Here, the NH died while domiciled in California, therefore, the agency looks to California intestacy law to determine whether Claimant is the child of the NH for purposes of entitlement. Pursuant to California Probate law, a natural parent and child relationship is established where the relationship is presumed and not rebutted under California’s Uniform Parentage Act. The NH is the Claimant’s presumed parent under the Family Code laws because the NH was in a legally recognized domestic partnership with the Claimant’s natural mother when the Claimant was born. In the absence of any evidence rebutting that presumption, the Claimant is able to inherit intestate from the NH under the California Probate Law. Under California law, the NH is the Claimant’s natural parent and the Claimant could inherit intestate from the NH. As the NH’s natural child, the Claimant is deemed dependent on the NH and is therefore entitled to child’s insurance benefits under section 216(h)(2) of the Act.

QUESTION

You asked whether a parent-child relationship exists between K~ (NH) and D~ (Claimant) for purposes of determining Claimant’s entitlement to child’s insurance benefits on the NH’s account.

SHORT ANSWER

Yes. Claimant is entitled to child’s insurance benefits on the NH’s account. Claimant may inherit intestate as the NH’s child under California law because Claimant was born during the NH’s domestic partnership with Claimant’s natural mother.

SUMMARY OF EVIDENCE

The NH and L~ entered into a California same-sex domestic partnership legally registered with the State on September XX, 2009. L~ conceived Claimant via artificial insemination using anonymous donor sperm and Claimant was born on November XX, 20XX in Sacramento, California. Claimant’s birth certificate lists both L~ and the NH as Claimant’s parents, and shows Claimant’s surname as “D~,” the same surname as the NH.

The NH currently receives disability benefits. Claimant filed his application for child’s insurance benefits on August XX, 2014. At all relevant times, the NH has been domiciled in California.

ANALYSIS

Federal Law

Under the Social Security Act (Act), every unmarried minor child of an individual entitled to old-age or disability insurance benefits shall be entitled to child’s insurance benefits. Social Security Act § 202(d)(1), 42 U.S.C. § 402(d)(1). However, to receive child’s insurance benefits, the applicant must qualify as the insured individual’s “natural child” and be dependent on the insured individual at the time he filed his application for child’s insurance benefits. See id.; 20 C.F.R. §§ 404.350, 404.3.55. In determining whether a claimant qualifies as the child of the insured individual, the Commissioner applies the law governing the devolution of intestate personal property by the courts of the State in which such insured individual was domiciled at the time of his or her death. Social Security Act § 216(h)(2)(A), 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1). An applicant who satisfies the requirements of section 216(h)(2)(A) of the Act is also deemed dependent upon the insured individual. 20 C.F.R. § 404.361(a) (“If you are the insured’s natural child, as defined in § 404.355, you are considered dependent upon him or her”); Social Security Ruling (SSR) 77-2c (“where state intestacy law provides that a child may take personal property from a father’s estate, it may reasonably be thought that the child will more likely be dependent during the parent’s life...”).

Here, the NH died while domiciled in California. Therefore, the agency looks to California intestacy law to determine whether Claimant is the child of the NH for purposes of entitlement.

California Law

Pursuant to California Probate Code section 6453, a natural parent and child relationship is established where the relationship is presumed and not rebutted under California’s Uniform Parentage Act (UPA). Cal. Prob. Code § 6453(a); see also Cal. Fam. Code §§ 7600-7730 (UPA).

California Family Code sections 7611(a) and 297.5(d) provide a presumption of a parent-child relationship between the NH and Claimant. This presumption arises out of the relationship between the NH and Claimant’s natural mother. Specifically, under California Family Code section 7611(a), a parent-child relationship is presumed when a child’s natural mother is married to the presumed parent at the time of the child’s birth. Cal. Fam. Code § 7611(a). The presumptions of parentage under 7611 apply equally to children of registered domestic partners. Cal. Fam. Code § 297.5(d)(“The rights and obligations of registered domestic partners with respect to a child of either of them shall be the same as those of spouses.”); see Elisa B. v. Superior Court, 37 Cal. 4th 108 (Cal. 2005) (holding that a child can have two parents of the same sex under the UPA); In re M.C., 195 Cal. App. 4th 197, 216-17 (Cal. Ct. App. 2011) (finding a presumption of parentage under 7611(a) for a child born during a same-sex marriage; overturned on other grounds by Cal. Fam. Code § 3040(d)); see also Hunter v. Rose, 463 Mass. 488 (2012) (relying on Cal. Fam. Code §§ 297.5(d) and 7611(a) to hold that, under California law, a non-biological mother is presumed to be a child’s parent if the child is born during the domestic partnership).

Based on the foregoing, the NH is Claimant’s presumed parent under Family Code sections 7611(a) and 297.5(d) because she was in a legally recognized domestic partnership with Claimant’s natural mother when Claimant was born. In the absence of any evidence rebutting that presumption, Claimant is able to inherit intestate from the NH under California Probate Code section 6453(a).

CONCLUSION

Under California law, the NH is Claimant’s natural parent and Claimant could inherit intestate from her. As the NH’s natural child, Claimant is deemed dependent on her. Claimant is therefore entitled to child’s insurance benefits under section 216(h)(2) of the Act.

NH died while domiciled in California, therefore, the agency looks to California intestacy law to determine whether the Claimant is the child of NH for purposes of entitlement. Based on the evidence provided, a California court would likely determine that NH is the Claimant’s natural parent under the California Family Code. The Superior Court of California granted NH’s petition for joint legal and physical custody of the Claimant and recognized NH’s status as the Claimant’s parent repeatedly throughout its order.

The NH and the Claimant’s mother’s separation does not affect NH’s status as the Claimant’s parent. We have no evidence indicating a competing claim for the role of Claimant’s second parent thus, under California law, the NH is Claimant’s natural parent and the claimant could inherit intestate from her. The Claimant is therefore entitled to child’s survivor benefits under the Act.

QUESTION

You asked whether a parent-child relationship existed between N~ (NH) and K~ (Claimant) for purposes of determining Claimant’s entitlement to child survivor’s insurance benefits.

SHORT ANSWER

Yes. Claimant is entitled to survivor’s benefits as NH’s child because a parent-child relationship exists under California law. NH received Claimant into her home and openly held Claimant out as her child.

SUMMARY OF EVIDENCE

J~, Claimant’s biological mother, and NH were in a relationship and began living together in 2005. J~ gave birth to Claimant December XX, 2006. On February XX, 2011, NH married a third party, R~, and changed her name to “N~”. On March XX, 2011, Claimant’s last name was changed from “J2” to “J3”. NH petitioned the Superior Court of California, as “N~”, for joint legal and shared physical custody of Claimant, which the Court granted on July XX, 2012. NH passed away in California on January XX, 2013. J~ filed for survivor benefits on NH’s record on Claimant’s behalf.

J~ provided the following information in a declaration dated November XX, 2014:

• •

  J~ and NH were in a relationship and started living together in 2005.

• •

  J~ and NH jointly planned Claimant’s birth and lived together at the time of Claimant’s birth.

• •

  NH did not sign Claimant’s birth certificate because of the military’s “Don’t Ask Don’t Tell” policy.

• •

  NH helped with expenses from the pregnancy and birth.

• •

  NH declared Claimant as a dependent on her tax returns and, after they separated, each partner claimed Claimant as a dependent on alternate years.

• •

  NH listed herself as Claimant’s parent on his medical and school records, and NH provided regular and substantial contributions to Claimant’s care.

• •

  After J~ and NH separated, they obtained a court order for joint custody where each parent had the same rights to Claimant.

The Court Order dated July XX, 2012 establishes the following facts:

• •

  NH petitioned for joint custody with J~ for Claimant.

• •

  The Court ordered that NH and J~ would have joint legal and shared physical custody of Claimant.

• •

  The Court order repeatedly references that NH is Claimant’s parent and establishes parental obligations for NH.

ANALYSIS

Federal Law

Under the Social Security Act (Act), every unmarried minor child of an individual that dies fully or currently insured shall be entitled to child insurance benefits. Social Security Act § 202(d)(1), 42 U.S.C. § 402(d)(1). However, to receive child insurance benefits, the applicant must qualify as the insured individual’s “natural child” and be dependent on the insured individual at the time he filed his application for child insurance benefits. ^[1] See id.; 20 C.F.R. §§ 404.350, 404.3.55. In determining whether a claimant qualifies as the child of the insured individual, the Commissioner applies the law governing the devolution of intestate personal property by the courts of the State in which such insured individual was domiciled at the time of his or her death. Social Security Act § 216(h)(2)(A), 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1). An applicant who satisfies the requirements of section 216(h)(2)(A) of the Act is also deemed dependent upon the insured individual. 20 C.F.R. § 404.361(a) (“If you are the insured’s natural child, as defined in § 404.355, you are considered dependent upon him or her”); Social Security Ruling (SSR) 77-2c (“where state intestacy law provides that a child may take personal property from a father’s estate, it may reasonably be thought that the child will more likely be dependent during the parent’s life...”).

