QUESTION PRESENTED
Whether Erika (Erika) is entitled to child’s benefits as the daughter of the deceased
number holder, Narciso (NH).
OPINION
The NH voluntarily recognized Erika as his daughter and thus, under Puerto Rico law,
Erika is the child of the NH. Therefore, assuming all other requirements are met,
Erika would be entitled to child’s benefits on the record of the NH as the NH’s child.
BACKGROUND
The NH died on June 10, 1999 in the Dominican Republic; his permanent residence was
in Puerto Rico. The NH and Beatriz (Beatriz) were never married. On November 12, 1999,
Beatriz gave birth to Erika in Rio Piedras, Puerto Rico. There is no father listed
on the birth certificate.
On December 31, 2007, Beatriz filed an application on the record of the NH for surviving
children’s benefits for her three children, K~; J~; and Erika. The agency approved
the claims for K~ and J~ and denied the application for Erika because she was born
after the NH’s death and there was insufficient evidence to prove their relationship.
Beatriz filed a new claim for Erika containing additional evidence. According to a
statement by Beatriz, she and the NH lived together in Puerto Rico with their two
children, K~ and J~. The family was on vacation together in the Dominican Republic
when the NH died. The NH was the “bread winner” for the family and was the only one
who worked and provided financial support. The NH covered all living expenses for
Beatriz, K~, and J~. Beatriz also said that the NH told his sister, Y~, and his brother,
L~, that Erika was his child-to-be. Beatriz stated that while pregnant with Erika,
she lived in Puerto Rico together with the NH. The NH did not accompany her to any
doctor’s visits in connection with her pregnancy—he died when she was two months pregnant
with Erika.
The agency subsequently contacted L~, who confirmed that the NH had told him that
Beatriz was pregnant with his daughter, Erika. L~ also stated that he is not the NH’s
brother; he is Erika’s half-brother.
Y~ provided a statement that she took a DNA test with her niece (although Y~ stated
that the niece in question was J~) in order to prove that her niece was the daughter
of her brother, the NH. Y~ did not provide additional information about the date or
the location of the test.
Results of a DNA test from the DNA Diagnostics Center (DDC), representing that the
DDC tested samples from Beatriz, Erika, and Y~, found a 98% probability of relatedness
between Erika and Y~. The DNA test results do not discuss how DDC obtained the DNA
samples.
You have informed us that Numident records for Y~ and the NH show that both were born
in the same city and have the same two individuals listed as parents.
You provided the following evidence:
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Death Certificate for the NH
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Birth Certificate for Erika
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SSA-795 Statement of Beatriz
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SSA-2519 Child Relationship Statement
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ANALYSIS
The Social Security Act (the Act) states that the child of a deceased wage earner
is entitled to survivor’s benefits if the child is unmarried, under age 18, and was
dependent upon the deceased wage earner at the time of death. Act § 202(d)(1); 42
U.S.C. § 402(d)(1). For purposes of such child’s benefits under the Act, a “child”
is defined as the child, legally adopted child, stepchild, or, in limited circumstances,
grandchild of an insured individual. Act § 216(e); 42 U.S.C. § 416(e). The Act and
the implementing regulations provide that in determining whether a claimant will be
deemed the surviving “child” of an insured individual for purposes of child’s benefits,
the Commissioner shall apply such law as would be applied in determining the devolution
of interstate personal property by the courts of the State in which the insured wage
earner was domiciled at the time of his death. Act § 216(h)(2)(A); 42 U.S.C. § 416(h)(2)(A);
20 C.F.R. § 404.355(b). The regulations define permanent home as the true and fixed
home (legal domicile) of a person. It is the place to which a person intends to return
whenever he or she is absent. 20 C.F.R. § 404.303.
Here, although the NH died while on vacation in the Dominican Republic, his permanent
residence was in Puerto Rico. Thus, because the NH was domiciled in Puerto Rico when
he died, Puerto Rico laws regarding the devolution of interstate personal property
apply.
