The number holder (NH) was domiciled in the District of Columbia (D.C.) at the time of his death; therefore, the D.C. intestacy law applies in this case. Although the genetic test report provided by the child’s mother satisfies the requisite 99 percent probability of the NH’s paternity, we do not believe the genetic testing would be admissible in court without certified documentation of the chain of custody of the test specimens. The testing was performed by a laboratory accredited by the AABB and attested by the laboratory director, but there is no evidence establishing the chain of custody as required by the D.C. Code.

It is our opinion that the evidence provided is insufficient to establish a parent-child relationship between the NH and the child under the D.C. law because the claimant’s mother did not provide certified documentation of the chain of custody of the test specimens from Paternity Testing Corporation. However, if the claimant’s mother provides certified documentation of the chain of custody from Paternity Testing Corporation, there would be sufficient evidence to establish a parent-child relationship under D.C. law, and the child, with inheritance rights, would be entitled to surviving child’s insurance benefits under sections 216(h)(2)(A) of the Social Security Act (Act).

QUESTION PRESENTED

This memorandum is in response to your August XX 2016, request for our advice as to whether a parent-child relationship can be established under the law of the District of Columbia (D.C.), between C~, the deceased NH, and K~, (child), based upon the June, 2015, report of DNA testing results on the child, the child’s mother, N~ (mother), the NH’s mother, C2~, and the NH’s brother, D~, prepared by Paternity Testing Corporation of Columbia, Missouri.

SUMMARY

We have reviewed the information you provided and we have researched the relevant provisions of the D.C. law. It is our opinion that the evidence of record is insufficient to establish a parent-child relationship between the NH and the child under the D.C. law because the applicant, N~, has not provided certified documentation of the chain of custody of the test specimens from Paternity Testing Corporation. However, if the applicant provides certified documentation of the chain of custody from Paternity Testing Corporation, there would be sufficient evidence to establish a parent-child relationship under D.C. law, and the child, with inheritance rights, would be entitled to surviving child’s insurance benefits under sections 216(h)(2)(A) of the Social Security Act (Act).

BACKGROUND

You indicated that the Postal Plaza field office in D.C. had approved the child for surviving child’s benefits on the record of the NH based on the mother’s application of August XX, 2015. You indicated that the field office approved the child under the relationship status described in section 216(h)(3) of the Social Security Act (Act), effective September XX, 2015.^[1] You indicated that the basis of the field office’s approval for surviving child’s benefits was a genetic paternity test showing a 99.69 percent probability of paternity of the NH. We are unaware of the reason that the field office has re-examined the case and questioned the child’s eligibility.

The NH, who had been receiving retirement insurance benefits (RIB) since September of 2013, died on July XX, 2014, while domiciled in D.C. He had been married to S~ since September XX, 1980, but, as you indicated, the field office denied S~ a lump sum death benefit because she was not living with the NH when he died.

When the NH applied for RIB in approximately September of 2013, he indicated that he did not have any minor children at the time. However, you provided an Order from the D.C. Family Court Division of the Superior Court on AugustXX, 2013, indicating that the plaintiff, N~ (described in the Order as biological mother of the child) was awarded temporary custody pending a further hearing, and that the defendants in the custody suit were J~ (who was apparently listed on the child’s birth certificate), and the NH, C~ (described as the child’s biological father). We are not able to determine the relationship of J~ to the NH or the child, but the significance of the court’s temporary custody order is that it contradicts the NH’s statement that he did not have any minor children when he applied for RIB in 2013 (the child was born on November XX, 2011).

You provided a DNA test report of June 2015, performed after the NH had died, which the child’s mother submitted to SSA, indicating that the NH could not be excluded as the biological father of the child, because the child shared genetic markers with the direct biological relatives of the alleged father, and that the probability of the NH’s paternity was 99.68 percent. The Paternity Testing Corporation report indicates that the test was performed on DNA samples of the child, the mother (N~), the mother of the NH (C2~), and the brother of the NH (D~).

The DNA test report provided to us did not include a chain of custody report for the DNA test samples. We note that the Paternity Testing Corporation’s website indicates that the corporation will prepare and send a Chain of Custody and Business Records Affidavit if the test result is going to be contested. See www.ptclabs.com (under Find Out More About Us-Legal Services).

DISCUSSION

The Act provides that a child can qualify for surviving child’s benefits if the child is entitled to inherit personal property under such law as would “be applied in determining the devolution of intestate personal property by the courts of the State in which [the] insured individual . . . [was] domiciled at the time of his death.” Act, § 216(h)(2)(A). Because the NH was domiciled in D.C. at the time of his death, D.C. intestacy law applies. Act, § 216(h)(2)(A). The relevant D.C. statute, D.C. Code § 19-316, provides that children can inherit from their mother or from their father “if parenthood has been established.” That section does not define the standards for determining parenthood.

In order to define the standards for establishing parenthood, the courts in D.C. have looked to relevant provisions of the D.C. Marriage and Divorce Act at D.C. Code § 16-909. See In re Estate of Johnson, 2006 WL 3302857 *2 (D.C. Super. June 21, 2006) (citing In re Estate of Glover, 470 A.2d 743, 749-50 (D.C. 1983) (holding that § 19-316 provides for parenthood determinations subsequent to the death of a putative father and § 16-909(a) sets the burden of proof).

Section 16-909(a) of the D.C. Code provides that a child’s relationship to his or her father or mother is presumed through marriage or an acknowledgement in writing. However, the facts in the present case do not invoke this section because the NH was not married to the birth mother, and we do not have any evidence that the NH acknowledged the child in writing.

Section 16-909(b-1) of the D.C. Code provides that a conclusive presumption of paternity shall be created as follows:

Upon a result and an affidavit from a laboratory of a genetic test of a type generally acknowledged as reliable by accreditation bodies designated by the Secretary of the U.S. Department of Health and Human Services that is performed by a laboratory approved by such a body indicating a 99% probability that the putative father is the father of the child; D.C. Code § 16-909(b-1).

Section 16-909(c) (1)(A) of the D.C. Code provides that the parent-child relationship may be conclusively established by the Superior Court of the District of Columbia under the provisions of subchapter II of Chapter 23, which concerns the admissibility of paternity tests.

Section 16-2343.01(a) of the D.C. Code provides for admissibility of evidence of paternity tests as follows:

Expert reports that show the statistical probability of the alleged parent’s paternity may be admissible into evidence.

Certified documentation of the chain of custody of the test specimens is competent evidence to establish the chain of custody.

Test results that show the statistical probability of the alleged parent’s paternity shall be admitted into evidence unless a substantiated objection is made that the test did not comply with the requirements of this subchapter.

Section 16-2343.01(e) of the D.C. Code creates a conclusive presumption of paternity where the genetic test result indicates a 99% probability that the putative father is the father of the child. D.C. Code § 16-2343.01(e).

Although the genetic test report provided by the child’s mother satisfies the requisite 99 percent probability of the NH’s paternity, we do not believe the genetic testing would be admissible in court without certified documentation of the chain of custody of the test specimens. The testing was performed by a laboratory accredited by the AABB and attested by the laboratory director, but there is no evidence establishing the chain of custody as required by the D.C. Code §16-2343.01(a) set forth above. See, e.g., Johnson, 2006 WL 3302857 at *4 (finding that genetic test results were admissible because the child produced “certified documentation of the chain of custody”). We note that a prior precedent opinion from the Office of the General Council, PR 15-009, issued on October 3, 2014, advised that, when interpreting D.C. law, genetic testing performed on a paternal grandmother could not be relied upon because it did not contain an affidavit certifying the chain of custody.^[2]

However, certified documentation supporting the chain of custody may be available from the Paternity Testing Corporation. If the applicant (mother) provides the certified documentation of the chain of custody, we believe the evidence would establish that the NH is the father of the child.^[3]

CONCLUSION

It is our opinion that the DNA evidence is insufficient to establish the paternity of the NH under D.C. law because the mother has not provided documentation of the chain of custody of the genetic testing. However, we believe that the child would be entitled to surviving child’s insurance benefits under section 216(h)(2)(A) of the Act if the mother provides the Agency with documentation of the chain of custody.

Nora R. Koch

Regional Chief Counsel

Patricia M. Smith

Assistant Regional Counsel

Under D.C. law, a conclusive presumption of parentage can be created upon a result of a genetic test and an affidavit from a laboratory generally acknowledged as reliable by accreditation bodies designated by the Secretary of the U.S. Department of Health and Human Services. The test must indicate a 99% probability that the putative father is the father of the child. The report must include an affidavit certifying the chain of custody of the test specimens.

In this case, the genetic test results do not meet the statutory requirements for reliability under D.C. law because there was no competent evidence of the chain of custody of the specimens as required under D.C. law.  Therefore, the genetic testing results would not be admissible evidence of paternity.

Issue Presented

You have requested a legal opinion on whether genetic testing performed on Diane (hereinafter “paternal grandmother”) the mother of deceased NH James (hereinafter “NH”) constitutes viable proof of a father-child relationship between the NH and his alleged child Ryan (hereinafter “the child”).

