Under Virginia intestacy law, the paternity of a child born out of wedlock must be established by clear and convincing evidence, which may include, among other things, “the results of scientifically reliable genetic tests, including DNA tests, weighted with all the evidence.” For what constitutes clear and convincing evidence for DNA results, courts look to another section of the Virginia Code pertaining to domestic relations proceedings, which provides that blood test results that affirm at least a 98% probability of paternity are sufficient to establish a parent-child relationship.

In this case, the DNA testing performed between three siblings, two of whom are the acknowledged child of the NH through DNA testing and who currently receive benefits, is sufficient to establish that the NH is also the father of the Minor Child under Virginia law.

On July 19, 2019, you requested an opinion as to whether a parent-child relationship existed under Virginia law between the deceased NH and Minor Child based on November 2018 DNA tests of Minor Child and two acknowledged children of the NH, where the NH passed away before Minor Child was born.

We have reviewed the information you provided and researched the relevant provisions of Virginia law. It is our opinion that a court will likely find that there is sufficient evidence to establish a parent-child relationship between NH and Minor Child under Virginia law.

NH passed away on November XX, 2016 and was domiciled in Virginia at the time of his death. NH is the acknowledged father of M1~ and M2~ through DNA testing showing a 99.99% chance of paternity based on samples collected from NH, M1~, and M2~.^[1] Minor Child was born on April XX, 2017, approximately five months after NH’s death. M1~, M2~, and Minor Child are all biological children of T~.^[2] You have indicated that T~ was not married to NH. You have also indicated that Minor Child did not live with T~, but lives, instead with his maternal aunt and guardian, D~ (Claimant).

On March XX, 2019, Claimant applied for surviving child’s benefits on behalf of Minor Child on the record of NH. In support of the application, Claimant submitted a Relationship Report from LabCorp signed and notarized on November XX, 2018. The report compared DNA samples collected from Minor Child, M1~, and M2~. T~ was not tested. The report documented that Minor Child’s “probability of relatedness as a full sibling” to M1~ and M2~ was 99.99% as compared with the possibility that Minor Child was a half sibling. The report also explained that the likelihood ratio for full sibling versus half sibling was 11,722 to 1. As the DNA test concluded, “These findings support the allegation that Minor Child, M1~, and M2~ are full siblings.”

To qualify for child’s insurance benefits on the earnings record of an insured individual who has died, a claimant must be that individual’s “child.” See Social Security Act (Act) § 202(d); 20 C.F.R. § 404.350(a)(1). A claimant can qualify as the insured individual’s natural child if the claimant could inherit from the insured individual as his child. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b). To determine if a claimant could inherit from the insured individual, the Social Security Administration applies the intestacy laws of the state where the insured had his permanent home when he died. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1). Because NH was domiciled in Virginia when he died, we look to Virginia law to determine whether the minor child could inherit from the NH as his child. Act § 216(h)(2)(A); 20 C.F.R. § 404.355(b)(4).

Under Virginia intestacy law, the paternity of a child born out of wedlock must be established by clear and convincing evidence, which may include, among other things, “the results of scientifically reliable genetic tests, including DNA tests, weighted with all the evidence.” Va. Code Ann. § 64.2-103(A)(7); see also Va. Code Ann. § 64.2-102(3)(b). For what constitutes clear and convincing evidence for DNA results, courts look to another section of the Virginia Code pertaining to domestic relations proceedings, which provides that blood test results that affirm at least a 98% probability of paternity are sufficient to establish a parent-child relationship. Va. Code Ann. § 20-49.1(B)(1); see Veeney ex rel. Strother v. Sullivan, 973 F.2d 326, 331 (4th Cir. 1992) (examining the intersection of the intestacy and domestic relations statutes).

In this case, based on the facts you provided us, we believe there is clear and convincing evidence that NH is the father of Minor Child. The unrebutted DNA test results sufficiently establish that M1~, M2~, and Minor Child are siblings and that there is a likelihood of 11,722 to 1 (mathematically a 99.99% probability) that they share the same biological mother and father.

Therefore, in view of the clear and convincing evidence that NH is the father of M1~ and M2~ based on DNA results showing a 99.99% chance of paternity, we believe a court would likely conclude that NH is also the father of Minor Child. See Veeney, 973 F.2d at 328, 332 (holding that there was clear and convincing evidence of paternity where DNA testing revealed that the child in question was the sibling of an acknowledged child of the putative father, had a genetic relationship to other male family members of the putative father, and probably had the same biological father as the acknowledged child).

Thus, based on the information you have provided, it appears likely that a Virginia court would find NH to be the father of Minor Child under its intestacy statutes.

For the reasons stated above, it is our opinion that the DNA testing performed in this case between three siblings, two of whom are the acknowledged child of the NH through DNA testing and who currently receive benefits, is sufficient to establish that the NH is also the father of Minor Child under Virginia law. Therefore, we believe there is clear and convincing evidence of a parent-child relationship between NH and Minor Child. Accordingly, we believe that Minor Child is entitled to benefits on NH’s record under the Social Security Act.

(Inse Under Virginia law, a child born out of wedlock may inherit from a decedent’s estate based upon a showing that the decedent is the father of the child. A child born out of wedlock is a child of the father if (1) the parents, who afterwards intermarry, recognize the child as their own before or after marriage; or (2) the biological parents participated in a marriage ceremony before or after the birth of the child, even though the attempted marriage was prohibited by law, deemed null or void, or dissolved by a court. Other evidence that a man is the father of a child born out of wedlock must met a clear and convincing standard.

In this

In this case, the claimant has submitted an affidavit from the deceased’ sister stating that the child was a child of the deceased along with a probate of will addendum listing the child and an obituary listing the child. We do not believe a Virginia court would find these document to meet the clear and convincing standard

Necessary to establish the claimant as the deceased’s child.

QUESTION PRESENTED

Whether there is sufficient documentation under the State law of Virginia to establish Charlene P~ (Charlene) as the child of the number holder, Charles J~ (Charles), who died domiciled in Virginia.

OPINION

Based upon our review of Virginia law, we believe that the evidence of record does not establish that Charlene is the child of Charles.

BACKGROUND

You have advised us that Charles received Social Security disability benefits since March 1990 until he died on January 13, 2009. Grace H~, Charlene’s grandmother, filed a claim for survivor’s benefits on behalf of Charlene alleging that she is Charles’ natural child.

The evidence you have submitted is as follows:

* Death certificate for Charles J~ indicating he died on January 13, 2009 in Virginia. His spouse, Betty M. J~, was the informant.

* SSA records reflect that Charles had one spouse, Betty. Charles was married to Betty from April 12, 1980 until his death on January 13, 2009.

* New Jersey Birth Certificate of Charlene G. P~ showing her date of birth as June 9, 1992. There is no name indicated under “Name of Father.”

* Affadavit dated March 19, 2010 from Ella L~, Charles’ sister, stating that in 2002, Charles told her that Charlene was his daughter.

* Last Will and Testament of Charles dated August 2, 2008. Charles disposes of several items of tangible personal property to two of his children by name. Charlene is not one of the two named children. He disposes of the remainder of his tangible personal property and his estate in equal shares to his children, without mentioning any by name.

* Probate of will dated February 10, 2009 with addendum listing Charles’ heirs. Charles’ son, Israel J~, supplied the list of heirs. The list includes a “Charlene B~,” who is described as Charles’ daughter. Israel J~ listed

* An undated letter from County of Essex Department of Citizen Services, Division of Welfare stating that Charles had never paid child support benefits for Charlene P~.

