The number holder (NH) was domiciled in Missouri at the time of his death. Therefore, we apply the Missouri’s intestacy law to determine if the claimants qualify as the NH’s children under the Missouri law. Although a parent-child relationship may be established under the Missouri Uniform Parentage Act or other provisions of the intestacy statute, the legislature’s inclusion of a provision specifically addressing posthumously born children evidences that such children were not encompassed within the other provisions of the intestacy statute. While the Missouri legislature has made changes to the intestacy statute, it has not amended the posthumous child provision to include posthumously conceived children. Even though, the Missouri statute does not define “posthumous,” the Missouri Supreme Court has determined that “posthumous” refers only to children conceived prior to the intestate’s death. It is our opinion that the claimants would not qualify as the NH’s children under Missouri intestacy laws and therefore do not meet the requirements for entitlement under section 416(h)(2)(A) of the Act for child’s insurance benefits on the NH’s record.

ISSUE PRESENTED

You asked whether minor children, K~ and K2~ (the claimants), are entitled to surviving child’s insurance benefits on the record of W~, the Numberholder (NH). K3~ (the wife/mother) conceived the claimants through intrauterine insemination (IUI) or in vitro fertilization (IVF) after the death of the NH. For the reasons discussed below, we believe that the claimants do not meet the requirements for entitlement under section 216(h)(2)(A) of the Social Security Act (the Act).

FACTUAL BACKGROUND

The evidence you provided shows that the NH and the mother met with O~, M.D., at the Department of Fertility and Reproductive Medicine at the Washington University School of Medicine in St. Louis for a consultation on February XX, 2013.

After providing Dr. O~ with proof of marriage, the NH and his wife signed a “Fertility Consent Agreement” on February XX, 2013. It provided that the parties would use the mother’s ova (egg) and the NH’s sperm to create an embryo(s). The agreement provided that the NH and his wife would be “conclusively presumed to be the legal parents of any Child(ren) conceived pursuant to this Agreement in accordance with the laws of the State of Missouri.” They also agreed that their names would appear on the birth certificates of any children born from the IUI or IVF process. Additionally, if either the NH or his wife died during the course of the insemination process, the surviving party would have sole decision-making authority over the eggs, sperm, or embryos. After the NH and his wife executed the Agreement, Dr. O~ collected the NH’s specimen.

On April XX, 2013, the NH died. At the time of his death, he resided in O2~, Missouri.

On April XX, 2013, the wife contacted Dr. O~ and reported that the NH had passed away unexpectedly. She stated that she wanted to pursue conception with the NH’s specimen, but she wanted time to grieve her loss.

In May 2014, the wife began IUI and IVF procedures with the NH’s specimen. On December XX, 2015, she gave birth to the claimants. The birth certificates list the NH as the father.

On March XX, 2016, the mother filed applications, on behalf of the claimants, for surviving child’s insurance benefits on the NH’s record.

ANALYSIS

I. Federal Law

Under the Act, an individual may be eligible for surviving child’s insurance benefits if: (1) she is the “child” of the insured, as defined in the Act; and (2) she was “dependent upon” the insured at the time of his death. See 42 U.S.C. § 402(d) (2016); 20 C.F.R. §§ 404.350(a), 404.354 (2016). For the purposes of child’s insurance benefits, the definition of “child” includes the natural child, legally adopted child, or stepchild of an insured individual. See 42 U.S.C. §416(e); see also 20 C.F.R. §§ 404.350, 404.354-59; Astrue v. Capato, --- U.S. ---, 132 S. Ct. 2021, 2027-28 (2012). Here, the relevant inquiry is whether the claimants qualify as the NH’s natural children under the Act.

An applicant can qualify as the natural child of an insured individual if she could inherit the insured’s personal property as his child under the intestacy laws (i.e., the laws that apply when the decedent has no will) of the state in which the insured was domiciled at the time of his death. See 42 U.S.C. §§ 416(e)(1), 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1); Capato, 132 S. Ct. at 2028. The NH was domiciled in Missouri at the time of his death. Therefore, we apply Missouri’s intestacy law to determine if the claimants qualify as the NH’s children under Missouri law. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355.

II. Missouri Law

Under Missouri law, a child may inherit if he or she is the issue or child of the decedent. See Mo. Ann. Stat. § 474.010 (2016). The Probate Code defines “issue” or “child” broadly. See Mo. Stat. Ann. § 472.010(2) (“‘Child’ includes an adopted child and a child born out of wedlock, but does not include a grandchild or other more remote descendants.”); id. at § 472.010(16) (“‘Issue’ of a person, when used to refer to persons who take by intestate succession, includes adopted children and all lawful lineal descendants, except those who are the lineal descendants of living lineal descendants of the intestate.”); id. at § 474.010(22) (“‘Lineal descendants’ include adopted children and their descendants.”).

While the general intestacy statute provides that an intestate decedent’s property passes to the decedent’s children, the Missouri Supreme Court has explained that this section [namely, the statute of descents] must be understood as merely laying down general rules of inheritance, and not as completely and accurately defining how the status is to be created which gives the capacity to inherit. It does not undertake to prescribe who shall be considered a child . . . or what is necessary to constitute the legal relation of . . . parent and child. Those requisites must be sought elsewhere.

Fosburg v. Rogers, 21 S.W. 82, 84 (Mo. 1893). Thus, to determine whether the claimants could inherit the NH’s intestate property, we must look beyond the general statutes of descent and consider all of the applicable provisions of the probate code, giving each provision meaning and effect to the extent reasonably possible. See Staley v. Missouri Dir. of Revenue, 623 S.W.2d 246, 250 (Mo. 1981) (en banc); Kilbane v. Dir. of Dep’t of Revenue, 544 S.W.2d 9, 11 (Mo. 1976) (en banc).

Typically, the first issue to resolve would be whether the claimants are children as that term is used in section 474.010. However, that section must be interpreted in light of section 474.050. When each provision of the intestacy statute is given meaning and effect, it is clear that the claimants are precluded from intestate succession by Missouri Supreme Court precedent interpreting the scope of section 474.050. Section 474.050 states:

All posthumous children, or descendants, of the intestate shall inherit in like manner, as if born in the lifetime of the intestate; but no right of inheritance accrues to any person other than the children or descendants of the intestate, unless they are born and capable in law to take as heirs at the time of the intestate’s death.

Mo. Ann. Stat. § 474.050. While the statute does not define “posthumous,” the Missouri Supreme Court has determined that “posthumous” refers only to children conceived prior to the intestate’s death. See Mo. Ann. Stat. §§ 474.010-155; Vogel v. Mercantile Trust Co. Nat. Ass’n, 511 S.W.2d 784, 789 (Mo. 1974) (interpreting a prior, but similarly worded, version of section 474.050).

In Vogel, the court considered whether the residue of a trust established by a grandmother’s will should have passed to grandchildren conceived after her death by application of the intestacy statute. The court determined that “the reference in [the intestacy statute] to posthumous children or descendants means those conceived during the lifetime of the testator, but born thereafter.” Id. (citing Ross v. First Presbyterian Church of Stockton, 197 S.W. 561 (Mo. 1917); 4 Maus, Probate Law and Practice, s. 1233, p. 427; Ballantine’s Law Dictionary, ‘Posthumous child’; Aubuchon v. Bender, 44 Mo. 560 (1870); Steggall v. Morris, 258 S.W.2d 577 (Mo. 1953) (en banc)). The court concluded that the grandchildren were not entitled to an intestate share of the grandmother’s estate because they were not conceived during the grandmother’s lifetime. Id. Although the intestate in Vogel was the children’s grandmother, the court did not limit its interpretation of the intestacy statute to the grandparent-grandchild relationship.

Vogel remains authoritative. In the forty-plus years since the decision, neither the Missouri Courts of Appeal nor the Missouri Supreme Court has reconsidered the intestacy rights of posthumously conceived children or clarified whether the relationship of the intestate to the posthumously conceived child is a determinative factor in establishing the child’s right to claim a share of the intestate’s property. While the Missouri legislature has made changes to the intestacy statute, it has not amended the posthumous child provision to include posthumously conceived children. The legislature is presumed to know the law, Greenbriar Hills Country Club v. Dir. of Revenue, 47 S.W.3d 346, 352 (Mo. 2001), and its failure to provide for intestate succession by posthumously conceived children/descendants evidences its intent to exclude those persons. See Wolff Shoe Co. v. Dir. of Rev., 762 S.W.2d 29, 32 (Mo. banc 1988) (applying the expressio unius est exclusio alterius canon of statutory construction and finding that the express mention of one thing in a statute implies the exclusion of another).

Likewise, although a parent-child relationship may be established under the Missouri Uniform Parentage Act or other provisions of the intestacy statute, Mo. Ann. Stat. §§ 210.817-210.854, 474.060-080, the legislature’s inclusion of a provision specifically addressing posthumously born children evidences its belief that such children were not encompassed within the other provisions of the intestacy statute. To interpret the intestacy statute in any other manner would render section 474.050 duplicative and, thus, meaningless. Legislative enactments should not be construed as to have accomplished nothing and to have been useless. See Kilbane, 544 S.W.2d at 11; see also Gross v. Merchants-Produce Bank, 390 S.W.2d 591, 597 (Mo. App. K.C.1965) (“[L]egislatures are not presumed to have intended a useless act.”).

We believe a Missouri court would find that, even if the claimants could establish a parent-child relationship with the NH, the Missouri Supreme Court’s holding in Vogel precludes them from benefiting from the posthumous child provision of the intestacy statute. Accordingly, the claimants are not entitled to child’s insurance benefits on the NH’s record.

CONCLUSION

Based on the available evidence, and for the reasons outlined above, it is our opinion that the claimants would not qualify as the NH’s children under Missouri intestacy laws and therefore do not meet the requirements for entitlement under section 416(h)(2)(A) the Act.

Kristi A. Schmidt

Chief Counsel, Region VII

By: Ellie Dorothy

Assistant Regional Counsel

As a non-marital child, Anthony C~ did not meet any the requirements for showing dependency.

There is no indication or allegation that the he was dependent on the numberholder, or that the numberholder contributed to his support. There is also no indication or allegation that any marriage was attempted between Mr. K~ and the claimant’s mother. 

Based on the DNA information provided by Anthony, the results did not provide a percentage probability of parenthood as the Missouri Code requires (ninety-eight percent or higher, using a prior probability of 0.5.) Also, there is no evidence that Mr. K~ acknowledged parenthood in writing, was decreed to be the parent, or was ordered to provide child support. The only evidence submitted to document that Mr. K~ is the claimant’s parent other than the DNA test is the statement from his brother and the statement from Ms. H~. These statements are not sufficient to provide “clear and convincing” evidence of parenthood, when combined with the DNA test that is not particularly definitive.