Here, NH died while domiciled in California. Therefore, the agency looks to California intestacy law to determine whether Claimant is the child of NH for purposes of entitlement.

California Law

Under California intestacy law, a natural parent and child relationship “is established where the relationship is presumed and not rebutted pursuant to the Uniform Parentage Act.”^[2] Cal. Prob. Code § 6453(a); see also Cal. Fam. Code §§ 7600-7730 (Uniform Parentage Act (UPA)). Pursuant to California’s UPA, a person is presumed to be the natural parent of a child if he or she “receives the child into his or her home and openly holds out the child as his or her natural child.” Cal. Fam. Code § 7611(d);^[3] see also Program Operations Manual System (POMS) GN 00306.430(A)(1)(b)(6).

The presumption of natural parentage applies even in the absence of a biological relationship. See Elisa B. v. Superior Court, 37 Cal. 4th 108, 120-21 (Cal. 2005). Paternity presumptions are not driven by biological paternity, but rather by “the state’s interest in the welfare of the child and the integrity of the family.” Id. at 121-22 (citing In re Salvador M., 111 Cal. App. 4th 1353, 1357-58 (Cal. Ct. App. 2003)). California recognizes the value of having two parents as a source of emotional and financial support for a child, and an alleged parent’s commitment to the child and the child’s well-being are considerations in determining presumed parenthood status. Id. at 123; In re D.M., 210 Cal. App. 4th 541, 553 (Cal. Ct. App. 2012) (citing E.C. v. J.V., 202 Cal. App. 4th 1076, 1085 (Cal. Ct. App. 2012)). In determining whether an alleged parent has held out a child as her natural child, California courts look at the alleged parent’s conduct to determine her commitment to the child, and may consider factors such as whether the alleged parent helped with prenatal care; paid pregnancy and birth expenses commensurate with the ability to do so; whether and how long the parent cared for the child; and acknowledged the child to others. See E.C., 202 Cal. App. 4th at 1087.

In Elisa B., the California Supreme Court discussed several factors that supported a finding of presumed maternity, including the fact that the petitioner was in a committed relationship with her partner when they decided to have children together and that the petitioner raised the children as her own. See Elisa B., 37 Cal. 4th at 122. Importantly, the Court held the petitioner, who participated in causing the children to be conceived, voluntarily accepted the rights and obligations of parenthood after the children were born, and there were no competing claims to her being the children’s parent, was a presumed parent under the UPA. Id. at 124-25.

Similarly, in S.Y. v. S.B., the California Court of Appeals upheld the finding of presumed parentage of S.Y., where S.Y. encouraged S.B. to adopt a child with the understanding they would raise the child together; S.Y. voluntarily accepted the rights and obligations of parenthood after the child was born; and there was no competing claims to S.Y. being the second parent. S.Y. v. S.B., 201 Cal. App. 4th 1023, 1037 (Cal. Ct. App. 2011).

An eventual separation or dissolution of the partner’s relationship does not affect presumed parentage under California law. In Charisma R. v. Kristina S., 175 Cal. App. 4th 361 (Cal. Ct. App. 2009) (disapproved on other grounds by Reid v. Google, Inc., 50 Cal. 4th 512, 532 n.7 (Cal. 2010)), the California Court of Appeal found a presumption of parentage even though the petitioner had only lived with and shared in the child’s care for about three months. Id. at 366-67, 374 (“We conclude that receipt of the child into the home must be sufficiently unambiguous as to constitute a clear declaration regarding the nature of the relationship, but it need not continue for any specific duration”). The petitioner was presumed a parent because she was present at the child’s birth, gave the child a hyphenated last name that included her name, and she held herself out as the child’s parent in public announcements. Id. In E.C. v. J.V., the California Court of Appeals stressed that, in determining presumed parentage, the State looks at the presumed parent’s commitment to the child’s well-being, as opposed to the presumed parent’s relationship with the biological mother. E.C. v, J.V., 202 Cal. App. 4th at 1085. A presumed parent, therefore, is “someone who has entered into a familial relationship with the child: someone who has demonstrated an abiding commitment to the child and the child’s well-being, regardless of his or her relationship with the child’s other parent.” Id.

Presumed parentage is also not affected if the parents do not register as domestic partners or execute a written agreement concerning the children. Elisa B., 37 Cal. 4th at 114-15; see also S.Y., 201 Cal. App. 4th at 1035-36. For example, the Court found presumed parentage in S.Y. where S.Y. did not formalize her relationship with S.B. because of the military’s “Don’t Ask, Don’t Tell” policy. S.Y., 201 Cal. App. 4th at 1030.

A California court would likely determine that NH is Claimant’s natural parent under Family Code § 7611(d). NH took Claimant into her home, and then held him out as her child by caring for him and financially supporting him. Importantly, the Superior Court of California granted NH’s petition for joint legal and physical custody of Claimant. The Superior Court also recognized NH’s status as Claimant’s parent repeatedly throughout its order. ^[4] As in Elisa B., NH held Claimant out as her child by declaring Claimant as a dependent on her tax returns and giving Claimant her last name. See Elisa B., 37 Cal. 4th at 122. Additionally, as in S,Y., NH was in a committed relationship with J~ at the time the partners decided to have a child. S.Y., 201 Cal. App. 4th at 1037. NH shared responsibility for the pregnancy and birth expenses. Further, NH lived with Claimant and J~ at the time of Claimant’s birth. While NH did not sign the birth certificate or legally adopt Claimant, she openly contributed to his personal and financial wellbeing. Even after she separated from J~, NH continued to provide regular and substantial contributions to Claimant and listed herself as a parent on Claimant’s medical and school records.

Furthermore, NH and J~’s separation does not affect NH’s status as Claimant’s parent. California law is clear that the question of presumed parenthood is determined by NH’s relationship to Claimant, not her relationship to J~. See, e.g. E.C., 202 Cal. App. 4th at 1088 (“The relationship between a child’s alleged parent and biological parent is legally irrelevant in determining whether the alleged parent held out that child as his or her natural child.”). Indeed, even after NH’s separation from J~ and NH’s subsequent marriage, NH continued to hold Claimant out as her child. For example, Claimant’s last name was changed to include NH’s last name. Additionally, NH petitioned for joint custody of Claimant, clearly establishing her continued commitment toward Claimant’s welfare. The court order awarding joint custody to NH and J~ further indicates that the court considered NH’s continued presence in Claimant’s life to be beneficial for him. See Elisa B., 37 Cal. 4th at 121-22 (discussing In re Salvador and “holding out” provision). Finally, we have no evidence indicating a competing claim for the role of Claimant’s second parent. See id. at 123, 125. In fact, NH and J~, through the petition for joint custody, appear to agree that NH was the second parent and should be formally recognized as such.

CONCLUSION

NH received Claimant into her home and openly held Claimant out as her child. Thus, under California law, NH is Claimant’s natural parent and claimant could inherit intestate from her. Claimant is therefore entitled to child’s survivor benefits under the Act.

Claimant submitted sufficient evidence to establish the DWE as his biological father. Nevertheless, Claimant cannot inherit from the DWE under California intestacy law without clear and convincing evidence that the DWE openly held Claimant out as his child. Because the record does not contain evidence sufficient to satisfy the “holding out” requirement, he can not establish eligibility for child survivor’s benefits. However, should Claimant submit clear and convincing evidence that the DWE openly held him out as his child, lived with him, or contributed to his support at the time of death, Claimant could establish eligibility under either Section 216(h)(2)(A) or 216(h)(3) of the Act.

QUESTION

You asked whether a parent-child relationship existed between G~, the deceased wage earner (DWE), and A~ (Claimant) for purposes of determining Claimant’s eligibility for survivor’s insurance benefits, where a California State Court issued an order of paternity after the DWE’s death, and DNA testing revealed that the DWE is the Claimant’s biological father.

SHORT ANSWER

No. Under California intestacy law, Claimant cannot inherit from the DWE. Although clear and convincing evidence establishes that the DWE is Claimant’s biological father, the evidence does not show that the DWE openly held Claimant out as his child or contributed to his support before his death.

