 F.2d 1093 (9th Cir. 1987); Chester v. Secretary of HHS, 808 F.2d 473, 476 (6th Cir. 1987). Under 20 C.F.R. §404.366, to qualify for child's benefits, it must be shown that the insured made a contribution for the child's support. The insured makes a contribution for support if (1) he or she gives some of his or her own cash or goods to help support the child, and (2) contributions must be made regularly and must be large enough to meet an important part of ordinary living costs. 20 C.F.R. § 404.366(a) (2002). The regulation also provides that if the insured person only provides gifts or donations once in a while for special purposes, they will not be considered contributions for the child's support. Id.

The evidence clearly shows that the wage earner was not living with the claimant at the time of his death. With respect to the issue of support, there is conflicting evidence. Thus, the issue turns on the credibility of the statements by the claimant's mother and the statements by the wage earner's widow. Both parties have an interest in this case. For the wage earner's widow, a determination of non-entitlement here would mean the child's insurance benefits her two children are now receiving would not be reduced. For the claimant's mother, a determination of entitlement would mean child's insurance benefits for the claimant. The wage earner's widow's written statements indicated that the wage earner had provided no support to the claimant. She indicated that the wage earner had only been concerned about his potential financial responsibilities to the claimant if he was her father (and had even contacted several attorneys about this), and therefore had agreed to a paternity test shortly before his death. The claimant's mother said the wage earner had given the claimant support in the form of Christmas and birthday gifts, food, shoes, and a pager.

If the wage earner's widow's statements are credited, then the evidence establishes that the wage earner was not contributing to the claimant's support. However, the wage earner's widow may not have had knowledge of the full extent of the wage earner's actions toward the claimant and her mother or of the wage earner's relationship with the claimant and her mother. You indicated in your “folder notes” that you found the wage earner's widow's statements more credible.

Even if the claimant's mother's statements are credited, they are not enough to establish that the wage earner contributed to the claimant's support, in light of the requirements of 20 C.F.R. section 404.366(a), noted above. It appears that the items described by the mother were gifts from the wage earner for special purposes, and not contributions made regularly and large enough to meet an important part of the claimant's ordinary living costs. In any event, the record shows that the claimant's mother made inconsistent statements, which reduces her credibility. For example, in her affidavit in support of establishing paternity, dated March 11, 1998, the claimant's mother said, among other things, that she and the wage earner did not live together and that the wage earner did not admit being the father of the child, did not provide food, clothing, gifts or financial support for the child, and did not visit the child. The affidavit is inconsistent with the statements provided by the claimant's mother in her 2001 court declaration that the claimant and wage earner had had a parent-child relationship for the past five years (since 1996). Similarly, the claimant's mother's statements in her affidavit that the wage earner was not present at the birth of the child, did not visit the child at the hospital following the birth, and did not offer to pay for birth-related expenses are inconsistent with her statements provided in a February 10, 2002 “Child Relationship Statement” that she and the wage earner were together during her nine-month pregnancy.

If the wage earner's widow's statements are credited, the evidence establishes that the wage earner was not contributing to the claimant's support at the time of his death. If the claimant's mother's statements are credited, under the applicable regulations, the evidence is insufficient to show that the wage earner was contributing to the claimant's support. Therefore, in either case, the claimant does not meet the requirements under section 416(h)(3)(c).

CONCLUSION

The claimant is not entitled to child's insurance benefits as the child of the wage earner.

Janice L. W~

Regional Chief Counsel

By: ______________________

Dennis J. M~

Assistant Regional Counsel

Travel pursuant to active duty military orders does not change a person's domicile no matter how long he may be absent from his domicile.

The provision of the California intestacy law that provides that a parent-child relationship may be established if it is shown that it was impossible for the father to hold the child out as his own was intended to permit children whose natural parents were not married and whose natural father died before having an opportunity to acknowledge the child to inherit from their natural fathers.

Under California law, in order to establish authenticity and reliability, genetic tests must be performed by a laboratory approved by any accreditation body that has been approved by the Department of Health and Human Services. California courts have accepted genetic test experts accredited by the American Association of Blood Banks (AABB). AABB is deemed by HHS Health Care Financing Administration (HCFA) to be an authorized genetic testing accreditor.

ISSUES

You asked whether Claimant Robert J. K~ is now entitled to surviving child's insurance benefits on the account of Robert J. S~ (hereinafter "WE") in light of the November 27, 1998 change in the relevant regulations regarding paternity determinations. You also asked whether irregularities in the decision and notice dates would affect the outcome of this case.

SUMMARY

Under the current regulations, Claimant appears to be entitled to benefits on WE's account because the evidence is sufficient to establish the right to inherit intestate from WE under California law. It was impossible for WE to hold Claimant out as his child because WE died prior to Claimant's birth. Genetic evidence, along with the written statements by WE's family that WE admitted paternity prior to his death, are "clear and convincing evidence" of paternity under California Probate Code 6453(b)(3). The administrative record in this case indicates several irregularities in the handling of the case. Specifically, it appears that the initial decision was made on May 13, 1998. However, the Notice of Denial was not issued until after November 27, 1998, after the new regulations were in effect. In addition, it appears that an initial denial notice was sent twice, and requests for reconsideration were filed twice. The initial reconsideration request appears to have been timely filed; but the second does not. However, given the confusion regarding this case, it is our recommendation that the request for reconsideration be deemed to have been timely filed, and that, on reconsideration, benefits be awarded consistent with the current regulations.

For purposes of the analysis in this memorandum, we have accepted your advice that WE died domiciled in California. However, we recommend that you confirm this. WE died in California while stationed in California pursuant to active duty military orders. The letters from WE's parents indicate that they reside in Arizona. It may well be that WE's domicile was not California. Travel pursuant to active duty military orders does not change a person's domicile no matter how long he may be absent from his domicile. We recommend you verify WE's domicile at the time of his death. Evidence may be obtained from WE's parents, from WE's tax returns, and from WE's military records which would indicate his home of record.

Finally, there is evidence in the record that WE has another child by a different mother who is receiving benefits. If this is true, that child must be given notice, through his representative, of any proposed award to Claimant.

SUMMARY OF EVIDENCE

WE died in an accident on June 8, 1990. At the time of his death, he was serving in the United States military and was stationed in California. You have advised that he was domiciled in California.

Claimant was born in Germany on July 20, 1990. On November 2, 1994, Claimant's natural mother, Heike L~ ("L~"), a German citizen, filed an application on behalf of Claimant for surviving child's benefits on WE's account. Along with his application for benefits, Claimant submitted documents showing that, on June 17, 1991, a German court found that WE was Claimant's father. The court's decision appears to have been based on evidence that WE and L~ had an intimate relationship from September 22, 1989 to January 21, 1990, as well as the results of genetic testing provided in a April 15, 1991 laboratory report. The genetic results gave a combined paternity index of 1799.28 and demonstrated a probability of 99.9% that WE was Claimant's father. (It appears that the genetic material was taken from WE at the time of WE's death.) Claimant also submitted written statements from WE's sister and parents asserting that, prior to his death, WE had admitted that he was Claimant's father.

ANALYSIS

A. Social Security Regulations

The Commissioner's regulations on applying state law, effective November 27, 1998, apply to this claim. See 20 C.F.R. 404.354, 404.355 (1999). Under these regulations, "a natural child" of an unmarried parent may be eligible for benefits if he could inherit the insured's personal property under state intestacy law. See 20 C.F.R. 404.355(a) (1999). If state intestacy law requires a court order of paternity, SSA will not require a claimant to obtain a state court order, but will evaluate the evidence and apply the state's standard of proof to determine whether the claimant can establish a right to intestate succession. 20 C.F.R. 404.355(b)(2) (1999). In addition, if the insured is deceased, SSA applies the state's current law at the time of adjudication, or the version of the law at any time since the insured's death, whichever is most favorable to the claimant. 20 C.F.R. 404.355(b)(4) (1999).

Here, WE died while residing in California pursuant to active duty military orders. Assuming WE was domiciled in California, if Claimant could inherit WE's property under California intestacy law, Claimant would establish that he is eligible for child's benefits as WE's "natural child" under the regulations. See 20 C.F.R. 404.355 (1999).

B. California Law

Under California intestacy law, a parent-child relationship is established when:

1. (a) 

   the relationship is presumed and not rebutted under the Uniform Parentage Act;

2. (b) 

   the relationship may be established under any other provision of the Uniform Parentage Act, except that the relationship may not established by an action under 7630(c) of the Family Code, unless (1) a court declaring paternity was entered during the father's lifetime, (2) paternity is established by clear and convincing evidence that the father has openly held out the child as his own, or (3) it was impossible for the father to hold out the child as his own, and paternity is established by clear and convincing evidence.

Cal. Prob. Code Ann. 6453 (West 2000).

1. Presumed father status

WE was not a presumed father of Claimant under the Uniform Parentage Act. He and Claimant's mother were never married and never attempted to marry. See Cal. Fam. Code Ann. 7540, 7611 (West 2000). WE did not sign a voluntary declaration of paternity. See Cal. Fam. Code 7570, et. seq. (West 2000).

Under California Family Code, 7611(d), a man is a presumed father if he receives the child into his home and openly holds the child out as his natural child. To be a presumed father under this section, a man must promptly assume his parental responsibilities as fully as the mother will allow and his circumstances will permit. There must be a "preponderance of evidence" to establish these two requirements. Miller v. Miller, 64 Cal.App. 4th 111, 117 (1st Dist. 1998).

According to California case law, a father holds a child out as his own when he openly and publicly admits paternity where there might be some cost to him and he has demonstrated some commitment toward establishing a parental relationship. See In Re Spencer W., 48 Cal.App. 4th 1647, 1653-1655 (4th Dist. 1996).

There is no evidence that WE ever received L~ into his home after he learned that she was pregnant. Although Claimant offered statements from WE's parents and sister that Claimant indicated to members of his family that L~ was pregnant with his child, there was no evidence that WE visited or lived with L~ during her pregnancy, took any formal steps to proclaim paternity, named Claimant as a military dependent or beneficiary of any insurance or other benefit, or assumed any financial obligation for the child during L~'s pregnancy. See In re Spencer W., 48 Cal.App.4th at 1654. Where, as here, there is no evidence of a commitment toward developing a "substantial familial relationship" to the child, the presumption of paternity may be denied. Id. at 1653; see also In re Sarah C., 8 Cal.App. 4th 864, 972-73 (1992) (trial court denied biological father's presumed father status where he did not meet any of the other presumptions and he had not openly acknowledged his child or received her into his home). Thus, there was not a preponderance of the evidence that WE received Claimant into his home and openly held him out as his natural child. WE, therefore, does not meet any of the presumptions required for paternity.

2. Establishing paternity after death requires clear and convincing evidence

Claimant may establish a parent-child relationship under California Probate Code 6453(b), which requires either:

1. a) 

   a court order of paternity entered during the father's lifetime;

   or

2. b) 

   clear and convincing evidence that the father openly held the child out as his own;

3. c) 

   if it were impossible for the father to hold the child out as his own, clear and convincing evidence of paternity.

Cal. Prob. Code Ann. 6453(b) (West 2000).

There was no court order of paternity entered during WE's lifetime. Under 20 C.F.R. 404.355, the Commissioner will no longer require a child to obtain a determination of paternity by a court. Rather, the Commissioner will use the standard of proof that the state court would use to determine paternity. See 20 C.F.R. 404.355(b)(2) (1999).

As noted above, there was no evidence that WE openly held the child out as his own during L~'s pregnancy. Under 6453(b)(3), a child must demonstrate that it was "impossible" for the father to have held the child out as his own. As explained in the May 8, 1998 Memorandum, the legislative history of 6453(b)(3) makes clear that the section was intended to permit children whose natural parents were not married and whose natural father died before having an opportunity to acknowledge the child to inherit from their natural fathers. See Intestate Succession: Establishing Paternity, Report for Assembly Bill No. 1137 for the Senate Rules Comm., Cal. Leg., 1993-1994 Reg. Sess., at 2 (August 1993). Thus, Claimant could easily demonstrate that it was impossible for WE to have held him out as his child since he was born after WE's death.

Section 6453(b)(3) also mandates that the child show by clear and convincing evidence that the man is the child's natural father. In this case, genetic evidence, along with the written statements by WE's sister and mother that WE admitted paternity prior to his death, would constitute "clear and convincing evidence" to prove paternity.

Genetic Evidence as "Clear and Convincing Evidence"

California intestacy law presumes paternity based on a paternity index of 100 or greater, as calculated by the experts qualified as examiners of genetic markers, rebuttable by a preponderance of the evidence. See Cal. Fam. Code Ann. 7555(a) (West 2000). In order to establish authenticity and reliability, the genetic tests shall be performed by a laboratory approved by any accreditation body that has been approved by the Department of Health and Human Services (HHS). See Cal. Fam. Code Ann. 7552 (West 2000). California courts have accepted genetic tests experts accredited by the American Association of Blood Banks (AABB). See County of El Dorado v. Misura, 33 Cal.App.4th 73, 79 (1995). AABB is deemed by HHS Health Care Financing Administration (HCFA) to be an authorized genetic testing accreditor. Notice (HCFA-2246-N), 63 FR 17429-02 (April 9, 1998).

Claimant has presented genetic test results dated April 1991 that show a combined paternity index of 1799.28 and a probability of paternity of 99.9%. The genetic testing was performed by Blood Systems Laboratories of Tempe, Arizona (formerly known as Blood Systems Central Laboratory of Scottsdale, Arizona, in April 1991). Blood Systems Laboratories was an inspected and accredited member of the AABB in April 1991, as the laboratory report specifically indicates that the testing was conducted in accordance with amended AABB guidelines for DNA testing. The laboratory's accreditation during the relevant period was confirmed by Deborah B. N~ of AABB on June 14, 2000 (Letter from Deborah B. N~, Director of Accreditation Programs, AABB, to Dr. Robert O. E~, Scientific Director, Blood Systems Laboratories (June 14, 2000)). Thus, the genetic evidence of paternity submitted by Claimant can be accepted as reliable and authentic. This evidence, along with the written statements that WE admitted paternity prior to his death, would be sufficient to prove paternity under 6453(b)(3).

C. Notice Discrepancies

A reply denying Claimant's claim was prepared on May 13, 1998. This denial notice apparently was not mailed to Claimant until after November 27, 1998, the date the change in regulations became effective. The file indicates it was sent to typing on October 22, 1998; and, that the transaction date for the disallowance was December 2, 1998. Claimant requested reconsideration and advised of the appointment of a Representative by letter dated January 25, 1999 which was received on March 23, 1999. A Notice of Disapproved Claim was mailed April 5, 1999. Claimant requested reconsideration again on July 12, 1999. There are also indications in the file that the first disallowance notice was never sent to Claimant and that a second, initial notice was prepared and released on March 31, 1999.

Given the confusion regarding communications with the Claimant, and the failure by the Agency to properly follow its regulations at the time the initial denial was mailed and during reconsideration, we believe the Agency should deem the reconsideration to be timely filed.

D. Effective Date of Benefits

If benefits are awarded, Claimant is entitled to benefits effective April 1994.

The filing date of the Social Security application determines when the SSA begins paying monthly benefits. Under 20 C.F.R. 404.621(a)(ii), a claimant may receive child's survivor benefits up to six months before the month he files the application if he files after the month in which he meets all of the requirements for entitlement.

To meet all of the requirements for entitlement to child survivor benefits on a wage earner's account, a claimant must file an application, and show that the wage earner has died fully or currently insured, that he is the child of the wage earner, that he was dependent on the wage earner (a natural child is deemed dependent), that he is unmarried, and that he is under age 18. 42 U.S.C. 402(d)(1); 20 C.F.R. 404.350 (1999).

In this case, Claimant's mother filed the application for survivor benefits on behalf of Claimant in October 1994, after the Claimant became entitled to benefits. Claimant met all of the requirements on July 20, 1990, the date Claimant was born after WE's death on June 8, 1990. Claimant was the natural child of the WE, and was, accordingly, deemed dependent on WE. Claimant is under the age of 18, and it is unlikely that he is married.

Because benefits can begin up to six months before the date of filing the application (October 1994), and can begin no earlier than the month in which the Claimant meets all requirements of entitlement (July 1990), Claimant became entitled to benefits in the month of April 1994 (six months prior to the filing of the application).

CONCLUSION

If WE was domiciled in California at the time of his death, then California law controls the determination. Under California law, it was impossible for WE to hold Claimant out as his own because WE died before Claimant was born. The genetic evidence, along with written statements from WE's family that WE admitted paternity prior to his death, provide clear and convincing proof of WE's paternity under California law, and Claimant qualifies to inherit intestate from WE. Thus, Claimant has established that he is WE's "natural child" for the purposes of claiming surviving child's benefits on WE's account.

Claimant became entitled to benefits in the month of April 1994 (six month prior to the filing of the application).

NOTE REGARDING DUE PROCESS TO POSSIBLE ADVERSE PARTY: The file indicates that WE has another child receiving benefits on his account. If Claimant's claim is granted, his award will adversely impact the benefit amount of the other child. Therefore, Ms. Laure A. P~ (on behalf of Robert J. S~, DOB ~) must be given an opportunity to submit evidence to disestablish WE's paternity of Claimant.

The deceased NH was not a presumed father of the child claimant. He also did not meet the requirements of California Probate Code section 6453(b), under which there must be (1) a court order of paternity entered during his lifetime; or (2) clear and convincing evidence that he openly held the child out as his own, or, if holding out was impossible, clear and convincing evidence of paternity. The NH did not hold the child out, and it has not been demonstrated that it was impossible for him to hold the child out as his own. Therefore, the child does not have inheritance rights under California law.

ISSUE

You asked for a legal opinion as to whether Eric N~ (hereinafter, Claimant) qualifies for child's insurance benefits (survivor) on the account of Robert L. N~ (hereinafter, WE) under California state law based on the revised regulations for paternity determinations.

SUMMARY

No. The evidence currently in the file does not establish a parent-child relationship between Claimant and WE under California intestacy law (or any of the federal methods, as the SSA field office determined); therefore, Claimant is not entitled to survivor's benefits on WE's account.

Unless Claimant could produce some additional evidence, like the WE having voluntarily signed an affidavit or declaration of paternity that might be on file with the State Registrar of Vital Records, Claimant's birth certificate alone is not sufficient to establish a parent-child relationship under either California or federal requirements.

SUMMARY OF EVIDENCE

Claimant was born on August 12, 1984. His birth certificate, which was filed on October 25, 1984, with the Registrar-Recorder for Los Angeles County listed his mother as Stacy R~, age 26, and his father as the WE, age 32. The certificate was signed by Stacy R~ and C. M~, M.D.

On December 18, 1998, WE died domiciled in California. He was 48 years old. According to documentation in file, including SSA records, WE's obituary and an "Application for Child Insurance Benefits" filed by Stephanie L. W~ (on behalf of Daray T. N~, DOB ~), WE was married to Ms. W~ He was never married to Ms. R~.

On June 21, 1999, Ms. R~ applied for survivor's benefits on behalf of Claimant. On the "Statement Concerning the Establishment of a Father-Child Relationship under the Uniform Parentage Act" signed by Ms. R~, she stated that Claimant had never lived with WE and had never visited WE's home. She also stated that she had seen WE only one time after the birth of Claimant, when he was one month old. On the "Child Relationship Statement" filed by Ms. R~ the same day, she reported that there was no court order either declaring WE's paternity or against WE to support Claimant. WE never made regular contributions to the claimant's support. Ms. R~ also stated that she did not know of any written documents on which WE claimed to be the father of Claimant or that WE had ever told anyone that he was Claimant's father.

Other than the evidence discussed above, the only additional evidence produced by Claimant is a Declaration signed by Daniel M. C~ on September 10, 1999. Mr. C~ stated that he was a childhood friend of Ms. R~. He stated that he had met WE at a liquor store where WE worked in the summer of 1984, prior to the birth of Claimant. Mr. C~ stated that he asked WE about WE's relationship with Ms. R~ and WE replied that he had been with Ms. R~ "sometimes". According to Mr. C~, WE stated that he knew about Ms. R~' pregnancy and "that he was the only one for her and that he was the only one with her." WE also reportedly stated that "he was glad that it was a boy because girls are too much trouble." Mr. C~ stated that he and WE only spoke in passing after this conversation.

ANALYSIS

A. Social Security Regulations

The Commissioner's regulations, effective November 27, 1998, govern this claim. See 20 C.F.R. 404.354-404.355 (2000). Under these regulations, SSA applies the standard of proof that the state court would use to determine paternity and establish Claimant's right to inherit intestate. See id. 404.355 (b)(2).

In making this intestacy determination, SSA applies the most favorable version of state law in effect from the date Claimant might first have applied for survivor's benefits up through the time of administrative adjudication.

B. California Intestacy Law

Under California intestacy law, a parent-child relationship is established when

1. (a) 

   the relationship is presumed and not rebutted under the Uniform Parentage Act; or

2. (b) 

   the relationship may be established under any other provision of the Uniform Parentage Act, except that the relationship may not be established by an action under 7630 (c) of the Family Code, unless (1) a court order declaring paternity was entered during the father's lifetime, (2) paternity is established by clear and convincing evidence that the father has openly held out the child as his own, or (3) it was impossible for the father to hold out the child as his own, and paternity is established by clear and convincing evidence.

Cal. Prob. Code Ann. 6453 (West 2000).

1. Presumed Father Status

WE was not a presumed father of Claimant under the Uniform Parentage Act. He was not married to Claimant's mother and they never attempted to marry. See Cal. Fam. Code Ann. 7540, 7611 (West 2000). WE never signed a voluntary declaration of paternity. See id. 7570 et seq. In addition, based on the written statements of Ms. R~, which would presumably be given considerable weight in court, WE never received Claimant into his home and did not openly hold him out as his own child. See id. 7611(d). Since Claimant is unable to show that WE was a presumed father, pursuant to Probate Code Section 6453 (b), he may try to establish the parent-child relationship under other provisions of the Uniform Parentage Act.

2. Establishing paternity under Probate Code Section 6453(b) (court order or clear and convincing evidence)

California Probate Code Section 6453(b) requires either:

1. (a) 

   a court order of paternity entered during the father's lifetime,

2. (b) 

   clear and convincing evidence that the father openly held the child out as his own, or

3. (c) 

   if it were impossible for the father to hold the child out as his own, clear and convincing evidence of paternity.

There is no court order of paternity in this case. Under the Commissioner's new regulations, however, SSA does not require a state court order of paternity even if the state intestacy statute requires such an order. See 20 C.F.R. 404.355 (b)(2). Instead, SSA will review the evidence under the state's standard of proof to determine whether a parent-child relationship has been established. Id.

There is no evidence that WE held Claimant out as his own at any time during his lifetime. A father "holds a child out" as his own when he has openly and publicly admitted paternity where there might be some cost to him and he has demonstrated some commitment toward establishing a parental relationship. See In Re Spencer, 48 Cal. App. 4th 1647, 1653-1655 (4th Dist. 1996). In Spencer, the court concluded that the alleged father had not openly held the child out as his own. Although he had claimed paternity to some family and friends, he "was unwilling to proclaim paternity when there might have been some cost to him." The alleged father had not taken formal steps to place his name on the birth certificate, tried to establish paternity by legal action, assumed financial obligations for child support, or demonstrated a commitment toward establishing and maintaining a parental relationship. In Re Spencer, 48 Cal.App.4th at p. 1653-1655. Where, as here, there is no conclusive or persuasive evidence that WE admitted paternity or attempted to establish paternity, and no evidence that WE committed to a parental relationship with Claimant, WE did not openly hold Claimant out as his own.