Short Answer

Initially, there is insufficient information to conclusively determine which state’s law should be applied to this analysis.  However, based on available information, the NH was domiciled in either Utah or China at the time of his death.  Under the laws applied for either jurisdiction, the genetic testing results from Affiliated Genetics do not establish a reliable chain of custody, and would not be admissible evidence of paternity.

Background

According to the information you provided, the child was allegedly born to the NH and Collett (hereinafter “mother”) in Millcreek Utah in 2004. The birth certificate listed the mother’s information, but provided no information about the child’s father.  You stated that you have no information regarding the marital status of the NH and the mother, whether the child has inheritance rights from the NH, and whether the child was adopted by the NH. You indicated that the child’s birth certificate was never amended to show information regarding the father, and there was never a court order of support for the NH to support the child.  On March XX, 2007, the NH died while teaching in China.

The mother made a previous application for surviving child’s benefits on September 28, 2007, which was denied for lack of relationship.

The mother filed this application on July 25, 2013. The mother provided a statement that she had not engaged in a sexual relationship with the NH’s brother. Also included in the application were test results from Affiliated Genetics dated July 25, 2013, showing that the mother, the alleged paternal grandmother, and the child underwent genetic testing.  The genetic test reported a cumulative relationship index of 902.5909, and the probability that the alleged paternal grandmother was related to the child as a second-degree relative was 99.8893%.

Affiliated Genetics also provided a statement that noted that the collection of specimens for the genetic test “was not in compliance with established sample collection guidelines for a legally binding test,” and the results of the test cannot be considered legally admissible for use in a court of law. We contacted Affiliated Genetics to determine why the test was not in compliance, and a representative confirmed that they could not establish a chain of custody for the specimens as required for legally admissible tests.

DISCUSSION

1.  Domicile

Domicile is the place where a person has his true, fixed, and permanent home to which he intends to return whenever away. POMS GN 00305.001(B)(2).  The agency applies the law of the state where the NH was domiciled at the time of his death.  42 U.S.C. § 416(h)(2)(A)(2010); 20 C.F.R. 404.355(b)(4) (2010); POMS GN 00306.001(C)(2)(a)-(b).  Pursuant to the POMS, if the NH was domiciled in a jurisdiction not defined in the Act as a State, the agency applies the law that the courts of District of Columbia (D.C.) would apply. See POMS GN 00305.001(A)(2)(b); 00306.001(C)(2)(b). The agency applies the version of the state’s law that is in effect when the child’s claim is adjudicated, unless the version in effect when the NH died would be more beneficial to the child. See POMS GN 00306.075(B)(2)(b).

The records that you provided indicate that the NH died while teaching in China, but he previously resided in Utah.  There is no additional information regarding whether the NH intended to return to Utah as his true, fixed, and permanent home, even though he was living in China at the time of his death.  Thus, the following analysis of this issue applies both the laws of the state of Utah, and the laws of D.C. Because under either jurisdiction’s law, no relationship can be established based on the genetic test results provided, there is no need to resolve the question of domicile at this time.

2.  Validity of Genetic Testing Under Utah Law

The agency applies the intestate succession laws of the appropriate state to determine a child’s relationship to the NH.  42 U.S.C. § 416(h)(2)(A); POMS GN 00306.001(C)(1)(a). The Utah Uniform Probate Code provides that the parent and child relationship is established as provided in the Utah Uniform Parentage Act. Utah Code Ann. § 75-2-114(1) (2014). Under the Utah Uniform Parentage Act, the father-child relationship can be established in a number of ways.  See Utah Code Ann. § 78B-15-201(2) (2008).  As applicable here, the relationship can be established by an adjudication of paternity.  Id. at § 78B-15-201(2)(c). Even though Utah law requires an actual adjudication of paternity, an adjudication is not required for Social Security purposes if paternity can be established using the standard of proof that a Utah court would apply.  20 C.F.R. § 404.355(b)(2).  Under Utah law, the standard of proof in an adjudication of paternity is “by clear and convincing evidence.”  Utah Code Ann. § 78B-15-112 (2008).

A genetic test may be used as clear and convincing evidence of paternity when it is a reliable report issued with results meeting the statute’s presumption of paternity. Utah Code Ann. §§ 78B-15-503 (2008), 78B-15-505 (2008).  A reliable genetic test must be “of a type reasonably relied upon by experts in the field of genetic testing and performed in a testing laboratory accredited by . . . the American Association of Blood Banks” or another accrediting body listed in the statute, and may use a specimen consisting of a variety of bodily tissues or fluids. Id. at § 78B-15-503. If a genetic testing specimen is not available from a man who may be the father of a child, for good cause and under extraordinary circumstances, the Court may order genetic testing of the parents of the man. Id. at § 78B-15-508(1)(a).

The report of the genetic testing must sufficiently demonstrate a reliable chain of custody to be admissible without testimony. Utah Code Ann. § 78B-15-504 (2008).  The testing laboratory must provide documentation including names, photographs and fingerprints of the individuals whose specimens were taken, the places and dates of the collection, and the names of the individuals who collected the specimens and received the specimens in the testing laboratory. See id. at § 78B-15-504(2)(a)-(f).

If the genetic test complies with these requirements, a man is presumed to be identified as the father of the child if the results disclose that the man has a probability of paternity of 99% or higher, and a combined paternity index of at least 100.  Utah Code Ann. § 78B-15-505(1) (2008).  Results meeting these two thresholds may be rebutted only by other genetic testing, which either excludes the man as the father of the child, or identifies another man as a possible father of the child (by also meeting the above requirements).  Id. at § 78B-15-505(b); see also POMS GN 00306.645 (presumption of paternity created by genetic test yielding paternity index of at least 100). We note that this POMS provision does not accurately reflect current Utah law, which requires both a combined paternity index of at least 100 and at least a 99% probability of paternity. See Utah Code Ann. § 78B-15-505(a)-(b). The POMS refers only to the paternity index requirement. See POMS GN 00306.645.  Further, we note that Utah statutes refer to the requirement for a “combined paternity index,” while the POMS only references “paternity index.”  In addition, the POMS fails to note the statutes discussing chain of custody requirements. See id. We recommend that the POMS be updated to track the statutory language and reflect the current statutory requirements for a presumption based on genetic testing.

Here, the genetic test results do not meet the statutory requirements for reliability under Utah law. Affiliated Genetics, the testing laboratory, was accredited by the American Association of Blood Banks.  The test report reflected that there was a cumulative relationship index of 902.5909, and that there was a 99.8893% probability that the paternal grandmother was related to the child as a second-degree relative.  However, the test results indicated that the collection of specimens “was not in compliance with established sample collection guidelines for a legally binding test,” and did not include documentation showing chain of custody as required under Utah law.  Utah Code Ann. § 78B-15-504(2)(a)-(f). Further, Affiliated Genetics stated that they could not confirm the identity of the individuals providing the specimens.  See id. at § 78B-15-504(2)(a).  Thus, the report of genetic testing does not establish a reliable chain of custody, and is not of a type reasonably relied upon by experts in the field of genetic testing.  See id. at §§ 78B-15-503; 78B-15-504.

3. Validity of Genetic Testing Under D.C. Law

The D.C. child inheritance statute provides that children may inherit from their mother or their father if parenthood has been established.  D.C. Code § 19-316 (2014).  Under D.C. law, a father-child relationship is established by an adjudication of a man’s parentage.  D.C. Code § 16-909 (2013); POMS GN 00306.450. We note that this POMS provision does not accurately reflect current D.C. law, which has been substantially revised.  See POMS GN 00306.450(1)(b); D.C. Code § 16-909 (2013) (noting that D.C. Law 18-33 § 3(d) (2008) removed the language requiring preponderance of the evidence). We recommend that the POMS be updated to reflect the current statutory requirements.    As noted above, even though D.C. law requires an actual adjudication of paternity, an adjudication is not required for Social Security purposes if paternity can be established under the standard of proof D.C. courts would apply.  20 C.F.R. § 404.355(b)(2).  If there is no presumption of paternity established through marriage or a written statement from the putative father acknowledging paternity, a conclusive presumption of parentage can be created upon a result of a genetic test and an affidavit from a laboratory generally acknowledged as reliable by accreditation bodies designated by the Secretary of the U.S. Department of Health and Human Services. Id. at § 16-909(b-1)(1). The test must indicate a 99% probability that the putative father is the father of the child.  Id.; D.C. Code § 16-909.01(a)(2) (2009).

When a genetic test result indicates a 99% probability that the putative father is the father of the child, and the test result is of the type generally acknowledged as reliable by an accreditation body, there is a conclusive presumption of paternity upon submission of the result and a certifying affidavit from the laboratory.  D.C. Code § 16-2343.01(e)(1) (2009). Test results may be admissible, and competent evidence of the chain of custody of the test specimens is established through certified documentation.  Id. at § 16-2343.01(a)(1)-(2); POMS GN 00306.450(4)(c). It is unclear under D.C. law whether the Court would accept genetic testing on the putative paternal grandparents when a specimen from the putative father is unavailable, but it seems likely that courts would accept such evidence since parenthood determinations may be made subsequent to the death of a putative father. See D.C. Code § 19-316 (1981).