SUMMARY OF EVIDENCE

Prior to his death, the DWE engaged in a non-marital relationship with Claimant’s mother. According to the DWE’s cousin, T~, the DWE terminated his relationship with Claimant’s mother prior to Claimant’s birth. Claimant was born on November. On Claimant’s original birth certificate, paternal information was “withheld.” T~ did not know whether the DWE ever met Claimant, or whether the DWE contributed money towards Claimant’s needs. S~, another cousin of the DWE, reported that she was not aware whether the DWE had any contact with Claimant. Additionally, Claimant’s mother provided signed statements from the DWE’s sister and mother, both confirming that Claimant is the child of the DWE.

The DWE died in January 1997. Claimant’s mother obtained a tissue sample from the DWE’s body in February 2003 and submitted it for DNA testing. Orchid Cellmark Laboratory issued a genetic test report on March XX, 2003, finding a 99.97% probability that the DWE is Claimant’s biological father. Orchid Cellmark is a laboratory accredited by the American Association of Blood Banks (AABB), and therefore, meets the requirements of an acceptable genetic testing facility under California law. See AABB Accredited Relationship (DNA) Testing Facilities, available at http://www.aabb.org/sa/facilities/Pages/RTestAccrFac.aspx (last visited Feb. 23, 2012). ^[5] Claimant’s mother filed a petition in the California Superior Court of Riverside County to recognize the DWE as Claimant’s father and to change Claimant’s last name. In December 2011, the Court issued a judgment, changing Claimant’s name to A~, ^[6] and ordering that Claimant’s birth certificate be amended, adding “G~” as the name of Claimant’s father.

Claimant’s mother previously filed three applications for survivor’s insurance benefits on Claimant’s behalf. The agency denied all three of the prior applications. In addition to filing the current application for survivor’s insurance benefits, Claimant’s mother may seek to reopen the previously denied claims based on new evidence consisting of the signed statements provided by the DWE’s sister and mother.

ANALYSIS

Federal Law

Under the Social Security Act (Act), every unmarried minor child of an insured individual ^[7] that dies fully or currently insured shall be entitled to child insurance benefits. Social Security Act § 202(d)(1), 42 U.S.C. § 402(d)(1). However, to receive child insurance benefits the applicant must qualify as the insured individual’s “child,” as defined by section 216(e) of the Act, and be dependent on the insured individual at the time of his death. See id.; 20 C.F.R. § 404.350. Section 216(e)(1) of the Act defines a “child” as “the child or legally adopted child of an individual.” Social Security Act § 216(e)(1), 42 U.S.C. § 416(e)(1). Section 216(h) of the Act provides further elaboration on the definition of child: “[i]n determining whether an applicant is the child...[of] the insured individual...apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which [the insured] was domiciled.” Section 216(h)(2)(A) of the Act, 42 U.S.C. § 416(h)(2)(A); 20 C.F.R.  404.355(a)(1). In applying state law, we do not require the claimant to obtain a court determination but use the same law and standards that the state court would use. 20 C.F.R. § 404.355(b).

An applicant who satisfies the requirements of section 216(h)(2)(A) of the Act is also deemed dependent upon the insured individual. 20 C.F.R.  404.361(a) (“If you are the insured’s natural child, as defined in § 404.355, you are considered dependent upon him or her”); Social Security Ruling (SSR) 77-2c (“where state intestacy law provides that a child may take personal property from a father’s estate, it may reasonably be thought that the child will more likely be dependent during the parent’s life. . .”).

If the applicant does not qualify under section 216(h)(2)(A) of the Act, he or she may still be deemed the child of the insured individual under alternative federal standards. Social Security Act § 216(h)(3), 42 U.S.C. § 416(h)(3). An applicant may qualify as the child of an insured individual under section 216(h)(3) of the act if, before the insured individual’s death: (1) he acknowledged the applicant as his child in writing, (2) a court decreed him the child’s father, or (3) a court ordered that he contribute to the child’s support. Social Security Act § 216(h)(3)(C)(i), 42 U.S.C. § 416(h)(3)(C)(i). Alternatively, the applicant will achieve child status if the agency finds that the insured individual is the applicant’s father, and he was living with or contributing to the support of the applicant at the time of his death. Social Security Act § 216(h)(3)(C)(ii), 42 U.S.C. § 416(h)(3)(C)(ii).

As discussed, this case involves a California State court judgment of paternity. Pursuant to SSR 83-72c, the agency will accept a determination made by a state court if all four of the following prerequisites are met: First, the state court determination must resolve an issue raised in the applicant’s claim for Social Security benefits. Id. Second, parties with opposing interests must have genuinely contested the issue before the state court. Id. Third, the issue must fall within the general category of domestic relations law. Id. Fourth, the resolution by the state must be consistent with the law enunciated by the highest court in the state. Id.

California Law

Pursuant to the California Probate Code, a child may inherit through his or her natural parents, regardless of the parents’ marital status. Cal. Prob. Code § 6450(a). A parent-child relationship is established where the relationship is presumed and not rebutted under California’s Uniform Parentage Act (UPA). Cal. Prob. Code § 6453(a); see also Cal. Fam. Code § 7611 (setting out presumptions of paternity). Alternatively, the Probate Code provides that a parent-child relationship may be established through an action brought under California Family Code § 7630(c), unless any of the following conditions exist:

1. 1. 

   A 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; or

3. 3. 

   It was impossible for the father to hold out the child as his own (e.g., the father died before the child’s birth) and paternity is established by clear and convincing evidence.

Cal. Prob. Code § 6453(b); POMS GN 00306.430(A)(1)(b)(7); see also Cal. Fam. Code § 7630(c) (actions to establish a father-child relationship not based upon a presumption arising under Cal. Fam. Code § 7611).

No Court Issued an Order of Paternity During the DWE’s Lifetime

Here, a California State Court issued a judgment that a parent-child relationship existed between the DWE and Claimant. However, the Court did not issue the judgment until December 2011, almost 15 years after the DWE’s death. Accordingly, the Court’s judgment is insufficient for meeting the first condition of California Probate Code § 6453(b). See Cal. Prob. Code § 6453(b)(1); POMS GN 00306.430(A)(1)(b)(7)(A).

Even had the Court issued the judgment of paternity before the DWE’s death, the agency need not have accepted it. The Court’s default judgment was issued 15 years after the DWE’s death; thus, suggesting there was no one of opposing interest to contest the issue of paternity in the state court. See SSR 83-72c. Moreover, a California family court’s determination of paternity does not automatically result in a child’s right to inherit intestate from his biological father. See Cal. Prob. Code § 6453(b); Cal. Fam. Code § 7630. Rather, in addition to a family court’s determination of paternity under California Family Code § 7630, one of the conditions listed under California Probate Code § 6453(b) must be met. Cal. Prob. Code § 6453(b). As discussed, the first condition listed under § 6453(b) is not satisfied.

The DWE Had Opportunity to Hold Claimant Out as His Child

Furthermore, Claimant cannot meet the third condition of California Probate Code § 6453(b). Genetic test results establishing biological paternity would likely serve as clear and convincing evidence that the DWE is Claimant’s biological father. ^[8] See Cal. Prob. Code § 6453(b)(3); POMS GN 00306.430(A)(1)(c). Additionally, the state court’s judgment may serve as additional evidence of paternity. However, it was not impossible for the DWE to hold Claimant out as his child. See Cal. Prob. Code § 6453(b)(3); POMS GN 00306.430(A)(1)(b)(7)(C). The DWE lived for more than one year after Claimant’s birth. Therefore, prior to his death, the DWE had the opportunity to openly acknowledge Claimant and contribute towards his care. ^[9]

CONCLUSION

Claimant submitted sufficient evidence to establish the DWE as his biological father. Nevertheless, Claimant cannot inherit from the DWE under California intestacy law without clear and convincing evidence that the DWE openly held Claimant out as his child. Because the record does not contain evidence sufficient to satisfy the “holding out” requirement, he can not establish eligibility for child survivor’s benefits. However, should Claimant submit clear and convincing evidence that the DWE openly held him out as his child, lived with him, or contributed to his support at the time of death, Claimant could establish eligibility under either Section 216(h)(2)(A) or 216(h)(3) of the Act.

Given that genetic testing established a high likelihood that Claimant and C2 were fathered by the same person, and as the agency previously found that C2 was the son of the DWE, it follows that Claimant was also his son. Such a finding is consistent with the application of SSR 06-02p, and the requirements for establishing a parent-child relationship under California intestacy law. Before approving the claim, however, the agency should confirm the chain of custody of the genetic sample per POMS GN 00306.430(A)(1)(c)(5).

QUESTION

You asked whether a parent-child relationship existed between A~, the deceased wage earner (DWE), and I~ (Claimant) for purposes of determining Claimant’s eligibility for survivor’s insurance benefits, where DNA evidence indicates that Claimant shares a paternal relative with A2~, the DWE’s recognized child.