Anthony C~ could not inherit from Mr. K~ under Missouri’s intestacy laws, therefore Anthony cannot be entitled to child’s insurance benefits on Mr. K~’s earnings record. 

DNA testing that was notarized and signed by an officer of a genetic testing facility, stated that the facility had collected specimens from the claimant, claimant’s mother and sibling on April XX, 2010. The DNA test results showed that the claimant and sibling were “849.6 times more likely to be related as full siblings than half siblings.” The probability of relatedness as full siblings was 99.882%. We refer to the Missouri intestacy law because the NH was domiciled in Missouri at the time of his death.

You requested a legal opinion regarding whether Anthony C~ (SSN~) qualifies for child’s insurance benefits on the earnings record of Lawrence K~ (SSN~). Based on the facts of this case, Mr. C~ does not qualify for child’s benefits on Mr. K~’s earnings record. 

Factual Background

The materials you provided indicate that Mr. C~ filed an application for surviving child’s benefits based on Mr. K~’s earnings record. According to a birth certificate, Mr. C~ was born in Tennessee in December 1992, and the mother listed on the birth certificate was Sheryl C~. No father was listed. A subsequent Social Security Number application showed Plaintiff’s father listed as “unknown.”

According to a Certificate of Death, the numberholder, Mr. K~, died on October XX, 1998, while residing in Missouri. You advised us that SSA records indicated that prior to his death, Mr. K~ had applied for disability benefits and that he did not mention Mr. C~ as his child in the application materials.

Mr. C~’s mother, Sheryl C~ (now Sheryl H~), stated that she had dated Mr. K~ for about a year while she lived in Missouri. They did not marry. She moved to Tennessee, and had a child, Mr. C~. But she had no further contact with Mr. K~. You stated that she provided no written evidence indicating that Mr. K~ had acknowledge the child or paid child support, and Ms. H~ did not pursue child support. The claimant never lived with Mr. K~.

Mr. C~ now alleges that Mr. K~ is his father and that he is entitled to Child’s benefits on his account. In August 2010, Mr. C~ obtained a deoxyribonucleic acid (DNA) test using DNA samples from himself and from Thomas K~, Mr. K~’s brother and Mr. C~’s purported uncle. DNA Diagnostics Center performed the test. The “DNA Test Report” describes the test as a Y-Chromosome STR test. The test results were interpreted as showing that the “results are consistent with individuals that share a common male lineage.” The information you provided also contains a signed notarized statement from Thomas K~ stating that his brother, Lawrence K~, told him that he had a son with Sheryl H~, and that the child’s name was Anthony C~.

Analysis

Section 202(d)(1) of the Social Security Act (Act) establishes the criteria for entitlement to child’s insurance benefits. This section provides that every child (as defined in 216(e)) of an individual who dies fully insured under the Act is entitled to benefits if the child applies for benefits, is unmarried and under 18 (or a full-time elementary or secondary school student and under age 19), or is under a disability that began before age 22, and was dependent on the deceased at the time of death. Id. A child who was born to married parents or who was legally adopted by the insured individual is deemed dependent, and is thus entitled to benefits. Social Security Act § 202(d)(3).

A non-marital child can be deemed dependent on a deceased insured individual in several ways. First, section 216(h)(3)(C)(ii) of the Act provides that the child can be deemed dependent on the insured by showing that the insured was his or her parent and was living with or contributing to his or her support at the time of the insured’s death. Second, section 216(h)(2)(B) of the Act provides that the child can be deemed dependent on the insured if the child can show that the insured was his or her parent and that his or her parents went through a purported marriage ceremony, but their marriage was invalid because of a legal impediment. Third, section 216(h)(3)(C)(i) of the Act provides that the child can be deemed dependent on the insured if the child can show that the insured had, before his or her death: (a) acknowledged in writing the child as his or her child; (b) been decreed by a court to be the child’s parent; or (c) been ordered by a court to contribute to the support of the child on the basis of parenthood.

A non-marital child who does not meet any of the above requirements for showing dependency can also be entitled to benefits under section 216(h)(2)(A) if the child could 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 such insured individual . . . was domiciled at the time of his death . . . . Id. See also 20 C.F.R. § 404.355(a)(1); Program Operations Manual System (POMS) GN 00306.055. A non-marital child who meets the standard that Congress set forth in 216(h)(2)(A) of the Act is deemed to be dependent. See Matthews v. Lucas, 427 U.S. 495, 514-15 n.17 (1976).

The first provisions are not applicable to this case. There is no indication or allegation that the child was dependent on the numberholder, or that the numberholder contributed to his support. There is also no indication or allegation that any marriage was attempted between Mr. K~ and the claimant’s mother. There is no evidence that Mr. K~ acknowledged parenthood in writing, was decreed to be the parent, or was ordered to provide child support.

Thus, a resolution of your question will depend on whether or not the claimant could inherit personal property under the intestacy laws of the State of Missouri, where Mr. K~ resided at the time of his death. See 20 C.F.R. § 404.355(a)(1). Under the Missouri Probate Code, if the decedent has no surviving spouse, the decedent’s children, including posthumous children, take the decedent’s property. See MO. ANN. STAT. §§ 474.010 and 474.050. The Probate Code describes the determination of the relationship between parent and child for probate purposes. See MO. ANN. STAT. § 474.060. A non-marital child is a child of the mother and also a child of the father if (1) the “natural parents participated in a marriage ceremony before or after the birth of the child, even though the attempted marriage is void,” or (2) “paternity is established by an adjudication before the death of the father, or is established thereafter by clear and convincing proof.” See id.

Because there is no evidence that Ms. H~ or Mr. K~ ever married or attempted to marry, and no evidence that paternity was ever adjudicated, we must determine whether paternity was established by “clear and convincing proof.” Id. The Eighth Circuit has noted that the Missouri Court of Appeals defines clear and convincing evidence as “‘that which ‘instantly tilt[s] the scales in the affirmative when weighed against evidence in opposition,’ and clearly convinces the factfinder that the evidence is true.’” See Eldridge for Eldridge v. Sullivan, 980 F.2d 499, 500 (8th Cir. 1992). The Seventh Circuit has interpreted the Missouri probate standard of “clear and convincing proof” as less than proof “‘beyond a reasonable doubt.’” See Jones for Jones v. Chater, 101 F.3d 509, 512 (7th Cir. 1996).

While “the [Missouri] probate code – and not the Uniform Parentage Act – governs determinations of paternity,” one may “use the evidentiary standards and presumptions of the parentage act in proving paternity.” See LeSage v. Dirt Cheap Cigarettes and Beer, Inc., 102 S.W.3d 1, 4 (Mo. 2003) (citing In re Nocita, 914 S.W.2d 358, 359 (Mo. 1996)). Under Missouri’s Uniform Parentage Act, a man is “presumed to be the natural father of a child” if “[a]n expert concludes that the blood tests show that the alleged parent is not excluded and that the probability of paternity is ninety-eight percent or higher, using a prior probability of 0.5.” See MO. ANN. STAT. § 210.822. One can rebut this presumption “only by clear and convincing evidence.” See id. The term “expert,” as used in Missouri’s Uniform Parentage Act, “include[s], but [is] not [] limited to, a person who performs or analyzes a genetic test of a type generally acknowledged as reliable by the accreditation bodies designated by the secretary of the Department of Health and Human Services pursuant to 42 U.S.C. 666(a) and performed by a laboratory approved by such accreditation bodies.” See MO. ANN. STAT. § 210.834.

This guidance is also contained in SSA’s POMS. See POMS GN 00306.540. However, as you noted, this guidance does not precisely address the situation at hand. The evidence provided by the claimant includes only: 1) the Y-Chromosome DNA report showing a common male lineage with Mr. K~’s brother, and 2) statements from both the mother and Mr. K~’s brother describing Mr. K~ as the claimant’s father. Missouri law also does not squarely address this issue, although the law clearly states that DNA probability of paternity must be ninety-eight percent or higher. See MO. ANN. STAT. § 210.822

Turning first to the DNA test, the study did not provide a percentage probability of parenthood as the Missouri Code requires. The signed statement by the testing laboratory indicates only a “common male lineage” between Mr. K~’s brother, We assume for the sake of argument that the two Mr. K~’s are in fact brothers. Because we ultimately find that the evidence does not support payment of benefits, proving this link is not essential to a resolution of the question you have presented. and the claimant. This statement is further explained in materials available on the DNA Diagnostics Center The laboratory is accredited by the Association of American Blood Banks. See http://www.aabb.org/sa/facilities/Pages/RTestAccrFac.aspx (visited 10/19/10). web site, which explain the test. The site explains that a paternal relative Y-STR comparison test is used to support or disprove a direct parental connection. See “Paternal Relative (Y-STR) Comparison Test, available at http://www.dnacenter.com/dna-testing/paternal-lineage.html (visited 10/19/10). The company explains that this test can tell whether or not a child is related to the alleged fathers’ brothers or other male relatives who share a common paternal line. See id. However, the company explains that the test “cannot distinguish a specific relationship between males who belong to the same paternal line.” Id. The test is then “useful for excluding males from an alleged biological relationship.” Id.

This means that the most the test can show is that Mr. K~ cannot be excluded as the father of the claimant, but of course neither could other male relatives of the purported uncle. This is because all males in a paternal lineage will possess a common Y chromosome. See “Y Chromosome,” DNA Initiative, available at http://www.dna.gov/research/ychromosome_research/ (visited 10/19/10). Explained another way, according to the New Jersey State Police forensics laboratory, a person who does not match the Y-STR profile can be “positively excluded” as a parent, but a person who does match the Y-STR profile is only “included with a host of individuals that may have this same profile.” DNA Laboratory, New Jersey State Police, available at http://www.newjersey.gov/njsp/divorg/invest/dna-lab.html (visited 10/19/10).

While the test does show a common male lineage between the claimant and Mr. K~, it does not provide a ninety-eight percent or higher probability that Mr. K~ is the parent as the Missouri law requires. The only evidence submitted to document that Mr. K~ is the claimant’s parent other than the DNA test is the statement from his brother and the statement from Ms. H~. These statements are not sufficient to provide “clean and convincing” evidence of parenthood, when combined with the DNA test that is not particularly definitive. See MO. ANN. STAT. § 474.060.

Because we believe that Anthony C~ could not inherit from Mr. K~ under Missouri’s intestacy laws, Anthony cannot be entitled to child’s insurance benefits on Mr. K~’s earnings record. See Social Security Act § 216(h)(2)(A).

Kristi A. S~

Chief Counsel, Region VII

By: Bert W. C~

Assistant Regional Counsel

In the State of Missouri, it is reasonable to conclude that a Missouri court would declare that the Number Holder(NH) is the biological father of the claimant based on sibling deoxyribonucleic acid (DNA) testing. Also, the child support order dated December 12, 2005, lists a Missouri address for the NH which supports that the NH was domiciled in Missouri at the time of his death.