Here, the genetic test results do not meet the statutory requirements for reliability under D.C. law.  Affiliated genetics did not provide a certifying affidavit, and in fact provided a letter stating that the collection of specimens “was not in compliance with established sample collection guidelines for a legally binding test.”  Further, Affiliated Genetics stated that it did not confirm the identity of those providing specimens.  Thus, there was no competent evidence of the chain of custody of the test specimens as required under D.C. law.  See D.C. Code § 16-2343.01(a)(2).

CONCLUSION

Under both Utah and D.C. law, genetic testing results must be reliable.  See Utah Code Ann. § 78B-15-503 (2008), D.C. Code § 16-2343.01(e)(1) (2008). Test results are only admissible in evidence when a reliable chain of custody has been established.  Utah Code Ann. § 78B-15-504 (2008); D.C. Code § 16-2343.01(a)(2) (2008). Here, though the genetic testing was performed in an accredited laboratory, no reliable chain of custody was established, and the test would not be reasonably relied upon to establish paternity in the courts of either jurisdiction.

John Jay Lee

Regional Chief Counsel

By: Keeya Jeffrey

Assistant Regional Counsel

In a District of Columbia case where DNA testing of the claimant and one of the deceased number holder’s brothers establishes a very high likelihood that the tested brother is the claimant’s uncle, the DNA evidence as presented is insufficient to establish the paternity of the Number Holder under the law of the District of Columbia. First, the applicant has not provided the necessary chain of custody documentation for the DNA testing. Further, it does not purport to determine which of his two brothers fathered Elizabeth.

Additional documentation confirming the chain of custody and ruling out the NH’s other living brother as parent would permit the use of this testing.

QUESTIONS PRESENTED

This memorandum is in response to your November 10, 2009, request for our advice as to whether a parent-child relationship can be established under the law of the District of Columbia, between Cesar , the deceased Number Holder, and minor child Elizabeth (Elizabeth) based upon the August 4, 2009, report of deoxyribonucleic acid (DNA) testing results on a purported uncle prepared by Chromosomal Laboratories, Incorporated (CLI).

SUMMARY

We have reviewed the information you provided and we have researched the relevant provisions of the law in the District of Columbia. It is our opinion that the evidence of record is insufficient to establish a parent-child relationship between the Number Holder and Elizabeth under the law of the District of Columbia because the applicant has not provided certified documentation of the chain of custody of the test specimens from CLI. If the applicant provides certified documentation of the chain of custody from CLI, there is still insufficient evidence to establish a parent-child relationship under the law of the District of Columbia. Because the alleged uncle had more than one brother, the DNA testing alone cannot provide the required preponderance of evidence that the Number Holder was in fact Elizabeth’s father. We believe, however, that certified documentation of the chain of custody and a supplemental certification from Elizabeth wherein she clarifies that the Number Holder is Elizabeth’s father and denies sexual relations with Alan, along with the existing evidence, would sufficiently establish a parent-child relationship. In that case, Elizabeth would be a legitimate child with inheritance rights and entitled to surviving child’s insurance benefits under section 216(h)(2)(A) of the Social Security Act (Act).

BACKGROUND

The Number Holder died on February XX, 2006. On the date of his death, the Number Holder was domiciled in Mexico. The applicant for child’s benefits is Elizabeth, who was purportedly born to the Number Holder and Claudia in Weld, Colorado. Elizabeth was born on September. Although her birth certificate lists Claudia as the mother, it does not list a father. A certificate of Elizabeth’s baptism, dated May XX, 2006, approximately three months after the death of the Number Holder, lists the Number Holder as Elizabeth’s father. Claimant also supplied a statement in which Claudia asserted there had “never been any promiscuous relationship between [Claudia and Javiar or Alan, brothers of the Number Holder].”

Elizabeth and her purported uncle, Javier, the brother of the Number Holder, submitted to genetic testing to establish their relatedness. The genetic testing report states that there is a 94.822% probability that Elizabeth is Javier ’s niece. The report is signed by Stephanie, Ph.D., Assistant Paternity Laboratory Director of CLI.

DISCUSSION

The Act provides that a child born out of wedlock can qualify for benefits if the child is entitled to inherit personal property under such law as would “be applied in determining the devolution of intestate personal property by the courts of the State in which [the] insured individual . . . [was] domiciled at the time of his death.” Social Security Act § 216(h)(2)(A); 42 U.S.C. § 416(h)(2)(a). ^[4]

According to the information provided, the Number Holder was domiciled in Mexico at the time of his death. Therefore, the District of Columbia’s intestacy law applies. Social Security Act § 216(h)(2)(A). D.C.Code § 19-316 (2001) provides that children born out of wedlock can inherit from their mother or from their father “if parenthood has been established.” However, standards for establishing parenthood are not defined in any provision under Titles 19 or 20, respectively entitled “Descent and Distribution” and “Probate and Administration of Estates.”

A. The Evidence Provided is Not Sufficient to Give Rise to a Presumption of the Number Holder’s Paternity.

The D.C. Code describes standards that can create a presumption of paternity between a purported father and child, but the evidence provided here is insufficient to meet any of these standards. More specifically, section 16-909(a) of the D.C. Code provides four ways by which a presumption of paternity can be established, but none are applicable in this case. D.C. Code § 16-909(a). Section 16-909(b-1) of the D.C. Code further provides that a conclusive presumption of paternity shall be created when a genetic test performed by a properly approved and accredited laboratory indicates a 99% probability that the putative father is the father of the child. D.C. Code § 16-909(b-1). Section 16-2343.01(e) of the D.C. Code reiterates that there is a conclusive presumption of paternity where the genetic test result indicates a 99% probability that the putative father is the father of the child. D.C. Code § 16-2343.01(e). Since the DNA testing in this case only establishes an approximately 94% probability of an avuncular relationship between Elizabeth and Javier , it is not sufficient to create such a presumption of paternity.

B. Paternity Can Be Established Under The Preponderance Standard If Claimant Provides DNA Chain of Custody Documentation and a More Comprehensive Certification of Parentage.

When no presumption of paternity arises, parenthood can still be established under relevant provisions of the District of Columbia Marriage and Divorce Act at D.C.Code § 16-909 (2001). See In re Estate of J~, 2006 WL 3302857 *2 (D.C. Super. June 21, 2006) (citing In re Estate of G~, 470 A.2d 743, 749-50 (D.C. 1983) (holding that section 19-316 provides for parenthood determinations subsequent to the death of a putative father and section 16-909(a) sets the burden of proof to be met by the child born out of wedlock)). Section 16-909(a) provides that a child’s relationship to his or her father is established by a preponderance of the evidence. A preponderance of the evidence in the District of Columbia “requires the court to merely determine who has the most competent evidence.” In re E.D.R., 772 A.2d 1156 (D.C. 2001).

Genetic tests are admissible as evidence of paternity provided that they meet the requirements outlined in section 16-2343.01(a)(1)-(3) of the D.C. Code:

(1) Expert reports that show the statistical probability of the alleged parent’s paternity may be admissible into evidence.

(2) Certified documentation of the chain of custody of the test specimens is competent evidence to establish the chain of custody.

(3) Test results that show the statistical probability of the alleged parent’s paternity shall be admitted into evidence unless a substantiated objection is made that the test did not comply with the requirements of this subchapter.

While the DNA evidence provided in this matter is not sufficient to create a presumption of paternity under any provision of the D.C. Code, it does provide some evidence of a paternal relationship between Elizabeth and the Number Holder. The D.C. Code does not address the use of avuncular DNA to establish the presumption of paternity, but neither the inheritance statutes nor the paternity statutes limit genetic testing to particular individuals, i.e., the putative father. The statutes simply provide a “rebuttable presumption” of paternity if scientifically credible parentage determination genetic testing establishes at least a 99% probability of paternity. D.C. Code §§ 16-909(b-1), 16-2343.01(e).

The DNA test reports based on samples from Elizabeth and Javier show that it is highly probable that Javier is Elizabeth’s uncle. In other words, the testing shows that it is highly probable that Elizabeth is the daughter of one of Javier’s brothers. But the evidence provided to us indicates that Javier had at least two brothers, the Number Holder and Alan. The DNA test report does not purport to determine which of Javier’s brothers fathered Elizabeth. Since the DNA test report only establishes that there is a 94.822% chance that one of Javier’s brothers fathered Elizabeth, it alone does not meet the preponderance standard. ^[5] If Claudia provides a new certification clarifying that the Number Holder is Elizabeth’s father and denying any sexual relations with Alan, then the totality of the evidence would meet the preponderance requirement, once proper chain of custody documentation for the DNA test is obtained. It is our opinion that Claudia’s certification contained in the record is not sufficient because it does not contain such specificity. ^[6]

Nevertheless, we believe the genetic testing would not be admissible in court without certified documentation of the chain of custody of the test specimens. Although the testing was performed by a laboratory accredited by the AABB, there is no evidence establishing the chain of custody. Compare J~, 2006 WL 3302857 at *4 (finding that genetic test results were admissible because the child produced “certified documentation of the chain of custody”). However, certified documentation supporting the chain of custody may be available from CLI. If the applicant provides the certified documentation of the chain of custody, we believe the evidence consisting of a new certification from Claudia’s statement and the DNA test would establish that the Number Holder is the father of the Children by a preponderance of the evidence as described above.