SHORT ANSWER

Yes. Under California intestacy law, Claimant can demonstrate that the DWE is his natural father through clear and convincing evidence of paternity. Genetic testing, showing that Claimant shared a common paternal relative with A2~, along with other evidence, satisfied the standard of proof for establishing paternity.

SUMMARY OF EVIDENCE

The deceased wage earner (DWE), A~, was born in March in Arizona. The DWE resided in Fresno, California, at the time of his death on January XX, 2005. He was killed by a gunshot wound to the chest. Approximately seven months after the DWE’s death, V~ gave birth to the Claimant in Fresno, California. The DWE’s name is not listed as the father on Claimant’s birth certificate; rather the father’s name was left blank. However, the DWE’s state of birth and birth date are provided on the Claimant’s birth certificate.

In a signed statement dated June XX, 2011, V~ reported that the DWE was Claimant’s father. She reported that the DWE lived with her at the time of his death. Additionally, she claimed that the DWE knew of her pregnancy with the Claimant, and was excited about being a father. She submitted a 2004 letter from the DWE in which he expresses his love for V~ and desire to live with her as a family.^[10] V~ produced a picture of her and the DWE, and claimed the picture was taken when she was five weeks pregnant.

In a report of contact dated May XX, 2011, the field office reported that V~ had contacted the office and stated her disagreement with the information on the claim application summary that the DWE was not aware of the pregnancy.

The DWE’s mother signed a report on May XX, 2011, stating that the DWE told her that V~ was pregnant with his child in December 2004. The DWE’s sister made an identical statement in a report she signed on May 9, 2011.

In February 2011, Chromosomal Laboratories issued a Y Chromosome Report, stating that Claimant and A~2 likely shared a paternal relative. According to the report, “[t]he alleged paternal relatives are 106 times more likely to share a common patrilineal ancestor than to be unrelated.” Chromosomal Laboratories is an American Association of Blood Banks (AABB) Accredited Relationship (DNA) Testing Facility, and therefore qualifies as reliable evidence. See AABB Accredited Relationship (DNA) Testing Facilities, available at http://www.aabb.org/sa/facilities/Pages/RTestAccrFac.aspx (last visited Jan. 13, 2012); Program Operations Manual System (POMS) GN 00306.430(A)(1)(c)(2). The evidence we received did not include a statement establishing the chain of custody of the genetic samples collected. POMS GN 00306.430(A)(1)(c)(5).

ANALYSIS

Federal Law

Under the Social Security Act (Act), every unmarried minor child of an insured individual^[11] that dies fully or currently insured shall be entitled to child insurance benefits. Social Security Act § 202(d)(1), 42 U.S.C. § 402(d)(1). However, to receive child insurance benefits the applicant must qualify as the insured individual’s “child,” as defined by section 216(e) of the Act, and be dependent on the insured individual at the time of his death. See id.; 20 C.F.R. § 404.350. Section 216(e)(1) of the Act defines a “child” as “the child or legally adopted child of an individual.” Social Security Act § 216(e)(1), 42 U.S.C. § 416(e)(1). Section 216(h) of the Act provides further elaboration on the definition of child: “[i]n determining whether an applicant is the child...[of] the insured individual...apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which [the insured] was domiciled.” Section 216(h)(2)(A) of the Act, 42 U.S.C. § 416(h)(2)(A); 20 C.F.R.  404.355(a)(1). In applying state law, we do not require the claimant to obtain a court determination but use the same law and standards that the state court would use. 20 C.F.R. § 404.355(b).

An applicant who satisfies the requirements of section 216(h)(2)(A) of the Act is also deemed dependent upon the insured individual. 20 C.F.R. 404.361(a) (“If you are the insured’s natural child, as defined in § 404.355, you are considered dependent upon him or her”); Social Security Ruling (SSR) 77-2c (“where state intestacy law provides that a child may take personal property from a father’s estate, it may reasonably be thought that the child will more likely be dependant during the parent’s life. . .”).

In addition, SSR 06-02p provides that, if another person (C2) is determined to be the insured’s natural child under section 216(h)(3) of the Act ^[12] the agency may consider the claimant’s biological relationship with C2 for purposes of determining whether the claimant is also the natural child of the insured individual under section 216(h)(2)(A). SSR 0602p. The agency will apply the intestacy law of the State where the insured was domiciled at his time of death to determine whether the results of a DNA test between claimant and C2 establishes claimant as the insured’s child. Id.

California Law

Pursuant to the California Probate Code, a child may inherit through his or her natural parents, regardless of the parents’ marital status. Cal. Prob. Code § 6450(a). A parent-child relationship is established where the relationship is presumed and not rebutted under California’s Uniform Parentage Act (UPA). Cal. Prob. Code § 6453(a); see also Cal. Fam. Code §§ 7600-7730 (UPA). Alternatively, a parent-child relationship may be established through an action brought under California Family Code § 7630(c) to determine the existence of a father and child relationship, so long as (1) it was impossible for the father to hold out the child as his own, and (2) paternity is established by clear and convincing evidence. Cal. Prob. Code § 6453(b)(3); see also Cal. Fam. Code § 7630(c) (actions to establish a father-child relationship not based upon a presumption arising under Cal. Fam. Code § 7611). Genetic testing that indicates a likelihood of paternity of 100 times or greater creates a rebuttable presumption of paternity. Cal. Fam. Code § 7555(a); see also POMS GN 00306.430(A)(1)(c) (recognizing that submission of genetic test results is one method for establishing clear and convincing evidence of paternity).

Having found A2~ to be the child of the DWE for purposes of survivor’s insurance benefits, the agency applies SSR 06-02p to determine whether, under California intestacy law, genetic testing between Claimant and A2~ will also establish Claimant as the DWE’s child. Under the California Probate Code, Claimant can establish a parent-child relationship through clear and convincing evidence of paternity, such as genetic testing, but he must first show that it was impossible for the DWE to hold him out as his child. Cal. Prob. Code § 6453(b)(3); Cal. Fam. Code § 7630(c); POMS GN 00306.430(A)(1)(c). As the DWE died prior to Claimant’s birth, it was impossible for him to hold Claimant out as his child. Indeed, the impossibility provision was enacted to cover this type of situation, where the father dies before his child is born. See Cheyanna M. v. A.C. Nielsen Co., 66 Cal. App. 4th 855, 877 (Cal. 1998).

Claimant can show clear and convincing evidence of paternity. DNA testing revealed that the probability that Claimant and C2 shared paternal relatives was 106 times more likely than them being unrelated. ^[13] The probability of a paternal relationship between Claimant and C2, therefore, exceeds the minimum standard necessary to establish a presumption of paternity under California Family Code § 7555(a). ^[14] Additionally, statements submitted by DWE’s mother and sister claimed that, prior to his death, the DWE acknowledged Claimant was his child. His 2004 letter to V~ also shows he had an intimate relationship with her. The genetic test results, in combination with the family’s statements and letters, amounts to clear and convincing evidence that DWE is the Claimant’s father.

According to a May XX, 2011 field office report of contact, V~ originally stated that the DWE was not aware of her pregnancy before his death. However, in her May XX, 2011 contact with the office and the letter she later submitted, Veronica reported that the DWE knew about the pregnancy and he expressed excitement over having a child. While we appreciate the concern you have raised regarding a potential conflict in the evidence, the signed first-hand statements by V~ and the DWE’s family members carry more weight and generally serve to support the accuracy of the genetic evidence. In addition, regardless of whether the DWE knew of the pregnancy, all of the evidence the agency has received supports the conclusion that the DWE had sexual relations with Veronica at a time consistent with the pregnancy. See POMS GN 00306.430(A)(1)(b)(7) (“In the case where a putative father has died while the child is in utero, and where paternal efforts are insufficient to establish holding out under (B) above, holding out shall be deemed impossible and the child shall be permitted to present other clear and convincing evidence of paternity.”).

Accordingly, application of SSR 06-02p and California intestacy law establishes Claimant as the child of the DWE. Genetic test results between Claimant and C2 revealed their common paternal relation. As the agency previously determined that A2~ was the natural child of the DWE, it follows that the agency should also find Claimant to be his child. Moreover, the DWE’s reported acknowledgement of paternity and recognized relationship with V~ serves as additional evidence establishing Claimant as the DWE’s child. See SSR 06-02p (“we will apply the law of intestate succession of the appropriate State to determine whether the results of the DNA test between I~and A2~ (and any other evidence of A2~’s relationship to the worker) establish A2~’s status as the worker’s child”) (emphasis added).

CONCLUSION

Given that genetic testing established a high likelihood that Claimant and A2~2 were fathered by the same person, and as the agency previously found that A2~ was the son of the DWE, it follows that Claimant (I~) was also his son. Such a finding is consistent with the application of SSR 06-02p, and the requirements for establishing a parent-child relationship under California intestacy law. Before approving the claim, however, the agency should confirm the chain of custody of the genetic sample per POMS GN 00306.430(A)(1)(c)(5).