DNA testing that was notarized and signed by an officer of a genetic testing facility, stated that the facility had collected specimens from the claimant, claimant’s mother and sibling on April XX, 2010. The DNA test results showed that the claimant and sibling were “849.6 times more likely to be related as full siblings than half siblings.” The probability of relatedness as full siblings was 99.882%. We refer to the Missouri intestacy law because the NH was domiciled in Missouri at the time of his death.

You requested a legal opinion regarding whether Demarco E~ qualifies for child’s insurance benefits on the earnings record of Rodney S~. Based on the facts of this case, it is reasonable to conclude that Demarco E~ is entitled to child’s insurance benefits on Rodney S~’s earnings record.

Factual Background

The materials you provided indicate that Patria E~ M~ applied for child’s insurance benefits on behalf of her son, Demarco E~, on the earnings record of Rodney S~. Patria E~ M~ indicated that she and Rodney S~ had lived together for eight years and had had two sons together, Kyon S~ and Demarco E~. She stated that she had been about two months pregnant with Demarco E~ when Rodney S~ died.

Carolyn S~, the mother of Rodney S~, stated that Rodney S~ informed her before he died that he was expecting a child with Patria E~. Carolyn S~ stated that Rodney S~ and Patria E~ had been living together when Rodney S~ died.

Demarco E~’s birth certificate lists Patria E~ as his mother but does not provide the name of his father. The birth certificate indicates Demarco was born on July XX, 2006. Social Security Administration (SSA) records list Patria E~ as Demarco’s mother and indicate that the father is unknown. The records also list July 13, 2006, as Demarco’s date of birth.

A funeral service booklet indicates that Rodney S~ died on December XX, 2005. The booklet lists Kyon S~ as Rodney S~’s son and Patria E~ as Rodney S~’s “loving paramour.”

Patria E~ M~ provided a Missouri court order directing Rodney S~ to pay child support for Kyon S~. The court order indicated that Rodney S~ was “the presumed father” of Kyon S~ “because genetic tests show he was not excluded as the father . . . and that the probability of his paternity is 98 percent or higher.” The court directed the Bureau of Vital Records of the Department of Health and Senior Services to enter the name of Rodney S~ on Kyon S~’s birth record. The order lists the same Missouri address for Patria E~, Rodney S~, and Kyon S~. It appears to be dated December 12, 2005.

Patria E~ M~ also provided the results of deoxyribonucleic acid (DNA) testing notarized and signed by an officer of a genetic testing facility. The facility’s president, on a form dated April 21, 2010, stated that the facility had collected specimens from Patria M~, Demarco E~, and Kyon S~ on April 15, 2010. The president indicated that the DNA test results showed that Demarco E~ and Kyon S~ were “849.6 times more likely to be related as full siblings than half siblings.” The probability of relatedness as full siblings was 99.882%.

Analysis

Section 202(d)(1) of the Social Security Act (Act) establishes the criteria for entitlement to child’s insurance benefits. This section provides that every child (as defined in 216(e)) of an individual who dies fully insured under the Act is entitled to benefits if the child applies for benefits, is unmarried and under 18 (or a full-time elementary or secondary school student and under age 19), or is under a disability that began before age 22, and was dependent on the deceased at the time of death. Id. A child who was born to married parents or who was legally adopted by the insured individual is deemed dependent, and is thus entitled to benefits. Social Security Act § 202(d)(3).

A nonmarital child can be deemed dependent on a deceased insured individual in several ways. First, section 216(h)(3)(C)(ii) of the Act provides that the child can be deemed dependent on the insured by showing that the insured was his or her parent and was living with or contributing to his or her support at the time of the insured’s death. Second, section 216(h)(2)(B) of the Act provides that the child can be deemed dependent on the insured if the child can show that the insured was his or her parent and that his or her parents went through a purported marriage ceremony, but their marriage was invalid because of a legal impediment. Third, section 216(h)(3)(C)(i) of the Act provides that the child can be deemed dependent on the insured if the child can show that the insured had, before his or her death: (a) acknowledged in writing the child as his or her child; (b) been decreed by a court to be the child’s parent; or (c) been ordered by a court to contribute to the support of the child on the basis of parenthood. Based on the information provided, it does not appear that Demarco can meet any of these requirements.

A nonmarital child who does not meet any of the above requirements for showing dependency can also be entitled to benefits under section 216(h)(2)(A) if the child could 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 such insured individual . . . was domiciled at the time of his death . . . Id. See also 20 C.F.R. § 404.355(a)(1); Program Operations Manual System (POMS) GN 00306.055. A nonmarital child who meets the standard that Congress set forth in 216(h)(2)(A) of the Act is deemed to be dependent. See Matthews v. Lucas, 427 U.S. 495, 514-15 n.17 (1976).

Social Security Ruling (SSR) 06-2p discusses the effect of DNA testing that shows a sibling relationship when determining whether a claimant (C2) is entitled to benefits under the state law definition and the alleged sibling (C1) is already entitled to benefits as the number holder’s (NH’s) child. Social Security Ruling 06-2p states that we will continue to determine whether the claimant could inherit under the applicable state’s intestacy statutes. However, “we will not review C1’s relationship to the NH [number holder] under State law in determining C2’s relationship to the NH when: [(1)] we have determined that C1 meets one of the federal definitions of child in section 216(h)(3) of the Act, [(2)] there is no reason to question that determination, and [(3)] the results of DNA testing show a high probability of a sibling relationship between C1 and C2.” In effect, we will “consider C1 to be the known child” of the number holder rather than reviewing C1’s relationship to the number holder under State law. See SSR 06-2p.

In this case, the evidence appears to indicate that Rodney S~ was domiciled in Missouri at the time of his death. The child support order, which appears to be dated December 12, 2005, lists a Missouri address for Rodney S~. The funeral service booklet indicates that Rodney S~ died on December XX, 2005. Because we believe that it is reasonable to conclude that Rodney S~ was domiciled in Missouri at the time of his death, we will apply Missouri intestacy law.

Under the Missouri Probate Code, if the decedent has no surviving spouse, the decedent’s children, including posthumous children, take the decedent’s property. See Mo. Ann. Stat. §§ 474.010 and 474.050. The Probate Code describes the determination of the relationship between parent and child for probate purposes. See Mo. Ann. Stat. § 474.060. A nonmarital child is a child of the mother and also a child of the father if (1) the “natural parents participated in a marriage ceremony before or after the birth of the child, even though the attempted marriage is void,” or (2) “paternity is established by an adjudication before the death of the father, or is established thereafter by clear and convincing proof.” See id.

Because there is no evidence that Patria E~ M~ and Rodney S~ ever married or attempted to marry, and no evidence that paternity was ever adjudicated, we must determine whether paternity was established by “clear and convincing proof.” The Eighth Circuit has noted that the Missouri Court of Appeals defines clear and convincing evidence as “‘that which ‘instantly tilt[s] the scales in the affirmative when weighed against evidence in opposition,’ and clearly convinces the factfinder that the evidence is true.’” See Eldridge for Eldridge v. Sullivan, 980 F.2d 499, 500 (8th Cir. 1992). The Seventh Circuit has interpreted the Missouri probate standard of “clear and convincing proof” as less than proof “‘beyond a reasonable doubt.’” See Jones for Jones v. Chater, 101 F.3d 509, 512 (7th Cir. 1996).

While “the [Missouri] probate code – and not the Uniform Parentage Act – governs determinations of paternity,” one may “use the evidentiary standards and presumptions of the parentage act in proving paternity.” See LeSage v. Dirt Cheap Cigarettes and Beer, Inc., 102 S.W.3d 1, 4 (Mo. 2003) (citing In re Nocita, 914 S.W.2d 358, 359 (Mo. 1996)). Under Missouri’s Uniform Parentage Act, a man is “presumed to be the natural father of a child” if “[a]n expert concludes that the blood tests show that the alleged parent is not excluded and that the probability of paternity is ninety-eight percent or higher, using a prior probability of 0.5.” See Mo. Ann. Stat. § 210.822. One can rebut this presumption “only by clear and convincing evidence.” See id. The term “expert,” as used in Missouri’s Uniform Parentage Act, “include[s], but [is] not [] limited to, a person who performs or analyzes a genetic test of a type generally acknowledged as reliable by the accreditation bodies designated by the secretary of the Department of Health and Human Services pursuant to 42 U.S.C. 666(a) and performed by a laboratory approved by such accreditation bodies.” See Mo. Ann. Stat. § 210.834.

Missouri’s Uniform Parentage Act does not specifically address the situation where a child’s sibling rather than father provides the DNA samples, but we believe that the results of the siblingship DNA test in this case establishes a rebuttable presumption of paternity. The test results establish a chain of custody and appear to be reliable. The facility that performed the test appears to be accredited by the American Association of Blood Banks, which the Department of Health and Human Services has recognized as a reliable accreditation body. See Accreditation of Genetic Testing Labs, U.S. Department of Health and Human Services, http://www.acf.hhs.gov/programs/cse/pol/IM/1997/im-9703.htm (last visited July 13, 2010). While the facility apparently used oral buccal specimens rather than blood to perform the tests, it is likely that Missouri courts would consider the results of the DNA test. See DNA and Parentage Blood Testing, U.S. Department of State, http://travel.state.gov/law/info/info_614.html (last visited July 13, 2010) (noting that blood samples or buccal swabs may be collected to establish a biological and legal relationship between a parent and child). A report by the U.S. Department of Health and Human Services states that “DNA is the same in every cell of the body and the accuracy of testing performed on cheek cells collected with a swab is the same as using blood.” See Dep’t of Health and Human Services, Paternity Establishment: State Use of Genetic Testing 10 (1999), http://www.oig.hhs.gov/oei/reports/oei-06-98-00054.pdf (last visited July 13, 2010). See Yokley v. Townsend, 849 S.W.2d 722, 725 (Mo. App. 1993). A Missouri court would likely consider the results of the siblingship DNA test, along with other evidence. See Mo. Ann. Stat. § 210.836 (noting that “[e]vidence relating to paternity may include” specific evidence, such as medical evidence, and “[a]ll other evidence relevant to the issue of the paternity of the child”).