With respect to the third requirement under Section 6453 (b)(3), whether it was impossible for WE to openly hold out Claimant as his child, the legislative intent of this provision was to permit a child to inherit from his/her natural father when the child's natural parents were not married and his/her natural father died before having an opportunity to acknowledge him/her. See Intestate Succession: Establishing Paternity, Report for Assembly Bill No. 1137 for Senate Rules Comm., Cal. Leg., 1993-19994 Reg. Sess., at 2 (August 1993). In this case, WE died fourteen years after Claimant's birth, and Claimant has not demonstrated that WE could not have established or was prevented from establishing a parental relationship from the date of Claimant's birth until WE's death.

Even assuming that it had been impossible for WE to hold Claimant out as his son, there is no clear and convincing evidence of paternity in this case (i.e., genetic tests, admission of paternity, etc.). As previously noted, WE was named as Claimant's father on the birth certificate, but WE did not sign the birth certificate. Under California law, since WE did not sign a voluntary declaration of paternity, he cannot be named as the father on the birth certificate because he was not married to Claimant's mother, Ms. R~. See Cal. Health Safety Code Ann. 102425 (a)(4) (West 2000). Further, statements made by Mr. C~ in his declaration have limited probative value. Mr. C~ had only one conversation with WE, and his account of this conversation was given approximately fifteen years later. Moreover, based on the statements that Mr. C~ attributes to WE, WE did not clearly admit to a sexual relationship with Ms. R~ or to fathering Claimant. Even if WE's statements to Mr. C~ were construed to mean that WE had engaged in a sexual relationship with Ms. R~, there is no evidence in the file which clearly shows that WE was involved with Ms. R~ when she conceived Claimant.

CONCLUSION

Based on the evidence currently in the file, Claimant has not established the right to inherit intestate from WE under California law. Thus, he has not established that he is WE's "natural child" and does not qualify for child's insurance benefits on the account of WE.

NOTE REGARDING DUE PROCESS TO POSSIBLE ADVERSE PARTY: The file indicates that WE has another child, Daray T. N~, receiving benefits on his account. In the event that Claimant's claim is granted, his award will adversely affect the benefit amount of this child. Therefore, Ms. Stephanie L. W~, Daray N~'s mother and WE's widow, must be notified and given an opportunity to submit evidence to disestablish WE's paternity of Claimant.

The child claimant does not have inheritance rights in the deceased NH's estate under California law. Under California intestacy law, a parent-child relationship is established when (1) the relationship is presumed and not rebutted under the California Family Code, or the relationship is established under any other provision of the Family Code. None of these requirements are met. There is not clear and convincing evidence that the NH openly "held out" the child as is own; or that "holding out" was impossible and clear and convincing evidence paternity was met. The letter allegedly written by the NH to the child's deceased maternal grandfather does not constitute clear and convincing evidence of "holding out."

NOTE: Before this case was submitted to the RCC, it would have been necessary to determine that the letter allegedly written by the NH and placed with the child's maternal grandfather's ashes did not meet the written acknowledgment requirement for section 216(h)(3) of the Act; this determination was presumably made.

ISSUE

You have asked whether there is sufficient evidence to establish a parent-child relationship, under California law effective November 27, 1998, between Claimant Lori J. N~ and the WE Ronnie D. M~.

SUMMARY

No. Under the applicable California law, to qualify as a natural child of a deceased father, an out-of-wedlock child must produce "clear and convincing" evidence that the alleged father openly "held out" the child as his own; or, if "holding out" was impossible, the child must produce other clear and convincing evidence of paternity. A biological father who has neither married nor attempted to marry the child's biological mother must not only openly and publicly admit paternity, "but must also physically bring the child into his home" in order to create the parental rights of a "presumed father." There is no evidence in the record that the WE physically brought the child into his home. It does not appear that the WE openly held out the child as his own or that such "holding out" was impossible. You may wish to further develop the record by recontacting Claimant's mother to determine whether there is evidence that WE lived with Claimant's mother and/or provided support during the pregnancy, or otherwise held out the Claimant as his child during the pregnancy. If such evidence exists, it may be sufficient to establish "holding out" under the "clear and convincing" evidence standard. You may also wish to ascertain more information concerning how and when the alleged note from WE came to be placed with the ashes, as well as whether there was any reason that made it impossible (serious illness, etc.) for WE to acknowledge Claimant as his child during WE's life. If you obtain such evidence, we recommend you return the file to us for further review prior to decision.

SUMMARY OF EVIDENCE

You have advised us that Rebecca N. N~ ("Ms. N~") was never married to Ronnie D. M~ ("the WE"), and there is no evidence in the record that they were ever married.

According to a California birth certificate filed on May 16, 1996, Lori J. N~ ("Claimant") was born in California on April 6, 1996. The WE is named as the father.

According to a death certificate, the WE died in California on August 6, 1998. You told us that he was neither living with Ms. N~ nor contributing to Claimant's support when he died.

On November 9, 1999, Ms. N~ applied for child's insurance benefits and a lump-sum death payment on behalf of Claimant. The applications were based the WE's account.

In a November 9, 1999 Child Relationship Statement form, Ms. N~ indicated that no court had declared the WE to be Claimant's father or had ordered him to contribute to Claimant's support. She indicated that Claimant had never visited the WE at his home and that the WE did not make regular and substantial contributions for Claimant's support. Ms. N~ stated, "The only written evidence I am aware of is the note Ronnie [the WE] wrote on the paper that was wrapped around my father's box of ashes." There is no indication as to when this note was written or how it came to be wrapped around the ashes.

Ms. N~ submitted that note. It stated:

Hi Larry,

I hope you like it up there or where you may be. I'll see ya one of these day's may be soon you think. I love you Larry Me and your Daughter have a pretty little girl just like you said we would. I miss you, so much. I will soon see you. Love Ronnie.

Ms. N~ also submitted a "cremation record" indicating that her father had died on January 31, 1994 and was cremated on February 4, 1994. This was more than two years before Claimant was born.

There is no information regarding whether WE and Claimant's mother lived together during the pregnancy, or whether he provided support during the pregnancy, or otherwise held out the Claimant as his child during the pregnancy.

ANALYSIS

A. SOCIAL SECURITY REGULATIONS

The Commissioner's regulations on applying state law, effective November 27, 1998, apply to this claim. See 20 C.F.R. 404.354 and 404.355 (1999). Under these regulations, a "natural child" of unmarried parents may be eligible for benefits if she could inherit the insured's personal property under state intestacy law. See 20 C.F.R. 404.355(a) (1999). If state intestacy law requires a court order of paternity, SSA will not require a claimant to obtain a state court order, but will evaluate the evidence and apply the state's standard of proof to determine if the claimant can establish a right to intestate succession. 20 C.F.R. 404.355 (1999). In addition, if the insured is deceased, SSA applies the state's current law at the time of adjudication, or the version of the law at any time since the insured's death, whichever is most favorable to the claimant. 20 C.F.R. 404.355(b)(4) (1999).

Here, the WE died on August 6, 1998 while domiciled in California. If Claimant could inherit the WE's personal property under California intestacy law, she would establish that she was eligible for child's benefits as the WE's "natural child" under the Regulations. See 20 C.F.R. 04.355(a)(1) (1999).

B. CALIFORNIA LAW

Under California intestacy law, a parent-child relationship is established when (1) the relationship is "presumed" and not rebutted under the California Family Code 7600-7700, or (2) the relationship is established under any other provision of the California Family Code, 7600-7700. See California Probate Code 6453(a) and (b).

1. The WE could not be "presumed" to be Claimant's father under the California Family Code

California law provides that a man is presumed to be the father of a child if he "receives the child into his home and openly holds out the child as his natural child." California Family Code 7611(d); Spencer W. v. Leonard , 56 Cal. Rptr.2d 524, 526 (App. Dist. 4, 1996). To qualify as a natural child of a deceased father, an out-of-wedlock child must produce "clear and convincing" evidence that the alleged father openly "held out" the child as his own; or, if "holding out" was impossible, the child must produce other clear and convincing evidence of paternity. See California Probate Code 6453(b)(2) and (3); California Family Code 7611 (1999); Cheyanna M. v. A.C. Nielson Company, 78 Cal. Rptr.2d 335, 342-43 (Cal. App. Dist. 2, 1998).

In this case, it does not appear that the WE openly held out the child as his own or that such "holding out" was impossible. It should be noted that Claimant's birth certificate naming the WE as her father is not binding evidence of paternity. See California Health and Safety Code 103550; Griffith v. Gibson, 142 Cal. Rptr. 176 (Cal. App. Dist. 4, 1977). Also, the letter allegedly written by the WE to Claimant's deceased maternal grandfather does not constitute clear and convincing evidence of "holding out." The WE could not be presumed to be Claimant's father under California intestacy law.

2. The WE was not Claimant's father under any other provision of the California Family Code, 7600-7700

The only other way that the WE could be considered Claimant's father under the California Family Code, 7600-7700, would be via a state court order declaring him to be her father. See California Family Code 7630(c). Under the revised regulations, the WE could be considered Claimant's father if the state law requirements for obtaining such a state court order were satisfied. See 20 C.F.R. 404.355(b) (1999).

In this case, Claimant does not satisfy the state intestacy law requirements for obtaining a court order of paternity. There is no clear and convincing evidence that the WE openly held out Claimant as his own child and received her into his home. See California Family Code 7630(c), 7611(d). There is no clear and convincing evidence of paternity coupled with the impossibility for the WE to hold out Claimant as his own. See id. Thus, Claimant cannot obtain a state court order declaring the WE to be her father.

CONCLUSION

Since the WE could not be considered Claimant's father under California Family Code, 7600-7700, he could not be considered to be Claimant's father under the California Probate Code 6453(a). Thus, Claimant is unable to inherit the WE's personal property under California intestacy law. Consequently, under Social Security regulations, Claimant cannot establish that she is the WE's "natural child" for the purposes of claiming benefits on the WE's account.

As discussed above, you may wish to further develop the record by recontacting Claimant's mother to determine whether there is evidence that WE lived with Claimant's mother and/or provided support during the pregnancy, or whether WE otherwise held out the Claimant as his child during the pregnancy. If such evidence exists, it may be sufficient to establish "holding out" under the "clear and convincing" evidence standard. You may also wish to ascertain more information concerning how and when the alleged note from WE came to be placed with the ashes, as well as whether there was any reason that made it impossible (serious illness, etc.) for WE to acknowledge Claimant as his child during WE's life. If you obtain such evidence, we recommend you return the file to us for further review.

To qualify as the deceased's out-of-wedlock child, the child must produce clear and convincing evidence that the alleged father "held out" the child as his own, or, if "holding out" is impossible, the child must produce clear and convincing evidence of paternity. The child may also produce a court order or, effective 11/98, SSA may apply the court's standards as cited in the preceding sentence. Clear and convincing evidence of "holding out" may be evidence that the NH lived with the claimant's mother and/or provided support during pregnancy.

To Clarify:

1. (A) 

   After death, a child could also establish paternity by submitting a court order of paternity issued during the father's lifetime. If a child submitted a court order issued after the father's death, the court order or clear and convincing evidence must show that the NH "held out" the child or, if "holding out" was impossible, the court order or clear and convincing evidence must establish paternity.

2. (B) 

   The opinion incorrectly states that, in a death case, SSA applies the law at the time of adjudication or any version since death. The rule is that SSA first applies the law at the time of adjudication, then the law at the time of death, and, finally, any law in effect from the first possible month of entitlement, based on the child's application, up to adjudication, whichever is most beneficial.

ISSUE

You have asked whether there is sufficient evidence to establish a parent-child relationship, under California law effective November 27, 1998, between Claimant Lori J. N~ and the WE Ronnie D. M~.

SUMMARY

No. Under the applicable California law, to qualify as a natural child of a deceased father, an out-of-wedlock child must produce "clear and convincing" evidence that the alleged father openly "held out" the child as his own; or, if "holding out" was impossible, the child must produce other clear and convincing evidence of paternity. A biological father who has neither married nor attempted to marry the child's biological mother must not only openly and publicly admit paternity, "but must also physically bring the child into his home" in order to create the parental rights of a "presumed father." There is no evidence in the record that the WE physically brought the child into his home. It does not appear that the WE openly held out the child as his own or that such "holding out" was impossible. You may wish to further develop the record by recontacting Claimant's mother to determine whether there is evidence that WE lived with Claimant's mother and/or provided support during the pregnancy, or otherwise held out the Claimant as his child during the pregnancy. If such evidence exists, it may be sufficient to establish "holding out" under the "clear and convincing" evidence standard. You may also wish to ascertain more information concerning how and when the alleged note from WE came to be placed with the ashes, as well as whether there was any reason that made it impossible (serious illness, etc.) for WE to acknowledge Claimant as his child during WE's life. If you obtain such evidence, we recommend you return the file to us for further review prior to decision.

SUMMARY OF EVIDENCE

You have advised us that Rebecca N. N~ ("Ms. N~") was never married to Ronnie D. M~ ("the WE"), and there is no evidence in the record that they were ever married.

According to a California birth certificate filed on May 16, 1996, Lori J. N~ ("Claimant") was born in California on April 6, 1996. The WE is named as the father.

According to a death certificate, the WE died in California on August 6, 1998. You told us that he was neither living with Ms. N~ nor contributing to Claimant's support when he died.

On November 9, 1999, Ms. N~ applied for child's insurance benefits and a lump-sum death payment on behalf of Claimant. The applications were based the WE's account.

In a November 9, 1999 Child Relationship Statement form, Ms. N~ indicated that no court had declared the WE to be Claimant's father or had ordered him to contribute to Claimant's support. She indicated that Claimant had never visited the WE at his home and that the WE did not make regular and substantial contributions for Claimant's support. Ms. N~ stated, "The only written evidence I am aware of is the note Ronnie [the WE] wrote on the paper that was wrapped around my father's box of ashes." There is no indication as to when this note was written or how it came to be wrapped around the ashes.

Ms. N~ submitted that note. It stated:

Hi Larry,

I hope you like it up there or where you may be. I'll see you one of these day's may be soon you think. I love you Larry Me and your Daughter have a pretty little girl just like you said we would. I miss you, so much. I will soon see you. Love Ronnie.

 

Ms. N~ also submitted a "cremation record" indicating that her father had died on January 31, 1994 and was cremated on February 4, 1994. This was more than two years before Claimant was born.

There is no information regarding whether WE and Claimant's mother lived together during the pregnancy, or whether he provided support during the pregnancy, or otherwise held out the Claimant as his child during the pregnancy.

ANALYSIS

A. SOCIAL SECURITY REGULATIONS

The Commissioner's regulations on applying state law, effective November 27, 1998, apply to this claim. See 20 C.F.R. 404.354 and 404.355 (1999). Under these regulations, a "natural child" of unmarried parents may be eligible for benefits if she could inherit the insured's personal property under state intestacy law. See 20 C.F.R. 404.355(a) (1999). If state intestacy law requires a court order of paternity, SSA will not require a claimant to obtain a state court order, but will evaluate the evidence and apply the state's standard of proof to determine if the claimant can establish a right to intestate succession. 20 C.F.R. 404.355 (1999). In addition, if the insured is deceased, SSA applies the state's current law at the time of adjudication, or the version of the law at any time since the insured's death, whichever is most favorable to the claimant. 20 C.F.R. 404.355(b)(4) (1999).

Here, the WE died on August 6, 1998 while domiciled in California. If Claimant could inherit the WE's personal property under California intestacy law, she would establish that she was eligible for child's benefits as the WE's "natural child" under the Regulations. See 20 C.F.R. 04.355(a)(1) (1999).

B. CALIFORNIA LAW

Under California intestacy law, a parent-child relationship is established when (1) the relationship is "presumed" and not rebutted under the California Family Code 7600-7700, or (2) the relationship is established under any other provision of the California Family Code, 7600-7700. See California Probate Code 6453(a) and (b).

1. The WE could not be "presumed" to be Claimant's father under the California Family Code

California law provides that a man is presumed to be the father of a child if he "receives the child into his home and openly holds out the child as his natural child." California Family Code 7611(d); Spencer W. v. Leonard , 56 Cal. Rptr.2d 524, 526 (App. Dist. 4, 1996). To qualify as a natural child of a deceased father, an out-of-wedlock child must produce "clear and convincing" evidence that the alleged father openly "held out" the child as his own; or, if "holding out" was impossible, the child must produce other clear and convincing evidence of paternity. See California Probate Code 6453(b)(2) and (3); California Family Code 7611 (1999); Cheyanna M. v. A.C. Nielson Company, 78 Cal. Rptr.2d 335, 342-43 (Cal. App. Dist. 2, 1998).

In this case, it does not appear that the WE openly held out the child as his own or that such "holding out" was impossible. It should be noted that Claimant's birth certificate naming the WE as her father is not binding evidence of paternity. See California Health and Safety Code 103550; Griffith v. Gibson, 142 Cal. Rptr. 176 (Cal. App. Dist. 4, 1977). Also, the letter allegedly written by the WE to Claimant's deceased maternal grandfather does not constitute clear and convincing evidence of "holding out." The WE could not be presumed to be Claimant's father under California intestacy law.

2. The WE was not Claimant's father under any other provision of the California Family Code, 7600-7700

The only other way that the WE could be considered Claimant's father under the California Family Code, 7600-7700, would be via a state court order declaring him to be her father. See California Family Code 7630(c). Under the revised regulations, the WE could be considered Claimant's father if the state law requirements for obtaining such a state court order were satisfied. See 20 C.F.R. 404.355(b) (1999).

In this case, Claimant does not satisfy the state intestacy law requirements for obtaining a court order of paternity. There is no clear and convincing evidence that the WE openly held out Claimant as his own child and received her into his home. See California Family Code 7630(c), 7611(d). There is no clear and convincing evidence of paternity coupled with the impossibility for the WE to hold out Claimant as his own. See id. Thus, Claimant cannot obtain a state court order declaring the WE to be her father.

CONCLUSION

Since the WE could not be considered Claimant's father under California Family Code, 7600-7700, he could not be considered to be Claimant's father under the California Probate Code 6453(a). Thus, Claimant is unable to inherit the WE's personal property under California intestacy law. Consequently, under Social Security regulations, Claimant cannot establish that she is the WE's "natural child" for the purposes of claiming benefits on the WE's account.

As discussed above, you may wish to further develop the record by recontacting Claimant's mother to determine whether there is evidence that WE lived with Claimant's mother and/or provided support during the pregnancy, or whether WE otherwise held out the Claimant as his child during the pregnancy. If such evidence exists, it may be sufficient to establish "holding out" under the "clear and convincing" evidence standard. You may also wish to ascertain more information concerning how and when the alleged note from WE came to be placed with the ashes, as well as whether there was any reason that made it impossible (serious illness, etc.) for WE to acknowledge Claimant as his child during WE's life. If you obtain such evidence, we recommend you return the file to us for further review.

A birth certificate is not sufficient to establish a relationship under either the California or Federal requirements if there is no indication that the NH acquiesced in his being listed as the father.

Under California case law, a father "holds a child out" as his own when he has openly and publicly admitted paternity where there might be some cost to him and he has demonstrated some commitment toward establishing a parental relationship. For example, taking formal steps to place his name on the child's birth certificate, trying to establish paternity by legal action, assuming financial obligations for child support. Claiming paternity to some family and friends is not enough.

ISSUE

You asked for a legal opinion as to whether the Claimant, Dwayne D~ (hereinafter, Claimant), qualifies for child's insurance benefits (survivor) on the account of the deceased wage earner Ellis D~ (hereinafter, WE).

SUMMARY

No. The evidence currently in the file does not establish the parent-child relationship under California intestacy law or any of the federal methods.

The birth certificate is not sufficient to establish a relationship under either the California or federal requirements because there is no indication that the wage earner acquiesced in his being listed as the father. If Claimant produced some additional evidence, such as an affidavit or declaration of paternity signed by the WE and held on file with the State Registrar of Vital Records, that evidence, together with the birth certificate might be sufficient to establish a qualifying relationship.

You may wish to further develop the record by recontacting Claimant and his mother and brother in order to resolve the conflicts in their statements.

SUMMARY OF EVIDENCE

Claimant was born on September 9, 1952. His birth certificate, which was filed on October 8, 1952, listed his mother as Gertrude J. H~, (now Janice B~), age 18, and his father as the WE, age 22. The certificate was signed by Gertrude H~ and another person, whose position and signature are not legible on the copy in the file. Under the illegible signature, there appears to be another signature or additional handwriting, which is also illegible.

On June 29, 1987, the WE died domiciled in California. He was 76 years old. According to the death certificate, WE was never married.

On January 10, 2000, Claimant applied for survivor's benefits as a disabled adult child of the WE. On his application, he stated that he had never lived with his father, and had not lived with his birth mother Janice B~ since he was three years old. He said he lived in foster homes as a child. He stated that his mother told him that she took him to the father's home one time. On the Child Relationship Statement, Claimant reported that there was no court order declaring WE's paternity or a court order against the WE to support him. The WE never made regular contributions to his support. He also stated that he did not know of any written documents on which the WE claimed to be his father.

Claimant's mother, Janice B~, reported that WE was not the Claimant's father and that WE was a friend. She said that she was raped. She said the Claimant never lived in the WE's home, and as far she was aware, there were no visits between Claimant and the WE.

According to your report of a conversation with Janice B~ on January 10, 2000, she stated that the Claimant knew that the WE was not his father and that she had been raped.

Jimmie W~, Claimant's brother, stated that WE claimed that the Claimant was his child and that he "lived with us" (meaning Claimant and him). However, in another portion of his statement, he said that he did not know whether the Claimant ever lived with or visited WE.

ANALYSIS

A. California Intestacy Law

The Commissioner's regulations on applying state intestacy law, effective November 27, 1998, apply to this claim. 20 C.F.R. 404.354-404.355 (1999). According to 404.355(b)(4), we apply any version of state law from the time of the wage earner's death through the time of adjudication, whichever is most favorable to the Social Security Claimant.

Under California intestacy law, a parent-child relationship is established (a) when that relationship is presumed and not rebutted under the Uniform Parentage Act, or (b) the relationship may be established under any other provision of the Uniform Parentage Act, except that the relationship may not be established by an action under 7630(c) of the Family Code, unless (1) a court order declaring paternity was entered during the father's lifetime, (2) paternity is established by clear and convincing evidence that the father has openly held out the child as his own, or (3) it was impossible for the father to hold out the child as his own, and paternity is established by clear and convincing evidence. California Probate Code 6453(a) and (b).

1. Presumed Father Status

The WE was not a presumed father of the Claimant under the Uniform Parentage Act. California Family Code 7540, 7570, 7611. He was not married to Claimant's mother, they never attempted to marry and they never signed a voluntary declaration of paternity.

According to the statements of Claimant and his mother, WE never received Claimant into his home and openly held him out as his own child. Thus, the statement given by Jimmy W~ has little weight.

2. Establishing paternity under Probate Code 6453(b) (court order or clear and convincing evidence)

Because Claimant is unable to show that WE was a presumed father, he may try to establish the parent-child relationship under other provisions of the Uniform Parentage Act. In this case, this means bringing a court action under the Uniform Parentage Act. Because of the Commissioner's new regulations (effective 11/27/98), we do not require a state court order even if the state intestacy statute requires such an order. Instead, we review the evidence under the state's standard of proof to determine whether a parent-child relationship has been established. 20 C.F.R. 404.355(b)(2). California Probate Code 6453(b) requires either:

1. (a) 

   a court order of paternity entered during the father's lifetime

2. (b) 

   clear and convincing evidence that the father openly held the child out as his own, or

3. (c) 

   if it were impossible for the father to hold the child out as his own, clear and convincing evidence of paternity.

There is no court order of paternity in this case. There is no evidence to suggest that it was impossible for WE to openly hold out the Claimant as his child. Claimant was 34 years old when WE died in 1987. Even assuming that it had been impossible for the WE to hold the Claimant out as his son, there is no clear and convincing evidence of paternity in the case.