We concluded that the claimant would not be eligible for child’s insurance benefits on the NH’s earnings record. 

The claimant would not be able to inherit from the NH under California intestacy law. The NH did not hold out the claimant as his child when he was alive and it was not impossible for him to do so, nor did any court establish the parental relationship prior to the NH’s death. In the absence of this evidence, California law does not consider the biological relationship. 

QUESTION

You asked whether the claimant, O~, qualifies for child’s survivor insurance benefits as the child of the number holder (NH), T~, in light of genetic tests performed on the NH’s parents that showed a 99.99% probability of grandpaternity.

SHORT ANSWER

We do not have sufficient evidence to find that the claimant would be considered the NH’s child under California Although we were originally asked whether the child would qualify under Ohio intestacy law, because the NH was domiciled in California when he died, we consider only California law.  We discuss these legal requirements in more detail in the text, below. intestacy law because the NH did not take sufficient actions to “hold out” the child as his own during his lifetime. California law does not rely on the biological relationship for purposes of intestate succession and therefore the DNA evidence does not address the relevant legal requirements.

SUMMARY OF EVIDENCE

The claimant, O~, was born in April in Lima, Ohio. The NH, T~, died in October, while domiciled in California. He was not entitled to benefits before his death.

On November XX, 2010, the claimant’s mother, R~ filed an application seeking child survivor’s benefits for the claimant on the NH’s earnings record. R~ indicated that she lived in Ohio with the claimant.

On the “Child Relationship Statement,” Form SSA-2519, R~ answered “no” to the following questions about the NH:

(a) whether he ever filed an application with or otherwise made a statement to the Veterans Administration, any government agency or welfare office stating the child was his;

(b) whether he had written any letters to anyone referring to the child as his daughter or to himself as her parent;

(c) whether he ever listed the child in a family tree or other family record;

(d) whether the worker ever listed the child as a dependent on a tax return;

(e) whether he ever took out insurance policies on the child or made the child a beneficiary of an insurance policy on his own life;

(f) whether he ever made a will listing the child as a beneficiary;

(g) whether he ever made an allotment for the child while in the military;

(h) whether he ever listed the child as his on any employment application;

(i) whether he ever registered the child in school or at a place of worship, or signed a report card as the child’s parent;

(j) whether he ever took the child to the doctor’s or dentist’s office or the hospital and list himself as a parent;

(k) whether he ever accepted responsibility for or paid the child’s hospital expenses at birth or gave information for the birth certificate;

(l) whether there was any written evidence of any kind that would show that the child was his sons; and

(n) whether the worker was making regular and substantial contributions to the child’s support at the time the worker died?

R~ answered “yes” only to Question (m), indicating that the NH had orally admitted he was the child’s parent. On page 2 of Form SSA-2519, O~ stated that the NH told his parents that the claimant was his son. She further stated that she never married nor lived with the NH prior to his death; the NH never contributed to R~’s or the claimant’s support; and no court had ordered such support.  

R~ also submitted a DNA analysis of the NH’s parents, T2~ and D~, performed by Laboratory Corporation of America in Burlington, North Carolina.  In a DNA analysis report dated December XX, 2010, Dr. K~, the Director of Laboratory Corporation, stated under oath that the testing showed a 99.99% probability that T2~ and D~ were the claimant’s biological grandparents as compared to untested, unrelated persons. The report further stated that the alleged paternal grandparents could not be excluded as the claimant’s biological grandparents and the result supported the assertion that “a son of” the paternal grandparents “could be the biological father” of the claimant.

The DNA analysis was ordered by the Child Support Enforcement Agency (CSEA) of Van Wert County, Ohio, in connection with a paternity case brought against the deceased NH on the claimant’s behalf. A February XX, 2011 memorandum to R~ from a CSEA case manager stated that CSEA “could not issue an administrative order declaring T~ to be the father of O~ ” because it was not able to test the NH’s genetic material. However, because the test results indicated that T2~ and D~ could not be excluded as the biological grandparents, Ohio law required the CSEA to “open an estate thru [sic] Probate Court in hopes of obtaining a Court Order declaring T~ to be the father of O~.” The February XX, 2011 letter further indicated that CSEA’s legal department was “hoping to get a consent entry drawn up,” and if it was approved by the judge, it might result in an Ohio court order establishing paternity. We do not have any evidence as to whether the claimant later obtained an Ohio court order establishing paternity. However, because we consider the law of the NH’s domicile at the time of death, we would still look to California and not Ohio law to determine the claimant’s eligibility for child survivor benefits. See Social Security Act § 216(h)(2)(A), 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1).  If the claimant had a paternity order from Ohio, we would analyze how California would treat that order. 

ANALYSIS

Pursuant to the Social Security Act (Act), an unmarried child who is under the age of 18 and applies for benefits may be eligible for child’s insurance benefits on the account of an individual who dies fully or currently insured, if he or she: (1) is the insured’s “child,” as defined in 42 U.S.C. § 416(e); and (2) was dependent upon the insured at the time of the insured’s death. Social Security Act § 202(d), 42 U.S.C. § 402(d)(1)(A)-(C); 20 C.F.R. § 404.350(a)(1)-(5). 

A “child” is defined as the child, legally adopted child, stepchild (for at least one year before the application for child’s insurance benefits is filed), or, in limited circumstances, grandchild of an insured individual. Social Security Act § 216(e), 42 U.S.C. § 416(e); see also 20 C.F.R. § 404.354 (explaining that the definition of “child” includes “natural child, legally adopted child, stepchild, grandchild, stepgrandchild, or equitably adopted child”). 

In determining whether a claimant qualifies as the child of the insured individual, and where the insured is deceased, the Commissioner must apply the law governing “the devolution of intestate personal property . . . by the courts of the State in which he was domiciled at the time of his death.” Social Security Act § 216(h)(2)(A), 42 U.S.C. § 416(h)(2)(A); see also 20 C.F.R. ' 404.355(a)(1). If the child does not qualify under the state law provision, the Act contains alternative federal standards for establishing child status: (1) the claimant is the insured’s natural child and the mother or father went through a ceremony, which would have resulted in a valid marriage between them except for a “legal impediment;”(2) before his death, the insured acknowledged in writing that the child was his natural child; he 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 child; (3) the insured is shown by evidence satisfactory to the Commissioner 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. Social Security Act §§ 216(h)(2)(B), 216(h)(3)(C); 42 U.S.C. §§ 416(h)(2)(B), 416(h)(3)(C); 20 C.F.R. § 404.355(a); see also POMS GN 00306.010(A)(1) (“A natural child is a child who is born to the parent, i.e., biological child”).  The evidence submitted shows that the claimant cannot meet these requirements because R~ and the NH never attempted to marry, there was no written acknowledgment or court decree during the NH’s lifetime, and he did not live with or contribute to the claimant’s support at the time of his death. If an applicant establishes that he is the insured’s child under this provision, he is deemed dependent upon the insured, unless he has been adopted by someone else and the insured is not living with the child or contributing to the child’s support. Social Security Act § 202(d)(3), 42 U.S.C. § 402(d)(3); 20 C.F.R. § 404.361.

Because the NH was domiciled in California when he died, we look to California intestacy law to determine child status. Under California intestacy law, a child may inherit the intestate estate of his natural parent. Cal. Prob. Code §§ 6401, 6402 (West 2011); see also Cal. Prob. Code § 6450 (West 2011) (“The relationship of parent and child exists between a person and the person’s natural parents, regardless of the marital status of the natural parents.”); Program Operations Manual System (POMS) GN 00306.430 (“California Intestacy Laws”). 

For the purpose of determining who is a “natural parent,” the natural parent-child relationship is established “where that relationship is presumed and not rebutted pursuant to the Uniform Parentage Act [UPA].” Cal. Prob. Code § 6453(a) (West 2011). California has incorporated the UPA as Family Code sections 7600-7730. The UPA as codified in the California Family Code does not equate natural parent status with biological parenthood such that a mere biological relationship is sufficient to grant status as a natural parent. Cal. Fam. Code §§ 7610-7614; see e.g., Vernoff v. Astrue, 568 F.2d 1102, 1108 (9th Cir. 2009) (considering California parentage law). 

The NH would not be considered the claimant’s presumed father under any provision of the California Family Code.  The evidence indicates the NH was not married to, nor did he ever attempt to marry R~, and he never signed a voluntary declaration of paternity. See Cal. Fam. Code § 7540 (West 2011) (conclusive presumption as child of marriage); id. § 7576 (conclusive presumption where father signs voluntary declaration); id. § 7611(a)-(c) (presumptions based on marriage and attempted marriage). Also, the NH never “receive[d] the child into his home and openly [held] out the child as his natural child.” Cal. Fam. Code § 7611(d) (West 2011).  He thus cannot satisfy California Probate Code section 6453(a).