In order to establish the relevance of the siblingship DNA test, we will first examine the relationship between Kyon S~, Demarco’s brother, and Rodney S~. In this case, a search of SSA computer records shows that Kyon S~ is already receiving child’s insurance benefits on Rodney S~’s earnings record. The materials you provided include a court order directing Rodney S~ to contribute to the support of Kyon S~. Because the order appears to be dated after the date of Rodney S~’s death, Kyon S~ does not appear to meet the definition of child in section 216(h)(3)(i) of the Act. It is likely, however, that Kyon S~ meets the definition of child in section 216(h)(3)(ii) of the Act because it appears that Kyon S~ was living with Rodney S~ at the time of Rodney S~’s death, and SSA apparently found evidence of paternity persuasive. The child support order includes Kyon S~’s address, and it is the same address listed for both Patria E~ M~ and Rodney S~. Because SSA likely determined that Kyon S~ met “one of the federal definitions of child in section 216(h)(3) of the Act,” we believe it is reasonable to apply Social Security Ruling 06-2p and consider Kyon S~ to be the known child of Rodney S~. See SSR 06-02p.

Even if Social Security Ruling 06-2p did not apply, based on the evidence, it is reasonable to conclude that Kyon S~ could inherit from Rodney S~ under Missouri’s intestacy laws. There is a court order stating that Rodney S~ is the presumed father of Kyon S~ under Missouri law based on genetic testing. See Mo. Ann. Stat. § 210.822. A Missouri court would likely find this order, which references the genetic testing, sufficient to establish a rebuttable presumption that Rodney S~ is Kyon S~’s father. See id. The fact that the Social Security Administration considers Kyon S~ to be the son of Rodney S~ is also relevant evidence. We believe that there is “clear and convincing proof” that Rodney S~ is Kyon S~’s father. See Mo. Ann. Stat. § 474.060.

DNA test results from samples taken from Patria E~ M~, Kyon S~, and Demarco show that the probability of full siblingship between Kyon S~ and Demarco is 99.882%. Under these circumstances, we believe that the DNA test results create a rebuttable presumption that Rodney S~ is Demarco’s father. See Mo. Ann. Stat. § 210.822. It is reasonable to conclude that Demarco could inherit from Rodney S~ under Missouri’s intestacy laws. See Mo. Ann. Stat. § 474.060.

There is no Missouri case law addressing the use of siblingship DNA testing in paternity actions, but Missouri courts generally admit DNA test results to establish paternity. See Mo. Ann. Stat. §§ 210.836 and 210.822; Courtney v. Roggy, 302 S.W.3d 141, 146 (Mo. App. 2009). In a recent case, the Court of Appeals of Georgia found that DNA testing of siblings qualified as “‘parentage-determination genetic testing’” under its intestacy laws. See In re Estate of Warren, 300 Ga. App. 408, 410-11 (Ga. App. 2009). Other courts have also allowed DNA test results of a deceased father’s parents as evidence of paternity. See Tipps v. Metro. Life Ins. Co., 768 F.Supp. 577, 578-80 (S.D. Tex. 1991) (finding that DNA testing of child and alleged full sibling and paternal grandparents, “taken in conjunction with the other evidence,” provided “clear and convincing evidence” of non-paternity); See In re Estate of Wilkins, 707 N.Y.S.2d 774, 778 (N.Y. Sur. 2000) (allowing evidence of “posthumous testing” of a decedent’s parents to determine paternity). It is likely that a Missouri court would consider siblingship DNA testing especially relevant evidence.

In addition, there is no evidence suggesting that Rodney S~ is not Demarco’s father. See Courtney, 302 S.W.3d at 147 (noting that “there was no evidence before the trial court to rebut the DNA blood test presumption”). No one disputes Rodney S~’s paternity, and Rodney S~’s mother stated that Rodney S~ informed her before he died that he was expecting a child with Patria E~. She also stated that Rodney S~ and Patria E~ had been living together when Rodney S~ died. The child support order lists the same Missouri address for both Patria E~ and Rodney S~. We believe that the DNA test result, in conjunction with the other evidence, is sufficient to establish “clear and convincing proof” that Rodney S~ is Demarco’s father. See Mo. Ann. Stat. § 474.060. Based on this proof, Demarco could inherit from Rodney S~ under Missouri’s intestacy laws.

Because we believe that Demarco could inherit from Rodney S~ under Missouri’s intestacy laws, Demarco E~ can be entitled to child’s insurance benefits on the earnings record of Rodney S~. See Social Security Act § 216(h)(2)(A).

Kristi A. S~

Chief Counsel, Region VII

By: Katherine H~

Assistant Regional Counsel

Because there is no chain of custody and there is no way to verify that the samples actually came from the number holder or the claimant, a Paternity Screening Report issued as the result of an in-home DNA test would likely be inadmissible in a Missouri Court. The evidence remaining in this case without the test is insufficient to rebut the presumption that the mother's husband at the time is the father of the claimant.

You asked whether an applicant may receive child’s benefits based on the account of an insured number holder who provided mail-order, in-home DNA test results indicating he was the child’s biological father. Based upon the information provided and our analysis of the applicable law, it appears that the child would not be entitled to benefits on the insured’s record.

FACTS

The information you provided indicates that the child-applicant, Alexandra T~, was born in Missouri on September XX, 1993. Allen R. T~ is named as her father on her birth certificate and in Social Security records. On July 9, 2009, Glenwood T~ (number holder) went to the St. Peter’s field office and filed an application for child’s benefits for Alexandra T~ based on his receipt of disability benefits. The number holder stated that he had become aware that Alexandra might be his daughter about a year earlier when she sought him out and suggested he was her father. At that time, the number holder insisted that he and Alexandra undergo a paternity test. The number holder stated that he and Alexandra were mailed testing kits which they used to swab their mouths. They then sent the kits to the laboratory. He presented a document to the field office staff entitled Paternity Screening Report from a company called Genetic Identity. The number holder told the field office staff that, based on the test results, he was convinced that Alexandra was his daughter.

The Paternity Screening Report was dated October 14, 2008. It stated that Glenwood T~ was the alleged father and “Allie T~” was the child. We assume “Allie” is Alexandra. The report stated that the probability of paternity was 99.999339 percent with a prior probability of .5 as compared to an untested, unrelated man of the Caucasian population. A note at the bottom of the report states that the “samples were not collected according to AABB guidelines and the laboratory cannot verify the origin of the DNA samples.” The report is signed by Robert A~, Ph.D., Chief Scientific Officer. The report also includes the website address www.paternityexperts.com. A review of the website’s Frequently Asked Questions section revealed that the company offers “personal” paternity tests and “legal” paternity tests. The personal tests, which is what the number holder and Alexandra used, do not include an identification process or any chain of custody procedures. The company website states that the personal test results are not admissible in a court of law.

You also obtained additional information from Alexandra’s mother, Dawn T~. She stated that she was married to Allen T~ from 1986 to 2003. She stated that they were separated for approximately six months during which time she had a relationship with the number holder. Mrs. T~ did not deny that the number holder was Alexandra’s biological father, however, she stated she was under the impression that Allen T~ was considered Alexandra’s father because she was born during the marriage. She also reported that Allen T~ pays child support on behalf of Alexandra. Alexandra lived with the number holder for one month, but currently lives with her mother. Mrs. T~ also reported that the number holder collected a swab from Alexandra for DNA testing while she was in a McDonald’s.

ANALYSIS

A child of an individual who receives disability benefits pursuant to the Social Security Act is entitled to child's insurance benefits if he or she is the insured’s child as defined in 42 U.S.C. § 416(e), has applied for such benefits, is unmarried, is under the age of 18, and was dependent upon the insured at the time the application for child’s benefits was filed. See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350. Section 416(e) defines a “child” as (1) the child or legally adopted child of an individual, (2) a stepchild under certain circumstances, or (3) a person who is the grandchild or stepgrandchild under certain circumstances. See 42 U.S.C. § 416(e). If the applicant for child’s benefits is the insured's child as defined in section 416(e), he or she is also considered dependent upon the insured for purposes of determining eligibility for child’s benefits. See 20 C.F.R. § 404.361(a).

The Social Security Act provides four mechanisms for determining “child” status:

1. The applicant could inherit the insured’s property as the insured’s child under the law of intestate succession in the state where the insured was domiciled at the time the child filed the application. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b);

2. The claimant is the insured's natural child and the insured went through a marriage ceremony with the child’s other natural parent which resulted in a purported marriage between them that, except for a procedural defect, would have been a valid marriage. See 42 U.S.C. § 416(h)(2)(B); 20 C.F.R. § 404.355(a)(2);

3. Prior to the commencement of the insured’s period of disability, the insured acknowledged in writing that the applicant was his natural child; the insured was decreed by a court to be the father; or he was ordered by a court to contribute to the child's support because the claimant was his child. See 42 U.S.C. § 416(h)(3)(B)(i); 20 C.F.R. § 404.355(a)(3); or

4. The insured is shown by evidence satisfactory to the Commissioner of Social Security to be the child's father, and the insured was living with or contributing to the child's support at the time the child filed the application for benefits. See 42 U.S.C. § 416(h)(3)(B)(ii); 20 C.F.R. § 404.355(a)(4).

If the evidence establishes any of the above factual scenarios, the applicant is considered the insured’s child for purposes of entitlement to child’s benefits. See 42 U.S.C. § 416(h)(3).

In order to determine whether Alexandra is entitled to benefits based on the number holder’s account, we must first determine whether she could inherit from the number holder under the Missouri laws of intestate succession. In Missouri, the child of a decedent may inherit the decedent’s intestate property. See MO. ANN. STAT. § 474.010. Thus, it is necessary to determine whether Alexandra is the number holder’s child as that term is used in the Missouri intestacy statutes.

Alexandra was born while her mother was married to Allen T~. Missouri law states that a man is presumed to be the natural father of a child born while he and the child’s mother are married. See MO. ANN. STAT. § 210.822(1)(1). The presumption can be rebutted “in an appropriate action only by clear and convincing evidence.” See MO. ANN. STAT. § 210.822(2). Because Alexandra is presumed the child of Allen T~, she could not inherit through intestate succession from the number holder unless there is clear and convincing evidence to rebut the presumption of Allen T~’s paternity.

The Eighth Circuit has adopted the Missouri Court of Appeals definition of “clear and convincing” proof as that “which ‘instantly tilt[s] the scales in the affirmative when weighed against evidence in opposition,’ and clearly convinces the factfinder that the evidence is true.” Eldridge for Eldridge v. Sullivan, 980 F.2d 499, 500 (8th Cir. 1992) (citing Sherrill for Sherrill v. Bowen, 835 F.2d 166, 168 (8th Cir. 1987) (quoting In re Michael O’Brien, 600 S.W.2d 695, 697 (Mo. Ct. App. 1980)). See also Jones v. Chater, 101 F.3d 509, 511 (7th Cir. 1996) (Missouri’s intestacy statute requires clear and convincing evidence of paternity); State of Missouri v. Tuckness, 949 S.W.2d 651 (Mo. Ct. App. 1997) (“The clear and convincing standard refers to evidence which instantly tilts the scales in the affirmative when weighed against the evidence in opposition, and the fact finder’s mind is left with an abiding conviction that the evidence is true.”) (citing In re Marriage of Jennings, 910 S.W.2d 760, 763 (Mo. Ct. App. 1995)). Other courts have defined clear, convincing, and cogent evidence as that which admits no reasonable doubt. Eldridge, 980 F.2d at 500 (citations omitted).