In addition, we have obtained an obituary for Charles published by VaNcNews.com, which stated that Charles was survived by, among others, a daughter, Charlene P~ of Newark, N.J. http://www.vancnews.com/articles/2009/01/23/south_hill/obituaries/obits04.prt (last visited

July 19, 2010).

ANALYSIS

A child may be eligible for Social Security survivor’s benefits on the earnings record of a deceased number holder if the child could inherit the number holder’s personal property as his natural child under the intestacy laws of the state in which the number holder was domiciled at the time of his death. See Section 216(h)(2)(A) of the Social Security Act, 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. §  404.355(b)(1). ^[3] Therefore, to be eligible for survivor’s benefits on Charles’ Social Security account, Charlene must be able to inherit Charles’ personal property as his natural child under Virginia inheritance law.

Under Virginia law, a child born out of wedlock may inherit from a decedent’s estate based upon a showing that the decedent is the father of the child. Va. Code Ann. § 64.1-5.1. (West 2010). A child born out of wedlock is a child of the father if (1) the parents, who afterwards intermarry, recognize the child as their own before or after marriage; or (2) the biological parents participated in a marriage ceremony before or after the birth of the child, even though the attempted marriage was prohibited by law, deemed null or void, or dissolved by a court. Va. Code Ann. §§ 20-31.1, 64.1-5.1(3)(a) (West 2010). Other evidence that a man is the father of a child born out of wedlock must be clear and convincing and may include, but is not limited to, the following:

1. That he cohabited openly with the mother during all of the ten months immediately prior to the time the child was born;

2. That he gave consent to a physician or other person, not including the mother, charged with the responsibility of securing information for the preparation of a birth record that his name be used as the father of the child upon the birth records of the child;

3. That he allowed by a general course of conduct the common use of his surname by the child;

4. That he claimed the child as his child on any statement, tax return or other document filed and signed by him with any local, state or federal government or any agency thereof;

5. That he admitted before any court having jurisdiction to try and dispose of the same that he is the father of the child;

6. That he voluntarily admitted paternity in writing, under oath;

7. The results of scientifically reliable genetic tests, including DNA tests, weighted with all the evidence; or

8. Other medical, scientific or anthropological evidence relating to the alleged parentage of the child based on tests performed by experts.

Va. Code Ann. § 64.1-5.2 (West 2010); see POMS GN 00306.660 (“Virginia Intestacy Laws”).

In addition, the Virginia Code provides that if a proceeding to determine parentage has been initiated, and the court enters judgment against a man for the support, maintenance, and education of a child, that judgment shall be sufficient evidence of paternity. Va. Code Ann.

§ 64.1-5.2; POMS GN 00306.660.

There is no evidence to support a finding that Charlene is the child of Charles based upon the eight enumerated criteria of section 64.1-5.2. Nor is there evidence that Charlene meets the requirements of any of the other provisions of the Virginia statutes. Specifically, there is no evidence that Charles and Charlene’s mother ever married or attempted to marry by participating in a marriage ceremony or that there has been a judgment for support, maintenance and education of Charlene. To the contrary, the Division of Welfare, Essex County indicates that Charles had never paid child support benefits for Charlene.

We note that section 64.1-5.2 also provides for the possibility that other evidence could rise to the standard of “clear and convincing evidence.” Va. Code Ann. § 64.1-5.2. In this regard, we have considered the remaining evidence submitted here and do not find that it meets this standard as construed by the Virginia Supreme Court.

The Virginia Supreme Court has stated that the clear and convincing evidence standard “has placed a heavy burden on people who undertake to prove that they are the paternal children of a decedent.” Jones v. Eley, 501 S.E.2d 405, 408 (Va. 1998). In Jones, the court found clear and convincing evidence based upon evidence not specifically listed in section 64.1-5.2. Id. The court found that in addition to the decedent’s having acknowledged paternity to several people including his doctor (a disinterested witness), he had contributed to their support and maintenance. Jones, 501 S.E.2d at 407 (1998). In addition, the court found most significant that the decedent had signed an insurance beneficiary designation form in which he identified the children as his. Id. at 407. The evidence here falls well short of the evidence relied upon in Jones. See POMS PR 01115.052, “Entitlement to Child’s Benefits Based on Informal Acknowledgment- Child’s Claim on the Account of Wallace E. R.” (Birthday cards to the child purportedly signed by the decedent, a note purportedly written by the decedent that accompanied a family picture, and a statement from the decedent’s mother in which she stated that the decedent told her he was the child’s father did not meet the high standard of “clear and convincing evidence” of Virginia law) (citing Jones, supra).

Here, there are no writings identifying Charlene as his daughter purporting to be from Charles. Further, the birth certificate does not have a father’s name on it. We note that the record contains an affidavit from Charles’ sister in which she states that Charles told her that Charlene was his child, but there is no reason why a statement from Charles’ sister would satisfy this standard. See POMS PR 01115.052, “Entitlement to Child’s Benefits Based on Informal Acknowledgment- Child’s Claim on the Account of Wallace E. R.” (statement from decedent’s mother that he told her that he was child’s father was insufficient to meet Virginia’s clear and convincing standard). The remaining documents are not probative. The Will does not refer to Charlene by name, and the Addendum uses a list supplied by Charles’ son and sets forth a different last name for the Charlene mentioned in the Addendum. The source of the mention in the obituary that Charlene is Charles’ daughter is unknown.

After reviewing the evidence, we do not believe it meets the standard of clear and convincing evidence required by Virginia law.

CONCLUSION

Based upon our review of Virginia inheritance law, the evidence does not establish that Charlene is the child of Charles.

Stephen P. C~

Regional Chief Counsel

By: _____________________

Sandra G~

Assistant Regional Counsel

In this case, the claimant submitted the following evidence to support being a child of the deceased number holder : (1) the identification of the number holder as the father on the birth certificate and verification of birth; (2) the number holder's alleged signature on the Christmas card acknowledging himself as the claimant's father; and (3) the claimant's use of the number holder's surname. We believe that the evidence, when combined with a statement from the number holder on his disability application that he had no children, would not establish a parent-child relationship with the number holder by clear and convincing evidence under the laws of the Commonwealth of Virginia.

QUESTION PRESENTED

On September 13, 2007, you asked for our opinion as to whether there was sufficient evidence in the record to establish a parent-child relationship between Randolph S~, the deceased number holder (number holder), and Daniel S~, a child (claimant), in order for the claimant to receive child's benefits based on the number holder's earnings record.

SUMMARY

Based on our review of the information you have provided, it is our opinion that the claimant did not present sufficient evidence to demonstrate a parent-child relationship under the laws of the Commonwealth of Virginia. Although the claimant has not provided sufficient evidence to date, the claimant, of course, would still have the opportunity to submit additional evidence to prove paternity.

BACKGROUND

On May 3, 2007, Tamara J. M~ filed an application for child's insurance benefits-survivor claim on behalf of the claimant based on the number holder's earnings record. Ms. M~ stated that she was never married to the number holder.