There was no clear and convincing evidence that WE openly held the Claimant out as his own child. A father "holds a child out" as his own when he has openly and publicly admitted paternity where there might be some cost to him and he has demonstrated some commitment toward establishing a parental relationship. See In Re Spencer, 48 Cal. App. 4th 1647, 1653-1655 (4th Dist. 1996).

In Spencer, the court concluded that the alleged father had not openly held the child out as his own. Although he had claimed paternity to some family and friends, he "was unwilling to proclaim paternity when there might have been some cost to him." The alleged father had not taken formal steps to place his name on the birth certificate, tried to establish paternity by legal action, assumed financial obligations for child support, or demonstrated a commitment toward establishing and maintaining a parental relationship. In Re Spencer, 48 Cal.App.4th at p. 1653-1655.

WE was named as the Claimant's father on the birth certificate, which was filed with the local registrar in October 1952. Although the copy of the certificate is not very legible, it appears that the Claimant's mother signed the certificate and that a Los Angeles County hospital staff member signed the line below the mother's signature. According to California law at the time, a birth certificate was prima facie evidence of the facts stated therein. Former California Health Safety Code 10551 (repealed in 1995). However, ironically, the law at the time apparently did not require that a man consent to his being named as the father on a birth certificate. There was no legal requirement or evidence in this file that the WE consented to his being named the father on Claimant's birth certificate. Although illegible, the second signature on the birth certificate does not appear to be the WE's signature. Moreover, the Claimant's mother has since denied that the WE was actually the Claimant's father, which overcomes the prima facie evidence of the birth certificate.

Therefore, the birth certificate, which is the only evidence indicating paternity, apart from Jimmy's inconsistent statements, is not very reliable. 20 C.F.R. 404.731 (public birth record showing child and parent have the same last name may be convincing evidence of a parent-child relationship, unless other evidence raises doubt about the record). In addition, the WE's age was incorrectly recorded as 22 on the birth certificate; according to the copy of the death certificate in the file, WE was born in 1911 and would have been 41 at the time of the Claimant's birth in 1952. This inconsistency further undermines the reliability of the birth certificate.

Claimant has not established the right to inherit intestate from the WE under California law.

B. Federal Methods

None of the federal methods is satisfied, either.

The wage earner and Claimant's mother never went through a marriage ceremony after Claimant's birth. 42 U.S.C. 416(h)(2)(B).

Under 42 U.S.C. 416(h)(3)(C), a claimant who cannot satisfy the requirements of state law may try to show: in the case of a deceased wage earner, either:

1. (i)  

   I. The deceased wage earner had acknowledged in writing that the claimant is his son or daughter, or

   II. The deceased wage earner had been decreed by a court to be the mother or father of the claimant, or

   III. The wage earner had been ordered by a court to contribute to the support of the claimant because the claimant was his son or daughter;

   and such acknowledgment, court decree, or court order was made before the death of the wage earner, or:

2. (ii)  

   the wage earner is shown by evidence satisfactory to the Commissioner to have been the father of the claimant, and the wage earner was living with, or contributing to, the support of the claimant at the time of his death.

There was no court order declaring paternity or ordering the WE to provide support to the Claimant. The Claimant and the Claimant's mother reported that he never lived in the WE's home. The Claimant reported that he did not receive any regular contributions for his support from the WE. There was no satisfactory evidence of a biological relationship between WE and Claimant.

For the reasons explained above in the state law discussion, there was no reliable evidence of a written acknowledgment of paternity. A man can direct a third person to write an acknowledgment of his paternity of a child. Garcia v. Sullivan, 874 F.2d 1006, 1007 (5th Cir. 1989). Although the birth certificate identified the WE as the Claimant's father, there is no evidence indicating that he signed the certificate (again, with the caveat that the copy is not very legible) or that he consented to the placing of his name as the father on the Claimant's birth certificate. In California at the time, an unmarried mother could name a man as the father without his written declaration of paternity. Unless there was some additional evidence, such as the WE having signed an affidavit or declaration that might be on file with the State Registrar of Vital Records, the birth certificate alone is not reliable.

You may wish to recontact the Claimant, his mother, and his brother to resolve the apparent conflicts in their statements. Specifically, such inquiry should attempt to clarify whether WE ever claimed the Claimant as his child (before or after his birth), whether WE lived with Claimant or Claimant's mother before or after Claimant's birth and, if so, during what time period, and whether WE ever provided support for Claimant (before or after Claimant's birth). If Claimant's mother is recontacted, she should also be asked about the circumstances surrounding the listing of WE as the father on the birth certificate.

CONCLUSION

Based on the evidence currently in the file, Claimant does not qualify for child's insurance benefits on the account of WE.

Unless the Claimant could produce some additional evidence, such as the WE having signed an affidavit or declaration that might be on file with the State Registrar of Vital Records, the birth certificate alone is not sufficient either under California law or the federal standards.

As discussed above, you may wish to further develop the file by recontacting the Claimant, Claimant's mother and Claimant's brother to resolve the inconsistencies in their statements.

Genetic evidence along with the written statements by the NH's family that the NH admitted paternity prior to his death are "clear and convincing evidence" of paternity under the California Probate Code. To establish authenticity and reliability, the genetic tests must be performed by a laboratory approved by any accreditation body that has been approved by HHS. California courts have accepted genetic test experts accredited by the American Association of Blood Banks (AABB). AABB is deemed by HHS to be an authorized genetic testing accreditor.

According to California case law, a father holds a child out as his own when he openly and publicly admits paternity where there might be some cost to him and he has demonstrated some commitment toward establishing a parental relationship.

The provision that a child must demonstrate that it was impossible for the father to have held the child out as his own was intended to permit children whose natural parents were not married and whose natural father died before having an opportunity to acknowledge the child to inherit from their natural fathers.

Travel pursuant to active duty military orders does not change a person's domicile no matter how long he may be absent from his domicile.

ISSUES

You asked whether Claimant Robert J. K~ is now entitled to surviving child's insurance benefits on the account of Robert J. S~ (hereinafter "WE") in light of the November 27, 1998 change in the relevant regulations regarding paternity determinations. You also asked whether irregularities in the decision and notice dates would affect the outcome of this case.

SUMMARY

Under the current regulations, Claimant appears to be entitled to benefits on WE's account because the evidence is sufficient to establish the right to inherit intestate from WE under California law. It was impossible for WE to hold Claimant out as his child because WE died prior to Claimant's birth. Genetic evidence, along with the written statements by WE's family that WE admitted paternity prior to his death, are "clear and convincing evidence" of paternity under California Probate Code 6453(b)(3). The administrative record in this case indicates several irregularities in the handling of the case. Specifically, it appears that the initial decision was made on May 13, 1998. However, the Notice of Denial was not issued until after November 27, 1998, after the new regulations were in effect. In addition, it appears that an initial denial notice was sent twice, and requests for reconsideration were filed twice. The initial reconsideration request appears to have been timely filed; but the second does not. However, given the confusion regarding this case, it is our recommendation that the request for reconsideration be deemed to have been timely filed, and that, on reconsideration, benefits be awarded consistent with the current regulations.

For purposes of the analysis in this memorandum, we have accepted your advice that WE died domiciled in California. However, we recommend that you confirm this. WE died in California while stationed in California pursuant to active duty military orders. The letters from WE's parents indicate that they reside in Arizona. It may well be that WE's domicile was not California. Travel pursuant to active duty military orders does not change a person's domicile no matter how long he may be absent from his domicile. We recommend you verify WE's domicile at the time of his death. Evidence may be obtained from WE's parents, from WE's tax returns, and from WE's military records which would indicate his home of record.

Finally, there is evidence in the record that WE has another child by a different mother who is receiving benefits. If this is true, that child must be given notice, through his representative, of any proposed award to Claimant.

SUMMARY OF EVIDENCE

WE died in an accident on June 8, 1990. At the time of his death, he was serving in the United States military and was stationed in California. You have advised that he was domiciled in California.

Claimant was born in Germany on July 20, 1990. On November 2, 1994, Claimant's natural mother, Heike L~ ("L~"), a German citizen, filed an application on behalf of Claimant for surviving child's benefits on WE's account. Along with his application for benefits, Claimant submitted documents showing that, on June 17, 1991, a German court found that WE was Claimant's father. The court's decision appears to have been based on evidence that WE and L~ had an intimate relationship from September 22, 1989 to January 21, 1990, as well as the results of genetic testing provided in a April 15, 1991 laboratory report. The genetic results gave a combined paternity index of 1799.28 and demonstrated a probability of 99.9% that WE was Claimant's father. (It appears that the genetic material was taken from WE at the time of WE's death.) Claimant also submitted written statements from WE's sister and parents asserting that, prior to his death, WE had admitted that he was Claimant's father.

ANALYSIS

A. Social Security Regulations

The Commissioner's regulations on applying state law, effective November 27, 1998, apply to this claim. See 20 C.F.R. 404.354, 404.355 (1999). Under these regulations, "a natural child" of an unmarried parent may be eligible for benefits if he could inherit the insured's personal property under state intestacy law. See 20 C.F.R. 404.355(a) (1999). If state intestacy law requires a court order of paternity, SSA will not require a claimant to obtain a state court order, but will evaluate the evidence and apply the state's standard of proof to determine whether the claimant can establish a right to intestate succession. 20 C.F.R. 404.355(b)(2) (1999). In addition, if the insured is deceased, SSA applies the state's current law at the time of adjudication, or the version of the law at any time since the insured's death, whichever is most favorable to the claimant. 20 C.F.R. 404.355(b)(4) (1999).

Here, WE died while residing in California pursuant to active duty military orders. Assuming WE was domiciled in California, if Claimant could inherit WE's property under California intestacy law, Claimant would establish that he is eligible for child's benefits as WE's "natural child" under the regulations. See 20 C.F.R. 404.355 (1999).

B. California Law

Under California intestacy law, a parent-child relationship is established when:

1. (a) 

   the relationship is presumed and not rebutted under the Uniform Parentage Act; or

2. (b) 

   the relationship may be established under any other provision of the Uniform Parentage Act, except that the relationship may not established by an action under 7630(c) of the Family Code, unless (1) a court declaring paternity was entered during the father's lifetime, (2) paternity is established by clear and convincing evidence that the father has openly held out the child as his own, or (3) it was impossible for the father to hold out the child as his own, and paternity is established by clear and convincing evidence.

Cal. Prob. Code Ann. 6453 (West 2000).

1. Presumed father status

WE was not a presumed father of Claimant under the Uniform Parentage Act. He and Claimant's mother were never married and never attempted to marry. See Cal. Fam. Code Ann. 7540, 7611 (West 2000). WE did not sign a voluntary declaration of paternity. See Cal. Fam. Code 7570, et. seq. (West 2000).

Under California Family Code, 7611(d), a man is a presumed father if he receives the child into his home and openly holds the child out as his natural child. To be a presumed father under this section, a man must promptly assume his parental responsibilities as fully as the mother will allow and his circumstances will permit. There must be a "preponderance of evidence" to establish these two requirements. Miller v. Miller, 64 Cal.App. 4th 111, 117 (1st Dist. 1998).

According to California case law, a father holds a child out as his own when he openly and publicly admits paternity where there might be some cost to him and he has demonstrated some commitment toward establishing a parental relationship. See In Re Spencer W., 48 Cal.App. 4th 1647, 1653-1655 (4th Dist. 1996).

There is no evidence that WE ever received L~ into his home after he learned that she was pregnant. Although Claimant offered statements from WE's parents and sister that Claimant indicated to members of his family that L~ was pregnant with his child, there was no evidence that WE visited or lived with L~ during her pregnancy, took any formal steps to proclaim paternity, named Claimant as a military dependent or beneficiary of any insurance or other benefit, or assumed any financial obligation for the child during L~'s pregnancy. See In re Spencer W., 48 Cal.App.4th at 1654. Where, as here, there is no evidence of a commitment toward developing a "substantial familial relationship" to the child, the presumption of paternity may be denied. Id. at 1653; see also In re Sarah C., 8 Cal.App. 4th 864, 972-73 (1992) (trial court denied biological father's presumed father status where he did not meet any of the other presumptions and he had not openly acknowledged his child or received her into his home). Thus, there was not a preponderance of the evidence that WE received Claimant into his home and openly held him out as his natural child. WE, therefore, does not meet any of the presumptions required for paternity.

2. Establishing paternity after death requires clear and convincing evidence

Claimant may establish a parent-child relationship under California Probate Code 6453(b), which requires either:

1. a) 

   a court order of paternity entered during the father's lifetime; or

2. b) 

   clear and convincing evidence that the father openly held the child out as his own;

3. c) 

   if it were impossible for the father to hold the child out as his own, clear and convincing evidence of paternity.

Cal. Prob. Code Ann. 6453(b) (West 2000).

There was no court order of paternity entered during WE's lifetime. Under 20 C.F.R. 404.355, the Commissioner will no longer require a child to obtain a determination of paternity by a court. Rather, the Commissioner will use the standard of proof that the state court would use to determine paternity. See 20 C.F.R. 404.355(b)(2) (1999).

As noted above, there was no evidence that WE openly held the child out as his own during L~'s pregnancy. Under 6453(b)(3), a child must demonstrate that it was "impossible" for the father to have held the child out as his own. As explained in the May 8, 1998 Memorandum, the legislative history of 6453(b)(3) makes clear that the section was intended to permit children whose natural parents were not married and whose natural father died before having an opportunity to acknowledge the child to inherit from their natural fathers. See Intestate Succession: Establishing Paternity, Report for Assembly Bill No. 1137 for the Senate Rules Comm., Cal. Leg., 1993-1994 Reg. Sess., at 2 (August 1993). Thus, Claimant could easily demonstrate that it was impossible for WE to have held him out as his child since he was born after WE's death.

Section 6453(b)(3) also mandates that the child show by clear and convincing evidence that the man is the child's natural father. In this case, genetic evidence, along with the written statements by WE's sister and mother that WE admitted paternity prior to his death, would constitute "clear and convincing evidence" to prove paternity.

Genetic Evidence as "Clear and Convincing Evidence"

California intestacy law presumes paternity based on a paternity index of 100 or greater, as calculated by the experts qualified as examiners of genetic markers, rebuttable by a preponderance of the evidence. See Cal. Fam. Code Ann. 7555(a) (West 2000). In order to establish authenticity and reliability, the genetic tests shall be performed by a laboratory approved by any accreditation body that has been approved by the Department of Health and Human Services (HHS). See Cal. Fam. Code Ann. 7552 (West 2000). California courts have accepted genetic tests experts accredited by the American Association of Blood Banks (AABB). See County of El Dorado v. Misura, 33 Cal.App.4th 73, 79 (1995). AABB is deemed by HHS Health Care Financing Administration (HCFA) to be an authorized genetic testing accreditor. Notice (HCFA-2246-N), 63 FR 17429-02 (April 9, 1998).

Claimant has presented genetic test results dated April 1991 that show a combined paternity index of 1799.28 and a probability of paternity of 99.9%. The genetic testing was performed by Blood Systems Laboratories of Tempe, Arizona (formerly known as Blood Systems Central Laboratory of Scottsdale, Arizona, in April 1991). Blood Systems Laboratories was an inspected and accredited member of the AABB in April 1991, as the laboratory report specifically indicates that the testing was conducted in accordance with amended AABB guidelines for DNA testing. The laboratory's accreditation during the relevant period was confirmed by Deborah B. N~ of AABB on June 14, 2000 (Letter from Deborah B. N~, Director of Accreditation Programs, AABB, to Dr. Robert O. E~, Scientific Director, Blood Systems Laboratories (June 14, 2000)). Thus, the genetic evidence of paternity submitted by Claimant can be accepted as reliable and authentic. This evidence, along with the written statements that WE admitted paternity prior to his death, would be sufficient to prove paternity under 6453(b)(3).

C. Notice Discrepancies

A reply denying Claimant's claim was prepared on May 13, 1998. This denial notice apparently was not mailed to Claimant until after November 27, 1998, the date the change in regulations became effective. The file indicates it was sent to typing on October 22, 1998; and, that the transaction date for the disallowance was December 2, 1998. Claimant requested reconsideration and advised of the appointment of a Representative by letter dated January 25, 1999 which was received on March 23, 1999. A Notice of Disapproved Claim was mailed April 5, 1999. Claimant requested reconsideration again on July 12, 1999. There are also indications in the file that the first disallowance notice was never sent to Claimant and that a second, initial notice was prepared and released on March 31, 1999.

Given the confusion regarding communications with the Claimant, and the failure by the Agency to properly follow its regulations at the time the initial denial was mailed and during reconsideration, we believe the Agency should deem the reconsideration to be timely filed.

D. Effective Date of Benefits

If benefits are awarded, Claimant is entitled to benefits effective April 1994.

The filing date of the Social Security application determines when the SSA begins paying monthly benefits. Under 20 C.F.R. 404.621(a)(ii), a claimant may receive child's survivor benefits up to six months before the month he files the application if he files after the month in which he meets all of the requirements for entitlement.

To meet all of the requirements for entitlement to child survivor benefits on a wage earner's account, a claimant must file an application, and show that the wage earner has died fully or currently insured, that he is the child of the wage earner, that he was dependent on the wage earner (a natural child is deemed dependent), that he is unmarried, and that he is under age 18. 42 U.S.C. 402(d)(1); 20 C.F.R. 404.350 (1999).

In this case, Claimant's mother filed the application for survivor benefits on behalf of Claimant in October 1994, after the Claimant became entitled to benefits. Claimant met all of the requirements on July 20, 1990, the date Claimant was born after WE's death on June 8, 1990. Claimant was the natural child of the WE, and was, accordingly, deemed dependent on WE. Claimant is under the age of 18, and it is unlikely that he is married.

Because benefits can begin up to six months before the date of filing the application (October 1994), and can begin no earlier than the month in which the Claimant meets all requirements of entitlement (July 1990), Claimant became entitled to benefits in the month of April 1994 (six months prior to the filing of the application).

CONCLUSION

If WE was domiciled in California at the time of his death, then California law controls the determination. Under California law, it was impossible for WE to hold Claimant out as his own because WE died before Claimant was born. The genetic evidence, along with written statements from WE's family that WE admitted paternity prior to his death, provide clear and convincing proof of WE's paternity under California law, and Claimant qualifies to inherit intestate from WE. Thus, Claimant has established that he is WE's "natural child" for the purposes of claiming surviving child's benefits on WE's account.

Claimant became entitled to benefits in the month of April 1994 (six month prior to the filing of the application).

NOTE REGARDING DUE PROCESS TO POSSIBLE ADVERSE PARTY: The file indicates that WE has another child receiving benefits on his account. If Claimant's claim is granted, his award will adversely impact the benefit amount of the other child. Therefore, Ms. Laure A. P~ (on behalf of Robert J. S~, DOB ~) must be given an opportunity to submit evidence to disestablish WE's paternity of Claimant.

Under California law, a father holds out a child as his own when he has openly and publicly admitted paternity where there might be some cost to him and he has demonstrated some commitment toward establishing a parental relationship. Even where there is some attempt at establishing a relationship, holding out cannot be found where the deceased made no attempt to establish himself legally as the father, support the child, or maintain ties to the child.

ISSUE

You asked: (1) whether California, in deciding a claim for inheritance rights, would consider as acceptable evidence of paternity genetic tests conducted on the alleged paternal uncle and aunt; (2) if such DNA tests can be accepted, can the particular test in this case be accepted; and (3) has this claimant established his right to intestacy succession under California law.

SUMMARY

While there is no case law squarely on point, a California court would probably consider genetic tests conducted on the alleged paternal uncle and aunt as probative of paternity in certain cases.

However, in this case, the DNA evidence is not determinative because, under California law, the claimant had to show, by clear and convincing evidence, that the wage earner openly held him out as his child. Based on the evidence currently in the claim file, claimant has not demonstrated that the wage earner openly held him out as his son, and therefore, he has not established a parent-child relationship for intestate succession under California law.

We recommend, however, that you ascertain whether the WE directed that he be named as the father on the claimant's birth certificate, because this might be persuasive evidence of "holding out" under California law, as well as a written acknowledgment of paternity under the federal method of establishing entitlement.

SUMMARY OF EVIDENCE

Claimant was born on January 31, 1996 in Oceanside, California. Claimant's birth certificate states that the wage earner (WE) is the father. According to the claimant's mother, WE told her and members of her family that he was claimant's father, although he never told his own family.

WE visited the claimant, but the claimant never went to his home. The claimant's mother and WE made a private agreement that he would help pay for the hospital bills and that they would split the costs.

On February 13, 1996, WE wrote to the claimant's mother stating that he was enclosing a "small check" to help her with some of her immediate needs. He stated that they needed to have a "serious discussion" about money. He also said he would like to come and visit claimant.

According to the claimant's maternal grandmother, WE attended the claimant's religious blessing and held the baby for family pictures. He told her and her brother that he was the claimant's father. She said that WE came to the hospital when claimant was born and that he visited the claimant at least three times in her home.

A friend of the WE stated that WE, had visited claimant at her mother's house. She said the WE said that claimant looked like him. He wanted to tell his family but felt uncomfortable because he was not married.

Claimant's mother reported that she tried to initiate a child support action against WE. In December 1996, an attorney wrote to claimant's mother stating that he had been unable to locate WE to serve him court papers. He suggested that she could contact the District Attorney's office and ask for their assistance to locate WE.

On November 8,1997, the WE died while domiciled in Los Angeles County, California

In January 1999, WE's mother wrote to Long Beach Genetics requesting that the laboratory conduct DNA tests on blood samples from her son to determine whether he was the father of the claimant. She also wrote to the Los Angeles County coroner's office to authorize the office to send WE's blood samples to Long Beach Genetics for DNA testing.

In February 1999, claimant's mother inquired into Social Security survivor's benefits for her son on the WE's account. In a report dated May 12, 1999, the medical director of Long Beach Genetics reported that the laboratory had conducted genetic tests on the WE's brother and sister, claimant's mother, and the claimant. Assuming a 50% prior probability,¹ the probability that the WE's brother and sister were the claimant's uncle and aunt was 99.84%. A COPY of the medical director's curriculum vitae is in the file. There is also a declaration from the custodian of records for the laboratory describing the chain of custody of the blood samples and stating that the laboratory is accredited by the American Association of Blood Banks ("AABB"). On May 18, 1999, the claimant's mother filed a written application for survivor's benefits on WE's account.

ANALYSIS

The Commissioner's new regulations on applying state intestacy law, effective November 27, 1998, apply to this claim. 20 C.F.R. 404.354-404.355 (1999).

Under California intestacy law, a parent-child relationship is established (a) when that relationship is presumed and not rebutted under the Uniform Parentage Act, or (b) the relationship may be established under any other provision of the Uniform Parentage Act, except that the relationship may not be established by an action under 7630(c) of the Family Code, unless (1) a court order declaring paternity was entered during the father's lifetime, (2) paternity is established by clear and convincing evidence that the father has openly held out the child as his own, or (3) it was impossible for the father to hold out the child as his own, and paternity is established by clear and convincing evidence. California Probate Code 6453(a) and (b). Probate Code 6453(a) and Presumed Father under the Uniform Parentage Act

The WE was not a presumed father of the claimant under Part 3 of the Uniform Parentage Act.

He was not married to claimant's mother, they never attempted to marry, and they never signed a voluntary declaration of paternity. He did not receive claimant into his home and openly hold the child out as his own. California Family Code 7540, 7570, 7611. Therefore, the parent-child relationship was not established under California Probate Code 6453(a).