The Field Office should contact the claimant and request that she obtain documentation from CLI to support the chain of custody. If the claimant has difficulty obtaining the information, the Field Office should help the claimant obtain the evidence. See POMS GN 00306.001 (directing that the Field Office must explore all possibilities of entitlement before disallowing a child’s claim because the relationship requirements are not met; must in general, follow the line of development that will permit payment as soon as possible; and if necessary, must help the claimant obtain evidence).

C. If Claimant Provides the Necessary Documentation to Elizabeth’s Parentage, Elizabeth Would Be Deemed a Legitimate Child.

Finally, you asked if Elizabeth is the child of the Number Holder, is she a legitimate child or illegitimate child with inheritance rights. The District of Columbia abolished the traditional distinction between legitimate and illegitimate children. District of Columbia v. E.M., 467 A.2d 457, 460 (1983). A child born in wedlock or born out of wedlock is the legitimate child of its mother and father. D.C. Code §16-908 (2001). Therefore, if the applicant provides the Agency with documentation of the chain of custody and sufficient evidence to prove the Number Holder’s paternity, then Elizabeth would be deemed a legitimate child, as opposed to an illegitimate child with inheritance rights.

CONCLUSION

Based on the evidence we received to date, the DNA evidence as presented is insufficient to establish the paternity of the Number Holder under the law of the District of Columbia. First, the applicant has not provided the necessary chain of custody documentation for the DNA testing. Further, while the test establishes a very high likelihood that Javier is Elizabeth’s uncle, it does not purport to determine which of his two brothers fathered Elizabeth. However, we believe that Elizabeth would be entitled to surviving child’s insurance benefits under section 216(h)(2)(A) of the Act if we receive documentation of the chain of custody of the DNA test evidence and a supplemental certification from Claudia clarifying that the Number Holder is the father of Elizabeth and denying sexual relations with Alan, thereby establishing the Number Holder’s paternity by a preponderance of the evidence.

Eric P. Kressman

Regional Chief Counsel

By: Adam Siry

Assistant Regional Counsel

Under District of Columbia law, genetic testing establishing the claimants as half siblings of the number holder's son would not be admissible in court, without certified documentation of the chain of custody of the test specimens. Although the testing was performed by a laboratory accredited by the AABB, and each test includes an attestation by the laboratory director and laboratory manager, there is no evidence establishing the chain of custody.

If such evidence were provided, a determination could be made based on the preponderance of the evidence standard.

QUESTIONS PRESENTED

This memorandum is in response to your April 23, 2009, request for our advice as to whether a parent-child relationship can be established under the law of the District of Columbia, between Miguel, the deceased Number Holder, and minor children (Nancy (Nancy), Diana (Diana), Miguel (Miguel), Marlon (Marlon), and Jefferson (Jefferson), hereinafter "the Children," based upon the October 31, 2008, report of deoxyribonucleic acid (DNA) testing results on a purported half sibling prepared by Affiliated Genetics, Incorporated (AGI).

SUMMARY

We have reviewed the information you provided and we have researched the relevant provisions of the law in the District of Columbia. It is our opinion that the evidence of record is insufficient to establish a parent-child relationship between the Number Holder and the Children (Nancy, Diana, Miguel, Marlon, and Jefferson) under the law of the District of Columbia because the claimant has not provided certified documentation of the chain of custody of the test specimens from AGI. However, if the Agency obtains certified documentation of the chain of custody from AGI, there would be sufficient evidence to establish a parent-child relationship under the law of the District of Columbia and the Children would be legitimate children with inheritance rights and entitled to surviving child's insurance benefits under sections 216(h)(2)(A) of the Social Security Act (Act).

BACKGROUND

The Number Holder died on June XX, 2001. On the date of his death, the Number Holder was domiciled in Guayaquil, Ecuador. The applicant for child's benefits is Edward G~ (Edward), the established natural child of the Number Holder and Piedad. In support of the claim, Edward submitted a United States of America, Department of State, Consular Report of Birth Abroad, for each of the Children. The Consular Reports of Birth Abroad indicate each of the Children were born in Guayaquil, Ecuador, and acquired United States citizenship at birth. The United States Consulate in Ecuador made this determination based on documentary evidence received on January 21, 2009. The Consular Reports of Birth Abroad lists the Number Holder as the father of each of the Children, and the mother of each of the Children as Sara.

Edward and two of his full siblings, Maria and Miguel, submitted to genetic testing to construct a partial DNA profile of their father, the Number Holder and the alleged father of the Children. The genetic testing report states that Piedad is the other parent of Edward and his two full siblings. DNA samples of the Children were then directly tested as alleged half-siblings to Miguel. All samples were collected and processed according to AABB standards. Based on reports dated October 31, 2008, the results indicate that it is probable that the Children are half-siblings of Miguel. The probabilities are as follows:

• •

  Nancy- 99.5186%

• •

  Diana- 97.8521%

• •

  Miguel- 93.4948%

• •

  Marlon- 99.7987%

• •

  Jefferson- 90.1410%

Each report includes a signed attestation by AGI Laboratory Director, Kenneth M.D., and Laboratory Manager, Lesa that they, upon being duly sworn, depose and state that they have analyzed the data on the biological specimens from the above-named individuals, that the report containing the results of said analysis has been prepared under their direct supervision, and that the facts and results therein are true and correct. Through a telephone conversation with a representative of AGI, we confirmed that the genetics laboratory maintained a chain of custody for the samples, and that documentation supporting the chain of custody may be requested by subpoena. We also learned that, in cases where a chain of custody is not maintained, the report will clearly state that the reports may not be used in court or legal proceedings.

DISCUSSION

The Social Security Act provides that a child born out of wedlock can qualify for benefits if the child is entitled to inherit personal property under such law as would "be applied in determining the devolution of intestate personal property by the courts of the State in which [the] insured individual . . . [was] domiciled at the time of his death." 42 U.S.C. § 416(h)(2)(A). According to your request, the Number Holder was domiciled in Ecuador at the time of his death. Therefore, the District of Columbia's intestacy law applies. 42 U.S.C. § 416(h)(2)(A). D.C.Code § 19-316 (2001) provides that children born out of wedlock can inherit from their mother or from their father "if parenthood has been established." However, standards for establishing parenthood are not defined in any provision under Titles 19 or 20, respectively entitled "Descent and Distribution" and "Probate and Administration of Estates."

In order to define the standards for establishing parenthood, the courts in the District of Columbia have looked to relevant provisions of the District of Columbia Marriage and Divorce Act at D.C.Code § 16-909 (2001). See In re Estate of J~, 2006 WL 3302857 *2 (D.C. Super. June 21, 2006) (citing In re Estate of G~, 470 A.2d 743, 749-50 (D.C. 1983) (holding that § 19-316 provides for parenthood determinations subsequent to the death of a putative father and § 16-909(a) sets the burden of proof to be met by the child born out of wedlock)). Section 16-909(a) provides that a child's relationship to his or her father is established by a preponderance of the evidence. A preponderance of the evidence in the District of Columbia "requires the court to merely determine who has the most competent evidence."

In re E.D.R., 772 A.2d 1156 (D.C. 2001).

Section 16-909(a) of the D.C. Code provides that a child's relationship to his or her father is established by proving by a preponderance of the evidence that he is the father, and there shall be a presumption that he is the father:

1. (a) 

   if he and the child's mother are or have been married and the child is born during the marriage, or within 300 days after the termination of marital cohabitation by reason of death, annulment, divorce, or separation ordered by a court; or

2. (b) 

   if, prior to the child's birth, he and the child's mother have attempted to marry, and some form of marriage has been performed in apparent compliance with law, though such attempted marriage is or might be declared void for any reason, and the child is born during such attempted marriage, or within 300 days after the termination of such attempted marital cohabitation by reason of death, annulment, divorce, or separation ordered by a court; or

3. (c) 

   if, after the child's birth, he and the child's mother marry or attempt to marry, (with the attempt involving some form of marriage ceremony that has been performed in apparent compliance with law), though such attempted marriage is or might be declared void for any reason, and he has acknowledged the child to be his; or

4. (d) 

   if the putative father has acknowledged paternity in writing.

D.C. Code § 16-909(a). Section 16-909(b) of the D.C. Code provides that, if questioned, a presumption created by § 16-909(a)(1)-(4) may be overcome upon proof of clear and convincing evidence that the presumed father is not the child's father. The Superior Court shall try the question of paternity and shall determine whether the presumed father is or is not the father of the child. D.C. Code § 16-909(b).

Section 16-909(b-1) of the D.C. Code provides that a conclusive presumption of paternity shall be created as follows:

1. (a) 

   Upon a result and an affidavit from a laboratory of a genetic test of a type generally acknowledged as reliable by accreditation bodies designated by the Secretary of the U.S. Department of Health and Human Services that is performed by a laboratory approved by such a body indicating a 99% probability that the putative father is the father of the child; or

2. (b) 

   If the father has acknowledged paternity in writing as provided in § 16-909.01(a)(1).

D.C. Code § 16-909(b-1). Section 16-909(c) (1)(A) of the D.C. Code provides that the parent-child relationship shall be conclusively established by the Superior Court of the District of Columbia under the provisions of subchapter II of Chapter 23 or subsection (b) of section 16-909. D.C. Code § 16-909(c)(1)(A).