As evidence of a parent-child relationship, the claimant submitted a birth certificate from the Commonwealth of Virginia and an undated verification of birth from the Richmond Memorial Hospital. The birth certificate and verification of birth stated that Daniel S. S~ was born on June 22, 1992. The birth certificate and verification of birth listed Tamara J. M~ as the mother and Randolph F. S~ as the father. The birth certificate does not have the number holder's signature or any other evidence from the number holder to suggest that the number holder agreed or believed that he was the claimant's father. Although there is a signature in the space for the name of the father, there is no evidence that the number holder actually signed the form.

In addition to the birth certificate and verification of birth, the claimant submitted an undated Christmas card allegedly sent by the number holder. On one side of the card is a message in cursive that states, "Hope you all are doing o.k. I think of you all often. Sent a little something for X-mas. Love, Randy." On the other side of the card is a message in capital letters that states, "Merry Christmas, Daniel. Love, Dad."

The evidence of record also includes the signed application for disability benefits submitted by the number holder on March 3, 2000. In this application, the number holder stated that he had been married to Doris H~ since July 11, 1970. The number holder also stated, "I do not have any children who may be eligible for social security benefits on this record." The number holder's signature does not look like the signature on the verification of birth.

The number holder passed away on April 10, 2007 in Richmond, Virginia and was a resident of Glen Allen, Virginia.

DISCUSSION

The Social Security Act and its implementing regulations provide that, when determining paternity for purposes of entitlement to social security benefits, the Commissioner will apply the inheritance laws of the state in which the insured individual was domiciled at the time of his death. 42 U.S.C. ' 416(h)(2)(A); 20 C.F.R. ' 404.355(b)(1), (4); Program Operations Manual System (POMS) GN 00306.055(1). Here, the number holder was domiciled in Virginia when he passed away. Therefore, Virginia's intestacy law applies.

Under Virginia's inheritance statute, an out-of-wedlock child may inherit from a decedent=s estate upon establishing, by clear and convincing evidence, that he is the decedent’s child. Va.Code Ann. '' 64.1-5.1, -5.2. It is the claimant's burden to prove a parent-child relationship by clear and convincing evidence. Johnson v. Branson, 228 Va. 65, 70, 319 S.E.2d 735, 737 (1984). Clear and convincing evidence is such proof as will establish in the trier of fact a firm belief or conviction concerning the allegations that must be established; it is "more than the mere preponderance [of the evidence], but not to the extent of such certainty as required beyond a reasonable doubt as in criminal cases." Walker Agency, Inc. v. Lucas, 215 Va. 535, 540-41, 211 S.E.2d 88, 92 (1975) citing Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E.2d 118, 123 (1954). The Supreme Court of Virginia has stated that this standard places a "heavy burden on people who undertake to prove that they are the paternal children of a decedent." Jones v. Eley, 256 Va. 198, 203, 501 S.E.2d 405, 408 (1998).

Section 64.1-5.2 of the Virginia Code provides multiple factors to consider for purposes of proving a right to an intestate share. These factors include, but are not limited to, (1) the man gave consent to a physician or other person (not the mother) charged with the responsibility of securing information for the preparation of the birth certificate that his name should be used as the father of the child on the birth certificate; (2) the man allowed the child to use his surname; (3) the man claimed the child on a tax return or other document filed with the local, state, or federal government; (4) the man admitted in court that he was the father of the child; or (5) a deoxyribonucleic acid (DNA) test demonstrated that the man was the father of the child. Va.Code Ann. ' 64.1-5.2; POMS GN 00306.660(5).

The claimant has essentially provided three pieces of information to assert that the number holder was his father: (1) the identification of the number holder as the father on the birth certificate and verification of birth; (2) the number holder's alleged signature on the Christmas card acknowledging himself as the claimant's father; and (3) the claimant's use of the number holder's surname. Based on our review of the record, we believe that the evidence submitted by the claimant would not establish a parent-child relationship with the number holder by clear and convincing evidence under the laws of the Commonwealth of Virginia.

First, the identification of the number holder as the claimant's father on the birth certificate and verification of birth does not prove by clear and convincing evidence that the number holder was the claimant's father. The Supreme Court of Virginia has held that the "mere listing of [an individual's] name on the West Virginia birth certificate is insufficient to prove paternity under our statute requiring such proof to be made by clear and convincing evidence." J~, 228 Va. at 71, 319 S.E.2d at 737. Here, although the birth certificate and verification of birth identify the number holder as the claimant's father, there is no affirmative evidence that the number holder consented to have his name entered on the claimant's birth certificate, as required by Virginia law. Id.; Va.Code Ann. ' 64.1-5.2(2); POMS GN 00306.660(5)(b). Although the claimant's mother may believe that the number holder is the claimant's father and, thus, identified the number holder as the father for purposes of the birth certificate and verification of birth, the mother's belief is not sufficient to prove by clear and convincing evidence that the number holder is the claimant's father.

Second, a Virginia court would likely find that the Christmas card also does not prove by clear and convincing evidence that the number holder was the claimant's father. While Virginia law has identified some documents, such as tax returns, that can be used to establish paternity, the documents mentioned in the statute are not an exhaustive list. Jones, 256 Va. at 202, 501 S.E.2d at 407; Va.Code Ann. ' 64.1-5.2(2). While not an exhaustive list, a single Christmas card does not rise to the level of the examples the legislature enumerated in section 64.1-5.2 (e.g., stating that a man's admission in court that he is the father of the child is clear and convincing evidence of paternity).

Third, the claimant's use of the number holder's surname also does not prove by clear and convincing evidence that the number holder was the claimant's father. In Jones, 256 Va. at 202-03, 501 S.E.2d at 407-08, the Supreme Court of Virginia held that the child's use of the father's surname proved paternity when the father knew that the child was using that surname and the father provided child support and was involved in the child's life. Apart from the Christmas card, there is no evidence that the number holder knew that the claimant was using his surname or that the number holder had any involvement in the claimant's life. As such, a trier of fact would probably conclude that the claimant's use of the number holder's surname would not prove paternity.

Although we do not believe that any of these pieces of information, standing alone, proves a parent-child relationship with the number holder by clear and convincing evidence, we also do not believe that the combined effect of these three pieces of the evidence would prove a parent child relationship by clear and convincing evidence. This is especially true because the record contains a disability application signed by the number holder, in which the number holder denied having any "children who may be eligible for social security benefits on this record." We believe that a trier of fact would find that the claimant did not prove a parent-child relationship with the number holder by clear and convincing evidence based on the evidence submitted by the claimant and the number holder's express statement that he did not have any children.

Although we believe that the claimant has not proven a parent-child relationship with the number holder by clear and convincing evidence based on the evidence currently in the record, we recognize that the claimant could possibly meet this burden by submitting additional evidence, such as DNA evidence from the number holder or his family members (assuming that these examples exist or could be obtained) that shows a high degree of probability that the number holder is the claimant's father, the number holder's tax records evidencing that he had listed the claimant as a dependent, evidence that the claimant's mother sought or was awarded child support from the number holder, or affidavits from other individuals attesting that the number holder admitted paternity or held himself out in some manner as the father of the claimant.

If the claimant submits additional evidence, and if you believe that such evidence does prove a parent-child relationship with the number holder by clear and convincing evidence, then the claimant would be entitled to child's insurance benefits based on the number holder's earnings record. The regulations provide that a child is entitled to benefits beginning with the first month covered by the application in which he meets all other requirements for entitlement. 20 C.F.R. ' 404.352(a)(1). The POMS further provides that where inheritance rights are conferred by statute based on an adjudication of paternity (but the statute does not legitimate the child), and the act or event conferring inheritance rights is prospective only, then the effective date of the claimant's benefits is the date of the latest piece of evidence needed to prove by clear and convincing evidence that the number holder was the claimant's father. POMS GN 00306.055(3). In other words, the claimant would be entitled to benefits on the date that the claimant submitted to you the necessary piece of evidence that proved by clear and convincing evidence that the number holder was the claimant's father.