California Probate Code 6453(b): Establishing paternity after death requires clear and convincing evidence

Claimant may establish the parent-child relationship under other provisions of the Uniform Parentage Act. In this case, this means bringing a court action under the Uniform Parentage Act. Because of the Commissioner's new regulations (effective 11/27/98), we do not require a state court order even if the state intestacy statute requires such an order. Instead, we review the evidence under the state's standard of proof to determine whether a parent-child relationship has been established.

California Probate Code 6453(b) requires either:

1. (a) 

   a court order of paternity entered during the father's lifetime

2. (b) 

   clear and convincing evidence that the father openly held the child out as his own, or

3. (c) 

   if it were impossible for the father to hold the child out as his own, clear and convincing evidence of paternity. Cheyanna v. A.C. Nielson Company, 66 Cal. App. 4th 855 (2nd Dist. 1998); Estate of Sanders, 2 Cal. App. 4th 462, (4th Dist. 1992).

There is no court order of paternity in this case. There is no evidence to suggest that it was impossible for WE to openly hold out the claimant as his child. Claimant was almost two years old when WE died in November 1997. Cheyanna v. A.C. Nielson Company, 66 Cal. App. 4th at 875-876. The evidence indicates that in 1996 and 1997, WE resided in Los Angeles area and claimant and his mother lived in San Diego County. Thus, it was not impossible for WE to openly hold the claimant out as his own child.

Therefore, claimant must show, by clear and convincing evidence, that WE held him out as his own child (see 6453 (b)(2) above). A father holds a child out as his own when he has openly and publicly admitted paternity where there might be some cost to him and he has demonstrated some commitment toward establishing a parental relationship. See In Re Spencer, 48 Cal. App. 4th 1647,1653-1655 (4th Dist. 1996). In Spencer, the court concluded that the alleged father had not openly held the child out as his own. Although he had claimed paternity to some family and friends, he "was unwilling to proclaim paternity when there might have been some cost to him." The alleged father had not taken formal steps to place his name on the birth certificate, tried to establish paternity by legal action, assumed financial obligations for child support, or demonstrated a commitment toward establishing and maintaining a parental relationship. In Re Spencer, 48 Cal.App.4th at p. 1653-1655.

Applying these factors here, there is no clear and convincing evidence of "holding out." There is some evidence that, after claimant's birth, WE initially took an interest in the claimant by admitting paternity to the mother's family, visiting him some times, agreeing to pay half of the hospital bills, and giving the claimant's mother a check for her immediate needs. However, by December 1996, WE's whereabouts were unknown. This evidence strongly suggests that the WE did not contact or support claimant after some point in 1996 until his death in November 1997. Thus, despite some evidence of WE's attempt to establish a relationship after the claimant was born, he evidently made no attempt to legally establish himself as the father, support the claimant, or maintain ties to the claimant.²

WE, was named as the claimant's father on the birth certificate but there is no evidence that he consented to this or was present when the claimant's mother signed the certificate. We would recommend that the Social Security claims representative determine the circumstances of the WE's name being placed on the birth certificate, because such evidence is relevant to "holding out" under California law, as well as relevant to whether there was a written acknowledgment of paternity under 42 U.S.C. 416(h)(3)(c)(I)(I).³

In light of California's requirement of holding out, it is not necessary to reach the issue of the DNA test results showing that the WE's brother and sister are the claimant's uncle and aunt.

CONCLUSION

Based on the evidence currently in the file, claimant does not qualify for intestate succession from the WE under California law because he did not demonstrate that WE openly held him out as his child.

We would, however, recommend that you ascertain whether the WE, directed that he be named as the father on the claimant's birth certificate, because this might be persuasive evidence of "holding out" under California law, as well as a written acknowledgment of paternity under the federal method of establishing entitlement.

¹ "A 50% prior probability" means that the brother and sister were as likely (but no more likely) to be the claimant's uncle and aunt as any other man and woman. County of El Dorado v. Misura, 33 Cal. App. 4th 73, 80 (3rd Dist. 1995).

² Under the Social Security Act, a claimant may also qualify for child's insurance benefits if he can produce evidence satisfactory to the Commissioner that he is the wage earner's child and that the WE, was either living with or contributing to the claimant's support at the time of his death. 42 U.S.C. 416(h)(3)(c)(ii). Some courts, including the Ninth Circuit, interpret the "contributions to support" requirement rather liberally. Smith v. Heckler, 820 F.2d 1093 (9th Cir. 1987). Under this interpretation, we must evaluate the support requirement by examining the needs of the child and the father's ability to provide the support. Chester v. Secretary of HHS, 808 F.2d 473,476 (6th Cir. 1987). However, even under the liberal requirement, we believe that the evidence does not demonstrate sufficient contributions to claimant's support. According to the earnings query in the file, WE's income in 1996 was $14,675.58 in FICA-covered earnings. Yet, the file indicates only one occasion on which he gave claimant's mother a check - - two weeks after the claimant was born. WE allegedly agreed to pay half of the medical expenses, but there is no evidence he did so. Apparently, WE did not make any further contributions. By December 1996, when claimant was almost one year old, claimant's mother did not know where WE was living. Although the query indicates a FICA-covered income of only $803 in 1997, WE's death certificate stated that he owned and operated a shipping business. In light of the needs of the claimant, who was almost two years old when WE died, and the absence of any contact from WE in 1997, the evidence is not sufficient to show that WE was contributing to the support of claimant at the time of his death for purposes of 42 U.S.C. 416(h)(3)(c)(ii).

³ Federal courts have stated that the WE can authorize a third person to acknowledge paternity in writing. Garcia v. Sullivan, 874 F.2d 1006, 1008 (5th Cir. 1989); Parker v. Sullivan, 891 F.2d 185, 189-190 (7th Cir.1989) (citing POMS).

A parent-child relationship may be established where the claimant shows by clear and convincing evidence that the deceased openly held the child out as his own or shows that it was impossible for the deceased to hold the child out as his own and establishes paternity by clear and convincing evidence.

"Holding out" requires evidence that the father publicly admitted paternity at some cost to him. The issue is whether the father tried to establish and maintain a relationship with the child. A father's claim of paternity to some family and friends is not sufficient evidence of "holding out" because there is no cost to the father.

A legislative example of a situation where it was impossible for the deceased to hold the child out as his own was where the deceased died before the child was born. Another was a case where the deceased was paralyzed the same day that the child was born and died shortly thereafter. Incarceration and illness do not necessarily preclude a father from holding out a child as his own.

ISSUE

You asked whether there is sufficient evidence to establish a parent-child relationship under California law, in accordance with Social Security's application of state law effective November 27, 1998.

SUMMARY

Based on the evidence currently in the file, claimant has not demonstrated a parent-child relationship to establish his right to intestate succession under California law. Therefore, claimant does not qualify for child's insurance benefits under 42 U.S.C. 416(h)(2)(A). Moreover, we do not believe the claimant has satisfied any of the federal methods for entitlement to benefits under 42 U.S.C. 416(h)(3)(C).

We do recommend, however, that the Social Security adjudicator determine whether the WE's name was placed on the birth certificate with his consent or at his direction because such evidence would be relevant to the requirement of "holding out" under California law and relevant to the issue of a written acknowledgment of paternity under the federal methods.

SUMMARY OF EVIDENCE

Claimant's mother and the wage earner (WE) never married (the fact that they share the same last name is coincidental). According to a San Diego police report dated April 13, 1995 based on the statements of claimant's mother and grandmother, the claimant's mother and the WE, had been living together in her mother's home and she was pregnant with the WE's child. The claimant's mother stated that the WE threatened her at her mother's home and she called police. A second police report in the record, dated May 31, 1995, stated that claimant's mother called the police after her ex-lover, the WE, had refused to leave her home.

San Diego authorities filed a criminal complaint charging the WE with threatening and/or using force or violence against the claimant's mother on three occasions in 1995. According to a Social Security official who obtained information from the San Diego court, the WE pled guilty to two criminal charges, one of which stated that, on or about March 30, 1995, he willfully inflicted on claimant's mother, "who is his spouse or a person with whom he is cohabiting, or a person who is the mother of his child," corporal injury resulting in a traumatic condition in violation of Penal Code section 273.5(a), pursuant to 17(b)(4). At the time of the incident in question, claimant's mother was approximately four months pregnant with claimant.

On August 24, 1995, the claimant was born. The claimant's birth certificate, which was filed on September 5, 1995, and issued on March 4, 1999, lists the WE as the claimant's father. As of September 1995, the WE was incarcerated in the G. B~ detention facility in San Diego He wrote letters to two of his children, Anna and Gilbert.

According to a SSID query, the WE was homeless in June 1996 and he applied for SSI disability benefits based on symptomatic HIV infection. He died domiciled in California on September 30, 1996. On February 12, 1999, the claimant's mother applied for child's insurance benefits on the WE's account. The WE's father submitted a statement in which he stated that the WE had acknowledged the claimant as his son before and after his birth. According to claimant's mother, a woman named Amber B~ (the mother of the WE's two children who currently receive benefits on his account) was "made aware" that she was carrying the WE's unborn child.

ANALYSIS

A. California law

In determining whether a claimant is the child of a fully or currently insured individual, the Commissioner of Social Security shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the state in which such insured individual is domiciled. 42 U.S.C. 416(h)(2)(A).

The Commissioner's new regulations on applying state intestacy law, effective November 27, 1998, apply to this claim because it was filed on February 12,1999. See 20 C.F.R. 404.354-404.355 (1999).

To establish rights to intestate succession in California, a claimant must demonstrate a parent-child relationship by (a) showing that the relationship is presumed and not rebutted under the Uniform Parentage Act, or (b) establishing the relationship under any other provision of the Uniform Parentage Act, except that the relationship may not be established by an action under 7630(c) of the Family Code, unless (1) a court order declaring paternity was entered during the father's lifetime, (2) paternity is established by clear and convincing evidence that the father has openly held out the child as his own, or (3) it was impossible for the father to hold out the child as his own, and paternity is established by clear and convincing evidence. California Probate Code 6453(a) and (b).

1. California Probate C6de 6453(a): Presumed father status under the Uniform Parentage Act

The WE was not a presumed father of the claimant under Part 3 of the Uniform Parentage Act. He was not married to claimant's mother, they never attempted to marry, and they never signed a voluntary declaration of paternity. He did not receive claimant into his home and openly hold the child out as his own. California Family Code 7540, 7570, 761 1. Therefore, the parent-child relationship was not presumed under California law.

2. California Probate Code 6453(b)

Claimant may establish the parent-child relationship under other provisions of the Uniform Parentage Act. In this case, this means bringing a court action under the Uniform Parentage Act, Because of the Commissioner's new regulations (effective 11/27/98), we do not require a state court order even if the state intestacy statute requires such an order. Instead, we evaluate the evidence using the state's standard of proof to determine whether a parent-child relationship has been established.

California Probate Code 6453(b) requires either:

1. (a) 

   a court order of paternity entered during the father's lifetime,

2. (b) 

   clear and convincing evidence that the father openly held the child out as his own, or

3. (c) 

   if it were impossible for the father to hold the child out as his own, clear and convincing evidence of paternity. Cheyanna v. A.C. Nielson Company, 66 Cal. App. 4th 855 (2nd Dist. 1998); Estate of Sanders, 2 Cal. App. 4th 462, (4th Dist. 1992).

There is no court order of paternity in this case. The WE reportedly pled guilty to violating California Penal Code 273.5, a criminal act against a person (claimant's mother) "who is his spouse," or "person with whom he is cohabiting," or "who is the mother of his child," and, accordingly, he was convicted of this crime. However, by accepting the WE's guilty plea, the state court was not making a finding on the question of paternity. Indeed, Penal Code 273.5, states that a person is the "father of another person's child" if the alleged male parent is presumed the natural father of under Sections 7611 and 7612 of the Family Code. The WE was not a presumed father under the Family Code. In addition, a California appellate court stated that a court was not even required to establish parentage under the Family Code in order to find a person guilty of violating 273.5. People v. Vega, 33 Cal.App.4th 706 (5th Dist. 1995). Furthermore, a California appellate court held that this statute does not cover unborn children. People v. Ward, 62 Cal.App. 4th 122 (4th Dist. 1998). Claimant's mother was about four months pregnant when the WE assaulted her. For these reasons, the court's acceptance of the WE's guilty plea did not constitute a court order of paternity.

Therefore, the claimant must either show, by clear and convincing evidence, that the WE openly held the claimant out as his child, or show that it was impossible for the WE to hold the claimant out as his child, and establish paternity by clear and convincing evidence.

According to a California court, "holding out" a child as one's own requires evidence that the father publicly admitted paternity at some cost to him. A California court considers whether, for instance, the father took formal steps to have his name placed on the birth certificate, tried to establish paternity by legal action, or attempted to assume financial obligations for child support. The question is whether the father tried to establish and maintain a relationship with the child. The court specifically determined that a father's claim of paternity to some family and friends was not sufficient evidence of "holding out" because there was no cost to the father. In Re Spencer , 48 Cal. App.4th 1647, 1653-1655 (4th Dist. 1996).

Here, there is no clear and convincing evidence of "holding out." The WE's oral acknowledgment of paternity to his father and others was not sufficient evidence of "holding out" the claimant as his child. Although the WE, is named as the father on the birth certificate, there is no evidence to show that he consented to this. Of course, if there is evidence that the WE took the formal steps to place his name on the claimant's birth certificate, or evidence that the claimant's mother placed his name with his consent or at his direction, this might be persuasive evidence of "holding out." The Social Security adjudicator should ascertain the circumstances of the WE's name being placed on the birth certificate.

The WE did not "hold out" the claimant as his child by pleading guilty to violating Penal Code 273.5. He was not necessarily admitting paternity of the victim's unborn child when he pled guilty because this statute also covers a victim with whom the person is living, and at the time of the March 30, 1995 assault, the WE and claimant's mother were reportedly living together in her mother's home. Even if the WE's guilty plea was some evidence, it was not "clear and convincing," as the California Probate Code requires for intestate succession.

Finally, the claimant could try to show that it was impossible for the WE to openly hold him out as his child, and establish paternity by clear and convincing evidence. The California Legislature added this section (see 6453 (b)(3) above) to the Probate Code to protect a child where it was impossible for the father to openly hold him or her out as his child. The legislative reports gave examples of such "impossible" situations. For example, it was impossible for a father to openly hold out a child who was born after his death. Another example was a case in which a father was paralyzed in an accident the same day his son was born and the father died one month later. Cheyanna v. A.C. Nielson Company, 66 Cal.App.4th 855, 873-874 (2nd Dist. 1998).

The evidence indicates the WE was probably in jail when the claimant was born in August 1995. However, it was probably not impossible for the WE to contact and/or maintain a relationship with the claimant. Indeed, while he was in the detention facility in San Diego in September 1995, he wrote affectionate letters to his children, Anna and Gilbert (who currently receive benefits on his account). Furthermore, although the record does not indicate when the WE was released from the detention facility, he applied for SSID benefits due to HIV infection in June 1996. He died in September 1996, when claimant was thirteen months old. Thus, despite his incarceration and illness, there had been some opportunity for the WE to hold the claimant out as his child. However, assuming that it had been impossible for the WE to hold the claimant out as his child, the claimant would have to produce clear and convincing evidence of paternity (genetic test results, for example), and there is no such evidence in the current record.

B. Federal Methods under 42 U.S.C. 416(h)(3)(C)

Under 42 U.S.C. 416(h)(3), a claimant who cannot satisfy the requirements of state law may try to qualify under the applicable federal methods¹ by showing:

(C) in the case of a deceased wage earner, either:

(i) I. The deceased wage earner had acknowledged in writing that the claimant is his son or daughter, or 11.

The deceased wage earner had been decreed by a court to be the mother or father of the claimant, or

III. The wage earner had been ordered by a court to contribute to the support of the claimant because the claimant was his son or daughter;

and such acknowledgment, court decree, or court order was made before the death of the wage earner, or

(ii) the wage career is shown by evidence satisfactory to the Commissioner to have been the father of the claimant, and the wage career was living with, or contributing to, the support of the claimant at the time of his death.

There was no court order declaring paternity or ordering support. There is no evidence to show the WE was living with or contributing to the support of claimant at the time he died.² However, there are two issues concerning whether the WE acknowledged in writing that the claimant was his child. An insured individual must by his own hand acknowledge paternity, or authorize a third person ' to acknowledge paternity in writing. Jones v. Sullivan, 953 F.2d 1291, 1294-1295 (11th Cir. 1992); Garcia v. Sullivan, 874 F.2d 1006,1008 (5th Cir. 1989).³ The writing should be a clear and unequivocal statement acknowledging paternity. The adjudicator should evaluate whether the statement is ambiguous and/or susceptible to more than one reasonable interpretation. If the writing is ambiguous, Social Security may then look to extrinsic evidence to resolve the ambiguity. Jones v. Sullivan, 953 F.2d at 1294-1295; Vance v. Heckler, 757 F.2d 1324, 1327 (D.C. Cir. 1985).

First, with respect to the birth certificate, the Social Security adjudicator should determine whether the claimant's mother named the WE as the father on the claimant's birth certificate with the WE's consent or at his direction.

The second issue involves the WE's guilty plea. Although not in the file, the WE may have signed a statement admitting that he violated Penal Code 273.5, which refers to the claimant's mother as either his spouse, a person with whom he was living, or the mother of his child.

In this case, the WE and claimant's mother were living together at the time of the March 30, 1995 incident. When the WE pled guilty to inflicting injury on the claimant's mother, he may have been "admitting" only that they were living together at the time, not necessarily that he was the father of the woman's unborn child. Thus, even if there were a guilty plea signed by the WE, it was ambiguous on its face and subject to more than one reasonable interpretation. Although there is "extrinsic evidence" that the WE had orally acknowledged paternity to his parents, the evidence is not related to the writing. Moreover, the WE's guilty plea did not arise in circumstances that suggested the WE was accepting responsibilities "attendant to a confession of paternity." Johnson v. Sullivan, 735 F.Supp.416, 420 (M.D. Fla.1990). Based on this analysis, we do not believe that even a signed statement pleading guilt to 273.5 would constitute a written acknowledgment of paternity under the Social Security Act.

CONCLUSION

Claimant does not qualify for intestate succession from the WE under California law. Based on the evidence currently in the file, we do not believe that the claimant has satisfied any of the alternative federal methods to qualify for benefits. We recommend, however, that the Social Security adjudicator determine whether the WE's name was placed on the birth certificate with his consent or at his direction.

¹ 42 U.S.C. 416(h)(2)(B) is not applicable here because the wage earner and claimant's mother never went through a marriage ceremony.

² Courts liberally interpret the support requirement and consider the father's ability to provide support. Here, the WE was ill and homeless during the few months prior to his death. However, there still must be some evidence of at least nominal support, even considering the WE's unfortunate circumstances. Jones v. Chater, 101 F.3d 509, 513-514 (7th Cir. 1996); Chester v. Secretary of HHS, 808 F.2d 473, 477-478 (6th Cir. 1987). In addition, apart from the WE's oral acknowledgments of paternity, there does not appear to satisfactory evidence of a biological relationship.

³ For example, if the WE had directed a third person to place his name on the birth certificate, this might constitute written acknowledgment of paternity.

Under California law, a child can inherit intestate based on a court order of paternity entered during the father's lifetime. There is no date or "act" conferring inheritance rights. Therefore, provided all other requirements are met, a child who is entitled to inherit is entitled to full retroactivity based on a properly filed application.

ISSUE

You asked whether the claimant is entitled to child's insurance benefits on the wage earner's account beginning December 1997, based on the application filed in December 1998.

SUMMARY

The claimant is entitled to child's insurance benefits beginning December 1997.

SUMMARY OF EVIDENCE

The wage earner (WE) applied for Title 11 disability benefits in November 1990. Social Security found that the WE was disabled by schizophrenia beginning September 1, 1989, and awarded him benefits beginning February 1990.

In 1996, the San Diego district attorney's office filed a complaint against the WE to collect child support for the claimant. In August 1998, the Long Beach Genetics laboratory performed genetic tests on blood samples from the WE, the claimant and the claimant's mother. The laboratory's medical director concluded that there was a 99.94% probability that the WE was the claimant's father. The WE stipulated to a child support judgment entered by the California state court on August 24, 1998.

On December 3, 1998, the claimant's mother applied for child's insurance benefits for the claimant on the WE's account.

The Social Security Administration determined that the claimant qualified for child's insurance benefits as of August 1998, the date of the genetic test results. Claimant's mother requested Application of California State Law to Date of Entitlement to Auxiliary Benefits on the Account of Wage Earner Bruce A. N~; SSN ~ - OGC Memo of November 12, 1999 Re: reconsideration, arguing that the claimant was entitled to benefits beginning in 1990, when the WE became entitled to disability benefits.

ANALYSIS

Under California law, the claimant is entitled to inherit through intestate succession from the WE because a court order declaring paternity was entered during the WE's lifetime. California Probate Code 6453(b)(1). There is no entitlement date or "act" conferring inheritance rights.

The Social Security regulations, not California law, decide the entitlement issue. In order to receive benefits, a claimant or his representative/guardian must file an application. 20 C.F.R. 404.350(a)(3), 404.603 (1999). Because the application for child's insurance benefits was filed on December 3, 1998, claimant is entitled to 12 months of additional Social Security benefits, beginning December 3, 1997. 20 C.F.R. 404.621 (a) (I 999).

Claimant's mother contends that the claimant is actually entitled to benefits beginning in 1990, when the WE became entitled to his own disability benefits. However, there is no evidence that she filed an application for child's insurance benefits prior to the application she filed on December 3, 1998. 20 C.F.R. 404.350(a)(3) (1999). She stated on the 1998 claim that "no previous application" had been filed with SSA. In addition, as you noted, the WE stated on the November 1990 application that he did not have any children eligible to receive benefits on his account. Although claimant's mother could have filed earlier, she evidently did not file an application until December 1998. Therefore, the claimant's earliest date of entitlement is December 1997.

CONCLUSION

Claimant is entitled to 12 months of retroactive benefits based on the December 1998 application.

When California adopted the Uniform Parentage Act (UPA) in 1975, the legislature abolished the distinction between "legitimate" and ''illegitimate". Therefore, there is no "act" which confers inheritance rights as of a certain date. Once a child has established the parent-child relationship under any one of the methods provided under the UPA, the child is entitled to the standard period of retroactivity on an application.

INTRODUCTION

You submitted for our review a claim for child's insurance benefits based on the account of the wage earner named above. In May 1999, Social Security awarded benefits to the claimant. You raised two remaining issues: (1) the date the claimant became entitled to benefits, and (2) whether the California court order submitted by the claimant's mother constitutes an order of paternity.

Claimant is entitled to Survivor's benefits based on the August 5, 1998 application, with benefits beginning February i998 (the standard six-month period of retroactivity). The California court order constituted an order of paternity.

PROCEDURAL HISTORY AND EVIDENCE

The wage earner died on July 4, 1996, domiciled in California. The claimant was born on January 29, 1997.

On August 5, 1998, the claimant's mother filed an application for child's insurance benefits based on the wage earner's account. The claimant's mother stated that, around the time of his death, she and the wage earner were living together in her parents' home and that she was approximately two months pregnant. She stated that the wage earner knew she was pregnant and that they planned to get an apartment together. The wage earner reportedly acknowledged that he was the claimant's father to her mother and a friend, although he had not told his parents, who were out of state, because he was afraid to tell them by telephone.

The claimant's mother presented a report of DNA tests from Fairfax Identity Laboratories, dated July 16, 1998. The DNA tests conducted on samples from the wage earner, claimant, and the claimant's mother revealed that there was a 99.998% probability of the wage earner's paternity and a combined paternity index of 42,000.

Social Security denied the claim in an initial determination

The claimant's mother requested reconsideration and presented a January 15, 1999 California state court order declaring the claimant to be the natural child of the wage earner for purposes of bringing a wrongful death action under California Code of Civil Procedure 377.60.