Alternatively, the relationship may be established under the UPA by a legal action “brought by the child or personal representative of the child . . . [or] . . . the mother.” Cal. Fam. Code § 7630(c) (West 2011). However, such an action establishes paternity for the purpose of intestate succession only if:

1. 1. 

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

2. 2. 

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

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.

Cal. Prob. Code § 6453(b) (West 2011) (emphasis added).

Although the claimant may be pursuing a paternity action through his county CSEA in Ohio, no court determined paternity during the NH’s lifetime. Nor would it have been impossible for the NH to hold out the claimant as his child because he died six months after the child’s birth. See Cheyanna M. v. A.C. Nielsen Co., 78 Cal. Rptr. 2d 335, 349 (Cal. Ct. App. 1998) (explaining, that the “impossibility” provision is meant to “cover the situation . . . where the father dies before the child is born”). Therefore, the claimant cannot meet the requirements of California Probate Code sections 6453(b)(1) or (b)(3).

The only remaining means of establishing the natural parent-child relationship would be by showing “clear and convincing evidence” that the NH openly held out the claimant as his own, pursuant to Probate Code section 6453(b)(2). The “clear and convincing” standard of proof “requires a finding of high probability . . . [so] as to leave no substantial doubt.” Weeks v. Baker & McKenzie, 74 Cal. Rptr. 2d 510, 533 (Cal. Ct. App. 1998). The high standard of proof is intended to discourage dubious paternity claims made after death for the sole purpose of inheritance. Estate of G~, 96 Cal. Rptr. 3d 651, 654 (Cal. Ct. App. 2009).  “Under California law, a child born out of wedlock is the decedent’s heir even if there has been no formal declaration or judgment of paternity in the decedent’s lifetime, if the decedent received a child into his home and held the child out as his natural child. Probate Code section 6453 . . . adds the requirement that when the relationship is established that way, the evidence of holding out must be ‘clear and convincing.’” Estate of Carter v. Carter, 4 Cal. Rptr. 3d 490, 496 (Cal. Ct. App. 2003) (emphasis in original; citation omitted); accord Ramirez v. Astrue, No. 10-5553-JEM, 2011 WL 2134977, at *4 (C.D. Cal. May 31, 2011) (unpublished) (upholding Commissioner’s denial of survivor’s benefits under California law, even though NH was claimant’s biological father, because the NH never “held [claimant] out as his own” child during his lifetime and there “was no actual dependency”). 

Although the agency does not require actual court action, it does adhere to the “clear and convincing” standard of proof that the California court would use. See 20 C.F.R § 404.355(b)(2) (“If applicable State inheritance law requires a court determination of paternity, we will not require that you obtain such a determination but will decide your paternity by using the standard of proof that the State court would use as the basis for a determination of paternity.”); POMS GN 0306.430(A)(1)(b)(7) (same). Here, the only evidence of “holding out” consists of the NH’s purported oral statement that he was the claimant’s father. This evidence is not sufficiently clear and convincing. 

The claimant’s mother alleges that the NH orally admitted paternity to his parents.  We have no direct evidence of a written or oral admission by the NH by a party to the alleged conversation. Even if the NH’s oral statement was substantiated by his parents, a putative father’s statement admitting paternity to some family members is not clear and convincing evidence of “openly holding out” under California law.  See In re Spencer, 56 Cal. Rptr. 2d 524, 526 (Cal. Ct. App. 1996) (concluding that claim of paternity to friends and family insufficient evidence of “holding out”). Although such statements may be probative, “openly holding out” involves more than privately acknowledging paternity. See In re Estate of B~, 53 Cal. Rptr. 3d 390, 396 (Cal. Ct. App. 2007) (concluding “clear and convincing” standard met where putative father acknowledged in writing that he was a “party to conception,” asked the child’s mother to marry him, and admitted to his own family as well as child and child’s mother that he was the father).  Rather, a putative father openly holds a child out as his own by declaring paternity when there may be some cost to him, such as consequent liability for child support. See Spencer, 56 Cal. Rptr. 2d at 526 (considering facts that “[putative father] never contacted AFDC officials to inform them of his relationship to [child],” “never sought to have his name put on [child’s] birth certificate, and took no other legal action during this period to establish paternity.”). California case law does not uniformly require that acknowledgment of paternity entail some cost to the purported father. For example, in Estate of G~, 25 Cal. 4th 904 (Cal. 2001), the California Supreme Court stated that word “acknowledge” as used in the Probate Code means, according to dictionary definitions, “to admit to be true or state; confess” and “to show by word or act that one has knowledge of and agrees to (a fact or a truth) . . . [or] concede to be real or true . . . [or] admit”].” G~, 25 Cal. 4th at 911. The G~ court held that the biological father had acknowledged the child because he declared before a court that the child in question was his and paid court-ordered child support monthly until the child turned eighteen. Id. However, the Timothy Court upheld a paternity determination when the father had not incurred any financial detriment but admitted paternity “on a number of occasions to a number of people, both orally and in writing.” Timothy, 53 Cal. Rptr. 3d at 396. 

In this case, the NH did not openly declare paternity in a manner consistent with the California standard.  We have no evidence that, for example, he acknowledged paternity in writing, broadly recognized his relationship to the child or his mother, attempted to have his name placed on the claimant’s birth certificate, signed a voluntary declaration of paternity, was present at the claimant’s birth, was willing to assume physical custody, tried to provide for the claimant financially, or provided any monetary or in-kind support for the claimant. See, e.g.. Timothy, 53 Cal. Rptr. 3d at 396; Spencer , 56 Cal. Rptr. 2d at 526; accord POMS PR 01010.006(C) California No. PR 04-115 (concluding that putative father had not openly held out child as his own where he had attended lived with child’s mother as matter of convenience unknown to state authorities); PR 01115.006(G) California No. PR 05-013 (concluding that holding out requirement had not been met where only evidence during two years before father’s death was short note). Thus, the claimant has not presented clear and convincing evidence that the NH openly held out the claimant out as his natural child under California Probate Code § 6453(b)(2).

The DNA test results from the NH’s parents do not alter this conclusion. Although the California Family Code includes provisions for consideration of genetic evidence, these provisions are not part of the UPA and are not incorporated by Probate Code section 6453. Compare Family Code §§ 7600-7730 (UPA) with §§ 7522-7555 (Uniform Act on Blood Tests to Determine Paternity). While DNA evidence to prove paternity under Family Code section 7555(a) may be relevant to establish custody or support during the father’s lifetime, it is not a sufficient basis for establishing intestate succession under Probate Code section 6453. See R~, 2011 WL 2134977 at *4 (construing Probate Code § 6453); B~, 53 Cal. Rptr. 3d at 396 (holding that admission of DNA evidence was irrelevant to question of intestate succession); Spencer, 2 Cal.App.4th at 471 (denying illegitimate child’s request for DNA testing on ground that it was irrelevant to determination of intestate succession because the Probate Code does not provide for DNA evidence as an alternate basis for establishing paternity). 

The agency has previously recognized that DNA evidence is not sufficient to meet the requirements of California law under even more compelling facts, such as where DNA testing of the father himself showed 99.99% likelihood of paternity. POMS PR 01115.006(H) California No. PR 03-016 (concluding that, despite DNA evidence, father had not held child out as his own).  Similarly, the agency has found DNA evidence from grandparents insufficient in the absence of clear and convincing evidence that the father held out the child as his own when he had the opportunity to do so. POMS PR 01115.006(V) California No. PR 00-113 (concluding evidence did not show holding out despite grandparent DNA testing showing 99.99% probability of paternity when father died nearly seven months after child’s birth); compare PR 01115.006(E) California No. PR 06-349 (concluding grandparent DNA evidence could be considered where father died before child’s birth, father had no living male sibling, and other evidence established the father’s relationship with the mother). Thus, the question of whether the grandparents’ DNA is sufficient to establish paternity need not be considered because the “holding out” requirement has not been met.

CONCLUSION

The claimant would not be able to inherit from the NH under California intestacy law. The NH did not hold out the claimant as his child when he was alive and it was not impossible for him to do so, nor did any court establish the parental relationship prior to the NH’s death.  In the absence of this evidence, California law does not consider the biological relationship. We therefore conclude that the claimant would not be eligible for child’s insurance benefits on the NH’s earnings record. If the claimant obtains a paternity order from an Ohio court or presents any additional evidence regarding “holding out,” we will be able to consider whether these facts change the analysis and conclusion.