CONCLUSION

For the reasons stated above, it is our opinion that a Virginia court would likely find that the claimant has not presented sufficient evidence to demonstrate a parent-child relationship under the laws of the Commonwealth of Virginia.

Mike M~

Regional Chief Counsel

By: _____________________

Craig B. O~

Assistant Regional Counsel

In the absence of contradictory evidence, Virginia courts would find DNA test results showing a 99.7153% probability that the deceased number holder's parents are second degree relatives of our claimant to be clear and convincing evidence of the number holder's paternity.

The effective date for the child's eligibility would be the date of the genetic test.

QUESTION PRESENTED

On March 28, 2007, you requested our opinion as to whether deoxyribonucleic acid (DNA) test results showing a 99.7 % probability that the Number Holder's parents are the claimant's grandparents would be sufficient under Virginia Intestacy Law to establish a parent-child relationship to entitle the claimant to surviving child's benefits on the Number Holder's account. You further inquired as to the date of entitlement to such benefits and whether the death of the Number Holder before the birth of the child has any effect on his entitlement.

CONCLUSION

We have reviewed the material you provided and have researched the relevant provisions of Virginia law as it pertains to establishing paternity. We believe that a Virginia court interpreting the intestacy statute would find that William R. N~, II (hereinafter a Claimant) would be entitled to inherit from William R. N~ (hereinafter a Number Holder) because the DNA test results rise to the level of clear and convincing evidence of paternity. We also believe that the effective date of entitlement to benefits is November 7, 2006, the date of the genetic report.

BACKGROUND

According to the information you provided, the Number Holder was domiciled in Virginia where he died on May 14, 2006. Tonya L. M~ filed for surviving child’s benefits for the Claimant on November 7, 2006. Ms. M~ was never married to the Number Holder. She identified the Number Holder as the father of Claimant and presented a certified copy of a birth certificate indicating that the claimant was born on October 24, 2006 in Henrico County, Virginia. The Claimant's father is not identified on the birth certificate. A November 7, 2006 DNA test concluded that there was a 99.7153% probability that Roy N~, the alleged paternal grandfather, and Deborah N. R~, the alleged paternal grandmother, are second degree relatives of the Claimant. A second degree relative is a relative with whom an individual shares one-fourth of his or her genes, such as an aunt, uncle, niece, nephew, and grandparents.

DISCUSSION

The Social Security Act provides that, when determining paternity for purposes of entitlement to social security benefits, the Commissioner will apply the inheritance laws of the state in which the insured individual was domiciled at the time of his death. 42 U.S.C. ' 416(h)(2)(A); 20 C.F.R. ' 404.355(b)(1), (4). Here, the Number Holder was domiciled in Virginia when he died, such that Virginia law controls. Under Virginia's inheritance statute, an out-of-wedlock child may inherit from a decedent’s estate upon establishing, by clear and convincing evidence, that she is the decedent’s child. Va.Code Ann. '' 64.1-5.1, -5.2. Section 64.1-5.2(7) of the Virginia Code provides that for purposes of proving a right to an intestate share, paternity may be established by a[t]he test results of scientifically reliable genetic tests, including DNA tests, weighted with all the evidence.

In the absence of another statutory standard under Virginia law, clear and convincing evidence is such proof as will establish in the trier of fact a firm belief or conviction concerning the allegations that must be established. Walker Agency, Inc. v. Lucas, 215 Va. 535, 540-41, 211 S.E.2d 88, 92 (1975). The Virginia intestacy statute does not indicate the percentage of probability of paternity that is sufficient to constitute clear and convincing evidence. The Virginia domestic relations statute, however, provides that blood test results that affirm at least a 98% probability of paternity are sufficient to establish a parent child relationship. Va. Code Ann. ' 20-49.1(B)(1). While this section is not binding, it does provide guidance as to the sufficiency of DNA testing in Virginia. Virginia law does not address the use of grandparent DNA test results to establish paternity.

Although the Number Holder died prior to the Claimant's birth, Claimant's mother has provided the results of genetic testing of herself, the Claimant, and the Number Holder's parents, which reveal a 99.71% probability that the Number Holder's parents are Claimant's grandparents.

As previously stated, a 98% probability would be sufficient proof of paternity to obtain a court order of child support in Virginia according to the provisions of the domestic relations statute governing child support adjudications. Va. Code Ann. ' 20-49.1. Clear and convincing evidence is defined in Virginia as such proof as will establish in the trier of fact a firm belief or conviction concerning the allegations that must be established. Walker Agency, Inc., 215 Va. at 540-41, 211 S.E.2d at 92. In the absence of contradictory evidence, we believe that a Virginia court would find the DNA results in this case to be clear and convincing evidence of the Number Holder's paternity.

Because we believe that a Virginia court would find that the DNA results are clear and convincing evidence of paternity, the effective date of the parent-child relationship between the Number Holder and the Claimant is November 7, 2006. The regulations provide that a child is entitled to benefits beginning with the first month covered by the application in which he meets all other requirements for entitlement. 20 C.F.R. ' 404.352(a)(1). The Claimant met all other requirements for entitlement on November 7, 2006, the date of the DNA testing. The Program Operations Manual System (POMS) further provides that where inheritance rights are conferred by statute based on an adjudication of paternity (but the statute does not legitimate the child), and the act or event conferring inheritance rights is prospective only, the date of the latest necessary piece of evidence needed to satisfy the applicable standard of proof is the effective date that the claimant’s status as the insured’s child is established. POMS GN 00306.055. In this case, the genetic report dated November 2006, established that Roy N~ and Deborah N. R~ are the grandparents of the Claimant, and the Claimant is presumptively the child of the Number Holder, the deceased wage earner, and would be entitled to benefits as of that date. Finally, the death of the Number Holder before the birth of the child has no effect on the Claimant’s entitlement under the circumstances of this case. The Number Holder died on May 14, 2006 and Claimant was born on October 24, 2006 approximately five and a half months later. Under Virginia Law, relatives of the decedent conceived before his death but born thereafter shall inherit as if they had been born during the lifetime of the decedent. Va. Code Ann § 64.1-8.1.

Michael M~

Regional Chief Counsel

By: _____________________

Victor J. P~

Assistant Regional Counsel

In a case where DNA testing of the deceased number holder's brother shows a 99.91% probability that the number holder or his brother is the father of the claimant and both the mother and the number holder's brother state that they have never had sexual relations, a Virginia court would find that a parent-child relationship exists between the number holder and the claimant based on clear and convincing evidence.

The date of this relationship is July 22, 2006; the date the signed statements, the final pieces of evidence, were obtained.

INTRODUCTION

This is in response to your request for our advice whether Chrissy L. C~ (Chrissy) is entitled to surviving child's benefits on the account Number of Joseph R~ (Number Holder) where Chrissy's mother, Debbie L. C~, has obtained and submitted DNA test results showing a 99.91% probability of paternity of the Number Holder based upon DNA testing of the Number Holder's brother, Johnny B. R~, and both Debbie L. C~ and Johnny B. R~ have provided statements that they never had sexual relations.