In May 1999, the Social Security Administration determined on reconsideration that claimant was entitled to child's insurance benefits, beginning July 1998, (evidently) based on the date of the DNA test results.

ANALYSIS

1. Date of Entitlement

Under California intestacy law, a parent-child relationship can be established after the alleged father's death by clear and convincing evidence of paternity if it was impossible for the alleged father to openly hold the child out as his own (California Probate Code 6453(b)(3)).

Social Security already determined that claimant established paternity by clear and convincing evidence through the DNA test results. Furthermore, it was impossible for the wage earner to openly hold out the claimant as his own child because he died seven months before she was born. Cheyanna M. v. A.C. Nielsen Co., 66 Cal.App. 4th 855, 874 ( Cal. App. Dist. 2, 1998).

Thus, under California intestacy law, claimant is the natural child of the wage earner and can inherit through intestate succession. There is no "act" conferring inheritance rights as of a certain date. In 1975, the California legislature adopted the Uniform Parentage Act and abolished the distinction between "legitimate" and "illegitimate" children. There is no requirement that a child be "legitimated" by some subsequent act.

Probate Code 6453 provides the methods for establishing a parent-child relationship for purposes of intestate succession. Once a child has established the parent-child relationship under one of these methods, she is entitled to inherit intestate from the decedent under California law.

Therefore, because claimant has proven her right to inherit intestate from the wage earner under California law, she is entitled to Social Security benefits based on the August 5, 1998 application, meaning she is entitled to the standard period of retroactivity on an application for survivor's benefits: six months.

2. Court order under 377.60

The right to bring a wrongful death action under California Code of Civil Procedure (CCP) 377.60 is "grounded in the right to inherit from the decedent." Cheyanna v. A.C. Nielsen Co., 66 Cal. App. 4th at 864. In January 1999, a California superior court declared that claimant was the natural child of the wage earner for purposes of bringing a wrongful death action under section 377.60. The court in effect determined that the claimant is the wage earner's heir for purposes of intestate succession.

The court order in this case is a "court order of paternity" which meets the requirements of Social Security Ruling 83-37c. It was issued by a superior court of competent jurisdiction. Opposing parties genuinely contested the issue. The court resolved the issue of paternity, which is also an issue in the claimant's Social Security claim. See 63 Federal Register 57590- 01, Final Rules, Supplementary Information; Social Security Ruling 83-37c.l/

CONCLUSION

Claimant is entitled to child's insurance benefits based on the August 5, 1998 application, beginning February 1998 (the standard six months retroactivity).

¹ Under the new regulations amending Social Security's application of state intestacy laws, effective November 27, 1998, we do not require a state court order of paternity, even if the state in question does. We now apply the same standard of proof that the state's own courts would apply in determining paternity for purposes of intestate succession. 20 C.F.R. 404.355 (1998). However, "while we will not require an applicant to obtain a state court's determination, we will be guided by such determination that an applicant has obtained, subject to the prerequisites stated in Social Security Ruling 83-37c for accepting state court determinations." See 63 Federal Register 57590-01, Final Rules, Supplementary Information - Court Order Requirements.

To qualify as a natural child of a deceased father, an out-of-wedlock child must produce "clear and convincing" evidence that the alleged father openly "held out" the child as his own; or, if "holding out" was impossible, the child must produce other clear and convincing evidence of paternity. An alleged father cannot meet the standard for "holding out" simply by informing family and friends of the alleged parent-child relationship. Rather, the alleged father must have held out the child in some way that risked potential cost to himself.

QUESTION PRESENTED

You have submitted for our review (pursuant to POMS GN 00306.080) a claim for child's insurance benefits on the account of the wage earner (the WE) named above. The claim has been denied initially and is pending on reconsideration. The basis for the denial was a determination that the claimant did not qualify as the child of the WE, since California's "reception into the household test" had not been met and no other statutory basis for the award existed. Cal. Fam. Code 7611(d) (1999). Your specific concern is whether any recent changes in California intestacy law might affect your determination. See 20 C.F.R. 404.355 (b) (1999).

SHORT ANSWER

You should deny the claim. California intestacy law has changed and the changes will soon be incorporated into the new POMS, but the changes do not favor this claimant. To qualify as a natural child of a deceased father, an out-of-wedlock. child must produce "clear and convincing" evidence that the alleged father openly "held out" the child as his own; or, if "holding out" was impossible, the child must produce other clear and convincing evidence of paternity (perhaps genetic tests). Cal. Prob. Code 6453 (b) (2) and (3) and Cal. Fam. Code 7550 et seq (genetic tests) and 7611 (1999). In this case, it does not appear that the WE openly held out the child as his own or that such "holding out" was impossible.

DISCUSSION

The WE died on February 24, 1998, domiciled in California. Claimant, Ashley M. E~, is the daughter of a woman to whom the WE was never married. A few months before claimant was born (on November 23, 1994, in Texas), the WE moved to California. He never saw claimant, never lived with her or her mother, and never provided support. He also did not list her on his application for disability insurance benefits. Nor is there evidence of record that claimant's mother ever sought support from the WE, or ever tried to have the WE declared the father of claimant. The only evidence of paternity is the official child relationship statements (Form SSA-2519) submitted by the WE's two brothers, in which they report that the WE told them each privately that claimant was his child.

Recently amended auxiliary regulations provide that SSA will apply the most favorable version of state intestacy law (of the state where decedent was domiciled) in effect from the date of the death of the decedent, or from the first date a survivor might possibly be entitled to auxiliary benefits, up through the date of the final administrative decision. 20 C.F.R. 404.355 (b) (1999). Moreover, SSA will apply state law without regard to time limits therein, or court order requirements. Id.

In the instant case, the WE died on February 24, 1998, domiciled in California; claimant's case will be decided based on the most favorable law in effect from that date to the present. Under California law, for an out-of-wedlock child to inherit intestate, she must establish by clear and convincing evidence that the alleged father has "openly held (her] out" as his own.¹ Cal. Prob. Code 6453 (b) (2) (1999); Cheyanna M. v. A.C. - Nielson Company, 78 Cal. Rptr.2d 335, 342-43 (Cal. App. Dist. 2, 1998) .

The only supportive evidence here is from the WE's brothers in the form of sworn statements of hearsay. Other evidence of record establishes that the WE never met or even saw claimant, and that the WE never lived with nor provided any support for claimant or her mother. The record contains no birth certificate for claimant. The question presented, then, reduces to whether, under California intestacy law, the brothers, statements alone constitute clear and convincing evidence that the WE "held out" claimant as his own, in the face of considerable circumstantial evidence that there was no parent-child relationship. The only California court to speak on this issue held that mere statements from family members cannot constitute sufficient evidence of "holding out;" rather, to meet the statutory standard, the alleged father must risk some potential cost. Spencer W. v. Leonard B., 56 Cal. Rptr.2d 524, 527-28 (App. Dist. 4, 1996).

In Spencer W., a California appellate court concluded that an alleged father cannot meet the standard for "holding out" simply by informing family and friends of the alleged parent-child relationship; rather, the alleged father must proclaim paternity when there might be some cost to him. Spencer W. v. Leonard B., 56 Cal. Rptr.2d at 527-28, applying Cal. Fam. Code 7611. The statements of the brothers in the instant case, then, without more, would not constitute "clear and convincing" evidence of paternity, because the WE incurred no potential cost by privately telling his brothers of the relationship. See Id.

Moreover, it was possible for the WE to hold out claimant as his own while he was still alive, and reasonable for claimant's mother to seek child support from the WE or otherwise document the parent-child relationship. There is no evidence of these efforts by the WE or claimant's mother. This "indifference" toward the WE's possible paternity is best understood as disavowing paternity. See Id. (discussing the significance of paternal indifference).

CONCLUSION

You should deny the claim. Although new regulations are more generous, in that they permit application of the most favorable version of state law available after the death of the WE, California requires clear and convincing evidence of "holding out, and the only California case on point holds that statements to family members concerning paternity are not sufficiently probative evidence. Rather, the alleged father must have held but the child in some way that risked potential cost to himself. Moreover, no evidence has been presented that indicates such "holding out" was impossible.

1/ In the alternative, the child may present a court order establishing paternity or otherwise establish by a preponderance of evidence that one of the presumptions of the California Uniform Parentage Act has been met, such as the "reception into the household test." Cal. Prob. Code 6453 (a) and (b) (1) , and Cal. Fam. Code 7611 (d) (Uniform Parentage Act presumption) (1999).

The child claimant in this case has not established the right to inherit intestate from the NH under California law, or under section 216(h)(3) of the Social Security Act. Further development is recommended to ascertain whether the NH directed that he be named as the father on the claimant's BC, because this might be persuasive evidence of "holding out" under California law, as well as a written acknowledgment of paternity under 216(h)(3) of the Act. SSA should also determine whether any evidence exists to corroborate or further explain the handwriting on a birthday card allegedly given to the claimant by the NH.

ISSUE

You asked: (1) whether the claimant can qualify as a child of the wage earner for purposes of intestate succession under California law, and (2) if so, the appropriate entitlement date for benefits.

SUMMARY

Based on the current record, claimant has not established the right to inherit intestate from WE under California law.

However, we recommend further development. SSA should ascertain whether the WE directed that he be named as the father on the claimant's birth certificate, because this might be persuasive evidence of "holding out" under California law, as well as a written acknowledgment of paternity under the federal method of establishing entitlement. In addition, SSA should determine whether any evidence exists to corroborate or further explain the handwriting on the birthday card.

SUMMARY OF EVIDENCE

The wage earner (WE) and claimant's mother were married from October 25, 1969 to June 30, 1986. They had four children during their marriage. The WE married his second wife, Marilyn, on October 25, 1986.

The claimant's mother alleges that the WE continued to visit her after their divorce and that they had sexual intercourse in July 1987.

On April 10, 1988, the claimant was born. Claimant and the WE have the same last name. The WE was named as the claimant's father on the birth certificate, which was filed with the county registrar on May 19, 1988.

On April 12, 1989, the WE had a heart attack and suffered a brain injury. He was incapacitated and hospitalized until his death in California on March 2, 1990.1/

In April 1990, claimant's mother applied for survivors insurance for the claimant on the WE's account. A copy of the claimant's birth certificate, which names the WE as claimant's father, was submitted. On the "Child Relationship Statement"(form SSA-2519), claimant's mother indicated that the WE did not give information for the child's birth certificate.

The record also included an undated letter from the Director of Medical Records at Olive View Medical Center stating that the claimant's father was the WE.

According to a written statement signed by claimant's mother in l990, the WE referred to himself as the claimant's father and he visited the claimant. She said that the WE told her that he was going to name the claimant as his dependent on his employee health insurance policy.

Claimant's mother also reported that the WE gave her money to help buy necessities for the claimant. The claimant never lived with the WE and never visited him in his home.

According to written questionnaires completed in March 1990 by the children of the former marriage between WE and claimant's mother, the WE, referred to himself as the claimant's "daddy" and he told their grandmother (the WE's mother) and a family friend ("Uncle Ray") that he was claimant's father. The WE bought clothes and toys for claimant. According to Kevin, one of the children, the WE took care of the claimant, and he believed that had he lived, the WE would continue to take care of her. Another child, Debra, stated that the WE had also said that he wanted to place claimant as a dependent on his health insurance policy so that she could be seen by an eye specialist.

The WE's mother completed a questionnaire in April 1990. She stated that she never asked the WE whether the claimant was his child. She said she did not believe that the claimant was the WE's child. She claimed that the claimant's mother wanted to "destroy" the marriage between the WE and his second wife Marilyn. However, the WE's mother also stated that the WE once told her that claimant was her grandchild.

Ray, a friend of WE, also completed a questionnaire. He said that the WE told his mother that the claimant was his child. He also said that the claimant's mother and her children told him that the WE visited them often. He saw Christmas pictures of the WE holding the claimant. Although he never spoke with the WE about the claimant, he believed that the WE was claimant's father based on what he knew from others.

In August 1990, the Social Security Administration (SSA) denied the survivors insurance application.

In November 1998, the claimant, the claimant's mother, and two of the children of the former marriage between the WE and claimant's mother (that is, the adult children we know to be at least the claimant's half-siblings) gave samples of their blood for DNA testing. The Laboratory Corporation of America, which is accredited by the American Association of Blood Banks, conducted the genetic tests. The laboratory concluded that, based on the tests of older children, their father was estimated to have a "probability of paternity" for the claimant of 99.86% or a combined paternity index of 707 to 1.

On November 25, 1998, the claimant's mother applied for survivors insurance again. In a report of contact with SSA, the claimant's mother stated that the WE gave her cash after the claimant's birth and that he purchased clothes, toys, and furniture for the claimant. She explained that the WE's purchases were not regular because he was in a country western band and he would drop by after performances to give her some money out of the pay he received. Sometimes he gave her $50 or $100.

Claimant's mother submitted a "one year old" birthday card which contained the handwritten words, "From Dad, I love you." There was also a copy of an envelope which contained the words, "So Big." The WE reportedly gave the card to the claimant, whom he reportedly called "So Big." Claimant's mother also submitted photographs purportedly showing the WE, holding the claimant at various functions. She submitted copies of 1989 calendars which contained her handwritten notes. Claimant's mother also submitted a portion of a letter allegedly written by the WE to her, but it was not signed or dated or addressed to anyone.

Ray, the WE's friend, submitted a second statement signed in 1998. He said that the woe's mother told him that the WE had told her that the claimant was his child. The WE's mother also told Ray's wife that she signed a statement admitting that the WE told her that he was the claimant's father.

In a letter dated May 1999, claimant's mother stated that the WE consented to the claimant's use of his last name. He regularly visited the claimant and provided cash and gifts. SSA denied claimant's November 1998 application. In September 1999, claimant's mother requested reconsideration, which is currently pending.

ANALYSIS

A. California Law

The Commissioner's new regulations on applying state intestacy law, effective November 27, 1998, apply to this claim. 20 C.F.R. 404.354-404.355 (1999). If a state requires a court order of paternity, SSA will not require the claimant to obtain a state court order, but will evaluate the evidence and apply the state's standard of proof to determine if the claimant can establish a right to intestate succession. In addition, SSA applies the state's current law at the time of adjudication, or the version of the law at any time since the WE's death, whichever is most favorable to the claimant.

Under California intestacy law, a parent-child relationship is established when:

(a) the relationship is presumed and not rebutted under the Uniform Parentage Act;

or

(b) the relationship may be established under any other provision of the Uniform Parentage Act, except that the relationship may not be established by an action under 7630(c) of the Family Code, unless (1) a court order declaring paternity was entered during the father's lifetime, (2) paternity is established by clear and convincing evidence that the father has openly held out the child as his own, or (3) it was impossible for the father to hold out the child as his own, and paternity is established by clear and convincing evidence. California Probate Code 6453(a) and (b).

Subsection (b)(3), which allows an additional method for establishing the relationship, was added in 1993. Because it is more favorable to the claimant, the current version of the law should be applied.

1. Presumed father status

The WE was not a presumed father of the claimant under the Uniform Parentage Act. He did not sign voluntary declaration of paternity (California Family Code 7570). He did not receive claimant into his home and openly hold the child out as his own (California Family Code 7611(d) ). Although the WE and the claimant's mother were married at one time, claimant was not born during the marriage (California Family Code 7540). Claimant was born more than 300 days after their marriage terminated by divorce (California Family Code 761l(a),(b)). The WE and claimant's mother did not attempt to marry after the claimant was born (California Family Code 7611(c)).

Therefore, the parent-child relationship was not established under California Probate Code 6453(a).

2. Establishing paternity after death requires clear and convincing evidence

Claimant must show a parent-child relationship under California Probate Code 6453(b), which requires either:

(1) a court order of paternity entered during the father's lifetime;

or

(2) clear and convincing evidence that the father openly held the child out as his own;

or

(3) if it were impossible for the father to hold the child out as his own, clear and convincing evidence of paternity. Cheyanna v. A.C. Nielson Company, 66 Cal. App.-4th 855 (2nd Dist. 1998).

There was no court order of paternity entered during the WE's lifetime.

The claimant was about one-year old when the WE sustained a brain injury and it became "impossible" for him to hold her out as his child. Therefore, the WE had opportunity to openly hold her out as his child during the first year of her life.3/

According to California case law, a father holds a child out as his own when he openly and publicly admits paternity where there might be some cost to him and he has demonstrated some commitment toward establishing a parental relationship. See In Re Spencer, 48 Cal. App. 4th 1647, 1653-1655 (4th Dist. 1996). In Spencer , the court concluded that the alleged father had not openly held the child out as his own. Although he had claimed paternity to some family and friends, he "was unwilling to proclaim paternity when there might have been some cost to him." The alleged father had not taken formal steps to place his name on the birth certificate, had not tried to establish paternity by legal action, and had not assumed financial obligations for child support. He had not demonstrated a commitment toward establishing and maintaining a parental relationship. In Re Spencer, 48 Cal.App.4th at p. 1653-1655.

Applying these factors here, there is some evidence of "holding out." According to claimant's mother, the WE consented to the claimant's use of his last name, and is identified as the father on the claimant's birth certificate. He also visited claimant in her home and referred to himself as her father in the presence of the mother and their other adult children. He also gave some cash and gifts. He admitted to his mother that the claimant was her grandchild.

However, this evidence is not clear and convincing. Apart from the fact that claimant shares the WE's last name, the record does not clearly demonstrate that WE's maintained a continuous or significant commitment, or that he publicly assumed the responsibilities of parenthood. Claimant never lived with the WE and, the claimant never even visited WE in his home. Also, his health insurance policy listed only his wife Marilyn, her daughters (WE's stepdaughters) and the WE's son Kevin as dependents, but did not list claimant.

Furthermore, the certified abstract of birth, which was filed on May 19, 1988, probably does not, by itself, constitute reliable evidence that the WE openly held out the claimant as his child. The applicable section of the California Health and Safety Code section in effect at the time did not require that a father sign a voluntary declaration of paternity before his name could be placed on the birth certificate.4/ Former California Health and Safety Code section 10125. On the "Child Relationship Statement" dated March 21, 1990, claimant's mother reported that the WE did not give information for the child's birth certificate. Thus, claimant's mother may have placed WE's name on the birth certificate without his consent or knowledge.

We therefore recommend that SSA re-contact claimant's mother to ask if there were documents or affidavits signed by the WE and filed with the registrar of vital records or county registrar, or if there is any other evidence that WE took affirmative steps to place his name on the birth certificate. (Former California Health and Safety Code sections 10521-10523 providing that delayed birth certificates must be supported by documents and/or affidavits).

However, based on the evidence currently in the record, claimant did not establish by clear and convincing evidence that the WE openly held her out as his child.

B. Federal Methods under 42 U.S.C. 416(h)(3)(C)

Under 42 U.S.C. 416(h)(3)(c), a claimant who cannot satisfy the requirements of state law may try to qualify under the applicable federal methods⁵ by showing:

in the case of a deceased wage earner, either:

(i)

I. The deceased wage earner had acknowledged in writing that the claimant is his son or daughter, or

II. The deceased wage earner had been decreed by a court to be the mother or father of the claimant, or

III. The wage earner had been ordered by a court to contribute to the supp6rt of the claimant because the claimant was his son or daughter;

and such acknowledgment, court decree, or court order was made before the death of the wage earner,

or

(ii) the wage earner is shown by evidence satisfactory to the Commissioner to have been the father of the claimant, and the wage earner was living with, or contributing to, the support of the claimant at the time of his death.

There was no court order declaring paternity or ordering the WE to provide support.

Although there is evidence (the DNA test results) of their biological relationship, WE never lived with the claimant. The WE reportedly gave cash to claimant's mother and purchased clothes and toys for the claimant, but there was no proof of regular contributions. Claimant's mother told an SSA representative that there was no regularity to the cash WE gave her because he was in a country western band. However, Social Security earnings records show that WE earned $46,000 in 1988. This evidence of WE's financial circumstances indicates that he could have probably contributed some regular support to the claimant during the first several months of her life.

Jones v. Chater, 101 F.3d 509, 513-514 (7th Cir. 1996) (sporadic support will not suffice because the purpose of insurance benefits is to replace the support the child would have received had the father not died).

Of course, WE was unable to provide any support during the second year of the claimant's life, from April 1989 until the time of his death in March 1990. Some courts have held that the support requirement must be considered in light of the father's circumstances and ability to pay.

Chester v. Secretary of HHS, 808 F.2d 473, 476 (6th Cir. 1987). However, even taking the WE's illness into account during the second year of claimant's life, he could have made regular contributions to her support during the first year.

1. Written Acknowledgment

There is a remaining issue whether WE acknowledged in writing that the claimant was his child.

An insured individual must by his own hand acknowledge paternity, or authorize a third person to acknowledge paternity in writing. Jones v. Sullivan, 953 F.2d 1291, 1294-1295 (11th Cir. 1992); Garcia v. Sullivan, 874 F.2d 1006, 1008 (5th Cir. 1989). The writing should be a clear and unequivocal statement acknowledging paternity. The adjudicator should evaluate whether the statement is ambiguous and/or susceptible to more than one reasonable interpretation. If the writing is ambiguous, Social Security may then look to extrinsic (outside) evidence to resolve the ambiguity. Jones v. Sullivan, 953 F.2d at 1294-1295; Vance v. Heckler, 757 F.2d 1324, 1327 (D.C. Cir. 1985).

Here, there are two possible written acknowledgments. One is the birth certificate. Under 20 C.F.R. 404.731 (1999), if the claimant is a natural child of the wage earner, a copy of a public birth record which was made before the claimant turned five and which shows the same last name for the claimant and wage earner is "convincing evidence" of the relationship. If other evidence raises doubt about the birth record, SSA asks for other evidence of the relationship.

In this case, it is unclear whether the birth certificate satisfies Section 404.73 1. First, the claimant has not proven that she is the "natural child" of the wage earner as that term is defined in 20 C.F.R. 404.355 (1999) (see above, claimant must satisfy state intestacy law or one of the federal methods).

In addition, there may be "doubts" regarding the birth certificate because it is possible the claimant's mother could have named WE as the father in May 1988 without his knowledge or consent. Former California Health and Safety Code section 10125. On the "Child Relationship Statement" dated March 21, 1990, claimant's mother reported that the WE did not give information for the child's birth certificate. Barton v. Sullivan, 774 F.Supp. 1151, 1152

(S.D.Ind. 1991) (birth certificate that is not based on either the putative father's acknowledgment of paternity, or a statement he is the father by one authorized by him to acknowledge his paternity, will not constitute written acknowledgment). Parker v. Sullivan 891 F.2d 185, 190 (7th Cir. 1989); Garcia v. Sullivan, 874 F.2d 1006, 1008 (5th Cir. 1989) (birth certificate was not a written acknowledgment of paternity where midwife filled out birth certificate naming the wage earner as the father but there was no evidence which tended to prove that the wage earner authorized the midwife to identify him as the father).

However, it is also possible that the WE authorized claimant's mother to name him as the father on the birth certificate. There also may be documents and/or affidavits that were prepared at the time of filing; in May 1988.⁶ The record contains an undated letter by a medical records director of the Olive View Medical Center stating that WE was claimant's father, but it is unclear who supplied this information. We recommend that SSA contact claimant's mother to determine whether any additional information or other evidence concerning the birth certificate may exist.

The second possible written acknowledgment is the birthday card allegedly signed by the WE and allegedly addressed to the claimant which consists of the following handwritten words, "From dad, I love you" and what appears to be a copy of an envelope with the handwritten words "So Big."