Puerto Rico laws of intestacy provide that succession first follows the descending
direct line from the decedent. P. R. Laws Ann. tit. 31, § 2641 (2010). The children
of the deceased shall always inherit from him in their own right, dividing the inheritance
in equal shares. P. R. Laws Ann. tit. 31, § 2643 (2010). All children have, with respect
to their parents and to the estate left by the latter, the same rights that correspond
to legitimate children. P.R. Laws Ann. Tit. 31, §441 (2010); Ocasio v. Diaz, 88 D.P.R. 676, 749 (P.R. 1963); Social Security Ruling (SSR) 68-21 (citing O~ and stating that all children have the status of “children” of their parents to whom
they are legally filiated and thus all children have equal inheritance rights with
respect to such parents); SSR 66-46 (same).
As to children born out of wedlock, paternity may be established by judicial declaration
or by voluntary recognition by the father. O~, 88 D.P.R. at 749; SSR 68-21; SSR 66-46; Program Operations Manual System (POMS) GN 00306.615. Paternity must be satisfactorily proven by a preponderance of the evidence. O~, 88 D.P.R. at 749 (1963); POMS GN 00306.615. A voluntary recognition by the father constitutes any act or deed, express or implied,
by which the father (or his heirs) acknowledges or recognizes the child as his own.
O~, 88 D.P.R. at 749; SSR 68-21; SSR 66-46; POMS GN 00306.615. This includes the conduct, treatment, behavior, and all acts performed by the father
with respect to his child and from which paternity could be reasonably inferred, or
considered as a tacit confession of paternity. O~, 88 D.P.R. at 710. In considering what constitutes voluntary recognition, a court will take into account
the human experience and the realities of life and thus did not frame voluntary action
within formulas that are impossible to meet. O~, 88 D.P.R. at 710.
Here, the NH voluntarily recognized Erika as his child. Evidence of that voluntary
recognition includes the NH’s admission to both to his sister, Y~, and Erika’s half-brother
L~, that Erika was his child. Additionally, he supported Beatriz financially and lived
with her while she was pregnant with Erika. Accordingly, based on the precedent set
in O~, and taking into account “the realities of life,” the NH’s voluntary implied and
expressed acts are sufficient to establish paternity. O~, 88 D.P.R. at 710.
We note that Beatriz submitted genetic testing results. Puerto Rico does allow for
the use of genetic tests to determine paternity. P.R. Laws Ann. tit. 32, App. IV,
Rule No. 82 (2010); accord Rivera Perez v. Leon, 138 D.P.R. 839 (P.R. 1995) (approving the use of genetic evidence in paternity cases,
provided that the court has carefully evaluated the admissibility of the results,
and if admitted, weighs their probative value along with the other evidence in the
case.) In fact, under Puerto Rico law, paternity is presumed incontrovertible in those
cases in which the genetic test ordered by the Court produces a probability of paternity
of ninety-eight percent or higher. P.R. Laws Ann. tit. 8, § 512 (2010). In the event
that the putative father is deceased, as relevant here, the parents, children, siblings,
and grandchildren of the putative father may be submitted to court ordered genetic
testing, following an order of preference in accordance with the degree of consanguinity
of the relative with the putative father. P.R. Laws Ann. tit 32, App. IV, Rule No.
82. These tests shall be performed by duly-qualified experts appointed by the court.
P.R. Laws Ann. tit 32, App. IV, Rule No. 82. If the tests are not performed by experts
appointed by the court, an expert witness and the presentation of the results of testing
may be used to demonstrate the reliability of a test conducted outside the court.
Pueblo v. Calderon Alvarez , 140 D.P.R. 627 (P.R.1996).
Here, the results submitted are not probative. The test resulted in a 98% match between
Erika and the NH’s sister only, the test was not court-ordered and the test was not
performed by duly-qualified experts appointed by the court. Further, the record contains
no testimony by an expert witness demonstrating the reliability of this test conducted
outside the court. Finally, the record contains no evidence about how DDC obtained
these DNA samples, or of the chain of custody of the samples once they were obtained. Accordingly,
the results of this test are not probative as to the question of whether the NH is
Erika’s father. Nonetheless, as outlined above, there is sufficient other evidence
to establish paternity.
CONCLUSION
The NH voluntarily recognized Erika as his daughter and thus, under Puerto Rico law,
Erika is the child of the NH. Therefore, assuming all other requirements are met,
Erika would be entitled to child’s benefits on the record of the NH as the NH’s child.