Regarding admissibility of tests, Section 16-2343.01(a) of the D.C. Code provides as follows:

1. (a) 

   Expert reports that show the statistical probability of the alleged parent's paternity may be admissible into evidence.

2. (b) 

   Certified documentation of the chain of custody of the test specimens is competent evidence to establish the chain of custody.

3. (c) 

   Test results that show the statistical probability of the alleged parent's paternity shall be admitted into evidence unless a substantiated objection is made that the test did not comply with the requirements of this subchapter.

D.C. Code § 16-2343.01(a)(1)-(3). Section 16-2343.01(e) of the D.C. Code creates a conclusive presumption of paternity where the genetic test result indicates a 99% probability that the putative father is the father of the child. D.C. Code § 16-2343.01(e).

While the Children are not entitled to a presumption of paternity under D.C. Code § 16-909, the preponderance of the evidence establishes a relationship between each of the Children and the Number Holder. The D.C. Code does not address the use of sibling DNA to establish the presumption of paternity, but neither the inheritance statutes nor the paternity statutes limit genetic testing to particular individuals, i.e., the putative father. The statutes simply provide a rebuttable presumption of paternity if scientifically credible parentage determination genetic testing establishes at least a 99% probability of paternity. D.C. Code §§ 16-909(b-1), 16-2343.01(e). Also, under the law of the District of Columbia, there is no distinction between the kindred of the whole and the half-blood. D.C. Code § 19-315 (1997). According to the evidence provided to us, the DNA test reports based on samples from Edward, the number holder's established son, and his two full siblings, Maria and Miguel, show that it is probable that the Children are half-siblings to Miguel. In other words, the testing shows that it is probable that Miguel and the Children share one biological parent. According to the Consular Report and the DNA testing reports, Miguel and the Children do not have the same mother. Miguel's mother is Piedad, and the Children's mother is Sara. Therefore, the Number Holder must be their common biological parent. See Memorandum from OCG Region IV to SSA-MOS, Modified Opinion on the Sufficiency of Genetic Testing to Meet State Intestacy Requirements When the Test Results Show a Half-Sibling Relationship with an Entitled Child - Georgia, January 17, 2007 (advising that genetic testing showing a 99.85% probability of a half-sibling relationship between the claimant and a child receiving benefits on the number holder's record was sufficient to satisfy intestacy requirements under Georgia law).

Nevertheless, we believe the genetic testing would not be admissible in court, without certified documentation of the chain of custody of the test specimens. Although the testing was performed by a laboratory accredited by the AABB, and each test includes an attestation by the laboratory director and laboratory manager, there is no evidence establishing the chain of custody. However, documentation supporting the chain of custody is available from AGI via a subpoena. See J~, 2006 WL 3302857 at *3 (certified copy of results of DNA testing conducted after alleged father's death with an attached affidavit was admissible to determine paternity for purposes of inheritance, in accordance with § 16-909(b-1)(1)). If the Agency obtains certified documentation of the chain of custody, we believe the evidence consisting of the U.S. Consular Report and the DNA test would establish that the Number Holder is the father of the Children by a preponderance of the evidence.

Finally, you asked if the Children are children of the Number Holder, are the Children legitimate children or illegitimate children with inheritance rights? The District of Columbia abolished the traditional distinction between legitimate and illegitimate children. District of Columbia v. E.M., 467 A.2d 457, 460 (1983). A child born in wedlock or born out of wedlock is the legitimate child of its mother and father. D.C. Code §16-908 (2001). Therefore, if the claimant provides the Agency with documentation of the chain of custody, then the Children would be deemed legitimate children, as opposed to illegitimate children with inheritance rights.

CONCLUSION

It is our opinion that the DNA evidence is insufficient to establish the paternity of the Number Holder under the law of the District of Columbia because the claimant has not provided documentation of the chain of custody of the genetics testing. However, we believe that the Children would be entitled to surviving child’s insurance benefits under sections 216(h)(2)(A) of the Social Security Act if the claimant provides the Agency with documentation of the chain of custody.

Eric P. Kressman

Regional Chief Counsel

By: Dina White Griffin

Assistant Regional Counsel

A court in the District of Columbia would not accept DNA testing performed by a facility that is not properly accredited or approved. Additionally, even if the testing is performed by an accredited laboratory, certified documentation of the chain of custody of the specimen would be required.

QUESTIONS PRESENTED

This is in response to your March 17, 2009, request for our advice as to whether a parent-child relationship can be established under the law of Washington, D.C. between Carlos, the deceased Number Holder, and Andreus (Andreus), based upon the January 27, 2009, deoxyribonucleic acid (DNA) test report prepared by GFI Laboratory.

SUMMARY

We have reviewed the information you provided and have researched the relevant provisions of the law in the District of Columbia. It is our opinion that the evidence of record is insufficient to establish a parent-child relationship between the Number Holder and Andreus under the law of the District of Columbia. Therefore, based upon the evidence that we received, Andreus would not be entitled to surviving child's insurance benefits under sections 216(h)(2)(A), (h)(3)(C) of the Social Security Act (Act).

BACKGROUND

The Number Holder passed away while domiciled in the District of Columbia. He was never married to Garnita (Garnita), the mother of Andreus, who was born on November, in Las Vegas, Nevada. Garnita did not name the Number Holder on Andreus's birth certificate and did not submit proof that the Number Holder ever acknowledged Andreus. Although Garnita claims that the Number Holder named Andreus as a beneficiary on an insurance policy and was making regular and substantial contributions to the child's support, Garnita failed to corroborate her claim with documentation. In fact, when Garnita filed an application for a social security number on behalf of Andreus, she indicated only that the mother is "Garnita ."

The only documentation Garnita submitted supporting her claim that Andreus was the Number Holder's child, was a DNA paternity test performed by GFI Laboratory (GFI) on January 27, 2009. GFI's report indicates that a sample of the Number Holder's blood was tested with a self-swab of Andreus's genetic material, resulting in a 99.99% probability of paternity. However, GFI was not accredited by AABB, or any other accrediting body, and disclaims the legal admissibility of their report due to the measures used to collect, package, and transfer the tested specimens and their affect on the chain of custody of the specimens.

Through a telephone conversation with the GFI's director, we learned that GFI does not issue affidavits with their test reports because the specimens are sent through the mail. In other words, GFI assumes that the person identified on the genetic sample is the person from whom the sample was taken, and that the samples were handled and sent through proper procedures.

DISCUSSION

The Social Security Act provides that a child born out of wedlock can qualify for benefits if the child is entitled to inherit personal property under such law as would "be applied in determining the devolution of intestate personal property by the courts of the State in which [the] insured individual . . . [was] domiciled at the time of his death. 42 U.S.C. § 416(h)(2)(A). The Act also provides an alternative method for such a child to qualify for benefits under the earnings record of a worker who is deceased. 42 U.S.C. § 416(h)(3)(C). Section 416(h)(3)(C) provides that a claimant may prove that he is the child of the insured if the insured, before his death, acknowledged paternity in writing, was decreed the child's father by a court, was ordered to contribute to the support of the child by a court, or the insured is shown by "satisfactory" evidence to have been the father of the child "and" was living with or contributing to the support of the child at the time of the insured's death.

According to your request, the Number Holder was domiciled in the District of Columbia at the time of his death. Therefore, using the first method provided for by the Act, the District of Columbia's intestacy law applies. 42 U.S.C. § 416(h)(2)(A). D.C.Code § 19-316 (2001) provides that illegitimate children can inherit from their mother or from their father "if parenthood has been established." However, standards for establishing parenthood are not defined in any provision under Titles 19 or 20, respectively entitled "Descent and Distribution" and "Probate and Administration of Estates."

In order to define the standards for establishing parenthood, the courts in the District of Columbia have looked to relevant provisions of the District of Columbia Marriage and Divorce Act at D.C.Code § 16-909 (2001). See In re Estate of J~, 2006 WL 3302857 *2 (D.C.Super. June 21, 2006) (citing In re Estate of G~, 470 A.2d 743, 749-50 (D.C. 1983) (holding that § 19-316 provides for parenthood determinations subsequent to the death of a putative father and § 16-909(a) sets the burden of proof to be met by the child born out of wedlock)). Section 16-909(a) provides that a child's relationship to his or her father is established by a preponderance of the evidence. A preponderance of the evidence in the District of Columbia "requires the court to merely determine who has the most competent evidence." In re E.D.R., 772 A.2d 1156 (D.C. 2001).

Section 16-909(a) provides that there shall be a presumption created if the child proves by a preponderance of evidence that he has met any of the following subsections:

1. (a) 

   if he and the child's mother are or have been married and the child is born during the marriage, or within 300 days after the termination of marital cohabitation by reason of death, annulment, divorce, or separation ordered by a court; or

2. (b) 

   if, prior to the child's birth, he and the child's mother have attempted to marry, and some form of marriage has been performed in apparent compliance with law, though such attempted marriage is or might be declared void for any reason, and the child is born during such attempted marriage, or within 300 days after the termination of such attempted marital cohabitation by reason of death, annulment, divorce, or separation ordered by a court; or

3. (c) 

   if, after the child's birth, he and the child's mother marry or attempt to marry, (with the attempt involving some form of marriage ceremony that has been performed in apparent compliance with law), though such attempted marriage is or might be declared void for any reason, and he has acknowledged the child to be his; or

4. (d) 

   if the putative father has acknowledged paternity in writing.