SUMMARY

We have reviewed the information that you provided and have researched the relevant provisions of Virginia law as it pertains to establishing paternity. For the reasons that follow, we believe that a Virginia court would find that a parent-child relationship was established between the Number Holder and Chrissy. The effective date of the parent-child relationship is July 22, 2006, the date of the statements provided by Debbie C~ and Johnny R~, which are the latest necessary pieces of evidence to establish paternity under Virginia law. Retroactive benefits should not be allowed.

BACKGROUND

On June 18, 2002, the Number Holder died while domiciled in Virginia. Ms. C~ gave birth to Chrissy on June 6, 2000. The Number Holder and Ms. C~ were never married. Neither Chrissy's birth certificate nor her application for a social security number (NUMI) identify Chrissy's father.

On June 27, 2006, Ms. C~ filed an application for child's benefits on Chrissy's behalf. She submitted the results of DNA testing performed on May 5, 2006 on the Number Holder's brother, Johnny B. R~, Ms. C~, and Chrissy which indicated a 99.91% probability of paternity of the Number Holder as a brother of Johnny R~. DNA testing of the Number Holder's brother had been requested in a petition filed with the state court by Debbie C~ through the Commonwealth of Virginia, Department of Social Services, Division of Child Support Enforcement after Ms. C~ applied to the Department for child support services.

On July 22, 2006, Ms. C~ signed a statement declaring under penalty of perjury that she had never had sexual relations with Johnny R~ and that he could not be Chrissy's father.

Johnny R~ also signed a statement on July 22, 2006 that he had never had sexual relations with Ms. C~. The Number Holder, Joseph R~, had been killed in an automobile accident on June 18, 2002; on the date of his death, he was twenty-one years old and was married to Catherine R~. The Number Holder would have been in his late teenage years at or around the time that Chrissy was conceived and, at least as of the time of his death in June 2002, was married to someone other than Ms. C~, circumstances which may explain, at least in part, why there is no documentary evidence of his acknowledgment of paternity or support of Chrissy.

DISCUSSION

The Social Security Act provides that a child born to parents who do not marry can qualify for surviving child's benefits if the child is entitled to inherit personal property under such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which [the] insured individual was domiciled at the time of his death.

42 U.S.C. ' 416(h)(2)(A). In the present case, the Number Holder was domiciled in the Commonwealth of Virginia at the time of his death. Therefore, Virginia intestacy law applies.

Under Virginia law, a child born out of wedlock may inherit from a decedent's estate based upon a showing that the decedent is the father of the child. Va. Code Ann. ' 64.1-5.1. In order to inherit, the child must establish paternity by clear and convincing evidence as set forth in Virginia's intestacy statute. Va. Code Ann. ' 64.1-5.1(3)(b),-5.2. The Code of Virginia provides, in pertinent part, that for purposes of inheritance, evidence that a man is the father of a child born out of wedlock shall be clear and convincing and may include, but shall not be limited to, the results of medically reliable genetic blood grouping tests weighted with all the evidence. Va. Code Ann. ' 64.1-5.2(7).

The Virginia intestacy statute does not indicate the percentage of probability of paternity that is sufficient to constitute clear and convincing evidence. The Virginia domestic relations statute, however, provides that blood test results that affirm at least a 98% probability of paternity are sufficient to establish a parent-child relationship. Va. Code Ann. ' 20-49.1(B)(1).

While this section is not binding, it does provide guidance as to the sufficiency of DNA testing in Virginia. Virginia law does not address or exclude the use of close relative DNA test results to establish paternity.

Because the DNA test results establish a 99.91% probability of paternity of the Number Holder compared to an unrelated individual and the declarations of Ms. C~ and Johnny R~ exclude the possibility that Johnny R~, the Number Holder's brother, is Chrissy's father, if the declarations are authentic and the statements therein are accepted as true, and in the absence of any contradictory evidence, we believe that a Virginia court would find the DNA results to be clear and convincing evidence of the Number Holder's paternity.

The regulations provide that if the insured is deceased, a child is entitled to benefits beginning with the first month covered by the application in which he meets all other requirements for entitlement. 20 C.F.R. ' 404.352(a)(1)(2006). The regulations further provide that a child filing for child's benefits after the first month she could have been entitled to them may receive retroactive benefits on the record of the deceased Number Holder for up to six months prior to the month in which her application was filed. 20 C.F.R. ' 404.621(a)(ii). The report of the DNA test results is dated May 5, 2006; the application for benefits for Chrissy was filed on June 27, 2006. Chrissy met all other requirements for entitlement on July 22, 2006, the date of the statements of Ms. C~ and Johnny R~ that they have never had sexual relations. Based upon that date, there is no entitlement to retoractive benefits.

CONCLUSION

For the reasons stated above, it is our opinion that a court would likely find that DNA evidence is sufficient to establish that the Number Holder was the father of Chrissy under Virginia law, effective July 22, 2006.

Donna L. C~

Regional Chief Counsel

By: _____________________

Margaret M. M~

Assistant Regional Counsel

In a case where the number holder was shown as the claimant's father on her application for a Social Security number but there was no evidence that the number holder and the claimant's mother were ever married or that the number holder ever acknowledged the claimant as his child, DNA tests results showing a 0.00% probability of a parent-child relationship would be sufficient to establish non-paternity by the clear and convincing standard of Virginia law.

QUESTION PRESENTED

On May 2, 2006, you requested a legal opinion regarding: (1) whether the presumption of legitimacy between Terrence A. B~, the Number Holder (NH), and Wantaunshae H. B~ has been rebutted under the law of Virginia; (2) whether a parent-child relationship can be established; (3) what is the effective date of that relationship and (4) does it allow for benefits to continue to be paid.

SUMMARY

We have reviewed the information that you have provided and have researched the relevant provisions of Virginia law as it pertains to paternity. We have also reviewed the relevant regulations to determine whether the conditions for reopening have been met. Based on our review of the facts of this case and our research of relevant Virginia statutes and case law, we believe a reviewing court would likely determine that non-paternity was established by clear and convincing evidence based upon the DNA test results showing a 0.00% probability of a parent-child relationship between the NH and Wantaunshae, notwithstanding any contradictory evidence. Accordingly, we believe that a parent-child relationship does not exist between the NH and Wantaunshae. Without the requisite parent-child relationship, Wantaunshae is not entitled to child's insurance benefits on the NH's earnings record. Furthermore, because reopening is permitted within one year of the initial determination for any reason, we recommend that you reopen the initial determination awarding child's benefits to Wantaunshae and reevaluate her entitlement to those benefits.

BACKGROUND

In your request, you indicated that Wantaunshae H. A. M. B~'s applications for a social security number (NUMI) filed March 4, 1999, March 5, 1999, June 22, 1999, and January 15, 2004, indicate that the NH is her father and Wanda E. S~ is her mother. However, the information accompanying your request indicates that there is no evidence in NH's file that he and S~ were ever married. On October 20, 2005, Emma L~ filed an application for child's benefits on the NH's record on behalf of Wantaunshae. Wantaunshae became entitled to benefits on the NH's record in August 2005. However, DNA tests performed on February 27, 2006, indicate that there was a 0.00% probability that NH was Wantaunshae's father. On March 3, 2006, the Commonwealth of Virginia, Department of Social Services, Division of Child Support Enforcement (DCSE) issued a Paternity Certification Notice stating that as a result of the genetic test there is a 0% probability of NH being Wantaunshae's father. Accompanying this notice, DCSE issued a letter on the same date stating that NH was not Wantaunshae's father and, therefore, the child support case was closed.