In Vance v. Heckler, the court noted that a written acknowledgment did not even have to identify the child by name or be signed by the wage earner. The court stated that extrinsic evidence (that is, verbal statements or other evidence outside of the writing) can be used to "complete the story" of the writing by confirming the identity of the author or confirming the identity of the of the child who was the object of the writing. Vance v. Heckler, 757 F.2d at 1327.:D 2 ,

Although the handwritten statement "from dad" on the birthday card is an unambiguous acknowledgment of paternity, it is incomplete because it was not signed by the WE and there is no evidence that it was intended for the claimant. In addition, this card was evidently submitted with the 1998 application, not the 1990 application, which also raises a question as to its authenticity, particularly since the claimant's mother stated in 1990 that she did not know of any letters by WE. We nevertheless recommend that you ask for any additional evidence related to the card (e.g., a third party who could identify the writing as WE's handwriting and/or know that he called the claimant "So Big"). However, we caution that the fact-finder must evaluate the credibility and reliability of the writing and extrinsic evidence concerning it.

CONCLUSION

Based on the current record, the claimant does not qualify as a "child" for purposes of California intestacy law.

However, in light of the credible evidence of a biological relationship (DNA test results), we recommend further development of the record as described above. We caution that the fact-finder must evaluate the credibility and reliability of the writing and extrinsic evidence concerning it.

¹ Large portions of the file consist of the medical records of WE's illness. WE received Social Security disability benefits from October 1989 until his death in March 1990. His second wife Marilyn and the step-daughter received auxiliary benefits and then survivors benefits on WE's account. Their benefits terminated in November 1994 and November 1996, respectively.

² At the time they completed these forms, they were young adults and/or late adolescents.

³ WE had an opportunity to openly hold the claimant out as his child for the one year from her birth in April 1988 to March 1989. Tragically, he suffered a brain injury which left him incapacitated until his death. He was thus unable to hold the claimant out as his child from April 1989 to his death in March 1990. It should be noted that, had it been impossible for the WE to hold the claimant out at any time, the DNA test results might constitute clear and convincing evidence of paternity under Probate Code Section 6453(b)(3). The test results are relevant and reliable evidence because they were conducted by an accredited laboratory on several genetic systems and they revealed a probability of paternity of 99.86%. California Family Code 7555. Although there is no California court case on point concerning the testing of paternal relatives (here, WE's adult children), it is likely that a California court would accept the results as probative evidence, considering the advances in genetic tests. Nevertheless, because the WE had ample opportunity to establish a relationship with claimant and assume parental responsibilities during the first year of her life, it was possible for him to hold the claimant out as his own child, and therefore, Section 6453(b)(3) should not apply.

⁴ As of 1997, however, the California Health and Safety Code 102425 provides that, if the parents are unmarried, the father's name shall not be listed on the birth certificate unless the parents sign a voluntary declaration of paternity at the hospital before the birth certificate is prepared. Section 102425 also provides that the birth certificate may be amended to add the father's name at a later date only if paternity for the child has been established by a judgment of a court of competent jurisdiction or by the filing of a voluntary declaration of paternity.

⁵ 42 U.S.C. 416(h)(2)(B) is not applicable here because the wage earner and claimant's mother never went through a marriage ceremony after claimant's birth, although they were previously married. They were divorced well before the claimant was conceived and born.

⁶ In Brown v. Bowen, 668 F.Supp. 146, 148-150 (E.D. N.Y. 1987), the deceased wage earner had reportedly signed an acknowledgment of paternity which was filed with the state department of social services so that the claimant's mother could receive public assistance. The writing no longer existed by the time the claimant's mother filed for Social Security survivors benefits. The claimant's paternal grandmother (wage earner's mother) and claimant's mother and aunt reported that the WE, the mother and other family members had gone down to the welfare office and signed the form. The Court found that there was sufficient evidence of a written acknowledgment based on the oral testimony of witnesses who had personal knowledge of the contents of the destroyed public document and corroboration from the state department that it destroyed inactive files.

Where the deceased NH is not the child's presumed father under the California Uniform Parentage Act, and a court order of paternity was not entered during the father's lifetime, paternity must be established by clear and convincing evidence that the father has openly held out the child as his own; or it must have been impossible for the father to hold out the child as his own and paternity must be established by clear and convincing evidence. Absent evidence of "holding out" or the impossibility of holding out, genetic test results from the NH's parents showing a 99.99% probability that he is the child's father do not give the child inheritance rights under California law.

FACTUAL BACKGROUND

Heather H~ applied for benefits on behalf of her daughter Harmony H~ who was born September 29, 1996. Benefits are claimed based on the earnings record of David K~ who died on May 17, 1997, in the State of California. Mr. K~ never lived with or supported Harmony H~. He did not acknowledge in writing that she was his daughter.

In support of her claim, Ms. H~ submitted a hospital birth certificate that does not show a father's name, and an affidavit regarding genetic test results. This affidavit indicates that based on genetic samples from Mr. K~'s parents, there is a 99.99% probability that he is the father of Harmony H~. In addition, during the development of this opinion, the field office informed us that Mr. K~'s parents will state that he acknowledged that he was Harmony's father.

DISCUSSION

Every "child" of an individual who dies fully or currently insured under the Social Security Act is entitled to child's insurance benefits if the child (1) has applied for such benefits, (2) is unmarried, (3) is under the age of 18, and (4) was dependent upon the insured individual at the time of the insured's death. See 42 U.S.C. 402(d)(1); 20 C.F.R. 404.350.

The issue is whether Harmony was dependent on Mr. K~. Generally, a child is dependent on a wage earner if she is his natural child as defined in 20 C.F.R. 404.355. See 20 C.F.R. 404.361.

Harmony is Mr. K~'s natural child under section 404.355 only if: (1) she can inherit his personal property as his natural child under State intestate law; (2) Harmony is Mr. K~'s child and he and Heather H~ would have been validly married but for a legal impediment; or (3) Harmony is Mr. K~'s natural child and Heather H~ did not marry Mr. K~, but before his death, he acknowledged in writing that Harmony was his child, was decreed by a court to be her father, or was ordered by a court to contribute to her support because Harmony was his child. See 20 C.F.R. 404.355.

You indicated that Mr. K~ never lived with or acknowledged in writing that Harmony was his child. Therefore, provided that no court order was entered before Mr. K~ died, the only way that Harmony can be eligible for child's benefits is if she can establish that she would be entitled to inherit personal property from Mr. K~ under the State intestacy statute. See 42 U.S.C. 416(h)(2)(A); 20 C.F.R. 404.355.

The applicable law is the law of the State where the wage earner was domiciled at the time of his death. Your memorandum focused on Washington State intestacy laws. However, because Mr. K~ was domiciled in the State of California, California law must be applied to determine whether Harmony would be entitled to the intestate personal property of Mr. K~. The Social Security Administration (SSA) will apply the law in effect in California at the time it adjudicates the child's claim. If Harmony does not have inheritance rights under that law, SSA will apply the State law in effect from the time the child first could be entitled to benefits until the time SSA adjudicates the claim, and will apply the version that is most beneficial to the child. See 20 C.F.R. 404.354 to 404.356.

Under California law, a child may inherit from a parent who dies intestate, if she can establish that a natural parent-child relationship existed. See CAL. PROB. CODE 6453 (West 1999). The relationship of parent and child exists regardless of the marital status of the natural parents. See CAL. PROB. CODE 6450(a). On January 4, 1994, the California Legislature enacted Probate Code Section 6453, which has remained unchanged, and provides:

1. (a) 

   A natural parent and child relationship is established where that relationship is presumed and not rebutted pursuant to the Uniform Parentage Act, Part 3 (commencing with Section 7600) of Division 12 of the Family Code.

2. (b) 

   A natural parent and child relationship may be established pursuant to any other provisions of the Uniform Parentage Act, except that the relationship may not be established by an action under subdivision (c) of Section 7630 of the Family Code unless any of the following conditions exist:

   1. (1) 

      court order was entered during the father's lifetime declaring paternity.

   2. (2) 

      paternity is established by clear and convincing evidence that the father has openly held out the child as his own.

   3. (3) 

      it was impossible for the father to hold out the child as his own and paternity is established by clear and convincing evidence.

Here, Mr. K~ is not Harmony's presumed father. Subdivision (c) of Section 7630 of the California Family Code applies here because it provides standing for a child to bring an action to establish paternity in the case where there is no presumed father. See CAL. FAM. CODE 7630. Therefore, to establish a parent child relationship that would in turn allow her to inherit Mr. K~'s personal property, Harmony must meet one of the three conditions set out in subdivision (b) above.

From the facts in your memorandum, it does not appear that any of these conditions exist. There was no court order, there is no evidence that Mr. K~ ever held out Harmony as his own, and it was not impossible for him to do so. Under California law, posthumous genetic testing alone is not sufficient to establish that a parent-child relationship exists for the purposes of intestate succession. This evidence would only be relevant if, under subsection (b)(3) above, it had been impossible for Mr. K~ to hold out Harmony as his own (i.e., he did not know she existed or she was born after he died). If "holding out" had been impossible here, then the blood testing may have been relevant in showing clear and convincing evidence of paternity. See CAL. PROB. CODE 6453(b)(3) and CAL. PROB. CODE 7550-7558 (genetic testing); see also, Memorandum from OGC Region X, Seattle, to Irene M~, District Manager, Salem, Oregon Field Office, Lowell E. S~ (Legitimacy of Cody C~), November 2, 1999. The genetic testing of Harmony's putative grandparents does not provide a basis for granting child's benefits to Harmony.

Therefore under the facts as we know them, a parent-child relationship has not been established under California intestacy law. If Harmony cannot inherit from Mr. K~ under California law, she is not a dependent for Social Security purposes. If Harmony is not Mr. K~'s dependent, she is not eligible for benefits on his account.

We recommend that you perform further development to confirm that there has not been a court order and to determine whether Mr. K~ ever "held out" Harmony as his own. After you have performed development, if you are unable to resolve this case, please feel free to submit it to our office for an additional opinion.

Based on the evidence submitted in this case (which includes DNA test results on the child, the child's mother, and two children of the former marriage between the NH and the child's mother, indicating a 99.86% probability of paternity), the child has not established the right to inherit intestate from the deceased NH under California law. The NH was not a presumed father of the child under the Uniform Parentage Act; and the child does not meet the requirement of California Probate Code 6453(b) that requires either (1) a court order of paternity entered during the father's lifetime; or (2) clear and convincing evidence that the father openly held the child out as his own, or, if it holding out was impossible, clear and convincing evidence of paternity.

You asked: (1) whether the claimant can qualify as a child of the wage earner for purposes of intestate succession under California law, and (2) if so, the appropriate entitlement date for benefits.

SUMMARY

Based on the current record, claimant has not established the right to inherit intestate from WE under California law.

However, we recommend further development. SSA should ascertain whether the WE directed that he be named as the father on the claimant's birth certificate, because this might be persuasive evidence of "holding out" under California law, as well as a written acknowledgment of paternity under the federal method of establishing entitlement. In addition, SSA should determine whether any evidence exists to corroborate or further explain the handwriting on the birthday card.

SUMMARY OF EVIDENCE

The wage earner (WE) and claimant's mother were married from October 25, 1969 to June 30, 1986. They had four children during their marriage. The WE married his second wife, Marilyn, on October 25, 1986.

The claimant's mother alleges that the WE continued to visit her after their divorce and that they had sexual intercourse in July 1987.

On April 10, 1988, the claimant was born. Claimant and the WE have the same last name. The WE was named as the claimant's father on the birth certificate, which was filed with the county registrar on May 19, 1988.

On April 12, 1989, the WE had a heart attack and suffered a brain injury. He was incapacitated and hospitalized until his death in California on March 2, 1990.

In April 1990, claimant's mother applied for survivors insurance for the claimant on the WE's account. A copy of the claimant's birth certificate, which names the WE as claimant's father, was submitted. On the "Child Relationship Statement"(form SSA-2519), claimant's mother indicated that the WE did not give information for the child's birth certificate.

The record also included an undated letter from the Director of Medical Records at Olive View Medical Center stating that the claimant's father was the WE.

According to a written statement signed by claimant's mother in1990, the WE referred to himself as the claimant's father and he visited the claimant. She said that the WE told her that he was going to name the claimant as his dependent on his employee health insurance policy. Claimant's mother also reported that the WE gave her money to help buy necessities for the claimant. The claimant never lived with the WE and never visited him in his home.

According to written questionnaires completed in March 1990 by the children of the former marriage between WE and claimant's mother, the WE referred to himself as the claimant's "daddy" and he told their grandmother (the WE's mother) and a family friend ("Uncle Ray") that he was claimant's father. The WE bought clothes and toys for claimant. According to Kevin, one of the children, the WE took care of the claimant, and he believed that had he lived, the WE would continue to take care of her. Another child, Debra, stated that the WE had also said that he wanted to place claimant as a dependent on his health insurance policy so that she could be seen by an eye specialist.

The WE's mother completed a questionnaire in April 1990. She stated that she never asked the WE whether the claimant was his child. She said she did not believe that the claimant was the WE's child. She claimed that the claimant's mother wanted to "destroy" the marriage between the WE and his second wife Marilyn. However, the WE's mother also stated that the WE once told her that claimant was her grandchild.

Ray, a friend of WE, also completed a questionnaire. He said that the WE told his mother that the claimant was his child. He also said that the claimant's mother and her children told him that the WE visited them often. He saw Christmas pictures of the WE holding the claimant. Although he never spoke with the WE about the claimant, he believed that the WE was claimant's father based on what he knew from others.

In August 1990, the Social Security Administration (SSA) denied the survivors insurance application.

In November 1998, the claimant, the claimant's mother, and two of the children of the former marriage between the WE and claimant's mother (that is, the adult children we know to be at least the claimant's half-siblings) gave samples of their blood for DNA testing. The Laboratory Corporation of America, which is accredited by the American Association of Blood Banks, conducted the genetic tests. The laboratory concluded that, based on the tests of older children, their father was estimated to have a "probability of paternity" for the claimant of 99.86% or a combined paternity index of 707 to 1.

On November 25, 1998, the claimant's mother applied for survivors insurance again. In a report of contact with SSA, the claimant's mother stated that the WE gave her cash after the claimant's birth and that he purchased clothes, toys, and furniture for the claimant. She explained that the WE's purchases were not regular because he was in a country western band and he would drop by after performances to give her some money out of the pay he received. Sometimes he gave her $50 or $100.

Claimant's mother submitted a "one year old" birthday card which contained the handwritten words, "From Dad, I love you." There was also a copy of an envelope which contained the words, "So Big." The WE reportedly gave the card to the claimant, whom he reportedly called "So Big." Claimant's mother also submitted photographs purportedly showing the WE holding the claimant at various functions. She submitted copies of 1989 calendars which contained her handwritten notes. Claimant's mother also submitted a portion of a letter allegedly written by the WE to her, but it was not signed or dated or addressed to anyone.

Ray, the WE's friend, submitted a second statement signed in 1998. He said that the WE's mother told him that the WE had told her that the claimant was his child. The WE's mother also told Ray's wife that she signed a statement admitting that the WE told her that he was the claimant's father.

In a letter dated May 1999, claimant's mother stated that the WE consented to the claimant's use of his last name. He regularly visited the claimant and provided cash and gifts.

SSA denied claimant's November 1998 application. In September 1999, claimant's mother requested reconsideration, which is currently pending.

ANALYSIS

A. California Law

The Commissioner's new regulations on applying state intestacy law, effective November 27, 1998, apply to this claim. 20 C.F.R. 404.354-404.355 (1999). If a state requires a court order of paternity, SSA will not require the claimant to obtain a state court order, but will evaluate the evidence and apply the state's standard of proof to determine if the claimant can establish a right to intestate succession. In addition, SSA applies the state's current law at the time of adjudication, or the version of the law at any time since the WE's death, whichever is most favorable to the claimant.

Under California intestacy law, a parent-child relationship is established when:

(a) the relationship is presumed and not rebutted under the Uniform Parentage Act;

or

(b) the relationship may be established under any other provision of the Uniform Parentage Act, except that the relationship may not be established by an action under 7630 of the Family Code, unless (1) a court order declaring paternity was entered during the father's lifetime, (2) paternity is established by clear and convincing evidence that the father has openly held out the child as his own, or (3) it was impossible for the father to hold out the child as his own, and paternity is established by clear and convincing evidence. California Probate Code 6453(a) and (b).

Subsection (b)(3), which allows an additional method for establishing the relationship, was added in 1993. Because it is more favorable to the claimant, the current version of the law should be applied.

1. Presumed father status

The WE was not a presumed father of the claimant under the Uniform Parentage Act. He did not sign voluntary declaration of paternity (California Family Code 7570). He did not receive claimant into his home and openly hold the child out as his own (California Family Code 7611(d)). Although the WE and the claimant's mother were married at one time, claimant was not born during the marriage (California Family Code 7540). Claimant was born more than 300 days after their marriage terminated by divorce (California Family Code 7611(a),(b)). The WE and claimant's mother did not attempt to marry after the claimant was born (California Family Code 7611(c)).

Therefore, the parent-child relationship was not established under California Probate Code 6453(a).

2. Establishing paternity after death requires clear and convincing evidence

Claimant must show a parent-child relationship under California Probate Code 6453(b), which requires either:

1. (a) 

   a court order of paternity entered during the father's lifetime;

   or

2. (b) 

   clear and convincing evidence that the father openly held the child out as his own;

   or

3. (c) 

   if it were impossible for the father to hold the child out as his own, clear and convincing evidence of paternity. Cheyanna v. A.C. Nielson Company, 66 Cal. App. 4th 855 (2nd Dist. 1998).

There was no court order of paternity entered during the WE's lifetime.

The claimant was about one-year old when the WE sustained a brain injury and it became "impossible" for him to hold her out as his child. Therefore, the WE had opportunity to openly hold her out as his child during the first year of her life.

According to California case law, a father holds a child out as his own when he openly and publicly admits paternity where there might be some cost to him and he has demonstrated some commitment toward establishing a parental relationship. See In Re Spencer, 48 Cal. App. 4th 1647, 1653-1655 (4th Dist. 1996). In Spencer, the court concluded that the alleged father had not openly held the child out as his own. Although he had claimed paternity to some family and friends, he "was unwilling to proclaim paternity when there might have been some cost to him." The alleged father had not taken formal steps to place his name on the birth certificate, had not tried to establish paternity by legal action, and had not assumed financial obligations for child support. He had not demonstrated a commitment toward establishing and maintaining a parental relationship. In Re Spencer, 48 Cal.App.4th at p. 1653-1655.

Applying these factors here, there is some evidence of "holding out." According to claimant's mother, the WE consented to the claimant's use of his last name, and is identified as the father on the claimant's birth certificate. He also visited claimant in her home and referred to himself as her father in the presence of the mother and their other adult children. He also gave some cash and gifts. He admitted to his mother that the claimant was her grandchild.

However, this evidence is not clear and convincing. Apart from the fact that claimant shares the WE's last name, the record does not clearly demonstrate that WE's maintained a continuous or significant commitment, or that he publicly assumed the responsibilities of parenthood. Claimant never lived with the WE and, the claimant never even visited WE in his home. Also, his health insurance policy listed only his wife Marilyn, her daughters (WE's stepdaughters) and the WE's son Kevin as dependents, but did not list claimant.

Furthermore, the certified abstract of birth, which was filed on May 19, 1988, probably does not, by itself, constitute reliable evidence that the WE openly held out the claimant as his child. The applicable section of the California Health and Safety Code section in effect at the time did not require that a father sign a voluntary declaration of paternity before his name could be placed on the birth certificate. Former California Health and Safety Code section 10125. On the "Child Relationship Statement" dated March 21, 1990, claimant's mother reported that the WE did not give information for the child's birth certificate. Thus, claimant's mother may have placed WE's name on the birth certificate without his consent or knowledge.

We therefore recommend that SSA re-contact claimant's mother to ask if there were documents or affidavits signed by the WE and filed with the registrar of vital records or county registrar, or if there is any other evidence that WE took affirmative steps to place his name on the birth certificate. (Former California Health and Safety Code sections 10521-10523 providing that delayed birth certificates must be supported by documents and/or affidavits).

However, based on the evidence currently in the record, claimant did not establish by clear and convincing evidence that the WE openly held her out as his child.

B. Federal Methods under 42 U.S.C. 416(h)(3)(C)

Under 42 U.S.C. 416(h)(3)(c), a claimant who cannot satisfy the requirements of state law may try to qualify under the applicable federal methods by showing:

in the case of a deceased wage earner, either:

(i) I. The deceased wage earner had acknowledged in writing that the claimant is his son or daughter, or

II. The deceased wage earner had been decreed by a court to be the mother or father of the claimant, or

III. The wage earner had been ordered by a court to contribute to the support of the claimant because the claimant was his son or daughter;

and such acknowledgment, court decree, or court order was made before the death of the wage earner,

or

(ii) the wage earner is shown by evidence satisfactory to the Commissioner to have been the father of the claimant, and the wage earner was living with, or contributing to, the support of the claimant at the time of his death.

There was no court order declaring paternity or ordering the WE to provide support.

Although there is evidence (the DNA test results) of their biological relationship, WE never lived with the claimant. The WE reportedly gave cash to claimant's mother and purchased clothes and toys for the claimant, but there was no proof of regular contributions. Claimant's mother told an SSA representative that there was no regularity to the cash WE gave her because he was in a country western band. However, Social Security earnings records show that WE earned $46,000 in 1988. This evidence of WE's financial circumstances indicates that he could have probably contributed some regular support to the claimant during the first several months of her life. Jones v. Chater, 101 F.3d 509, 513-514 (7th Cir. 1996) (sporadic support will not suffice because the purpose of insurance benefits is to replace the support the child would have received had the father not died).

Of course, WE was unable to provide any support during the second year of the claimant's life, from April 1989 until the time of his death in March 1990. Some courts have held that the support requirement must be considered in light of the father's circumstances and ability to pay. Chester v. Secretary of HHS, 808 F.2d 473, 476 (6th Cir. 1987). However, even taking the WE's illness into account during the second year of claimant's life, he could have made regular contributions to her support during the first year.

1. Written Acknowledgment

There is a remaining issue whether WE acknowledged in writing that the claimant was his child. An insured individual must by his own hand acknowledge paternity, or authorize a third person to acknowledge paternity in writing. Jones v. Sullivan, 953 F.2d 1291, 1294-1295 (11th Cir. 1992); Garcia v. Sullivan, 874 F.2d 1006, 1008 (5th Cir. 1989). The writing should be a clear and unequivocal statement acknowledging paternity. The adjudicator should evaluate whether the statement is ambiguous and/or susceptible to more than one reasonable interpretation. If the writing is ambiguous, Social Security may then look to extrinsic (outside) evidence to resolve the ambiguity. Jones v. Sullivan, 953 F.2d at 1294-1295; Vance v. Heckler, 757 F.2d 1324, 1327 (D.C. Cir. 1985).

Here, there are two possible written acknowledgments. One is the birth certificate. Under 20 C.F.R. 404.731 (1999), if the claimant is a natural child of the wage earner, a copy of a public birth record which was made before the claimant turned five and which shows the same last name for the claimant and wage earner is "convincing evidence" of the relationship. If other evidence raises doubt about the birth record, SSA asks for other evidence of the relationship.

In this case, it is unclear whether the birth certificate satisfies Section 404.731. First, the claimant has not proven that she is the "natural child" of the wage earner as that term is defined in 20 C.F.R. 404.355 (1999) (see above, claimant must satisfy state intestacy law or one of the federal methods).

In addition, there may be "doubts" regarding the birth certificate because it is possible the claimant's mother could have named WE as the father in May 1988 without his knowledge or consent. Former California Health and Safety Code section 10125.