The evidence supporting a finding that the number holder is Alexandra’s father consists of his oral statement to the field office staff that he believes Alexandra is his child and the results of the in-home DNA test. DNA test results are generally considered reliable evidence and can even raise a presumption of paternity. See MO. ANN. STAT. § 210.822(1)(4). However, the Paternity Screening Report states that the samples tested “were not collected according to AABB guidelines and the laboratory cannot verify the origin of the DNA samples.” Additionally, the company website states that the results of a personal paternity screening cannot be used in court because a strict chain of custody and identification procedures are not used. The Missouri Court of Appeals has stated that, “[b]lood test results must be supported by evidence establishing the chain of custody. A proper evidentiary foundation must be laid concerning the methods employed and the qualifications of those who did the testing and interpreted the results.” Yokley v. Townsend, 849 S.W.2d 722, 725 (Mo. Ct. App. 1993). Because there is no chain of custody and there is no way to verify that the samples actually came from the number holder or Alexandra, the Paternity Screening Report would likely be inadmissible in a Missouri Court. Because the DNA test results would not be admissible, the court would be left with only the number holder’s oral statement that he believes Alexandra is his daughter. The statement alone does not “clearly convince the factfinder that the evidence is true.” See Eldridge, 980 F.2d at 500. Therefore, the facts as they currently stand would not overcome the presumption that Allen T~ is Alexandra’s father. Because Allen T~ is Alexandra’s father under Missouri law, she would not be allowed to inherit through intestate succession as the number holder’s child.

Alexandra is not eligible for child’s benefits pursuant to the first statutory provision because she cannot inherit from the number holder. She is also not eligible for child’s benefits under any of the three other methods of determining “child” status. The second method requires a marital relationship between the natural parents to establish eligibility. See 42 U.S.C. § 416(h)(2)(B); 20 C.F.R. § 404.355(a)(2). There is no evidence that the natural parents are or were ever married.

The third method for establishing eligibility requires a determination of whether the number holder, prior to the commencement of the number holder’s period of disability, acknowledged in writing that Alexandra was his natural child, was decreed by a court to be Alexandra’s father, or was ordered by a court to pay child support for Alexandra. See 42 U.S.C. § 416(h)(3)(B)(i); 20 C.F.R. § 404.355(a)(3); Program Operations Manual System (POMS) GN 00306.100. The number holder became eligible for disability benefits in March 2004. According to his statements to the field office staff, the number holder did not become aware of the possibility that Alexandra was his daughter until about a year earlier, in 2008. Therefore, it would be impossible for the number holder to have acknowledged his paternity in writing prior to the commencement of his period of disability in March 2004. Additionally, according to information you provided, there has never been a court order regarding the number holder’s paternity or requiring him to pay child support for Alexandra.

The final statutory method of establishing Alexandra’s eligibility to receive child’s benefits on the number holder’s account requires evidence that otherwise establishes that Alexandra is the number holder’s natural child and that he was living with or contributing to her support at the time she filed the application for benefits. See 42 U.S.C. § 416(h)(3)(B)(ii); 20 C.F.R. § 404.355(a)(4). The evidence indicates that Alexandra lived with the number holder for only one month. There is no evidence that the number holder has ever provided support for Alexandra. Thus, Alexandra is not the number holder’s “child” pursuant to 42 U.S.C. § 416(h)(3)(B)(ii).

Based on the facts provided, Alexandra is not eligible to receive child’s benefits on the number holder’s account. Should additional evidence become available the status of Alexandra’s eligibility for benefits could change.

In summary, it is reasonable to conclude that, based on the evidence you provided, Alexandra is not the number holder’s child as defined in the Social Security Act and is not entitled to “child” benefits on the number holder’s record. See 42 U.S.C. §§ 402(d)(1); 415(e), (h). Should additional evidence become available, please feel free to contact us for further advice.

Kristi A. S~

Chief Counsel, Region VII

By: Angela G. T~-M~

Assistant Regional Counsel

Under Missouri law, a court order issued in Pennsylvania prior to the number holder's death declaring the number holder to be the claimant's biological father is sufficient to establish the parent-child relationship as of the claimant's date of birth.

QUESTION PRESENTED

On April 4, 2005, you asked for an opinion as to: (1) whether a parent-child relationship can be established between the Number Holder and Zachary J. R~; (2) the effective date of that relationship; and (3) whether retroactive benefits should be paid.

CONCLUSION

Based on our review of the information you provided and our research of the applicable law, we conclude that a parent-child relationship was established; the effective date of the relationship was January 20, 2000; and there are no retroactive benefits.

BACKGROUND

On July 29, 2003, Sharon B~, a resident of Pennsylvania, protectively filed an application for surviving child's benefits and a lump sum death benefit on behalf of her minor son, Zachary J. R~ (Zachary), who is also a resident of Pennsylvania, based upon an alleged parent-child relationship between the deceased Number Holder and Zachary. The information you provided indicated that this application was denied on February 25, 2004, and that on February 15, 2005, Ms. B~ filed a subsequent application on Zachary's behalf. The information you provided further indicated that the Number Holder was never married to Ms. B~, and that the Number Holder died on July XX, 2003 in Missouri, the state in which he lived at the time of his death.

On January XX, 2000, Zachary was born out-of-wedlock to Ms. B~ in Lackawanna County, Pennsylvania. Neither Zachary's birth certificate, nor his application for a Social Security number identified his biological father. However, on March XX, 2000, the Court of Common Pleas of Lackawanna County, Pennsylvania issued an Order, which declared that the Number Holder was Zachary's biological father. On the same date, the same Court issued another Order, which directed the Number Holder to contribute to the support of his children, Zachary and Samuel R~.

Samuel R~ was born on October XX, 1994, an out-of-wedlock son of Ms. B~. On November 2, 1994, the Number Holder acknowledged in writing that he was Samuel R~'s biological father. On November 14, 2003, Ms. B~ applied for surviving child's benefits and a lump sum death benefit on behalf of Samuel R~ based upon a parent-child relationship between Samuel R~ and the Number Holder. The Agency granted Samuel R~'s application, and awarded child's benefits effective July 2003, the month the Number Holder died.

On July 21, 2004, a DNA sibling test showed a 99.94% statistical probability that Zachary and Samuel R~ were full siblings sharing both biological parents versus being half-siblings sharing only one biological parent.

DISCUSSION

The Social Security Act and its implementing regulations contain a list of methods used to establish the paternity of an out-of-wedlock child for purposes of entitlement to child's insurance benefits. Among other methods, the Commissioner accepts (1) proof that the child was entitled to inherit from the deceased number holder under the inheritance laws of the state in which the number holder lived at the time of his death; (2) a court order which decreed that a deceased number holder was the child's biological parent; or (3) a court order which directed the number holder to pay child support. 42 U.S.C. § 416(h)(2)(A), (3)(C)(i)(II)-(III); 20 C.F.R. § 404.355(a)(1),(3) (2004).

Here, a parent-child relationship can be established by all three of the above-noted methods without relying upon the DNA sibling test. First, the court order which declared the Number Holder was Zachary's biological father satisfied the requirements of 42 U.S.C. § 416(h)(3)(C)(i)(II) and 20 C.F.R. § 404.355(a)(3). Second, the court order which directed the Number Holder to pay child support for Zachary satisfied the requirements of 42 U.S.C. § 416(h)(3)(C)(i)(III) and 20 C.F.R. § 404.355(a)(3). Third, under Missouri law, "paternity [for inheritance purposes] is established by an adjudication before the death of the father (bracketed material added)." Mo.Ann.Stat. § 474.060(2). Thus, the court order which declared the Number Holder was Zachary's biological father also satisfied the Missouri inheritance laws.

With respect to the effective date of the parent-child relationship, the POMS indicate that the State of Missouri considers a child legitimate from the date of birth, as opposed to the date of the legitimating act. POMS GN 00306.085. Therefore, the effective date of the parent-child relationship was Zachary's date of birth, that is, January 20, 2000. Lastly, the information you provided indicated that the Agency denied Zachary's first application on February 25, 2004, and that Zachary's subsequent application was filed on February 15, 2005. The regulations provide that a determination can be reopened within twelve months for any reason. 20 C.F.R. § 404.988(a) (2004). Therefore, Zachary's first application, which was protectively filed on July 29, 2003, should be reopened.

The regulations further provide that if the Number Holder is deceased, a child is entitled to benefits beginning with the first month covered by their application in which the child meets all the other requirements for entitlement to benefits. 20 C.F.R. § 404.352(a)(1) (2004). As noted above, Zachary's parent-child relationship was effective as of the date of his birth, January 20, 2000. Therefore, Zachary met the requirements for entitlement to benefits with the first month of his application, which was protectively filed on July 29, 2003.

With respect to retroactive benefits, the information you provided did not indicate that the Number Holder was entitled to disability benefits. Where an application for child's benefits was based on the earnings record of a number holder not entitled to disability benefits, the regulations provide for the payment of six months of retroactive benefits. 20 C.F.R. § 404.621(a)(2) (2004). Here, Zachary's application was protectively filed the same month that the Number Holder died (July 2003), such that Zachary was entitled to benefits as of July 2003 and there are no applicable retroactive benefits.

Donna L. C~

Regional Chief Counsel

By: Robert W. F~

Assistant Regional Counsel

Under Missouri law, a child cannot establish a presumption of paternity based on a DNA test showing probability of grandparentage alone. However, Missouri courts would consider the DNA test results showing a 99.77% probability with other evidence in this case as establishing paternity by "clear and convincing" evidence within the meaning of Missouri intestacy law.

You have asked for advice as to whether an illegitimate child can establish paternity and thus be entitled to child's benefits on the record of a deceased number holder based on the results of DNA testing of the child, the child's mother, and the child's alleged paternal grandparents which establishes a probability of grandparentage of 99.77 percent. For the reasons discussed below, we believe that the child cannot establish a presumption of paternity based on a probability of grandparentage alone. However, based on the evidence presented, we believe Missouri courts would consider these DNA test results combined with other evidence in this case as establishing paternity by “clear and convincing” evidence within the meaning of Missouri's intestacy statute such that child's benefits can be paid.