DISCUSSION

The Social Security Act (Act) provides for payment of child's benefits where the claimant is entitled to such benefits on the earnings record of an insured person who is entitled to disability benefits, and the claimant is the insured person's child. Social Security Act § 202(d); 20 C.F.R. §§ 404.350(a)(1)-.368 (2005). In determining whether an out-of-wedlock child is the child of an insured individual, the Commissioner will apply the inheritance law of the state in which the insured individual was domiciled at the time the application was filed or, if the insured individual is dead, of the state in which the insured individual was domiciled at the time of his death. Social Security Act § 216(h)(2)(A); 20 C.F.R. 404.355(b). In this case, because the NH is a resident of Virginia, we look first to the Virginia intestacy statutes to determine whether Wantaunshae qualifies for intestate succession from the NH. In the event that Wantaunshae cannot take by intestate succession, Social Security will look at section 216(h)(3)(B) of the Act, to see whether she can, nevertheless, still be deemed the NH's child based on other evidence in the record.

Under Virginia inheritance law, if a child's parents have never married, evidence that a man is the father of a child born out of wedlock must be clear and convincing and may include the following:

1. That he cohabited with the mother during all of the ten months immediately prior to the time the child was born;

2. That he gave consent to a physician or other person, not including the mother, charged with the responsibility of securing information for the preparation of a birth record that his name be used as the father of the child upon the birth records of the child;

3. That he allowed by a general course of conduct the common use of his surname by the child;

4. That he claimed the child as his child on any statement, tax return or other document filed and signed by him with any local, state or federal government or any agency thereof;

5. That he admitted before any court having jurisdiction to try and dispose of the same that he is the father of the child;

6. That he voluntarily admitted paternity in writing, under oath;

7. The results of scientifically reliable genetic tests, including DNA Tests, weighted with all the evidence; or

8. Other medical, scientific or anthropological evidence relating to the alleged parentage of the child based on tests performed by experts.

Va. Code Ann. §§ 64.1-5.2. Furthermore, if a court enters a judgment against a man for the support, maintenance and education of a child as if the child were born in lawful wedlock to the man, that judgment shall be sufficient evidence of paternity under the Virginia inheritance law. Va. Code Ann. § 64.1-5.2.

The above list of items for establishing paternity is not meant to be exhaustive. See Jones v. Eley, 501 S.E.2d 405, 407 (Va. 1998) (holding that paternity can still be established if none of the eight items referred to in Code § 64.1-5.2 are proved, as long as there is other clear and convincing evidence in the record). See also Patterson v. Bowen, 839 F.2d 221, 224-25 (4th Cir. 1988) (holding that a child need not show that he is the biological child of a wage earner to render him eligible for child's benefits if there is other evidence, such as the wage earner's voluntary acknowledgment of paternity).

In this case, based on the facts you provided us, we do not believe that a court would find clear and convincing evidence that the NH is the father of Wantaunshae. Most importantly, as noted above, the DNA blood tests confirm that the NH is not the biological father of Wantaunshae. There does not appear to be any dispute about these test results. Second, we do not have Wantaunshae's birth certificate. Therefore, there is no evidence that the NH is identified as Wantaunshae's father on her birth certificate. Third, although Wantaunshae uses the NH's surname, there is no evidence that the NH allowed the common use of his surname by Wantaunshae. Fourth, there is no evidence that the NH admitted before any court that he is the father of Wantaunshae, nor is there any evidence that the NH voluntarily admitted paternity in writing under oath that he is the father of Wantaunshae. There is also no evidence that the NH cohabited openly with Wanda E. S~ during all of the ten months immediately prior to the birth of Wantaunshae. Nor is there any evidence that the NH claimed Wantaunshae as his child on any statement, tax return, or other document filed and signed by him with any government or agency. Finally, there is no court judgment against the NH for child support or maintenance for Wantaunshae. Indeed, as noted above, the Commonwealth of Virginia closed its file on the claim for child support from NH after it received the DNA results showing that he was not the biological father of Wantaunshae.

Therefore, based on the information you gave us, it appears unlikely that a Virginia probate court would find the NH to be the father of Wantaunshae under its inheritance statutes.

We further note, alternatively, that Wantaunshae would not be deemed the NH's child under section 216(h)(3)(B) of the Act. Wantaunshae fails to meet the requirements of this provision because the NH did not make any acknowledgment in writing that he was her father. In fact, the materials you provided indicated that NH did not acknowledge Wantaunshae on his application for benefits filed on July 15, 2005. In addition, a court never decreed him to be Wantaunshae's father, and he was never ordered by a court to contribute to her support. Finally, there was no evidence in the information that you provided us that the NH was living with or contributing to the support of Wantaunshae at the time he applied for disability benefits.

In light of the fact that new evidence strongly suggests that the NH is not Wantaunshae's father, we recommend that Social Security reopen the initial determination awarding benefits. Social Security is permitted to reopen determinations in the following circumstances:

Within one year of the date of the notice of initial determination for any reason; or

Within 4 years of the date of the notice of initial determination for good cause (20 C.F.R. § 404.989 and Program Operations Manual System (POMS) GN 04010.001); or

At any time for reasons set forth in 20 C.F.R. § 404.988(c) and explained in POMS GN 04020.001.

20 C.F.R. § 404.988; POMS GN 04001.010.

In this case, your memorandum indicates that Wantaunshae applied for child's benefits on October 20, 2005. Although you have not provided the date of the initial determination, we can presume that less than one year has elapsed since the initial determination awarding benefits was issued. Accordingly, since the initial determination was less than a year ago, Social Security can reopen this determination for any reason. In any event, Social Security can also reopen this determination for good cause. Good cause can exist if there is new and material evidence.

20 C.F.R. § 404.989(a)(1); POMS GN 04010.030. New and material evidence is any evidence which was not part of the claims file when the final determination was made, but relates back to the date of the original determination and shows facts that would result in a conclusion different from that originally reached had the new evidence been introduced or available at the time of the original determination. POMS GN 04010.030. Here, the DNA tests showing that NH is not Wantaunshae's biological father would qualify as new and material evidence for reopening purposes.

Furthermore, reopening is permitted for new and material evidence even if the reopening is unfavorable to claimant, as in this case, where the new and material evidence shows that a child is not the child of a number holder. See POMS GN 04010.030C (providing as an example a situation where reopening was permitted when a revised court order, received after the initial determination, showed that a child was not the child of the number holder).

CONCLUSION

Based on our review of the information you have provided and our research of the relevant Virginia statutes and case law, we believe that, under the Commonwealth of Virginia legal standard, a parent-child relationship cannot be established between NH and Wantaunshae. As discussed above, we do not believe that a Virginia court would find clear and convincing evidence that NH is the father. Accordingly, we recommend that you reopen the initial determinations awarding child's benefits to Wantaunshae and reevaluate her entitlement to those benefits.

We hope that the above information has sufficiently answered your request.

Donna L. C~

Regional Chief Counsel

By: _____________________

Tara A. C~

Assistant Regional Counsel

While Virginia law does not give controlling weight to scientifically reliable genetic tests, including DNA tests, but considers such test results as one piece of evidence related to paternity, in a case where DNA evidence shows a 0.00% probably of a parent-child relationship between the number holder and the claimant a reviewing court would likely determine that non-paternity was established by clear and convincing evidence notwithstanding any contradictory evidence.