In California, a parent-child relationship is established for the purpose of intestate succession, “where that relationship is presumed and not rebutted pursuant to the Uniform Parentage Act (UPA)".  The UPA defines the “parent and child relationship” as “the legal relationship existing between a child and the child’s natural or adoptive parents.”  These claimants do not profess to be the NH’s adopted children. Under California’s Uniform Parentage Act, the NH is the natural parent of the claimants. This relationship entitles claimants’ to inherit from NH under California’s intestacy law. 

QUESTION

You asked if, under California’s intestacy law, the two claimants are considered children of the deceased number holder (NH), and, therefore, entitled to child survivor’s benefits.

SHORT ANSWER

The claimants are entitled to child survivor’s benefits on the NH’s account because they are the “natural” children of the NH, and are therefore, eligible to inherit NH’s personal property under California intestacy law.

SUMMARY OF EVIDENCE

J~ , the NH, was born in December.

The claimants were both born in the Republic of Kazakhstan. A~ was born in May and M~ was born in November. Both were wards of a “Baby House,” or orphanage, located in Kazakhstan. 

 

In October 2004, L~ adopted the claimants. Kazakhstan does not contemplate or provide for adoption to same-sex couples. See U.S. Dept. of State, Office of Children’s Issues, Intercountry Adoption: Kazakhstan, http://adoption.state.gov/country/kazakhstan.html (last visited Aug. 31, 2009).  Married couples who wish to adopt must provide original notary copies of their valid marriage certificates; single individuals who wish to adopt must provide original notary copies of their birth certificates; and, if applicable, any person who has been divorced must submit all divorce decrees. See Embassy of Kazakhstan, Instructions on dossiers for adoption, http://kazakhembus.com (last visited Aug. 31, 2009).   The record contains an October XX, 2004, decree from a Kazakhstan court approving the adoption. On October XX, 2004, a Kazakh court issued a determination finalizing the adoption. 

On November XX, 2004, the United States Department of Justice issued Certificates of Citizenship to both children, declaring them to be citizens of the United States.  The certificates indicated that the claimants had entered the United States in October 2004.

In 2007, the NH petitioned the Los Angeles Superior Court for an order declaring the existence of a parent and child relationship between the NH and the claimants. The NH listed L~ as the respondent.  Both parties, represented by different counsel, stipulated to the entry of a judgment establishing a parental relationship between the claimants and the NH. The parties jointly filed a “Stipulation for Entry of Judgment Re: Establishment of the Parental Relationship” and a “Notice of Entry of Judgment,” accompanied by “Advisement and Waiver of Rights Re: Establishment of Parental Relationship” forms, signed by both parties. In her form, the NH acknowledged, among other things, her duty to provide child support to the claimants.

On September XX, 2007, the Los Angeles Superior Court entered judgment establishing a parent-child relationship between the claimants and the NH, pursuant to the stipulation. The judgment lists both L~ and the NH as “mother” of the claimants and indicates that both were ordered to contribute to child support. The court ordered the California Department of Public Health to register the births of “A~ ” and “M~ ” with the Office of Vital Records.

On October XX, 2007, the California Department of Public Health issued “Delayed Registration of Birth” certificates for A~ and M~.  On the certificates for both children, J~ is listed as the “parent” in the section entitled “father” and L~ is listed as the “parent” in the section entitled “mother.”

On February XX, 2008, the NH died while domiciled in California. 

On March XX, 2009, L~ filed claims for children’s benefits on the claimants’ behalf based on the NH’s earnings record. See Application Summary for Child’s Insurance Benefits—Survivor Claim.  Both claimants are under the age of 18 and unmarried. According to the application, they were living with the NH at the time of her death. They now live with L~ in California.

ANALYSIS

Under the Social Security Act (Act), a child who is dependent on an insured worker may receive auxiliary child insurance benefits. Social Security Act §§ 202(d)(1), 216(e); see also 20 C.F.R. § 404.350 (2009). For purposes of child’s benefits under the Act, a child is defined as the child, legally adopted child, stepchild, or in limited circumstances, grandchild of an insured individual. See Social Security Act §§ 202(d), 216(e). In determining whether a claimant qualifies as the child of the insured individual, the Commissioner must apply the law governing “the devolution of intestate personal property by the courts of the State in which such insured individual is domiciled . . . at the time the application was filed.” Social Security Act § 216(h)(2)(A); see also 20 C.F.R. § 404.355 (2009).  If an applicant establishes that he is the insured individual’s child under section 216(h)(2) of the Act, he is deemed dependent upon the insured, unless he has been adopted by someone else and the insured is not living with the child or contributing to the child’s support. Social Security Act § 202(d)(3); see also 20 C.F.R. § 404.361 (2009).

Here, the state of domicile is California. Therefore, we must determine whether California probate law permits claimants to inherit from the NH under the laws of intestate succession.  In California, a parent-child relationship is established for the purpose of intestate succession, “where that relationship is presumed and not rebutted pursuant to the Uniform Parentage Act [UPA].” Cal. Prob. Code § 6453(a) (West 2009).  The UPA defines the “parent and child relationship” as “the legal relationship existing between a child and the child’s natural or adoptive parents.” Cal. Fam. Code § 7601 (West 2009). These claimants do not profess to be the NH’s adopted children. Thus, we consider whether the NH was their natural parent.

Because the term “natural parent” is not defined by statute in California, we look to case-law. The California Supreme Court explained that “[t]he paternity presumptions are driven not by biological paternity, but by the state’s interest in the welfare of the child and the integrity of the family.” Elisa B. v. Superior Court, 117 P.3d 660, 668 (Cal. 2005) (citations omitted). Consequently, “California law does not equate natural parent status with biological parenthood such that a mere biological relationship is sufficient under California law to grant status as a natural parent.” Vernoff v. Astrue, 568 F.3d 1102, 1108 (9th Cir. 2009). Moreover, the parents do not have to be married and may be the same sex. That the NH and L~ were neither married nor in a California Registered Domestic Partnership is not determinative of whether claimants were entitled to inherit the NH’s intestate property under California law. The California Probate Code provides that, for the purpose of determining intestate succession, a parent-child relationship exists “between a person and the person’s natural parents, regardless of the marital status of the natural parents.” Cal. Prob. Code § 6450(a) (West 2009). Furthermore, the Program Operations Manual System (POMS) explains that, regardless of the marital status of the parents, children who have inheritance rights under state law are deemed “children” under the Act. POMS GN 00306.055. Cal. Fam. Code §§ 7601-7602 (West 2009); Cal. Prob. Code § 6450(a) (West 2009); see also E~ 117 P.3d at 669 (“Rebutting the presumption that [a same sex partner is the children’s] parent would leave them with only one parent and would deprive them of the support of their second parent.”) 

In California, an individual is “presumed” to be a child’s natural parent where she receives the child into her home and openly holds the child out as her natural children. Cal. Fam. Code § 7611(d) (West 2009).  In E~ the court held a lesbian partner to be “a presumed mother” under Section 7611, even though she had no genetic connection to the twins her partner gave birth to during the course of their relationship. E~ 117 P.3d at 670.  E~ reached this conclusion, in part, because the non-genetically connected partner held out the twins as her “natural” children. California law allows parent and child relationships to be established between children and their natural or adoptive parents. Cal. Fam. Code § 7610 (West 2009).  A natural parent and child relationship may be established by proof of having given birth to a child or, among other means and as discussed at length above, by “holding out” a child as one’s own. Id. In E~ the existence of the parent and child relationship between the genetic parent and the children did not preclude the establishment of a parent and child relationship between the non-genetically connected partner and the children.  E~ 117 P.3d at 670-71. In the present case, because California law equally recognizes natural and adoptive parent-child relationships, that L~ is the claimants’ adoptive parent did not preclude the establishment of a parent-child relationship between the NH and the children.

 Id. Here, the evidence indicates that the children lived with the NH at the time of her death. In addition, NH acknowledged in writing, in the stipulated entry of judgment, that the claimants were her children.  These actions indicate that the NH indeed held them out as her children. In E~ the court considered several factors in determining that the non-genetically connected parent was “holding out” the children as her own, including claiming them on taxes, making representations of parenthood to employers, and providing special forms of personal care. E~ 117 P.3d at 663.

Consequently, the requirements for intestate succession are satisfied.