Factual Background

The memorandum you sent with your request indicates that Robert L. P~ (deceased number holder) died on March XX, 1992, domiciled in Missouri. On April 19, 2002, Rose L~ filed for surviving child's benefits on behalf of her son, Robert J. P~, who was born on August XX, 1992. Ms. L~ alleged that the deceased number holder was the biological father of her son Robert. Ms. L~ and the deceased number holder were apparently never married, had never attempted to marry, and were not engaged to be married. There is no written acknowledgment of paternity, although the materials you gave us contain statements of the parents of the deceased in which they state that their son acknowledged to them that he was the father of Ms. L~'s unborn child. The materials also contain statements by the deceased wage earner's two male siblings which state they never had relations with Ms. L~ and that the deceased had also acknowledged the child as his to them. Furthermore, Ms. L~ signed a statement that she had never had a relationship with either brother. At the time of his death, the deceased number holder was domiciled in Fulton, Missouri.

The materials you sent also include a DNA Grandparentage Test Report from Orchid GeneScreen dated April 10, 2002, citing a 99.77 percent probability of grandparentage based upon blood tests of the child, his mother, and the alleged paternal grandmother and grandfather.

Analysis

Section 202(d)(1) of the Social Security Act (Act) establishes the criteria for entitlement to child's insurance benefits. This section provides that every child (as defined in section 216(e)) of an individual who dies fully insured under the Act is entitled to benefits if the child applies for benefits, is unmarried and under 18 (or a full-time elementary or secondary school student and under age 19), or is under a disability that began before age 22, and was dependent on the deceased at the time of death. Id. A child who is “legitimate” or legally adopted by the insured individual is deemed dependent, and is thus entitled to benefits. Social Security Act § 202(d)(3).

An “illegitimate” child can be deemed dependent on a deceased insured individual in several ways. First, section 216(h)(3)(C)(ii) of the Act provides that the child can be deemed dependent on the insured by showing that the insured was his or her parent and was living with or contributing to his or her support at the time of the insured's death. Second, section 216(h)(2)(B) of the Act provides that the child can be deemed dependent on the insured if the child can show that the insured was his or her parent and that his or her parents went through a purported marriage ceremony, but their marriage was invalid because of a legal impediment. Third, section 216(h)(3)(C)(i) of the Act provides that the child can be deemed dependent on the insured if the child can show that the insured had, prior to his death: (a) acknowledged in writing the child as his child; (b) been decreed by a court to be the child's parent; or (c) been ordered by a court to contribute to the support of the child on the basis of parenthood. Section 202(d)(3) of the Act provides that any child who meets the tests in sections 216(h)(2) or (h)(3) “shall be deemed to be the legitimate child of such individual.”

In this case, none of the above requirements can be met by L~. The deceased number holder was not living with or contributing to Robert's support at the time of his death as he died before the child's birth. Ms. L~ and the deceased number holder were never married. The deceased number holder did not acknowledge Robert as his child in writing, nor was he decreed by a court to be his parent or ordered to pay support.

An “illegitimate” child who does not meet any of the above requirements for showing dependency can also be entitled to benefits under section 216(h)(2)(A) if the child could 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 such insured individual . . . was domiciled at the time of his death . . . .” Id. See also 20 C.F.R. § 404.355(a)(1)(2002); Program Operations Manual System (POMS) GN 00306.055. An illegitimate child who meets the standard which Congress set forth in section 216(h)(2)(A) of the Act is deemed to be legitimate and, therefore, dependent. See Matthews v. Lucas, 427 U.S. 495, 514-15 n.17 (1976). If the insured is deceased, the Social Security Administration applies the law on inheritance rights where the insured had his permanent home when he died. See 20 C.F.R. § 404.355(b)(1). In this case, you have indicated that the deceased number holder was domiciled in Missouri; therefore, Missouri intestacy law applies.

The POMS properly describes Missouri law as creating a rebuttable presumption of paternity when the results of blood tests show a probability of paternity of 98 percent or higher. See Mo. Ann. Stat. § 210.822.1(4); POMS GN 00306.080 (Missouri). The POMS and Missouri statutory laws do not address any presumption when DNA testing establishes the likelihood of a grandparent relationship. Here, the DNA test results between the child, the child's mother, and the child's alleged paternal grandmother and grandfather discuss only the probability of grandparentage, establishing a 99.77 percent likelihood of such relationship. Thus, the results of this DNA testing do not create a presumption of paternity by the deceased wage earner. Although the Missouri statute also allows a presumption of paternity in cases where there has been a marriage or attempted marriage between the alleged father and mother, if the alleged father has admitted paternity in a filed writing, if he was named on the birth certificate with his consent, or if he was ordered to pay child support, there is no evidence that any of these factors are present in this case. See Mo. Ann. Stat. § 210.822.1.

The law in Missouri, however, allows a finding of paternity even if a statutory presumption is not established. Missouri intestacy statutes provide in relevant part:

[A] person born out of wedlock is a child of the mother. That person is also a child of the father, if either of the following occur:

(1) The natural parents participated in a marriage ceremony before or after the birth of the child, even though the attempted marriage is void;

(2) The paternity is established by an adjudication before the death of the father, or is established thereafter by clear and convincing proof . . .

Mo. Ann. Stat. § 474.060.

The Eighth Circuit has adopted the Missouri Court of Appeals definition of “clear and convincing” proof as that “which ‘instantly tilt[s] the scales in the affirmative when weighed against evidence in opposition,' and clearly convinces the factfinder that the evidence is true.” E~ for Eldridge v. Sullivan, 980 F.2d 499, 500 (8th Cir. 1992) (citing Sherrill for Sherrill v. Bowen, 835 F.2d 166, 168 (8th Cir. 1987) (quoting In re Michael O'Brien, 600 S.W.2d 695, 697 (Mo. Ct. App. 1980)). See also Jones v. Chater, 101 F.3d 509, 511 (7th Cir. 1996) (Missouri's intestacy statute requires clear and convincing evidence of paternity); State of Missouri v. Tuckness , 949 S.W.2d 651 (Mo. Ct. App. 1997) (“The clear and convincing standard refers to evidence which instantly tilts the scales in the affirmative when weighed against the evidence in opposition, and the fact finder's mind is left with an abiding conviction that the evidence is true.”) (citing In re Marriage of Jennings, 910 S.W.2d 760, 763 (Mo. Ct. App. 1995)). Other courts have defined clear, convincing, and cogent evidence as that which admits no reasonable doubt. Eldridge, 980 F.2d at 500 (citations omitted).

Although there is no Missouri case law specifically addressing whether grandparent blood tests are probative in establishing clear and convincing evidence of paternity, Missouri courts have held that the results of blood tests and expert opinions derived from them are generally admissible to establish paternity. See State Division of Family Services v. Guy, 750 S.W.2d 618, 619 (Mo. Ct. App. 1988); see also Imms v. Clarke, 654 S.W.2d 281 (Mo. Ct. App. 1983) (results of blood and tissue testing regarding the likelihood of paternity are admissible as a probative fact on the issue of paternity); State ex rel. D.K.B. v. W.G.I., 654 S.W.2d 218, 220 Mo. Ct. App. 1983) (holding that the trial court did not err by admitting into evidence results of putative father's blood tests showing a 91.1 percent likelihood of paternity); In re Marriage of B.S.H. v. J.J.H., 613 S.W.2d 453 (Mo. Ct. App. 1981)(results of blood grouping tests between the mother, alleged father, and child were admissible for consideration by the trial court in attempt to establish illegitimacy by “clear and convincing” proof); Rasco v. Rasco, 447 S.W.2d 10, 17-18 (Mo. Ct. App. 1969)(medical expert testimony regarding the results of blood testing between the mother, alleged father, and child were considered in attempt to rebut the presumption of legitimacy with “clear and convincing” evidence). The POMS correctly describes Missouri law as providing that evidence relating to paternity may include “blood test results, weighed in accordance with the evidence of the statistical probability of the alleged father's paternity of the child.” POMS GN 00306.080 (Missouri); Mo. Ann. Stat. § 210.836. See also Shadwick v. Byrd, 867 S.W. 2d 231, 234 (Mo. Ct. App. 1993).

Other jurisdictions that require “clear and convincing” evidence to establish paternity have specifically considered DNA comparison of the blood of the putative grandparents with that of the child to be probative evidence in determining paternity posthumously. See Tipps v. Metropolitan Life Insurance Company, 768 F. Supp. 577, 580 (S.D.Tex.1991) (DNA testing of the child and alleged paternal grandparents provides “clear and convincing” evidence of non-paternity); In re Estate of Wilkins, 707 N.Y.S.2d 774 (January 3, 2000) (DNA testing of decedent's parents is adequate to establish “clear and convincing” evidence of paternity for intestate inheritance); In re Estate of Sandler, 612 N.Y.S.2d 756 (April 26, 1994) (DNA comparison of blood of putative paternal grandparents with that of child may be performed in effort to provide “clear and convincing” evidence that is required to establish paternity). See also Sudwischer v. Estate of Hoffpauir, 589 So. 2d 474, 475 (La. 1991) (DNA testing of decedent's legitimate daughter and alleged illegitimate daughter would produce relevant evidence to be considered in refuting paternity with “clear and convincing” evidence). In light of these cases, we believe that the Missouri courts would consider the DNA test results of the child's putative grandparents in determining whether paternity is established by “clear and convincing” evidence.

In the fact situation you present, we believe a Missouri court would find “clear and convincing” proof that Robert J. P~ is the child of the deceased number holder for intestacy purposes. DNA test results show a probability of paternal grandparentage of 99.77 percent. The materials you submitted do not contain any evidence suggesting that the individuals tested were not the parents of the wage earner. Ms. L~ stated that, although the deceased number holder had two brothers, she never had a sexual relationship or any other type of relationship with either of them that could have led to her pregnancy. The deceased parent's stated that the deceased acknowledged to them prior to his death that Ms. L~ was pregnant with his child. The deceased brothers also stated that he acknowledged to them that Ms. L~'s child was his and stated that they had not had a relationship with Ms. L~. In contrast, there has been no evidence presented showing that the deceased number holder was not Robert's father. This probability of grandparentage along with the other evidence presented “‘instantly tilt[s] the scales in the affirmative when weighed against evidence in opposition,' and clearly convinces the factfinder that the evidence is true.” Eldridge, 980 F.2d at 500; Sherrill, 835 F.2d at 168; In re Michael O'Brien, 600 S.W.2d at 697.

Based on the materials submitted, we believe it is reasonable to conclude that the evidence establishes paternity by “clear and convincing proof” within the meaning of Missouri's intestacy statute, and the requirements for entitlement under section 216(h)(2)(A) are met.