Since the child involved in this case was already entitled to benefits for more than four years based on prior acknowledgement, reopening of the claim would depend on an SSA determination that fraud or similar fault was involved in the earlier determination.

QUESTION PRESENTED

On January 25, 2006, you requested a legal opinion regarding: (1) the sufficiency of DNA testing in establishing a parent-child relationship between Alfred H. III, the number holder (NH), and Shaena L. W~ (Shaena) under the law of Virginia; (2) if a parent-child relationship exists, the effective date of such relationship; and (3) whether the presumption of legitimacy could be rebutted by DNA test results under Virginia law and, if so, whether Shaena should continue to receive child's benefits on the number holder's record.

SUMMARY

We have reviewed the information that you provided and have researched the relevant provisions of Virginia law as it pertains to paternity. We have also reviewed the information that you provided and the relevant regulations to determine whether the conditions for reopening have been met. Absent evidence of "fraud or similar fault" or other condition permitting reopening after four years have elapsed, the 1994 favorable determination finding that Shaena was entitled to benefits on the NH's record cannot be reopened to terminate Shaena's benefits. We believe that further information is required to determine whether the conditions for reopening after four years have been met, and, if so, whether a parent-child relationship exists between the number holder and Shaena.

BACKGROUND

Based upon the information you provided to us, the following is a summary of the relevant facts in this matter. The NH applied for disability insurance benefits (DIB) on October 15, 1991. Shaena L. W~ (Shaena), a minor child, was born on September 6, 1992. Shaena's birth certificate indicates that Carletta W~ (Carletta) is her mother, but does not identify a father. An application for a social security number for Shaena, completed on November 19, 1992, indicates that Carletta W~ is her mother and that Marlone Y~ is her father. On July 6, 1994, Carletta filed an application for child's benefits on behalf of Shaena on the account of the NH. On July 6, 1994, the NH completed a Statement of Claimant (Form SSA-795) acknowledging Shaena W~ as his natural child. In July 1994, Shaena became entitled to child's benefits on the account of the NH, however, she did not start to receive benefits on the NH's account until May 1999. An application for a social security number for Shaena, completed on January 16, 1996, indicates that Carletta W~ is her mother and that Marlone Y~ is her father. On December 4, 1996, an application for a social security number was completed for Shaena, indicating that Carletta W~ is her mother and that Alfred H~, the number holder, is her father.

On April 5, 2005, the NH applied for benefits for another child. At that time, he stated that he believed Shaena had been removed from his record in 1999, and that she had not received child's benefits since that time based upon the results of DNA testing which had been performed in July 1999. The NH claimed that Shaena's mother, Carletta, had been given a copy of a DNA report in July 1999 showing a 0.00% probability of paternity, and that she had also been notified by the Division of Support Enforcement for the Commonwealth of Virginia that Shaena was not his child. In support of his claim that Shaena is not his child, the NH provided a Paternity Evaluation Report (DNA test) dated July 14, 1999. However, the DNA test report is neither signed nor authenticated. The DNA test report shows that the results were based on samples taken from the NH, Carletta D. W~ and "Shanea" L. W~. The DNA test results indicate that Alfred L. H~ III is not the biological father of "Shanea" L. W~.

In the materials which you provided to us, you also refer to a custody order, which was not included in the materials which you provided to us. The materials which you provided to us also include printouts from the Division of Support Enforcement for the Commonwealth of Virginia dated December 15, 2005, which refer to receipt of "Blood Test Results: 0.00%" in July 1999. "Shanea" W~ is listed as the "child" on the printouts. The NH has not provided any documentation from the Division of Support Enforcement indicating what, if any, action was taken as a result of the blood test results.

DISCUSSION

In your request, you asked whether the presumption of legitimacy could be rebutted by DNA test results under Virginia law. However, there is no presumption of legitimacy in this case. Ordinarily, under Virginia law, a presumption of legitimacy exists in favor of a child born in wedlock. Wyatt v. Dep't of Social Srvcs., 397 S.E.2d 412, 415 (Va. App. 1990). To rebut the presumption of legitimacy, evidence of non-paternity must be clear and convincing, namely, "strong, distinct, satisfactory and conclusive." Id. In this case, you have not provided any information indicating that the NH and Shaena's mother were ever married, so the presumption of a child born in wedlock does not apply. Accordingly, the question is not whether there is sufficient evidence to rebut a presumption of legitimacy, but whether the evidence, including the DNA test warrants reopening of the prior determination awarding child's benefits to Shaena. If the conditions for reopening are met, SSA should consider whether Shaena is the child of the NH pursuant to § 216(h)(2) of the Social Security Act (Act).

A determination may be reopened within 12 months for any reason, within four years for good cause, and at any time if it was obtained by fraud or similar fault. 20 C.F.R. § 404.988 (2005); POMS GN 04060.005, DI 27505.001. It was not until April 2005, more than four years after Shaena became entitled to benefits on the NH's record, that the NH submitted the DNA test report to SSA, claimed that Shaena's mother had been given a copy of the DNA test report in July 1999, and informed SSA that it was his understanding that Shaena had been removed from his record in 1999. Because more than four years have elapsed since the date of the notice of initial determination, SSA can only reopen the determination if one of the conditions for reopening "at any time" is met, such as "fraud or similar fault." 20 C.F.R. § 404.988(c)(1)-(11).

"Fraud" exists when a person either (1) makes or causes to be made with intent to defraud, a false statement or misrepresentation of a material fact for use in determining rights to Social Security benefits; or (2) with intent to defraud, conceals or fails to disclose a material fact for use in determining rights to Social Security benefits. POMS GN 04020.010 A.1. "Generally, in civil matters (reopening initial determinations . . .) there must be a preponderance of evidence to prove the existence of fraud. In criminal matters (prosecution), the evidence must show beyond a reasonable doubt that fraud exists. Thus, in a particular case, it is possible that a determination is reopened . . . based on a finding that fraud exists, and in the same case, it is also determined that fraud does not exist for prosecution purposes." POMS GN 04020.010 B.2.

"Similar fault" exists when a person either (1) knowingly makes an incorrect or incomplete statement that is material to the determination; or (2) knowingly conceals information that is material to the determination, however, fraudulent intent is not required. § 205(u); POMS GN 04020.010 A.2. "A 'similar fault' finding can be made only if there is reason to believe, based on a preponderance of the evidence, that the person committing the fault knew that the evidence provided was false or incomplete. A 'similar fault' finding cannot be based on speculation or suspicion." Social Security Ruling 00-02p (Titles II and XVI: Evaluation of Claims Involving the Issue of "Similar Fault" in the Providing of Evidence). "'Similar fault' differs from 'fraud' in that fraud (but not similar fault) includes an element of intent to defraud." Id.