In California, where a court issues a judgment or order “determining the existence or nonexistence of the parent and child relationship,” that judgment is “determinative for all purposes except for actions brought pursuant to [criminal neglect of children under the penal code].” Cal. Fam. Code § 7636 (West 2009); Here, the California judgment comports with the directives of Social Security Ruling 83-37c.  The California court had jurisdiction to issue the judgment, the judgment falls within the general category of domestic relations law, and the judgment is consistent with California law.  Although the California judgment was not contested in court, all of the parties who could have contested the matter were involved in the court action. We note that while the California statute indicates that such a judgment is “determinative for all purposes,” it is not necessarily dispositive for purposes of social security eligibility. see also Cal. Fam.Code § 7637 (a judgment or order may contain any other provision directed against the appropriate party or any other matter in the best interest of the child).  Therefore, the existence of the judgment establishing a parental relationship supports the conclusion that there was a legal parent-child relationship between the NH and the claimants.

Having satisfied the requirements for intestate succession in California, the claimants are deemed dependents of the NH. The claimants were living with the NH at the time of her death, and there is no indication that the claimants were ever adopted by anyone else. As a result, we believe that the claimants were dependents of the NH at the time of her death.

CONCLUSION

Under California’s Uniform Parentage Act, the NH is the natural parent of the claimants. See Cal. Fam. Code § 7636 (West 2009). This relationship entitles claimants’ to inherit from NH under California’s intestacy law. See Cal. Prob. Code § 6453(a) (West 2009). 

The wage earner initially consented to have a child conceived through artificial insemination of his wife, but later separated from her. He would be treated as the legal father under California law, since the record does not contain clear and convincing evidence of withdrawn consent.

QUESTION

You requested our opinion as to the status of a child conceived through artificial insemination, under California law, when a wage earner initially consented to have a child conceived through artificial insemination of his wife, but later separated from the child's mother.

ANSWER

A wage earner who consents to have child conceived through artificial insemination of his wife will be considered the father of the child thus conceived unless clear and convincing evidence shows that the initial consent had been withdrawn prior to conception. Since the current record does not contain clear and convincing evidence of withdrawn consent, the wage earner would be treated as the legal father under California law.

SUMMARY OF EVIDENCE

J~, the deceased wage earner, married K~ in September 1985. The wage earner was sterile, having been diagnosed with azoospermia. On September XX, 1987, the wage earner and K~ both signed an agreement for artificial insemination. K~ became pregnant by artificial insemination through an anonymous sperm donor in September 1989. Later that month, she filed a restraining order against the wage earner and began preparing divorce papers in Nevada. Those divorce papers stated that one minor child was "expected to be born on approximately May." The proposed property settlement agreement also included provisions reserving the wage earner reasonable rights of visitation and conferring an obligation for support and maintenance of the expected minor child. In May, the child, K2~ was born.

Even though it is not clear whether a divorce was ever finalized, the wage earner subsequently remarried and divorced. The wage earner was diagnosed with cancer in the Fall of 2000 and committed suicide in December 2002. The wage earner never had any contact with K2~.

In processing K2~'s application for child's insurance benefits, the San Marcos District Office telephoned the wage earner's sister, C~, and her husband C2~, who stated that the wage earner and K~ had been separated long before K~ became pregnant. They also said that the wage earner had told K~ that if she became pregnant, he would have no involvement. However, they refused to return written statements concerning this case.

In a January XX, 2003 letter, K~ stated that both she and the wage earner had "worked" with doctors in the Infertility Clinic at Kaiser Permanente from 1987 through 1989. In a medical report from August XX, 1989, a physician included a description of the wage earner's physical characteristics and noted that a "consent form [had been] sign[ed] previously."

ANALYSIS

Under the Social Security Act, a claimant is entitled to child's insurance benefits if he or she can show that he or 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) (2002). Here, the wage earner died while domiciled in California. According to section 6453 of the California Probate Code, for the purpose of intestate succession, a "natural parent and child relationship is established when that relationship is presumed and not rebutted pursuant to the Uniform Parentage Act . . .".

Under California's Uniform Parentage Act, "[i]f, under the supervision of a licensed physician and surgeon and with the consent of her husband, a wife is inseminated artificially with semen donated by a man not her husband, the husband is treated in law as if he were the natural father of a child thereby conceived." Cal. Fam. Code § 7613(a) (West 2003). A California Court of Appeal has held that "the establishment of fatherhood and the consequent duty to support when a husband consents to the artificial insemination of his wife is one of the well-established rules in family law." Buzzanca v. Buzzanca, 61 Cal.App.4th 1410, 1418 (1998). As stated by the California Supreme Court, "[a] reasonable man who actively participates and consents to his wife's artificial insemination in the hope that a child will be produced whom they will treat as their own, knows that such behavior carries with it the legal responsibilities of fatherhood." People v. Sorenson, 68 Cal.2d 280, 285 (1968).

There is no question that the wage earner initially consented to the artificial insemination of his wife, K~. Therefore, the only issue is whether or not his consent was revoked before K2~ was conceived. California law does not specifically address the withdrawal of consent for a spouse's artificial insemination. However, California cases have cited the standard set forth by the New Jersey Superior Court, which held that "a husband is bound by his initial consent unless he offers clear and convincing evidence that he had withdrawn his consent to the artificial insemination procedure". See Dunkin v. Boskey, 82 Cal.App.4th 171, 187 n. 8 (2000); Buzzanca v. Buzzanca, 61 Cal.App.4th at 1419, citing, K.S. v. G.S., 440 A.2d 64, 66 (N.J. Super. 1981). Kansas also has adopted the same standard. R.S. v. R.S., 670 P.2d 923, 928 (Kan. App. 1983). It is likely that California would adopt this high "clear and convincing" standard. ^[15] The California Supreme Court, when specifically addressing the issue of artificial insemination, stated that "[t]he public policy of this state favors legitimation." People v. Sorenson, 68 Cal.2d at 288-289; see also K.S. v. G.S., 440 A.2d at 66 (holding that public policy considerations seeking to prevent children born as a result of artificial insemination procedures from becoming public charges or being bastardized require that a presumption of consent exist and that a strong burden be placed on one seeking to rebut the presumption

There is little evidence in the current record to demonstrate any revocation of consent. The only evidence of revocation comes from the district office's telephone conversation with the wage earner's sister and her husband, who reported that the wage earner had told K~ that "if she became pregnant that he would have no involvement." Their statements, even if corroborated, would not demonstrate that the wage earner had revoked his consent to further artificial insemination procedures. A statement by the wage earner that he would have "no involvement" with a child conceived by K~ through artificial insemination is not a revocation of consent to the artificial insemination. In any event, the wage earner never offered any evidence, much less "clear and convincing" evidence, that he had revoked his consent to the artificial insemination. Dunkin v. Boskey, 82 Cal.App.4th at 187 n. 8; Buzzanca v. Buzzanca, 61 Cal.App.4th at 1419. Indeed, the wage earner's sister and her husband both refused to return written statements concerning this case. Furthermore, their oral statements seem to be contradicted by K~'s January 3, 2003 letter, where she stated that, "[f]rom 1987 through 1989 my husband and I worked with the doctors at Kaiser Permanente in the Infertility Clinic." These dates are significant because K2~ was probably conceived in August or September 1989, since she was born on May. Arguably, K~'s January XX, 2003 letter is supported by the fact that, as late as August XX, 1989, her doctors still made reference to her husband and his physical characteristics. As of that date, August XX, 1989, K~'s physicians were still referring to the earlier consent form, which indicates that her doctors did not have any knowledge of any formal revocation of the previously signed consent form.).

In deciding the issue of withdrawn consent, courts have carefully scrutinized the conduct of the husband throughout the artificial insemination process, such as whether or not the husband accompanied the wife to the doctor's office or acquiesced in the procedure without opposition. See K.S. v. G.S., 440 A.2d at 66 (continuing consent was demonstrated when husband accompanied his wife on at least one occasion to the doctor's office during the month she conceived); Jackson v. Jackson, 739 N.E.2d 1203, 1214 (Ohio App. 2000) (the court found it telling that the husband went with his wife to the doctor's office on the day the pregnancy was confirmed); R.S. v. R.S., 670 P.2d at 925 (the court found continuing consent when the husband was aware of the treatments and did not object, even though the husband had no contact with the treating doctor immediately prior to the successful treatment).

There is little evidence regarding the wage earner's participation or acquiescence after he signed the consent form. However, even if the evidence were equivocal, a California court would find that the initial consent agreement was still binding at the time of conception, since California courts favor legitimation and will likely follow the courts that have held that withdrawal of consent requires clear and convincing evidence. Therefore, absent clear and convincing evidence that consent had been withdrawn, a California court would likely find that the wage earner is the legal father of K2~ for the purposes of intestate succession.

CONCLUSION

Based on the evidence you have submitted, the claimant is entitled to child's insurance benefits as the child of the wage earner.

Janice L. Walli

Acting Chief Counsel, Region VII

By: Dennis J. Mulshine

Assistant Regional Counsel