On the "Child Relationship Statement" dated March 21, 1990, claimant's mother reported that the WE did not give information for the child's birth certificate. Barton v. Sullivan, 774 F.Supp. 1151, 1152 (S.D.Ind. 1991) (birth certificate that is not based on either the putative father's acknowledgment of paternity, or a statement he is the father by one authorized by him to acknowledge his paternity, will not constitute written acknowledgment). Parker v. Sullivan, 891 F.2d 185, 190 (7th Cir. 1989); Garcia v. Sullivan, 874 F.2d 1006, 1008 (5th Cir. 1989) (birth certificate was not a written acknowledgment of paternity where midwife filled out birth certificate naming the wage earner as the father but there was no evidence which tended to prove that the wage earner authorized the midwife to identify him as the father).

However, it is also possible that the WE authorized claimant's mother to name him as the father on the birth certificate. There also may be documents and/or affidavits that were prepared at the time of filing in May 1988. The record contains an undated letter by a medical records director of the Olive View Medical Center stating that WE was claimant's father, but it is unclear who supplied this information. We recommend that SSA contact claimant's mother to determine whether any additional information or other evidence concerning the birth certificate may exist.

The second possible written acknowledgment is the birthday card allegedly signed by the WE and allegedly addressed to the claimant which consists of the following handwritten words, "From dad, I love you" and what appears to be a copy of an envelope with the handwritten words "So Big."

In Vance v. Heckler, the court noted that a written acknowledgment did not even have to identify the child by name or be signed by the wage earner. The court stated that extrinsic evidence (that is, verbal statements or other evidence outside of the writing) can be used to "complete the story" of the writing by confirming the identity of the author or confirming the identify of the child who was the object of the writing. Vance v. Heckler, 757 F.2d at 1327.

Although the handwritten statement "from dad" on the birthday card is an unambiguous acknowledgment of paternity, it is incomplete because it was not signed by the WE and there is no evidence that it was intended for the claimant. In addition, this card was evidently submitted with the 1998 application, not the 1990 application, which also raises a question as to its authenticity, particularly since the claimant's mother stated in 1990 that she did not know of any letters by WE. We nevertheless recommend that you ask for any additional evidence related to the card (e.g., a third party who could identify the writing as WE's handwriting and/or know that he called the claimant "So Big"). However, we caution that the fact-finder must evaluate the credibility and reliability of the writing and extrinsic evidence concerning it.

CONCLUSION

Based on the current record, the claimant does not qualify as a "child" for purposes of California intestacy law.

However, in light of the credible evidence of a biological relationship (DNA test results), we recommend further development of the record as described above. We caution that the fact-finder must evaluate the credibility and reliability of the writing and extrinsic evidence concerning it.

Under California's intestacy scheme, a presumption of paternity is created when the man receives the child into his home and openly holds out the child as his natural child. California courts have generally required that the man must not only openly and publicly admit paternity, but must also physically bring the child into his home.

Also, a natural parent child relationship is established under California intestacy law if paternity is declared by a court pursuant to the UPA and it is shown that it was impossible for the father to hold out the child as his own. The legislative history of this provision makes it clear that this section was intended to permit children whose natural parents were not married and whose natural father died before having the opportunity to acknowledge the child to inherit from their natural fathers.

You have asked us to review the attached claims folder and to provide an opinion as to whether Robert J. K~ ("K~ ") is eligible for surviving child's benefits on the account of Robert J. S~ ("S~ "). For the reasons given below, we believe that the evidence supports a finding that K~ is not entitled to surviving child's benefits on S ~ 's account.

Background

S~ , the wage earner, died in an accident on June 8, 1990. At the time of his death, he was serving in the United States military and was domiciled in California.

K~ was born in Germany on July 20, 1990. On November 2, 1994, K~ 's natural mother, Heike L~ ("L~ "), a German citizen, filed an application on behalf of K~ for surviving child's benefits on S~ 's account.

Along with his application for benefits, K~ submitted documents showing that on June 17, 1991, a German court found that S~ was K~'s father. The court's decision appears to have been based on evidence that S~ and L~ had an intimate relationship from September 22, 1989, to January 21, 1990, as well as the results of DNA testing from April 15, 1991, which gave a combined paternity index of 1799.28 and demonstrated a probability of 99.9% that' S~ was K~'s father. K~ also provided written statements from S~'s sister and parents asserting that prior to his death S~ had admitted he was K~'s father.

Discussion

Sections 216(h) (2) (3) of the Social Security Act ("Act"), 42 U.S.C. 416(h) (2) (3), provide that a "natural child" of a deceased insured father may be eligible for surviving child's benefits if one of the following applies

1. (a) 

   the child could inherit the insured's personal property as his natural child under State inheritance laws (42 U.S.C. 416(h) (2) (A));

2. (b) 

   the child is the insured's natural child and the insured and the child's mother went through a ceremony which would have resulted in a valid marriage between them except for a legal impediment (42 U.S.C. 416(h) (2) (B));

3. (c) 

   the child is the insured's natural child and the insured and the child's mother did not marry but before the insured's death, one of the following occurred:

   1. (a) 

      the insured acknowledged in writing that he was the insured's father;

   2. (b) 

      a court decreed that the insured was the child's father; or

   3. (c) 

      a court ordered the insured to contribute to the child's support (42 U.S.C. 416(h) (3) (C) (i));

4. (d) 

   the insured and the child's mother did not marry but the child has evidence other than the evidence described above in paragraph (3) to show that the insured is the natural father of the child; in addition, the child has evidence to show that the insured was living with the child or contributing to the child's support when he died (42 U.S.C. 416(h) (3) (C) (ii)).

See also 20 C.F.R. 404.355 (1997).

Thus, if paternity is established under 42 U.S.C. 416(h) (2), a presumption of dependency arises and the natural child is entitled to receive benefits without any showing of dependency. Mathews v. Lucas, 427 U.S. 495, 499 (1976) ; see also Jimenez v. Weinberger, 417 U.S. 628, 635-36 (1974).

In this case, S~ and L~ never married or attempted to marry, no court order establishing paternity was entered during S~'s lifetime, and S~ did not acknowledge in writing that he was K~'s father. Accordingly, K~ can establish paternity only if he can show that he could inherit under California intestate succession law (42 U.S.C. 416(h)(2)(A) or can show dependency under 42 U.S.C. 416(h) (3)(C) (ii) .

California's Presumptions of Paternity

As we explained in our memorandum of February 13, 1995, regarding Cassandra W~ (Memorandum Re: Cassandra W ~ from Dennis J. M~ to Maureen S~ (Feb. 13, 1995)), under California intestate succession law, a "natural parent and child relationship" may be established where

1. (a) 

   paternity is presumed and not rebutted pursuant to the California Uniform Parentage Act [hereinafter "UPA"] (commencing with section 7600 of the California Family Code), Cal. Prob. Code 6453(a); or

2. (b) 

   paternity is declared by a court in an action brought under the UPA and one of the following requirements is satisfied:

   (1) the court order declaring paternity was entered during the father's lifetime; (2) paternity is established by clear and convincing evidence that the father openly held out the child as his own; (3) it was impossible for the father to hold out the child as his own and paternity is established by clear and convincing evidence.

Cal. Prob. Code 6453.

Presumptive paternity is established under section 6453(a) if one of the following conditions is met

1. (a) 

   The child is born to a wife cohabitating with her husband who is not impotent or sterile, Cal. Fam. Code 7540 (incorporated into the UPA by Cal. Fam. Code 7611).

2. (b) 

   The man and the child's mother are or had been married to each other and the child was born during the marriage or within 300 days after termination of the marriage, Cal. Fam. Code 7611(a).

3. (c) 

   The man and the child's mother attempted to marry each other by a marriage in apparent compliance with law and the child was born during the attempted marriage or within 300 days after termination of the attempted marriage or cohabitation, Cal.. Fam. Code 7611(b).

4. (d) 

   After the child's birth, the man and the child's natural mother were married or attempted to marry each other and (a) with his consent, the man is named as the child's father on the child's birth certificate, or (b) the man is obligated to support the child under a written voluntary promise or by court order, Cal. Fam. Code 7611(c).

5. (e) 

   The man received the child into his home and openly holds out the child as his natural child, Cal. Fam. Code 7611(d).

See Cal. Fam. Code 7600-7630.

In this case, S~ clearly fails to meet presumptions (1) through (4) for paternity under section 6453(a) . With respect to presumption (5), S~ also fails. California courts have generally required that a man who neither married nor attempted to marry his child's biological mother must not only openly and publicly admit paternity, but must also physically bring the child into his home. In re Spencer W., 48 Cal. App. 4th 1647, 1652, 56 Cal. Rptr. 2d 524, 526 (1996), discussing Adoption of Michael H., 10 Cal. 4th 1043, 1050-51, 43 Cal. Rptr. 2d 445, 898 P.2d 891 (1995).

There is no evidence that S~ ever received L~ into his home after he learned she was pregnant. Though K~ has offered statements from S~'s parents and sister indicating that S~ told members of his family that L~ was carrying his child, there is no evidence that S~ visited or lived with L~ during her pregnancy, took any formal steps to proclaim paternity, named K~ as a military dependent or beneficiary of any insurance or other benefit, or assumed any financial obligations for the child during L~'s pregnancy. See In re Spencer W., 48 Cal. App. 4th at 1654. Where, like here, there is no evidence of a commitment toward developing a "substantial familial relationship" to the child, the presumption of paternity may be denied. Id. at 1653; see also In re Sarah C., 8 Cal. App. 4th 964, 972-73, 11 Cal. Rptr. 2d 414, 418 (1992) (trial court denied biological father's presumed father status where he did not meet any of the other presumptions and he had not openly acknowledged his child or received her into his home). S~, therefore, does not meet any of the presumptions required for paternity.

California's Requirements Under Cal. Prob. Code 6453(b)

Since K~ cannot establish by presumption that a natural parent-child relationship exists, his only means for securing inheritance rights would be pursuant to California Probate Code 6453(b) . Section 6453(b) requires that the child first obtain a declaration of paternity from a court following a proceeding brought under the UPA. See LeFevre v. Sullivan, 785 F. Supp. 1402, 1405 (C.D. Cal. 1991). Like Walker, to prevail under section 6453(b), K~ would need to obtain such a court decree, which he has not done.¹

Once K ~ has a court decree establishing S~'s paternity under the UPA, however, he likely would be found to inherit under section 6453(b) (3). ² Under section 6453(b) (3), a child must demonstrate that it was "impossible" for the father to have held the child out as his own. As we discussed in Walker, the legislative history of section 6453(b) (3) makes clear that the section was intended to permit children whose natural parents were not married and whose natural father died before having an opportunity to acknowledge the child to inherit from their natural fathers. See Intestate Succession: Establishing Paternity, Report for Assembly Bill No. 1137 for the Senate Rules Comm., Cal. Leg., 1993-94 Reg. Sess., at 2 (Aug. 23, 1993). Thus, we believe that K~ could easily demonstrate that it was impossible for S~ to have held K~ out as his child since K~ was born after S~'s death.

Section 6453(b) (3). also mandates that the child show by clear and convincing evidence that the man is the child's natural father. If K~'s DNA test results are found to conform to the rigorous scientific standards of the Uniform Act on Blood Tests to Determine Paternity, Cal. Fam. Code 7550- 7557, because the results of the test are greater than 100 and probability of paternity is 99.9%, this evidence, along with the testimonial evidence that S~ admitted paternity prior to his death, would be sufficient to prove paternity under section 6453(b) (3) . ³

In summary, after K~ obtains a court determination of paternity under the UPA, he could establish his right to inherit under section 6453(b) of the California Probate Code.

Proof of Dependency Under Section 216(h)(3)(C)(ii) of the Act

Because the evidence in the file ultimately could establish paternity under the intestate succession test (42 U.S.C. 416(h) (2) (A)), we do not need to consider K~'s eligibility under section 216(h) (3) . As you know, section 216(h) (3) specifically states that it applies only when an applicant is not (and is not deemed to be) the child of an insured individual under the relevant state intestate succession laws. See Galvan v. Heckler, 1985 WL 71748 at *6 n.3. ⁴

Conclusion

For the reasons given above and based on the evidence submitted, we believe that James J. K~ is not entitled to surviving child's benefits on James J. S~ 's account.

As we noted, the regulations regarding state court determinations for child relationships currently are under review. In addition, POMS section GN 00306.080 is being amended by the Office of the General Counsel and the Office of Program Benefits Policy to conform with the new regulations.

These changes in law would result in a different outcome in this case insofar as K~ would not be required to obtain a court decree in order to establish paternity under the California intestate succession law.

¹ Under proposed changes in the implementing regulations for establishing paternity under state intestate succession laws, the Commissioner will no longer require a child in California to obtain a determination of paternity by a court. Rather, the Commissioner will use the standard of proof that the state court would use to determine paternity. See "Application of State Law in Determining Child Relationship: Proposed Rule," 62 Fed. Reg. 4492, 4495 (Jan. 30, 1997) (to be codified at 20 C.F.R. 404.355(b) (2)). As you know, these policy changes will not be implemented until the final regulation is published. Until that time, the current requirement under California Probate Code 6453(b) that a child obtain a court determination of paternity applies. You may consider advising the claimant to reapply once these amended regulations become final.

² K~ would be unlikely to prevail under section 6453(b) (2) for the reasons explained above regarding presumption (5). Also, as the court found in LeFevre v. Sullivan, 785 F. Supp. at 1406, DNA evidence and oral acknowledgment of paternity to relatives probably would be insufficient to establish that S~ openly held out K~ as his own child.

³ We would expect that a court would assign only limited evidentiary value to the German court's paternity determination since it is unclear what procedures the German court followed, what evidence the court considered, what legal standards the court employed or whether S~'s interests were represented in the action. See, e.g., Galvan v. Heckler, 1985 WL 71748, *3 (N.D. Cal. 1985) (unpublished) (relitigation of paternity issue barred where finding of paternity was an essential element of prior state custody ruling and father had opportunity and incentive to defend vigorously in previous action).

⁴ Under section 216(h) (3) (C) (ii), K~ would be entitled to surviving child's benefits only if he could show that S~ contributed to his support and that such support was "'commensurate with the needs of the unborn child at the time of the father's death.'" Smith v. Heckler, 820 F.2d 1093, 1094-95 (9th Cir. 1987) and Doran v. Schweiker, 681 F.2d 605, 608 (9th Cir. 1982), quoting Adams v. Weinberger, 521 F.2d 656, 660 (2nd Cir. 1975). Under this test, K~ would not be entitled to benefits since there is no evidence that S~ shared living expenses with L~ , provided any financial support for L~ during her pregnancy or helped with household duties. Similarly, there is no evidence that S~ purchased any baby items for K~, contributed to medical expenses, set aside any money or made any financial arrangements for him. Compare Smith v. Heckler, 820 F.2d at 606-09; Doran v. Schweiker, 681 F.2d 1095-96 (evaluating decisions of other courts concerning contributions to support).

PARENT AND CHILD COURT DECREE OF PATERNITY CALIFORNIA-NEVADA-HAWAII

Under the laws of California, Hawaii, and Nevada, a child- parent relationship entitling the child to rights of intestate succession may only be judicially decreed pursuant to the Uniform Parentage Act, as enacted in each of these jurisdictions. Consequently, a paternity decree issued under the provisions of any other state law of those jurisdictions would not be acceptable. (T~ John; RA IX; S~; January 3, 1986)

Joshua and Olivia A~, twins, were born to an unmarried woman, Madeline A~, on September 25, 1978. On August 29, 1979 Ms. A~ filed petitions with a Hawaiian Family Court seeking adjudication of paternity and other relief under the provisions of Hawaii Revised Statutes (HRS), Chapter 584, Hawaii's version of the Uniform Parentage Act (UPA).¹ The petitions named John S. ~ as the twins' father. Mr. T~ agreed to undergo blood tests .to help determine paternity; however, he died in December 1981, while domiciled in Hawaii (although temporarily living in California), before definitive testing could be carried out. On April 20, 1983 the Family Court issued an order finding that Mr. T~ was the father of Joshua and Olivia. This determination was premised on Ms. A~ allegations that she had frequent sexual relations with Mr. T~ , and no other man, during the conception period. You have inquired whether or not the court order established a father-child relationship for purposes of entitlement to child's insurance benefits on Mr. social security account.

Section 216(h) (2) (A) of the Social Security Act provides, in pertinent part, that in determining whether a claimant is the "child" of an insured individual, the Secretary must apply the law which would be applied in determining the devolution of intestate personal property by the courts of the state in which the wage earner was domiciled at the time of his death. The issue in this case, therefore,. is whether Joshua and Olivia qualify as Mr. T~ children under Hawaii's intestate succession laws.

The UPA, codified as HRS Chapter 584, was enacted in Hawaii in 1975 and it became effective on January 1, 1976. This Act now governs all paternity proceedings in Hawaii. See Roe v. Doe, 59 Haw. 259, 581 P.2d 310 (1978). Because Joshua and Olivia were born and Mr. T~ died 'subsequent to the effective date of the legislation, there is no doubt that HRS Chapter 584 applies in this case. Where a parent-child relationship is properly established under Chapter 584, such child is legitimated pursuant to HRS section 338-21(a) and therefore is entitled to succeed to the parent's estate in the same manner as any other legitimate child. GC opinion re Dennis M. G~ , August 19, 1982.

Since it appears that the court in this case properly assumed jurisdiction to adjudicate paternity, see HRS section 584-6, the court's judgment is determinative of the existence of a father and child relationship under Hawaii law. HRS section 584-15. As we have noted in several prior opinions, however, SSA is not bound to accept the ruling of a state court unless, inter alia, the judgment resulted from genuinely contested proceedings and is consistent with the law as enunciated by the highest court in the state. GC opinions re Roy H~ , December 13, 1985; Arthur M~ , November 15, 1984, and John B. D~ , September 24, 1982. The paternity action here apparently ceased to be truly adversarial when Mr. T~ died in December 1981. In the absence of any indication that the paternity petitions were actively challenged by Mr. T~ estate, or some other interested party, following his death, it is to be assumed that the judgment went unopposed. Consequently, the determination of paternity is not binding upon SSA. GC opinion re Roy H~ , cited above. Therefore, you are free to make an independent finding on the question of paternity, consistent with Hawaii's version of the UPA.

In addition to your questions related to this particular case, you have also inquired whether an adjudication of paternity pursuant to the UPA as enacted in California, Hawaii, and Nevada must make reference to the section of the Act dealing with presumptive paternity. California Civil Code 7004; HRS 584-4; Nevada Revised Statutes (NRS) 126.051 (respectively). The answer is no. Although a UPA paternity action may be brought to litigate the existence of one of the paternity presumptions, an action may also be instituted with respect to a child who has no presumed father under the Act. California Civil Code 7006(c); HRS 584-6(a); NRS 126.071 (b) (3). Clearly, if presumptive paternity were not alleged, a court order determining paternity on other grounds would not necessarily make reference to the presumptions.

Finally, you ask how to "distinguish between posthumous court decrees which are acceptable to establish a father-child relationship and those which are not." By "court decrees" we assume you mean decrees issued pursuant to the various state enactments of the UPA. If so, any such decree, whether or not issued posthumously, is acceptable, provided the court had jurisdiction and proper venue. California Civil Code 7007(b); HRS 584-8(c); NRS 126.091(2);² see GC opinion re Dennis M. G~ cited above. Conversely, because a child-parent relationship entitling the child to rights of intestate succession may only be judicially decreed pursuant to the UPA, a paternity decree issued under the provisions of any other state law would not be acceptable, whether or not the putative father were deceased. See GC opinions re George L. L~ , November 15, 1983; John B~ ,August 27, 1982; Dennis M. G~ , cited above. .'

Finally, we reiterate that an "acceptable" decree is not necessarily a binding decree for social security purposes. Each paternity adjudication should be reviewed to determine whether the proceedings were actually contested and, if so, whether the judgment is consistent with state law. Unless both conditions are satisfied, SSA may make an independent determination of paternity. The decree should be considered as one piece of evidence on the paternity issue.

The claims file is herewith enclosed.

¹ Amended petitions, without significant change, were filed on November 7, 1980.

² All three versions of the UPA impliedly provide for posthumous decrees.

LEGITIMACY AND LEGITIMATION PRESUMPTION AND EVIDENCE LEGITIMATING ACTS BY PARENTS CALIFORNIA

In the absence of actual contact between father and child, the reception requirements for the establishment of paternity under paternity under California's version of the UPA, California Civil Code section 7004 (A)(4), may be satisfied "Constructively" by alternative manifestations of parental concern and responsibility, where separation is objectively attributable to formidable external factors. (S~, Michael, RA IX; S~; October 17, 1985)

LEGITIMACY AND LEGITIMATION PRESUMPTIONS AN EVIDENCE LEGITIMATING ACTS BY PARENTS California

Failure by an alleged father to attempt to actually :receive: the child over a prolonged period of time may preclude a finding of "constructive reception", within the meaning of California's version of the UPA California Civil Code section 7004 (A)(4), even when a short term separation may have been justified. (S~, Michael; RA IX; S~; October 17, 1985)

LEGITIMACY AND LEGITIMATION PRESUMPTION AND EVIDENCE CALIFORNIA

A court's acceptance of a party's uncontested allegations of paternity within the context of a wrongful death action does not constitute a judicial determination of paternity for purposes of California's version of the UPA, California Civil Code Section 7006. (S~, Michael; RA IX; S~; October 17,1985)

An application for survivor's benefits has been filed on behalf of Lashanda (a.k.a. La Shunda, Lashandra, as the child of the deceased wage earner, Michael S~ . Lashanda was born to Earnestine L~, an unmarried woman, on June 19, 1977 in Worcester, Massachusetts. The file has recently been supplemented by an affidavit submitted by Ms. L~ . She states that she and Mr. S~ lived together until April 1977, at which time he departed for California. After arriving in California, Mr. S~ is said to have called Ms. L~ frequently to inquire about her condition and that of LaShanda (after her birth). Ms. L~ sent Mr. S~ a picture of the child which, she was told, he carried in his wallet. According to Ms. L~ , Mr. S~ sent her $50 to $150 approximately every two weeks. She further states that Mr. S~ did not return to Massachusetts because had he done so, he would have been subject to imprisonment for parole violations. Ms. L~ recalls that just prior to his death, in May 1978, Mr. S~ informed her of his intention to return to Massachusetts and "face the music."

A second affidavit, executed by Clarence S~ , Mr. S~ cousin has also been submitted. Clarence states that he lived with Mr. S~ in Oakland from May 7, 1977 until the time of the latter's death in May 1978. Clarence indicates that he frequently heard Mr. S~ refer to Lashanda as his daughter, and that he was present when Mr. S~ displayed her photograph. Clarence also recalls that Mr. S~ periodically sent small amounts of money to help support Lashanda.

Following his violent death, a wrongful death action was brought on behalf of Mr. S~ "heirs" (three illegitimate children, including Lashanda) in a California State Superior Court. In the course of this litigation, the plaintiffs filed a petition for leave to compromise the suit. This petition identified Lashanda as one of Mr. S~ children. On April 17, 1979 the petition was granted by the court.

SSA has already found that Mr. S~ was a California domiciliary at the time of his death. Consequently, California law governs the determination of Lashanda's right to inherit from Mr. S~ and, so, her status as his child, pursuant to section 216(h) (2) (A) of the Social Security Act. At the time of Mr. S~ death in May 1978 former section 255(a) of the California Probate Code provided that a child's right to inherit is dependent upon the existence, prior to the decedent's death, of a "parent and child relationship" between the two. ¹ Former section 255(d) of the Probate Code further specifies that a parent/child relationship exists, for inheritance purposes, only if such relationship is either (1) presumed and not rebutted, or (2) established, in accordance with the provisions of the Uniform Parentage Act ("UPA"), codified in California as sections 7001-7021 of the Civil Code.