Kristi A. S~

Acting Chief Counsel, Region VII

By: Jeffrey J. L~

Assistant Regional Counsel

The Missouri intestacy law provision relevant to this case is that paternity must be established after the death of the father by clear and convincing proof. The evidence in this case does not constitute clear and convincing proof that the NH was the child's father. The evidence does not "instantly tilt the scales in the affirmative when weighed against evidence in opposition" and does not convince the factfinder that the evidence is true. The mother did not name a father on the child's BC; there is no blood test evidence; the child lived with the NH; the NH no written acknowledgment of paternity or provided support. The child's mother indicated that the child did not visit the NH in his home, although statements of others' indicated there were visits. Therefore, although there is no evidence proving that the deceased NH was not the child's father, neither is there clear and convincing evidence that he was the father.

You have asked for advice as to whether an illegitimate child can be entitled to child's benefits on the record of a deceased number holder based on statements made by the mother, uncle, and friends of the deceased.

Factual Background

The memorandum you sent with your request indicates that Andre T. W~ (deceased number holder) died on October XX, 1998, domiciled in Missouri. Shakara C~ filed for surviving child's benefits on behalf of her daughter, Makhye C~, on March 9, 1999. Shakara alleged that the deceased number holder was the biological father of Makhye. Shakara and the deceased number holder were never married and never resided together after the birth of the child. The deceased number holder was never ordered by a court to pay child support or decreed by a court to be the father of Makhye. There is no written acknowledgment of paternity and the deceased number holder was not living with Makhye or contributing to her support at the time of his death. Prior to Shakara's pregnancy and after the birth of Makhye, the deceased number holder was residing in Los Angeles, California.

In a statement taken by a Claims Representative on February 19, 1999, Shakara C~ stated, in addition to the above, that Makhye's birth certificate had blanks for the father's name. She also stated that Makhye did not visit the deceased number holder in his home. In another undated statement, Shakara C~ stated that the deceased number holder contributed some non-court-ordered child support, but she did not have any documentation.

The materials you submitted with your request include a report of contact made on December 28, 1999, with Valerie W~, mother of the deceased number holder. Valerie W~ stated that her son did acknowledge that Makhye was his daughter but she could not say if he accepted her into his home because she lived in Kansas City, Missouri, and he lived in Los Angeles, California. In a note dated March 11, 2000, Valerie W~ stated that her son had told her about his daughter, Makhye A~ C~. Valerie W~ submitted an Internal Revenue Service Form 1099 showing that she had established a mutual fund account for Makhye.

In a statement signed March 13, 2000, Valerie W~ stated that her son had informed her that Makhye was his daughter after her birth. She stated that she "truely" [sic] believed that Makhye was her granddaughter. She purchased a mutual fund account which would be accessible to Makhye at age twenty-one. She stated she had "done this with her, as I have with his other two children." She further stated that she had seen pictures of Makhye that resembled herself and she had also met Makhye in person when her family held a family reunion in California in June 1999. She invited Makhye and Shakara to join them for the weekend. She had also invited them to spend a week with her this summer in Kansas City. She stated: "I hope that Shakara can be offered the same assistance as the other two mothers, to help raise her daughter Makhye." Valerie W~ also submitted a color photograph of herself, Makhye, and Shakara to corroborate the allegation that Makhye resembled her.

In a statement dated August 25, 1999, the deceased number holder's uncle, Steven W~, stated that the deceased number holder told him that he was going to be a father when Shakara C~ first became aware of her pregnancy. The deceased number holder also told other people he was the father of Makhye. Makhye never lived with the deceased number holder as his child. The deceased number holder visited Steven W~'s home with Makhye several times on weekends. He stated that he had visited the deceased number holder at his home and that Makhye was there on several visits. He further stated that the deceased number holder bought Makhye food, diapers, and toys, as did he and his wife. He stated that Shakara and Makhye were part of their family.

The materials you sent also include statements from two friends of Shakara. In a statement dated January 25, 2000, Kenya R. N~ stated that he was a close friend of Shakara's family and a good friend of the deceased number holder for approximately two years.

He stated that he and the deceased number holder were both expecting babies at the same time and hid their situations from everybody. He stated that the deceased number holder was seeing someone else behind Shakara's back and did not want Mr. N~ to "spread the word around." The deceased number holder had never told him that Makhye was not his child. He could not say for sure whether Makhye lived with the deceased number holder as his child because he was not that involved in their lives. He stated that the deceased number holder did babysit Makhye on a few occasions when Mr. N~ was there.

In a statement dated March 13, 2000, Halcim A~ indicated that he was a friend of Shakara's and a co-worker of the deceased number holder. He stated that the deceased number holder had told him that he was going to be a father during Shakara's pregnancy. The deceased number holder had told other co-workers and friends about being the father of the child. The deceased number holder never asked Mr. A~ not to tell anyone else he was the father, and had never told anyone the child was not his. The deceased number holder "constantly" expressed joy over the birth of his daughter.

He did not know if Makhye and the deceased number holder lived together but he had personally seen them together as father and daughter on "many occasions" at the deceased number holder's apartment and in public. Makhye visited the deceased number holder in his home "often." Mr. A~ stated that the deceased number holder changed Makhye's diapers, fed her, and played with her. Mr. A~ commented that he knew the deceased number holder very well and that he definitely loved and worked hard to provide for his daughter.

In a telephone conversation on August 29, 2000, Shari H~ of the Assistance and Insurance Program Quality Branch, San Francisco Region, Social Security Administration, indicated that the claims folder showed that Makhye was born November XX1, 1997. No father was named by Shakara C~ on Makhye's birth certificate. There are two other children entitled to child's benefits on the deceased number holder's record whose benefits would be reduced due to the family maximum if Makhye becomes entitled to benefits.

Analysis

Section 202(d)(1) of the Social Security Act (Act) establishes the criteria for entitlement to child's insurance benefits. This section provides that every child (as defined in section 216(e)) of an individual who dies fully insured under the Act is entitled to benefits if the child applies for benefits, is unmarried and under 18 (or a full-time elementary or secondary school student and under age 19), or is under a disability that began before age 22, and was dependent on the deceased at the time of death. Id. A child who is "legitimate" or legally adopted by the insured individual is deemed dependent, and is thus entitled to benefits.

Social Security Act § 202(d)(3).

An "illegitimate" child can be deemed dependent on a deceased insured individual in several ways. First, section 216(h)(3)(C)(ii) of the Act provides that the child can be deemed dependent on the insured by showing that the insured was his or her parent and was living with or contributing to his or her support at the time of the insured's death. Second, section 216(h)(2)(B) of the Act provides that the child can be deemed dependent on the insured if the child can show that the insured was his or her parent and that his or her parents went through a purported marriage ceremony, but their marriage was invalid because of a legal impediment. Third, section 216(h)(3)(C)(i) of the Act provides that the child can be deemed dependent on the insured if the child can show that the insured had, prior to his death: (a) acknowledged in writing the child as his child; (b) been decreed by a court to be the child's parent; or (c) been ordered by a court to contribute to the support of the child on the basis of parenthood. Section 202(d)(3) of the Act provides that any child who meets the tests in sections 216(h)(2) or (h)(3) "shall be deemed to be the legitimate child of such individual."

In this case, none of the above requirements can be met by Makhye. The deceased number holder was not living with or contributing to Makhye's support at the time of his death. Shakara and the deceased number holder were never married. The deceased number holder did not acknowledge in writing Makhye as his child, nor was he decreed by a court to be her parent or ordered to pay support.

An "illegitimate" child who does not meet any of the above requirements for showing dependency can also be entitled to benefits under section 216(h)(2)(A) if the child could 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 such insured individual . . . was domiciled at the time of his death . . . ." Id. An illegitimate child who meets the standard which Congress set forth in section 216(h)(2)(A) of the Act is deemed to be legitimate and, therefore, dependent. See Matthews v. Lucas, 427 U.S. 495, 514-15 n.17 (1976). In this case, you have indicated that the deceased number holder was domiciled in Missouri; therefore, Missouri intestacy law applies.

Missouri statutes provide in relevant part:

[A] person born out of wedlock is a child of the mother. That person is also a child of the father, if either of the following occur:

(1) The natural parents participated in a marriage ceremony before or after the birth of the child, even though the attempted marriage is void;

(2) The paternity is established by an adjudication before the death of the father, or is established thereafter by clear and convincing proof . . .

Mo. Ann. Stat. § 474.060 (West, WESTLAW through 1999).

The Eighth Circuit has adopted the Missouri Court of Appeals definition of "clear and convincing" proof as that "which 'instantly tilt[s] the scales in the affirmative when weighed against evidence in opposition,' and clearly convinces the factfinder that the evidence is true." Eldridge for Eldridge v. Sullivan, 980 F.2d 499, 500 (8th Cir. 1992) (citing Sherrill for Sherrill v. Bowen, 835 F.2d 166, 168 (8th Cir. 1987) (quoting In re Michael O'Brien, 600 S.W.2d 695, 697 (Mo. Ct. App. 1980)). See also Jones v. Chater, 101 F.3d 509, 511 (7th Cir. 1996) (Missouri's intestacy statute requires clear and convincing evidence of paternity); State of Missouri v. Tuckness, 949 S.W.2d 651 (Mo. Ct. App. 1997) ("The clear and convincing standard refers to evidence which instantly tilts the scales in the affirmative when weighed against the evidence in opposition, and the fact finder's mind is left with an abiding conviction that the evidence is true.") (citing In re Marriage of Jennings, 910 S.W.2d 760, 763 (Mo. Ct. App. 1995)). Other courts have defined clear, convincing, and cogent evidence as that which admits no reasonable doubt. Eldridge, 980 F.2d at 500 (citations omitted).

In Imani on Behalf of Hayes v. Heckler, 797 F.2d 508 (7th Cir. 1986), the Seventh Circuit Court of Appeals found that the plaintiff did not establish by clear and convincing evidence under Missouri's laws of intestate succession that the wage earner was the father of her illegitimate child. Id. at 511-12. In Imani, the plaintiff had informed the insured that she might be pregnant two weeks before his death but she was unable to inform him that she was in fact pregnant before he died. She alleged that he nonetheless "knew" that he was the father. She offered evidence concerning the statements and actions of third parties as well as photographic evidence to support her claim. An administrative law judge found that she had not established by clear and convincing evidence that the insured was the father of the child. The decision was upheld by the Seventh Circuit Court of Appeals. Id.

In Sherrill, 835 F.2d at 168-69, the Eighth Circuit Court of Appeals held that the plaintiff had failed under Missouri's intestacy statute to establish by clear and convincing evidence that the deceased wage earner was the father of her child. The plaintiff did not name a father on the child's birth certificate.

She had alleged that the wage earner had brought money, toys, and food for the child but she had kept no records. She alleged that the deceased wage earner had taken out an insurance policy for the child but it was never produced and she stated that she did not know whether she or the child was the designated beneficiary.