Section 16-909(b) provides that a presumption created by § 16-909(a)(1)-(4) may be overcome upon proof of clear and convincing evidence presented to the Superior Court.

Section 16-909(b-1) provides that a conclusive presumption of paternity shall be created as follows:

1. (a) 

   Upon a result and an affidavit from a laboratory of a genetic test of a type generally acknowledged as reliable by accreditation bodies designated by the Secretary of the U.S. Department of Health and Human Services that is performed by a laboratory approved by such a body indicating a 99% probability that the putative father is the father of the child; or

2. (b) 

   If the father has acknowledged paternity in writing as provided in § 16-909.01(a)(1). D.C.Code § 16-909(b-1).

In this case, Andreus is not entitled to a presumption under § 16-909(a) because there was no evidence of marriage between Garnita and the Number Holder, and no written acknowledgement of paternity by the Number Holder. D.C.Code § 16-909 (a) (1)-(4). Therefore, Andreus has the burden of proving by a preponderance of evidence that the Number Holder was his father. D.C.Code § 16-909(a). Under a preponderance of the evidence standard, however, a court in the District of Columbia would likely find that Garnita, on behalf of Andreus, did not establish a parent-child relationship.

Indeed, as noted above, the Number Holder was never married to Garnita. Garnita did not name the Number Holder on Andreus's birth certificate and did not submit proof that the Number Holder ever acknowledged Andreus. Andreus's application for a social security number stated only that his mother is "Garnita." The Number Holder was never decreed by a court to be Andreus's father nor ordered by the court to pay support. Although Garnita claimed that the Number Holder named Andreus as a beneficiary on his insurance policy and was making regular and substantial contributions to Andreus's support, Garnita failed to corroborate her claim with documentation.

Additionally, the DNA paternity test report prepared by GFI is not legally acceptable under the District of Columbia Code. Compare J~, 2006 WL 3302857 at *3 (finding that a certified copy of the laboratory findings, to which there was attached an affidavit, was in accordance with § 16-909(b-1)(1)). In Johnson, the court noted that because the child produced "certified documentation of the chain of custody," the test results were admissible under D.C.Code § 16-2343.01, which governs the admissibility of tests determining paternity. Id. at 4, (citing D.C.Code § 16-2343.01(a), (e) (2001) (requiring certified documentation of the chain of custody of the test specimens)). Therefore, without certified documentation of the chain of custody, a child is barred from admitting DNA results in a court of the District of Columbia. Id.

Here, Garnita acknowledged that the test was performed by a facility that is not properly accredited or approved. In fact, we learned that GFI disclaims the legal acceptability of its reports and recommends that the client contact the requesting agency for guidelines. See www.gfilab.com By way of further investigation, we learned that GFI does not issue affidavits with their test reports because the specimens are sent and received through the mail. In other words, GFI assumes that the person identified on the genetic sample is the person from whom the sample was taken, and that the samples were handled and sent through proper procedures. GFI informed us that in order to certify DNA results, the accredited or approved facility must follow a strict chain of custody to assure the identity of the parties and the integrity of the specimens. See J~, 2006 WL 3302857 at *4 (quoting Murphy v. McCloud, 650 A.2d 202, 211 (D.D. 1994) (noting the need for "rigorous scrutiny of such claims in order to deter and prevent fraud")). Thus, without an admissible DNA report, a court in the District of Columbia would likely find that Garnita did not establish a parent-child relationship.

Similarly, under the alternative method provided for by the Act, Garnita, on behalf of Andreus, failed to meet the federal statutory requirements at 42 U.S.C. § 416(h)(3)(C). Specifically, she failed to show that the Number Holder, before his death, acknowledged paternity in writing, was decreed Andreus's father by a court, was ordered to contribute to the support of the child by the court, and failed to show by "satisfactory" evidence that, at the time of his death, the Number Holder was living with or contributing to the support of Andreus.

Therefore, based upon the evidence that we received, Andreus would not be entitled to surviving child's insurance benefits under the Act.

CONCLUSION

Based on the evidence to date, it is our opinion that the DNA evidence as presented is insufficient to establish the paternity of the Number Holder under the law of the District of Columbia. We also believe that the evidence of record is insufficient to establish paternity under the alternative method provided for by federal law. Consequently, Andreus is not eligible for Social Security benefits under 42 U.S.C. § 402(d)(3).

Eric P. Kressman

Regional Chief Counsel

By: Sandra Romagnole

Assistant Regional Counsel

Under Kenyan law, based upon the limited evidence the Claimant's mother submitted: a L~ allegedly written by the deceased Number Holder's father and a public birth record omitting the name of a father along with the absence of any written documentation from the Number Holder acknowledging paternity of the Claimant, the absence of any information indicating that the Number Holder provided support of the Claimant at any time since the date of his birth in 1999, and the absence of a court order from any jurisdiction determining the Claimant to be the Number Holder's child, we believe that a reviewing court in Kenya would find that the Claimant would not be able to prove under the balance of probability standard (similar to preponderance of the evidence) that the Number Holder was his father.

QUESTIONS PRESENTED

On June 18, 2008, you requested our opinion on the evidence required under Kenyan law to establish the inheritance rights of Ni'Kieon, a child born out of wedlock.

SUMMARY

Based on our review of the facts of this case, the relevant federal statutory law that controls when an insured individual is not domiciled in any state at the time of his death, our research of the intestacy laws of the District of Columbia and the Republic of Kenya, and the opinion we have obtained from the Law Library of Congress, we have determined that Erica ("Claimant's mother") has not presented evidence sufficient to establish paternity between the minor claimant, Ni'Kieon ("Claimant") and the deceased number holder, Titus ("Number Holder"), for the purpose of entitlement to surviving child's benefits and the lump sum death benefit under the Social Security Act.

BACKGROUND

According to the information you provided, the Claimant was born on October, in Mobile, Alabama. The Claimant's birth certificate lists his mother as Erica (maiden name L~). The section of the birth certificate reserved for his father's name contains the language, "[m]other refused." There is no evidence that the Number Holder and the Claimant's mother were ever married or that the Number Holder ever lived with or supported the child. There is also no evidence that any court had ever decreed the Number Holder to be the father of the Claimant or ordered the Number Holder to contribute to the Claimant's support. ^[7]

On August XX, 2007, the Number Holder died. According to the information you provided, the Number Holder was domiciled in Kenya on the date of his death. ^[8]

On June 13, 2008, the Claimant's mother, on behalf of the Claimant, filed an application for surviving child's benefits and the lump sum death benefit on the Number Holder's account. In support of the application for surviving child's benefits, the Claimant's mother submitted a handwritten L~ dated "20th Feb. 2008." The L~ contains the salutation: "Dear

Erica-Daughter-in law." The L~ contains the following relevant language: "[p]ass my regards and that of the entire family as you are to see them in photos to your children that [sic] most regards to Nikeon [sic] the grandson." According to the Claimant's mother, the Number Holder's father wrote the L~. However, the signature on the L~ is illegible. Additionally, the Claimant's mother has not provided, nor has the Agency been able to obtain, any written statements made by the Number Holder prior to his death acknowledging the Claimant as his child. ^[9]

DISCUSSION

The Social Security Act provides that a child born out of wedlock can qualify for benefits if the child is entitled to inherit personal property under "such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which [the] insured individual . . . [was] domiciled at the time of his death, or, if [the] insured individual . . . was not so domiciled in any State, by the courts of the District of Columbia." 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1). The Act also provides an alternative method for such a child to qualify for benefits under the earnings record of a worker who is deceased. Title 42, Section 416(h)(3)(C) of the United States Code provides that a claimant may prove that he is the child of the worker if the insured, before his death, acknowledged paternity in writing, was decreed the child's father by a court, was ordered to contribute to the support of the child by a court, or the insured is shown by "satisfactory" evidence to have been the father of the child "and" was living with or contributing to the support of the child at the time of the insured's death.

According to your request, the Number Holder was domiciled in Kenya at the time of his death. The District of Columbia applies the law of the domicile of the decedent to determine intestate succession. Javier v. Comm'r of Soc. Sec., 407 F.3d 1244, 1247 (D.C. Cir. 2005) ^[10]

Because the Number Holder was domiciled in the Republic of Kenya at the time of his death, Kenyan law applies. We asked the Law Library of Congress (LLC) to research the relevant Kenyan statutory and case law to determine how a child born out of wedlock can establish paternity for purposes of intestate succession in Kenya. We also asked the LLC whether, under relevant Kenyan law, the Claimant could establish that the Number Holder was his father for purposes of intestate succession based on the facts in this case and, specifically, whether the written statement allegedly made by the Number Holder's father would be considered sufficient evidence to establish paternity for purposes of intestate succession.