One method of establishing the necessary relationship is by means of an action brought pursuant to section 7006 of the Civil Code. You have requested our opinion as to whether or not in this case, the court-approved settlement of the wrongful death action constitutes a court order determining a parent and child relationship in accordance with this provision of the UPA.

The wrongful death suit here simply cannot be equated with an action under section 7006. The issue of Mr. S~ paternity was neither litigated nor adjudicated in that suit. Apparently, the court merely accepted the uncontested allegation that Lashanda was one of Mr. S~ three known children, without requiring any form of verification or proof. The court order authorizes settlement of the tort action, nothing more or less. Certainly, it does not purport to adjudicate the decedent's relationship to Lashanda or, for that matter, any of the other designated children.

Even if Lashanda had been found to be Mr. S~ child and heir for purposes of the tort litigation, this determination still would be no substitute for an adjudication pursuant to section 7006. Section 255 of the Probate Code expressly mandates that a parent/child relationship entitling the child to rights of inheritance may only be established in accordance with the UPA. Thus, an action premised upon section 7006 is the only vehicle by which such rights may be judicially determined. See GC opinion re David A~, Jr., September 18, 1981, citing County of Los Angeles v. Superior court, 102 Cal. App. 3d 826, 162 Cal. Rptr. 636, 637 (1980). ²

In the absence of a section 7006 adjudication paternity may still be presumed pursuant to section 7004(a) (4). As you know, this provision of the UPA states that a man is presumed to be the father of a child if he received the child into his home and openly held it out as his natural child. See, e.g., GC opinion re Sergio M. N~, November 13, 1980. If you find the recent affidavits of Ms. L~ and Clarence S~ to be credible, then the "holding out" aspect of the test would clearly have been met by Mr. S~ frequent references to Lashanda as his child, as well as by his possession and display of her photograph. Deciding whether or not receipt was accomplished prior to Mr. S~ death is more problematic.

As we have explained in several previous opinions, the California courts have occasionally recognized the concept of "constructive reception" for purposes of establishing a parent-child relationship where, as here, the mother and father lived together during the mother's pregnancy but no post-birth contact occurred between the putative father and child. See, e.g., GC opinions re Charles M~, December 12, 1983, and Joseph M. C~, September 6, 1983. The rule delineated by these opinions is that a finding of constructive reception must be supported by evidence that the putative father "acted affirmatively toward the child in a manner objectively consistent with the alleged parent-child relationship." GC opinion re Joseph M. C~, cited above. In our judgment, the evidence here, if fully credited by you, would be sufficient to sustain a determination of constructive reception.

The first issue to be resolved is whether the lack of actual, physical. contact between putative father and child was due to compelling circumstances. GC opinion re Joseph M. C~, cited above. Ms. L~ has stated that she and Mr. S~ lived together during her pregnancy and that they separated prior to Lashanda's birth because of Mr. S~ apprehension that he would be imprisoned for parole violations if he remained in Massachusetts. Purportedly, this same fear of imprisonment stopped Mr. S~ from returning to the mother and child after birth. In our view, the realistic threat of incarceration adequately accounts for Mr. S~ failure to actually receive Lashanda into his home during the eleven month period between her birth and his death. ³ We fully recognize that Mr. S~ flight cannot be condoned. However, the legality of his actions is not the concern here. The inquiry in cases such as this is whether the father's absence is objectively attributable to formidable external factors impeding the establishment of a parent-child relationship.

Having identified grounds for excusing actual reception, the next stage of the analysis requires a determination of whether constructive reception can be premised upon the putative father's alternative efforts to create a relationship with the child. In her affidavit, Ms. L~ states that Mr. S~ frequently communicated with the mother and child by telephone and periodically forwarded money to help support Lashanda. Both the telephone calls and the support payments are confirmed in the affidavit of Clarence S~. It is our opinion that the California courts would consider these manifestations of parental concern and responsibility adequate to support a finding of constructive reception, in light of Mr. f~ ,status, the extreme distance between the father's residence in California and the child's home in Massachusetts, and the brief time when both putative father and child were alive. ⁴

In conclusion, we want to reemphasize that our conclusions above as to constructive reception will apply only if you find the affidavits by Mr. L~ and Clarence S~ to be creditable. If, for any reason, you determine that these statements are not reliable, there is no other evidence on file to support a finding of paternity.

The claims file is herewith returned.

¹ Where, as here, the wage earner is deceased, the state law in effect at the time of his/her death is controlling. 20 C.F.R. 404.354(b). Thus, although California Probate Code section 255 has since been superseded by Probate Code section 6408, section 255 still governs this case.

² There is nothing to prevent Lashanda, her personal representative, or her mother from bringing a section 7006 suit, the outcome of which would be determinative of Lashanda's status visa vis Mr.S~

³ The relatively brief interval between Lashanda's birth and Mr. S~ death is significant.. Had Mr.. S~ lived longer, he may have been expected. to overcome this impediment to actual reception either by returning to Massachusetts or by contacting the child .somewhere outside that state (e.g., in his California residence). Failure to take such steps over a prolonged period would likely have evidenced a lack of reception.

⁴ Here again, the time interval is critical. If after several years, Mr. S~ had still done nothing more than telephone and send an occasional check, a finding of constructive reception would be dubious.

LEGITIMACY AND LEGITIMATION CALIFORNIA

LEGITIMACY AND LEGITIMATION LEGITIMATING ACTS BY PARENTS CALIFORNIA

The presumption of paternity arising under California Civil Code section 7004(a) (4) (UPA) and former Civil Code section 230 ordinarily requires that the putative father actually receive the child into his home. Despite the liberal interpretation of the concept of reception endorsed by the California courts, receipt should not be treated as a mere pro forms requirement that may be fulfilled by occasional social encounters between father and child. The presumption is triggered by behavior which, it is deemed, reliably indicates an assumption of paternal responsibility. At a minimum, the putative father must have taken all reasonable steps under the circumstances to establish a genuine parent and child relationship. (M~, Curtis; RA IX; S~; January 28, 1985).

The claimant, Curtis R. J~, has applied for child's insurance benefits based on the account of the deceased wage earner, Curtis R. M~. The claimant was born on May 29, 1972 in Detroit, Michigan. The birth certificate lists Alfreda L. J~ as the mother. The father's identity is not recorded.

The wage earner married Delores S. M~ on June 23, 1972. The wage earner and Mrs. M~ lived together in Detroit until May 1976, at which time they separated with the wage earner moving to California. Thereafter the wage earner visited Detroit at least once a year. He died domiciled in California on May 17, 1983.

The file contains statements by the wage earner's parents, Lillie and Henry M~, and his aunt, Alberta H~. All three informants agree that the wage earner acknowledged that he was the claimant's father. The wage earner's parents also indicated that they consider the claimant to be their grandchild. Both parents recalled that the wage earner kept a photograph of himself and the claimant in his home, and that when displaying this picture the wage earner identified the claimant as his son. The parents, who evidently resided in California during the pertinent time period, stated that the claimant never lived with the wage earner or visited his home in California but that the wage earner informed them that when he traveled to Detroit, he spent time with the claimant. Ms. H~ a Detroit resident, reported that when the wage earner came to Detroit he took the claimant and his legitimate child, Ivy M~ , to visit with relatives.

The claimant's mother, Alfreda J~, indicated that the claimant did not visit in the wage earner's Detroit home prior to the latter's move to California due to the hostility of his wife. Ms. J~ also stated that the claimant had not visited in California because he could not afford to do so.

It is the contention of the wage earner's wife, Delores M~, that the wage earner denied paternity. She has stated that the wage earner did not visit the claimant either in Detroit or California. She further reported that while he was resident in California, the wage earner sent for and was visited by his daughter Ivy on two occasions.

Pursuant to section 216(h) (2) (A) of the Social Security Act, an applicant for survivor's benefits qualifies as a wage earner's "child" if he or she would inherit as such under the succession laws of the wage earner's domicile at the time of death. As you have indicated, the Uniform Parentage Act as enacted in California contains the legal provisions which govern this case. ¹ California Probate Code 255 and Civil Code 7000-7021. Section 7004(a) (4) creates a presumption of paternity when a man openly holds out a child as his own and receives that child into his home. See, e.g., GC opinions re Joseph M. C~, September 6, 1983, and Sergio M. N~, November 13, 1980. You have requested our assistance in determining whether or not the holding out and receipt requirements are satisfied on the facts of this case.

At the outset we note that this case presents serious credibility problems. One faction, represented by the claimant's mother and the wage earner's parents and aunt, contends that the wage earner openly acknowledged paternity and spent time with the claimant whenever he returned to Detroit from his residence in California. The wage earner's wife tells a very different story. According to her, the wage earner flatly denied paternity and did not associate with the claimant at any time. The claims file contains statements made by an SSA claims Representative (on a Report of Contact form, dated 11/23/83) indicating that the parents and aunt were found credible and that Delores M~ was disbelieved. Our opinion is therefore premised on the version of the facts most favorable to the claimant's application. Thus, we have assumed that the wage earner openly acknowledged paternity and spent time with the claimant during his trips to Detroit.

We have previously opined that the holding out and receipt requirements are independent of one another: each must be met before a presumption of paternity arises. GC opinion re Charles M~, December 12, 1983. Our assumption that the wage earner openly acknowledged paternity leads to the conclusion that holding out was achieved. The only outstanding issue, therefore, is whether or not reception was also accomplished within the meaning of section 7004(a) (4).

A liberal interpretation of the concept of reception has been endorsed by the California Supreme Court: "This requirement is satisfied by evidence that the father accepted the child as his own, usually demonstrated by an actual physical acceptance of the child into the father's home to the extent possible under the particular circumstances of the case." In re Richard M., 14 Cal. 3d 783, 795, 537 P.2d 353, 122 Cal. Rptr. 531 (1975). ² Receipt is not to be equated with cohabitation. The requirement may be satisfied where the only parent-child contacts consisted of occasional overnight or daylong visits. Estate of P~, 214 Cal. App.2d 258, 263-264, 29 Cal. Rptr. 384 (1963); Estate of W~, 164 Cal. App.2d 385, 387, 330 P.2d 452 (1958). Receipt may even be achieved by means of contacts outside the father's residence, where the father has been unable to establish his own home. GC opinion re Gary R. K~, March 6, 1979 (requirement met where father, financially and emotionally unable to establish a home of his own during two month interval between child's birth and his own death, frequently visited child in the mother's home). Despite this expansive treatment, the concept of receipt is not to be considered a nullity or a pro forma requirement that may be fulfilled by even the most casual encounters between putative father and child, however. The authorities teach that the putative father must, at a minimum, have taken all reasonable steps within his power to establish a parent-child relationship. The evidence in this case indicates that the wage earner failed to make a sufficient effort in that regard.

One factor that strongly militates against a finding of reception is the total absence of interaction between the wage earner and the claimant during the four years subsequent to the claimant's birth and prior to the wage earner's move from Detroit to California. This void cannot be attributed entirely to the alleged hostility on the part of the wage earner's wife, particularly inasmuch as the claimant's birth predated the wage earner's marriage. In any event, spousal disapproval is not the sort of impediment that may be deemed to excuse or explain a complete lack of contact between father and child extending over a period of four years. ³Nor is there evidence that the wage earner hastened to receive the claimant once he had separated from his wife. Certainly, nothing in the file indicates that he sought to obtain temporary, informal, or shared custody of the claimant prior to his departure, or that he visited with the claimant before leaving Detroit.

While the degree of contact necessary to accomplish reception reasonably may be reduced if the putative father's domicile is remote from that of the child, the requirement is not waived. See GC opinion re Joseph M. C~, cited above (no reception where the putative father moved from California shortly after the child's birth and thereafter made no attempt to contact the child); cf. Rodreguez v. Rodriguez, 329 F. Supp. 597 (N.D. Cal. 1971) (reception achieved where soldier-father never stationed near child's home died while serving in Vietnam). ⁴At the very least, it must appear that the putative father tried to establish contact with the child in a manner consistent with his acknowledgment of paternity.

Although this case presents a close question as to whether or not reception took place, it is our opinion that the file does not contain evidence sufficient to justify an affirmative determination. All the informants agree that the claimant did not visit the wage earner in his California home. The claimant's mother attributes this omission to her son's (presumably also her) lack of funds. Significantly, however, two trips were made to California by the wage earner's daughter Ivy. (Mrs. M~ says that he "sent for" Ivy but does not clarify who paid for the trip. No showing has been made that the wage earner could not afford to pay the claimant's way to California for a visit.) The inconsistency in treatment as between the two children strongly indicates that the wage earner did not undertake all reasonable means in order to bring the claimant into his home. Furthermore, there is evidence that the wage earner found the wherewithal to travel to Detroit at least once a year between 1976 and the year of his death, 1983; yet, evidently the claimant did not live in or visit the wage earner's lodgings in Detroit. At most, the claimant accompanied the wage earner on visits to friends and relatives. Such casual contacts outside the home do not amount to reception. The presumption under section 7004(a) (4) is triggered by behavior which, it is deemed, reliably indicates an assumption of paternal responsibility. The encounters between the claimant and the wage earner attested to by the wage earner's relatives do not provide an adequate degree of reliability in this regard. The wage earner had approximately eleven years in which to manifest a paternal role in a definitive manner. Nothing in the record demonstrates that he availed himself of this opportunity. Therefore, in our judgment, the presumption under section 7004(a) (4) does not apply in this case. Consequently, it is our opinion that the courts of California would not find that a parent-child relationship entitling the claimant to rights of succession has been established. ⁵

¹ A preliminary question not raised in your memorandum is whether the California courts would apply California substantive law, based solely on the wage earner's domicile in this state, or the law of Michigan, the jurisdiction where the claimant was domiciled and where any contact between the wage earner and claimant took place. The few decisions Confronting this issue instruct that where a question as to an individual's right of succession to the estate of a California domiciliary depends on a determination of the individual's status, California courts should look to California statutory authority. See In re L~ Estate, 26 Cal. 2d 472, 159 P.2d 643, 647 (1945); Estate of Bassi v. Z~, 234 Cal. App. 2d 529, 44 Cal. Rptr. 541, 550-551 (1965); Wolf v. Gall, 32 Cal. App. 286, 163 P. 346, 347 (1916).

Prior to the effective date of California's version of the UPA, January 1, 1976, Civil Code Section 230 governed legitimation of children for inheritance purposes. We have previously opined that where, as here, the wage earner died after January 1, 1976, the UPA provisions are to be applied, at least where contacts with the child continued past January 1, 1976. GC opinion re California-Status of Children-Uniform Parentage Act, June 25, 1976.

² Because California case law interpreting the reception requirement of section 7004(a) (4) is not extensive, we have 1ooked to judicial interpretation of a substantially similar provision contained in former California Civil Code section 230, the legitimation statute replaced by the UPA on January 1, 1976. See GC opinion re California-Status of Children-Uniform Parentage Act, June 25, 1976. The substitution of "home" in section 7004(a) (4) in lieu of "family" in former section 230 (about which you inquire) is not significant. This change merely codified the interpretation developed over the years by the courts:

the term "family" as used in section 230 has been very broadly defined and as by no means restricted to the traditional notion of a husband, wife and children or even close blood relatives of the father. Rather, the statute at most requires that the father "have a 'home,' a settled place of habitation of which he is the head, into which he . receive[s] the child .... "

In Re Richard M., cited above (citations omitted).

³ Under former section 230, a married man not lawfully separated from his wife could legitimate a child born to a woman other than his wife only by means of reception into the marital home. Laugenour v. Fogg 48 Cal. App. 2d 848, 120 P.2d 690 (1942); GC opinion re Refugio U. S~ August 30, 1963. The express requirement of spousal consent contained in section 230 does not appear in section 7004(a) (4). We have construed this change, however, as not signaling that a married man need no longer receive his child into the home of his wife. GC opinion re Abelardo G~, January 24, 1980. In effect, spousal consent is no longer necessary, but an adequate showing of reception is still required.

⁴ This is not a proper case for resort to the doctrine of constructive reception. This artificial concept may only be invoked where actual reception was impossible, usually as a result of the father's death before or very shortly after the child's birth. See GC opinions re Joseph M. C~ and Sergio M. N~ , cited above.

⁵ The facts of this case are readily distinguishable from the circumstances in Clarence R~, November 9, 1959, the opinion you make reference to in your memorandum. In that case, Clarence R~ had moved from Louisiana to California at about the time of his child's birth. Unlike the wage earner here, he did not have an extended opportunity to receive the child while they were living in close proximity to one another. Furthermore, on-one occasion when he was able to return to Louisiana, Mr. R~ lived with the child in his mother's home. In contrast, no cohabitation is evidenced here, despite the wage earner's numerous visits to Detroit. Other indicia of paternity in R~ included regular monthly gifts of money and clothing as well as frequent correspondence with the child. Mr. R~ also named his son as the beneficiary of his life insurance policy. None of these reinforcing elements is evidenced in this case.

LEGITIMACY PRESUMPTIONS AND PROOF California

CALIFORNIA

Under California law where a man receives a child into his home and holds him out to be his own, there is a rebuttable presumption of a parent-child relationship. It is not sufficient to simply treat the child as though it was his own. Statements that the wage earner treated the child just like it was his own together with other statements attributing the mutual parent relationship to a third party clearly rebut the presentation of a parent-child relationship between the claimant and the wage earner. (C~, Harry ~ - Region IX (FLOERCHINGER) to RC 08/20/82)

At issue in this case is the eligibility of William J. B~ C~ for child's insurance benefits on the account of Harry C~ the deceased wage earner. Harry C~ and Nancy S. B~ were legally married in June 1956. A final judgment of divorce was entered in San Bernardino County, California, in December 1968. After the divorce, Harry and Nancy lived together in California off and on until his death on April 22, 1981. Nancy C~ stated that Harry was living with her when William was born in February 1971; however, she also stated that William J. B~, not Harry C~ was William's father. She stated that she signed affidavits to this effect for the District Attorney's office, Child Support Division, in San Bernardino, California. William J. B~ is listed as the claimant's father on his birth certificate. Nancy C~ stated that Harry raised the claimant as his own son, however, and William used the surname of C~. Three of the wage earner's children made statements to the effect that he considered and treated the claimant as one of his sons. You inquired whether Harry C~ could establish a father-child relationship with the claimant. under section 7004 (a) (4) of the California Civil Code, in the absence of a blood relationship.

Section 7004(a) (4) provides that a man is (rebuttably) presumed to be the natural father of a child if he "receives the child into his home and openly holds out the child as his natural child." While the wage earner certainly received William into his home, the statements by the claimant's mother, half-brother, and half-sisters do not establish that the wage earner openly held William out as his natural child. Nancy C~ stated that Harry raised the claimant "as his own son." She completed a "Child Relationship Statement" indicating that Harry: listed William as a dependent on his tax returns; registered William in school or church or signed a report card as William's parent; and took William to a doctor's or dentist's office or to a hospital and listed himself as his parent. No documentation was produced to support these statements, however. Nancy also retracted an earlier report that Harry listed William as a beneficiary on an insurance policy. The statements by the claimant's half-brother and half-sisters that Harry "considered" the claimant "as one of his sons" do not establish that the wage earner openly held out the claimant as his natural son. Their statements that Harry "stated that he felt he took more responsibilities of fathering [the claimant] than he did with his own natural children" indicate that the wage earner acknowledged that the claimant was not his natural child. Such an acknowledgment would be consistent with Nancy C~ statements that William J. B~ was the claimant's father and that she completed affidavits to that effect with the District Attorney's office, Child Support Division, in San Bernardino, California.

Even if, upon further development,¹ you determined that the wage earner had openly held out the claimant as his natural child, then under section 7004(a) (4) he would be only presumed to be the claimant's natural father. (This presumption could arise from a wage earner's actions and statements, despite other evidence indicating that the wage earner is not the child's natural father. An individual can establish a father-child relationship under section 7004(a) (4), in the absence of a blood relationship.) The standard for rebutting the presumption is by "clear and convincing evidence." California Civil Code 7004(b). In this instance you have such clear and convincing evidence: the consistent statements from all members of the family that William J. B~ , not the wage earner, fathered the claimant. On the facts of this case, therefore, the father-child relationship presumption(even if established by facts not yet in the claims file) would be rebutted by conclusive evidence of non-paternity.

¹ No further development is needed in this case, because of the conclusion reached herein on rebutting the presumption.

LEGITATION a/o ACKNOWLEDGEMENT a/o RECOGNITION

In General Under the California Civil Code if a father behaves in such a way as to give his illegitimate child the status of heir or legitimate child, a rebuttable not conclusive, presumption is established as to the paternity of the individual to the child. The alleged father is not precluded from later denying his paternity. In such a case the issue would be resolved on the basis of the credibility of the testimony relating to the facts. (H~ , Roy - ~ - RA IX(FLOERCHINGER) to ARC 7/28/82)

At issue is whether a father-child relationship under section 7004(a) (4) of the California Civil Code was established between Shameka H~ and the deceased wage earner, Roy H~. Shameka was born to Betty C~ on August 2, 1975. Neither the wage earner nor Betty was married at the time of Shameka's birth. Roy H~ is listed as Shameka's father on the birth certificate (signed by Betty C~ ). Statements in the claims file are contradictory as to when the wage earner and Betty "ceased visiting each other."

The Western Program Service Center was prepared to find, based on statements in the claims file by friends of Betty C~ and the wage earner, that the wage earner openly held out and received Shameka into his home as his daughter, at least from the time of her birth until late 1977. In 1979, however, the Family Support Bureau of San Francisco' brought a child support action against the wage earner on behalf of Shameka. Blood tests taken at that time did not exclude the wage earner as a possible biological father of Shameka. A temporary support hearing, at which the wage earner's attorney, but not the wage earner, appeared, was held on February 15, 1979. At that. time the wage earner was ordered to Day $50 per month for support of Shameka and a later-born child, pending trial. The wage earner, however, responded to interrogatories from the Family Support Bureau and stated unequivocally that he was not Shameka's father. The wage earner died in February 1980, before the trial on the child support issue was held.

In our opinion re: Willie T. J~, D-5885, April 25, 1968, speaking to California Civil Code section 230, we concluded that if a father behaves in such a way as to give his illegitimate child the status of heir or legitimate child, the father cannot change this status by subsequent denials of paternity. -You inquired whether this principle would apply equally under section 230's successor, Civil Code section 7004(a) (4).

We do not believe that the J~ opinion controls in the circumstances under consideration here.¹ The Uniform Parentage Act (UPA), California Civil Code sections 7000 et seq., provides for court actions to determine the existence or nonexistence of a father and child relationship. Cal. Civil Code 7006. It would be incongruous to provide a statutory right to litigate the paternity issue, yet at the same time to declare that an alleged father cannot deny paternity because of his prior actions with respect to the child. In effect, that would raise to the level of a conclusive presumption, certain actions by the alleged father; however, section 7004(b) states that such actions constitute only a rebuttable presumption of paternity.

The wage earner contested, in the appropriate forum, Betty C~ 's allegation that he was Shameka's natural father. Because

he died before the court. heard the child support case ... judicial findings on the facts are available. Thus, your task will be to evaluate the facts, just as the court would have done, to determine whether the requisite father-child relationship existed.

In making your determination as to 'the existence of a father-child relationship, you must take into consideration all of the available evidence. If you find credible the statements made by Betty C~ and friends of Betty and the wage earner,' then the test of section 7004(a)(4)whether 'he received Shameka into his home and openly held her out as his natural child-'would seem to be satisfied. If so, there would be' a rebuttable presumption that Shameka is the wage-earner's natural child. You would then need to consider whether the wage earner's denial of paternity (and any other evidence you may discover) constitutes such "clear and convincing" evidence as to rebut that presumption.

¹ We express no opinion herein as to whether the J~ rationale would apply to a section 7004(a) (4) case wherein the alleged father had not availed himself of his right to contest paternity in a section 7006 civil action.