Inconsistently, in a signed statement taken in conjunction with her application for benefits, she stated that the deceased wage earner had never taken out an insurance policy on the child. The deceased wage earner's widow testified that she had been married to him for three years and they had two children. She stated that she had no knowledge of the child he allegedly fathered, and that he had never made any support payments to the child. The evidence included a notarized statement by the deceased wage earner's mother stating the he had acknowledged that the child was his and had brought the child to her home regularly. She stated that she did not know why she had not mentioned the child until twelve years after her son's death. Id. at 167. The court agreed with an administrative law judge that there was not clear and convincing evidence of paternity as required by the Missouri intestacy statute. There was no evidence proving that the deceased wage earner was not the child's father, but neither was there "clear and convincing evidence" showing that he was the father. Testimony at the hearing was inconsistent with documentary evidence, there were vague allegations twelve years after the death of the wage earner, and there was a failure to produce records and vital documents which cast the plaintiff's testimony in a "particularly doubtful light." Id. at 168.

In Cooper v. Sullivan, 985 F.2d 390 (8th Cir. 1993), the Eighth Circuit Court of Appeals found that the evidence supported the Commissioner's denial of surviving child benefits where paternity was not proved by clear and convincing evidence under an Illinois intestacy statute, despite the child's mother testimony that the deceased wage earner was the child's father and affidavits of the mother's mother, sister, and brother-in-law which supported her testimony. Id. at 391. The Commissioner stated that although the affidavits submitted constituted some evidence that the claimant was the child of the wage earner, other circumstances, particularly the claimant's mother's acknowledgment that the wage earner did not support the claimant at the time of his death nor acknowledged in writing that the claimant was his child, precluded the existence of clear and convincing evidence that the claimant was the child of the wage earner. Id.

In Robbie v. Gerstner, 733 S.W.2d 859 (Mo. Ct. App. 1987), a Missouri Appeals Court did find clear and convincing proof of paternity based on the testimony of the party seeking the declaration of paternity, the testimony of three disinterested witnesses, and comparison photographs. Id. The children were receiving Social Security payments on the deceased's account after his death. Id. at 859-60. The court found the evidence of paternity "consistent and overwhelming," and allowed the children to inherit from the estate of the decedent's mother. Id. at 860.

The Missouri legislature enacted the Parentage Act in 1987. See In re Carl Nocita, 914 S.W.2d 358, 359 (Mo. banc 1996); Mo. Ann. Stat. §§ 210.817-852. The Parentage Act allows a presumption of paternity in cases where there has been a marriage or attempted marriage between the alleged father and mother; if the alleged father has admitted paternity in a filed writing, if he was named on the birth certificate with his consent, or if he was ordered to pay child support; or if a blood test showed a ninety-eight percent or higher probability of paternity. See Mo. Ann. Stat. § 210.822.1. The presumption of paternity may be rebutted only by clear and convincing evidence. See Mo. Ann. Stat. § 210.822.2.

In In re Nocita, the Missouri Supreme Court ruled on the issue of whether the Parentage Act or the intestacy statute governed in determining whether an illegitimate child inherits by intestate succession. In Nocita, an illegitimate child filed for letters of administration for the alleged father's estate. The decedent's family moved to dismiss the action, alleging that the child's paternity claim was barred by the statute of limitations in the Parentage Act. The Court noted that the legislature enacted the Parentage Act in 1987 with knowledge of the Probate Code previously enacted in 1980. See In re Nocita, 914 S.W.2d at 359. The Court stated: "'In construing a statute, the Court must presume the legislature was aware of the state of the law at the time of enactment.'" Id. (quoting Nicolai v. City of St. Louis, 762 S.W.2d 423, 426 (Mo. banc 1988)). Because the legislature passed the Parentage Act without conforming the Probate Code, the General Assembly refused to make the Parentage Act the exclusive means to establish paternity for probate. Id. The Court concluded that both statutes stood and that the illegitimate child was not barred by the statute of limitations in the Parentage Act. Id. Makhye does not meet any of the requirements of the Parentage Act, however; therefore, a presumption of paternity cannot be established under that Act.

In the fact situation which you present, we believe that a court in the Eighth Circuit would not find clear and convincing proof that Makhye C~ is the child of the deceased number holder for intestacy purposes. While there is evidence suggesting that Andre T. W~ was the father of Makhye C~, we cannot say that the evidence presented "'instantly tilt[s] the scales in the affirmative when weighed against evidence in opposition,' and clearly convinces the factfinder that the evidence is true." Eldridge, 980 F.2d at 500; Sherrill, 835 F.2d at 168; In re Michael O'Brien, 600 S.W.2d at 697. Shakara C~ did not name a father on Makhye C~'s birth certificate. There is no blood test evidence. In a telephone statement made on February 19, 1999, Shakara C~ stated that Makhye never lived with the deceased number holder, he made no written acknowledgment of paternity, and he never provided support. She also stated that Makhye never visited him in his home. This is inconsistent with her friends' statements and the deceased number holder's uncle's statement that Makhye did visit the deceased number holder in his home. The deceased number holder's mother believes that Makhye is her granddaughter, but she lived in Kansas City while her son lived in Los Angeles and she did not know if he accepted Makhye into his home. Although the deceased number holder's uncle stated that the deceased bought Makhye food, diapers, and toys, Shakara C~, the child's mother, did not make such a statement and provided no records to support this allegation. As in Sherrill, 835 F.2d at 168, there is no evidence proving that the deceased number holder was not Makhye's father, but neither is there "clear and convincing" evidence showing that the deceased was her father.

Therefore, we believe it is reasonable to conclude that the evidence does not establish paternity by "clear and convincing proof" within the meaning of Missouri's intestacy statute, and the requirements for entitlement under section 216(h)(2)(A) of the Act were not met. Thus, benefits were properly denied.

INHERITANCE RIGHTS — By Illegitimate Child

The inheritance rights of an illegitimate child born in Missouri, whose putative father died domiciled in the state of Mississippi, is determined by the law of the state of Mississippi.

(L~, James — A/N ~ — RA IV, (Adams) to So. PSC, 7/6/82).

Under Mississippi law, an illegitimate child can inherit from his natural father if there is compliance with certain requirements contained in section 91-1-15 of the Mississippi Code.

(L~, James — A/N ~ — RA IV, (Adams) to So. PSC, 7/6/82).

This case was referred for our opinion as to whether James C. I~ qualifies as a child of James C. L~ under Section 216(h)(2)(A) of the Social Security Act. A claim for child's benefits for James C. I~ was initially denied with notice of such action sent to the claimant on November 28, 1979, as it was determined that he was not the legitimate child of the deceased numberholder and did not meet the requirements for entitlement as an illegitimate child. The specific facts are as follows:

The numberholder and putative father was domiciled in the State of Mississippi at the time of his death on August 18, 1979. There is no evidence to indicate that he was at any time domiciled in the State of Missouri, the state of the claimant child's birth. James C. I~ was born July XX, 1964, in Missouri, and was domiciled in that state at the time of the numberholder's death on August 18, 1979. The father is not listed on the child's birth certificate. However, James C. I~ was listed as the son of James C. L~ in Mr. L~'s obituary. James C. L~ is informally noted on welfare records as allegedly being the father of James C. I~, but there is no evidence of a determination of paternity in the case record. The child's mother, Delores I~ W~, was the informant for these cited records. The file contains statements of the deceased numberholder's widow, Pearlie B. L~, and a brother, Lee A. L~, of their awareness that James C. L~ was the father of James C. I~ based on the deceased numberholder's oral acknowledgements to them. The child spent a week in the home of the deceased numberholder in 1974 or 1975. However, the file also contains statements of Mollie W~ (grandmother of the deceased numberholder who raised him from childhood) and another brother, Sammie R. L~, indicating that they had no personal knowledge of the deceased numberholder's having any children other than the children of his marriage to Pearlie B. L~.

Based on your review of all evidence of record, you feel that your initial denial of benefits to James C. I~ appears to have been proper under Mississippi's intestacy statute. However, as the claimant child was born in the State of Missouri, you are requesting our legal opinion on these issues:

1. Are you correct in your determination that James C. does not have inheritance rights under the intestate succession law of Mississippi?

2. If James C. I~ did not acquire inheritance rights under Mississippi law, would the Mississippi courts follow the choice-of-law rule and look to the inheritance statutes of the State of Missouri, the state in which the claimant child was born?

3. If application is made of the personal law of the child's (i.e., the Missouri inheritance statutes), is the evidence in this case so clear and convincing as to give James C. I~ inheritance rights and thus permit his entitlement to benefits under the Social Security Act?

4. Would the current Missouri intestacy statute (if the Mississippi courts follow it) be applicable in that the numberholder died August XX, 1979, which was after the Trimble v. Gordon decision but prior to the effective date of the current Missouri statute, January 1, 1981?

Our initial inquiry in response to your questions is to determine what law would govern with respect to the inheritance rights of the child claimant. While the child was born and resided in Missouri, the evidence of record indicates that the deceased numberholder was a Mississippi resident and died in Mississippi. Therefore, we are assuming that all of his inheritable property is probably located in the state of Mississippi. We note initially that it is a generally accepted principle that the law of the state where land is situated controls its title, transfer, and disposition. See 16 Am. Jur. 2d, Conflict of Laws § 26. We therefore note that Section 91-1-1 of the Mississippi Code Ann., 1972, provides in pertinent part that:

"All personal property situated in this state shall descend and be distributed according to the laws of this state regulating the descent and distribution of such property, regardless of all marital rights which may have accrued in other states, and notwithstanding the domicile of the deceased may have been in another state, and whether the heirs or persons entitled to distribution be in this state or not..."

Based on the foregoing rule of law and statutory provision, it is our opinion that Mississippi would not apply the law of Missouri in determining the inheritance rights of the child claimant. As a result, we will not address any of the other questions you have raised with respect to Missouri law.

Attached to this memorandum is a copy of the most recent Mississippi statutory provision with respect to inheritance by illegitimates (Section 91-1-15 of the Miss. Code Ann.). This law provides that an illegitimate child can inherit from his natural father if:

(a) The natural parents participated in a marriage ceremony before the birth of the child, even though the marriage was subsequently declared null and void or dissolved by a court; or

(b) There has been an adjudication of paternity or legitimacy before the death of the intestate; or

(c) There has been an adjudication of paternity after the death of the intestate, based upon clear and convincing evidence, in an heirship proceeding under sections 91-1-27 and 91-1-29.

Prior to this statute, an illegitimate child had inheritance rights solely through the mother and none with respect to the natural father.

Therefore, you were correct in determining that the child claimant in this case has failed to meet the statutory requirements for inheritance from his putative father under Mississippi law. We do note however that under the 1981 statute, the child claimant has three (3) years from and after July 1, 1981 within which to establish paternity and make a claim in the estate of the numberholder. Nonetheless, the child claimant currently has no inheritance rights in Mississippi.