In response to our request, the LLC referred us to section 3.(2) of the Kenyan Law of Succession, which states:

References to this Act to "child" or "children" shall include a child conceived but not yet born (as long as that child is subsequently born alive) and, in relation to a female person, a child born to her out of wedlock, and in relation to a male person, a child whom he has expressly recognized or in fact accepted as a child of his own or for whom he has voluntarily assumed permanent responsibility.

Law of Succession Act, (1990), Cap. 160, § 3,(2). (Kenya). ^[11] In addition, the LLC explained that in a 1990 decision, the Court of Appeals of Kenya stated that, "the definition in section 3.(2) of a child whom the deceased in fact had accepted as his own or for whom the deceased had assumed permanent responsibility only applies to a child whom a male deceased person had accepted or assumed permanent responsibility over and that instances of temporary responsibility do not suffic0e." William, Law of Succession 111 (2006). Regarding the L~ allegedly written by the Number Holder's father, the LLC stated:

A L~ by an alleged father of the deceased that simply makes a reference to the child in question, therefore, does not appear to have any probative value in proving paternity for purposes of inheritance, as it is far from establishing any form of acknowledgement by the

deceased as required by law. Such a L~ does not prove express recognition, acceptance, or an assumption of any form of responsibility by the deceased.

The LLC also explained that, according to the aforementioned 1990 Kenyan Court of Appeals decision, in cases where there is no express acknowledgment by the deceased of a child born outside of marriage, paternity is to be established through a court determination on the "balance of probability." Id. The standard of "balance of probability" appears to be the same as the preponderance of the evidence standard. Cooper v. Oklahoma, 517 U.S. 348, 358 (1996). A preponderance of the evidence means to exceed in weight. Blystone v. Pennsylvania, 494 U.S. 299, 312 n.3 (1990).

Based upon the limited evidence the Claimant's mother submitted, specifically the L~ allegedly written by the Number Holder's father, as well as the absence of a father's name on the Claimant's birth certificate, the absence of any written documentation from the Number Holder acknowledging paternity of the Claimant, the absence of any information indicating that the Number Holder provided support of the Claimant at any time since the date of his birth in 1999, and the absence of a court order from any jurisdiction determining the Claimant to be the Number Holder's child, we believe that a reviewing court in Kenya would find that the Claimant would not be able to prove under the balance of probability standard that the Number Holder was his father.

Under the alternative method provided for by the Act at 42 U.S.C. § 416(h)(3)(C), the Claimant also failed to meet the federal statutory requirements. Specifically, he failed to show that the Number Holder acknowledged paternity in writing before his death, was decreed the Claimant's father by a court, or was ordered to contribute to the support of the Claimant by a court. The Claimant also failed to show "satisfactory" evidence that the Number Holder was his father "and" was living with or contributing to his support at the time of the Number Holder's death.

CONCLUSION

Based on the evidence presented in this case, it is our opinion that the L~ dated 20th Feb. 2008, allegedly written by the Number Holder's father, is insufficient to establish the paternity of the Number Holder under Kenyan law or under the alternative method provided for by the Social Security Act. Consequently, the Claimant is not eligible for surviving child's benefits under 42 U.S.C. § 416(h).

Michael Mc Gaughran

Regional Chief Counsel

By: Beverly H. Zuckerman

Assistant Regional Counsel

Looking to the laws of the District of Columbia in accordance with 20 CFR 404.355(b)(1), along with relevant Jamaican statutes, evidence limited to two unsworn hearsay statements made thirteen years after the claimant's birth would not be sufficient to establish a parent-child relationship between the deceased number holder and the claimant.

Additionally, the evidence is also insufficient to establish the relationship under Federal statutes.

QUESTIONS PRESENTED

On December 20, 2007, you requested our opinion as to whether a parent-child relationship exists between Stephen ("the Number Holder) and the minor claimant, Maurice ("the claimant"). You also asked whether we would look to the law of the District of Columbia pursuant to 20 C.F.R. § 404.355(b)(1) in establishing whether a parent-child relationship exists. If a parent-child relationship can be established, you also asked for the effective date of that relationship and whether retroactive benefits should be paid.

SUMMARY

Based upon our review of the facts of this case, the relevant federal statutes addressing choice of law when an insured is not a domicile of any State, our research of the law of the District of Columbia and the relevant Jamaican statutes, and the opinion we have obtained from the Law Library of Congress, we have determined that the claimant's mother has not presented evidence sufficient to establish paternity of the Number Holder under applicable Jamaican or federal law.

BACKGROUND

According to the information you provided, the Number Holder was a resident of Kingston, Jamaica, and died there on August XX, 2005.

The claimant was born on May, in New York, New York. The claimant's birth certificate lists his mother's name as Veronica. It does not include the name of his father. The claimant's mother and the Number Holder were not married and the Number Holder did not live in the same household as the claimant.

An application for a social security number completed on July XX, 1992, indicates that the Number Holder is the claimant's father. On another application for a social security number completed on August XX, 1992, information concerning the father's name was "withheld" by what you refer to as "the City".

On October XX, 2005, two months after the Number Holder's death, Veronica filed an application on the claimant's behalf for surviving child's benefits and the lump sum death benefit on the Number Holder's account.

Veronica submitted an unsworn statement dated October 26, 2005, from the deceased Number Holder's mother. This statement was provided for the use of SSA in support of the application for surviving child's benefits. The Number Holder's mother stated that the Number Holder was in the United States when the child was born, knew that the child's mother was pregnant, and lived in the United States until approximately 1998, when he returned to Jamaica. The Number Holder's mother also stated that the child's mother brought the child to see the Number Holder and others in the family, and that the Number Holder acknowledged in her presence and before other family members (lists six individuals, including the Number Holder's sister who also provided a statement) that the child was his son.

Veronica also submitted an unsworn statement dated October 27, 2005, from the deceased Number Holder's sister. This statement was provided for the use of SSA in support of the application for surviving child's benefits. The Number Holder's sister stated that the Number Holder lived in the United States, but did not provide requested information as to the date the Number Holder left the United States. The Number Holder's sister also stated that the Number Holder returned to Jamaica before the child was born but knew that the child's mother was pregnant. The Number Holder's sister also stated that when the Number Holder was visiting in the United States, the child's mother brought the child to see the Number Holder and others in the family, and that the Number Holder acknowledged in her presence and before other family members (lists seven individuals, including the Number Holder's mother) that the child was his son.

No written statements made by the father prior to his death naming the claimant as his child were produced or found. Nor has any court in any U.S. jurisdiction issued an order determining that the claimant was the Number Holder's child.

DISCUSSION

The Social Security Act provides that a child born out of wedlock can qualify for benefits if the child is entitled to inherit personal property under "such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which [the] insured individual . . . [was] domiciled at the time of his death, or, if [the] insured individual . . . was not so domiciled in any State, by the courts of the District of Columbia." 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1),(4). The Act also provides an alternative method for such a child to qualify for benefits under the earnings record of a worker who is deceased. 42 U.S.C. § 416(h)(3)(C). Section 416(h)(3)(C) provides that a claimant may prove that he is the child of the worker if the insured, before his death, acknowledged paternity in writing, was decreed the child's father by a court, was ordered to contribute to the support of the child by a court, or the insured is shown by "satisfactory" evidence to have been the father of the child "and" was living with or contributing to the support of the child at the time of the insured's death.

According to your request, Stephen, the Number Holder, was domiciled in Kingston, Jamaica at the time of his death. The District of Columbia applies the law of the domicile of the decedent to determine intestate succession. Javier v. Commissioner of Social Sec., 407 F.3d 1244, 1247 (D.C. Cir. 2005); In re G~'s Estate, 168 F.Supp. 124, 126 (D.D.C. 1958); (finding "no local cases on . . . point" but adopting the "rule that the law of the domicile of decedent governs distribution of personal property . . . ."); Gonzalez v. Hobby, 110 F.Supp. 893, 897 (D.P.R. 1953), aff'd 213 F.2d. 68 (1st Cir. 1954) (in determining devolution of intestate personal property for the purposes of claimant's application for child's benefits under the Social Security Act, claimant's right to benefits was not to be determined by the substantive law of the District of Columbia, but by the substantive law of the place where the insured father/number holder resided or was domiciled). See also Program Operations Manual System (POMS) PR 01510.010(B) (District of Columbia courts apply the substantive law of the wage earner's foreign domicile) (citing Gonzalez v. Hobby, 110 F.Supp. 893). Because Stephen, the Number Holder, was domiciled in Jamaica at the time of his death, the law of Jamaica applies.

Section 6 of Jamaica's Status of Children Act (Presumptions re Parenthood of Child Born During Marriage) provides:

(1) Subject to subsections (2) and (3), a child born to a woman during her marriage, or within ten months after the marriage has been dissolved by death or otherwise, shall, in the absence of evidence to the contrary, be presumed to be the child of its mother and her husband, or former husband, as the case may be.

(2) Subsection (1) shall not apply if, during the whole of the time within which the child must have been conceived, the mother and her husband were living apart under an oral or written agreement for separation, or under a decree or order of separation, or decree nisi of divorce, made by a competent court or authority in Jamaica or elsewhere.

(3) Subsection (1) shall not apply where a child is born ten months after the dissolution of the marriage of its mother by death or otherwise, and after she has married again, and in such case there shall be no presumption as between the husband of the mother and her former husband that either is the father of the child, and the question shall be determined on the balance of probabilities in each case.

Laws of Jamaica - Statutes and Subsidiary Legislation (visited April 9, 2008) http://www.moj.gov.jm/law/search?lawSearch=status+of+children.

Section 7 of Jamaica's Status of Children Act (Recognition of Paternity in Cases of Succession, etc.) provides in relevant part:

(1) The relationship of father and child . . . shall, for any purpose related to succession to property . . . be recognized only if -

(a) the father and the mother of the child were married to each other . . . ; or

(b) paternity has been admitted by or established during the lifetime of the father (whether by one or more of the types of evidence specified by section 8 or otherwise)

Id.

Section 8 of Jamaica's Status of Children Act (Evidence and Proof of Paternity) provides in relevant part:

(1) If, pursuant to section 19 of the Registration (Births and Deaths) Act or to the corresponding provisions of any former enactment, the name of the father of the child to whom the entry relates has been entered in the register of births . . . , a certified copy of the entry made or given in accordance with section 55 of that Act or sealed in accordance with section 57 of said Act shall be prima facie evidence that the person named as the father is the father of the child.

(2) Any instrument signed by the mother of a child and by any person acknowledging that he is the father of the child shall, if executed as a deed or by each of those persons in the presence of an attorney-at-law or a Justice of the Peace or a Clerk of the Courts or a registered medical practitioner or a minister of religion or a marriage officer or a midwife or the headmaster of any public educational institution as defined in the Education Act be prima facie evidence that the person named as the father is the father of the child.

(3) [Deleted](4) Subject to subsection (1) of section 7, a declaration made under section 10 shall, for all purposes, be conclusive proof of the matters contained in it.

(5) An order made in any country outside Jamaica declaring a person to be the father or putative father of a child, being an order to which this subsection applies pursuant to subsection (6), shall be prima facie evidence that the person declared the father or putative father, as the case may be, is the father of the child.

(6) The Minister may from time to time, by order, declare that subsection (5) applies with respect to orders made by any court or public authority in any specified country outside Jamaica or by any specified court or public authority in any such country. Id.

Section (10) of Jamaica's Status of Children Act (Power of Court to Make Declaration of Paternity) provides in relevant part

(1) Any person who -

(a) being a woman, alleges that any named person is the father of her child; or

(b) alleges that the relationship of father and child exists between himself and any other person; or

(c) being a person having a proper interest in the result, wishes to have it determined whether the relationship of father and child exists between two named persons, may apply in such other manner as may be prescribed by rules of court for a declaration of paternity, and if it is proved to the satisfaction of the Court that the relationship exists the Court may make a declaration of paternity whether or not the father or the child or both of them are living or dead.

(2) Where a declaration of paternity under subsection (1) is made after the death of the father or of the child, the Court may at the same or any subsequent time make a declaration determining, for the purposes of paragraph (b) of subsection (1) of section 7, whether any requirements of that paragraph have been satisfied.

(4) An application may be made under subsection (1) to -

(a) the Resident Magistrate's Court for the parish in which any of the parties reside or, as the case may be, the Family Court; or

(b) the Supreme Court.

Id.

Section (11) of Jamaica's Status of Children Act (Power of Court to Require Use of Blood Tests) provides in relevant part:

(1) In any civil proceedings in which the paternity of any person (hereinafter referred to as "the subject") falls to be determined by the court hearing the proceedings, the court may, on an application by any party to the proceedings, give a direction for the use of blood tests to ascertain whether such tests show that a party to the proceedings is or is not thereby excluded from being the father of the subject . . . .

Id.

In this case, none of the specific provisions for establishing paternity under Jamaica's Status of Children Act have been met. There is no evidence of a marriage between the Number Holder and the claimant's mother, or of an entry in Jamaica's register of births naming the Number Holder as the father of the claimant. Nor is there evidence that the Number Holder signed an instrument acknowledging that he was the father of the claimant, that any court or public authority in any country outside Jamaica declared the Number Holder to be the father of the claimant, that a Jamaican court made a declaration of paternity, or that blood tests were ordered in connection with a civil proceeding.

Because Section 7(1)(b) provides that the relationship of father and child may be established if "paternity has been admitted by or established during the lifetime of the father (whether by one or more of the types of evidence specified by section 8 or otherwise), and because we do not have access to Jamaican case law, we asked the Law Library of Congress (LOC) for an interpretation as to whether the hearsay statements provided by the Number Holder's relatives would be sufficient to establish paternity pursuant to the "or otherwise" language of Section 7(1)(b). We also asked the LOC to provide us with information concerning the burden/standard of proof for establishing paternity under Jamaican law.

In response to our request, the LOC advised that there are only two cases in the Jamaica Law Reports that address the issue of establishment of paternity, and that neither case has to do with the interpretation of the phrase "or otherwise" in section 7(1)(b). The LOC further advised that in Jamaica, the courts generally look to English precedent for guidance when there is no applicable domestic case law. While noting that English precedent cannot supply an interpretation of the phrase "or otherwise" within the meaning of the Status of Children Act, the LOC advised that the principle of ejusdem generis (of the same kind, a canon of interpretation to the effect that where general words follow an enumeration of particulars, the general words are understood as limited to general categories of the same kind as the particulars) has been recognized in English case law. See also Norfolk and Western Railway Company v. American Train Dispatchers' Association, 499 U.S. 117, 129 (1991) ("under the principle of ejusdem generis, when a general term follows a specific one, the general term should be understood as a reference to subjects akin to the one with specific enumeration").

Applying the principle of ejusdem generis to Section 8 of the Status of Children Act, the LOC concluded that "section 8 does not provide that paternity can be proved through the evidence of third parties." As noted above, the particular categories of evidence for establishing paternity under Section 8 require some type of formal documentation (an entry in the register of births, a signed statement or a court order), not the type of evidence provided in this case in the form of unsworn third party hearsay statements.

This analysis is also consistent with information provided on the Jamaican government's website. According to the website, the child of a deceased individual who needs to prove paternity must submit to the AGD (Attorney General's Department) a certified copy of the Birth Certificate. If the father's name is endorsed thereon, this is sufficient proof of paternity. When the father's name is not on the Birth Certificate, the following are means of proof of paternity.

1. A form filled in by both parents establishing paternity and signed in the presence of a Justice of the Peace, Clerk of the Court, Registered Medical Practitioner, Minister of Religion, Marriage Officer or Midwife; or

2. An Affiliation Order made in any Court; or

3. Declaration of Paternity made by the Family Court of Supreme Court (for the purpose of succession, the Declaration should state that paternity was established during the lifetime of the father).

Frequently Asked Questions - The Administrator General's Department (visited April 9, 2008) http://www.moj.gov.jm/admingen/faqs

Furthermore, although the LOC was unable to offer any guidance with respect to the burden/standard of proof for establishing paternity under Jamaican law, we note that the Status of Children Act recognizes (1) a presumption of parenthood or paternity, subject to certain exceptions (2) prima facie evidence of paternity; and (3) a balance of probabilities test for proof of paternity in certain instances. As noted above, the facts of this case do not establish a presumption of paternity or prima facie evidence of paternity as contemplated under the Status of Children Act. We note, however, that the English standard of "balance of probabilities" appears to be the same as the preponderance of the evidence standard. Cooper v. Oklahoma, 517 U.S. 348, 358 (1996). A preponderance of the evidence means to exceed in weight. Blystone v. Pennsylvania, 494 U.S. 299, 312 n.3 (1990).

Based upon the limited evidence that has been presented here in the form of two somewhat conflicting unsworn hearsay statements provided in 2005, more than thirteen years after the claimant's birth, for the purpose of obtaining social security benefits, as well as the absence of a father's name on the claimant's birth certificate, the absence of any written documentation from the Number Holder, including his signature on the application for a social security number indicating that he was the claimant's father, the absence of any information indicating that the Number Holder provided support for the claimant at any time since the date of his birth in 1992, and the absence of a court order from Jamaica or any United States jurisdiction determining that the claimant was the Number Holder's child, we believe that a reviewing court in Jamaica would find that the claimant would not be able to prove under the balance of probabilities standard that the Number Holder was his father.

Under the alternative method provided for by the Act at 42 U.S.C. § 416(h)(3)(C), Veronica also failed to meet the federal statutory requirements. Specifically, she failed to show that the Number Holder acknowledged paternity in writing before his death, was decreed the claimant's father by a court, or was ordered to contribute to the support of the claimant by a court. Veronica also failed to show "satisfactory" evidence that the Number Holder was the claimant's father "and" that he was living with or contributing to the support of the claimant at the time of his death.

In summary, Veronica has failed to prove that paternity was established pursuant to Jamaican law, or the Social Security Act.

CONCLUSION

Based on the evidence presented in this case, it is our opinion that the unsworn hearsay statements submitted by Veronica are insufficient to establish the paternity of Stephen under Jamaican law or under the alternative method provided for by federal law. Consequently, the claimant is not eligible for surviving child's benefits under 42 U.S.C. § 416(h).

Very truly yours,

Michael Mc MGaughran

Regional Chief Counsel

By: Beverly H. Zuckerman

Assistant Regional Counsel