The evidence submitted in this case consists of an unsigned, unauthenticated DNA test which refers to a child named "Shanea" L. W~, not Shaena L. W~ (see n.3, supra); printouts from the Division of Support Enforcement for the Commonwealth of Virginia, which refer to the receipt of "Blood Test Results: 0.00%" for a child named Shanea W~; and the NH's unsubstantiated statements that Shaena's mother, Carletta, had been given a copy of the DNA test report in July 1999, and had been informed by the Division of Support Enforcement for the Commonwealth of Virginia that Shaena was not his child. Based upon this inconclusive and unsubstantiated information, we do not believe that the conditions for reopening "at any time" for "fraud or similar fault" have been met. Therefore, we believe that SSA should conduct further investigation to obtain to a signed, authenticated copy of the DNA test report, verification that "Shaena" L. W~ was the subject of the DNA test performed in July 1999, and documentation from the Division of Support Enforcement indicating what, if any, action was taken as a result of the blood test results. Absent evidence of "fraud or similar fault" or other condition permitting reopening after four years have elapsed, the favorable determination cannot be reopened to terminate Shaena's benefits. If upon further investigation, SSA believes that the conditions for reopening "at any time" have been met, SSA should consider whether Shaena is the child of the NH pursuant to § 216(h)(2) of the Act.

The Commissioner's regulations provide that an individual is entitled to child's benefits on the earnings record of an insured person who is entitled to DIB if the individual: (1) is the insured person's child; (2) is dependent on the insured; (3) applies for child's benefits; (4) is unmarried; and (5) is under age 18, is 18 years old or older and has a disability that began before age 22, or is 18 years or older and qualifies for benefits as a full-time student. 20 C.F.R. § 404.350(a)(1) (5) (2005). An individual can satisfy the first requirement for entitlement to child's benefits mentioned above by showing that she could inherit a child's share of the insured's personal property if the insured were to die without leaving a will. 20 C.F.R. § 404.355(a)(1), (b)(1) (2005). The Social Security Act provides that, in determining whether an applicant is the child of an insured individual, the Commissioner will apply the inheritance law of the state in which the insured individual was domiciled at the time the application was filed or, if the insured individual is dead, of the state in which the insured individual was domiciled at the time of his death. Section 216(h)(2)(A); 20 C.F.R. § 404.355(b)(1). Because the NH was domiciled in Virginia at the time the application was filed, Virginia intestacy law applies.

Regarding the second requirement that must be satisfied in order to qualify for child's benefits, an individual will be considered dependent on the insured person if the individual is the insured person's natural child. 20 C.F.R. § 404.361(a) (2005). A natural child is a child who is born to the parent, i.e., a biological child. See POMS GN 00306.010 A.1.

Under Virginia law, a child born out of wedlock may inherit from a decedent's estate based upon a showing that the decedent is the father of the child. Va. Code Ann. § 64.1-5.1. Evidence that a man is the father of a child born out of wedlock shall be clear and convincing and may include, among other things, a claim by the man that the child is his on any statement, tax return or other document filed and signed by him with any local, state or federal government or any agency thereof; or the results of scientifically reliable genetic tests, including DNA test results weighted with all the evidence. Va. Code Ann. § 64.1-5.2 (4), (7). Accordingly, should SSA determine that the conditions for reopening "at any time" have been met, SSA must determine whether there is clear and convincing evidence that the NH is Shaena's father. The evidence that must be considered includes Shaena's birth certificate which does not identify a father; the applications for a social security number which identify Marlone Y~ as her father in November 1992 and January 1996, and the NH as her father in December 1996; the Statement of Claimant (Form SSA-795) which the NH completed on July 6, 1994, acknowledging Shaena W~ as his natural child; the unsigned, unauthenticated DNA report which has thus far been submitted; and any additional information obtained upon further investigation, including, but not limited to, DNA evidence which would support the NH's claim that he is not Shaena's biological father and/or any information obtained from the Division of Support Enforcement indicating what, if any, action it took upon receipt of the blood test results.

Virginia law does not give controlling weight to scientifically reliable genetic tests, including DNA tests, but considers such test results as one piece of evidence related to paternity. Va. Code Ann. § 64.1-5.2 (7). However, Virginia's domestic relations statute, which relates to proceedings to determine parentage, specifically provides that the parent and child relationship between a child and a man may be established by scientifically reliable genetic tests, including blood tests, which affirm at least a ninety-eight percent probability of paternity. Va. Code Ann. § 20-49-1 (A) (1).

While this provision is not controlling, it suggests that a medical test establishing the impossibility of paternity with one-hundred percent accuracy would be given significant weight. This interpretation is consistent with the section of Virginia's domestic relations statute which pertains to relief from a legal determination of paternity. The Virginia domestic relations statute provides in relevant part:

An individual may file a petition for relief and, except as provided herein, the court may set aside a final judgment, court order, administrative order, obligation to pay child support or any legal determination of paternity if a scientifically reliable genetic test performed in accordance with this chapter (see n.5, supra) establishes the exclusion of the individual named as a father in the legal determination.

A court shall not grant relief from determination of paternity if the individual named as father (i) acknowledged paternity knowing he was not the father, (ii) adopted the child, or (iii) knew that the child was conceived through artificial insemination.

Va. Code Ann. § 20-49-10.

Therefore, if SSA obtains a signed and sworn copy of the DNA test report prepared by a duly qualified expert, and verifies that the DNA test report pertains to "Shaena", a reviewing court would likely determine that non-paternity was established by clear and convincing evidence notwithstanding any contradictory evidence.

CONCLUSION

For the reasons stated above, we believe that SSA should seek additional information to determine whether the conditions for reopening "at any time" have been met and, if so, whether the additional information along with all of the other evidence would establish a parent-child relationship or the absence thereof under Virginia law. Unless "fraud or similar fault" is shown to exist or another condition permitting reopening after more than four years can be established, Shaena's benefits should be continued. Shaena's benefits should also be continued if, upon reopening, a parent-child relationship is found to exist under Virginia law.

Donna L. C~

Regional Chief Counsel

By: _____________________

Beverly H. Z~

Assistant Regional Counsel

Under Virginia law, grandparent DNA testing is not clear and convincing evidence to establish a parent/child relationship between the number holder and the claimant in the absence of reliable evidence to establish that no sibling of the number holder could be the father. Additionally, identity verification of the subjects must be made by the testing facility in order for the test results to be admissible in court.

QUESTION PRESENTED

On October 17, 2005, you asked our advice as to whether there is sufficient evidence to establish a parent-child relationship between Bryant K. P~ (Number Holder) and Sha'Dashia B. H~ (Claimant) under the law of Virginia.

SUMMARY

We have reviewed the information that you provided and have researched the relevant provisions of Virginia law. It is our opinion that the evidence of record is insufficient to establish a parent-child relationship between Number Holder and Claimant under the law of Virginia.

BACKGROUND

Claimant was born to Flossie M. H. H~ (Claimant's Mother) on April 4, 2002. On May 16, 2005, Claimant's Mother filed an application for Surviving Child's Insurance Benefits on behalf of Claimant, based on the account of the deceased Number Holder, a resident of Suffolk, Virginia, who died on August 12, 2001.

Claimant was born eight months after Number Holder's death. Number Holder and Claimant's Mother were not married; no court has decreed Claimant to be the child of Number Holder; and there was no reported acknowledgement of paternity. Claimant's birth certificate does not identify a father, and, according to your memorandum, Claimant's Mother stated that Claimant's father was unknown when she applied for Claimant's Social Security Number.

The results of a DNA Analysis, conducted by Genetic Testing Laboratory, Inc. (GTL) of Las Cruces, New Mexico, show that DNA samples collected in April 2005, from an alleged grandfather, identified as W. H. P~, Jr., and a focus, identified as "Britney," indicate a 98.223801065719% probability of a grandparent-grandchild relationship between the individuals who provided the samples. The report states that the results are "nonlegally binding," and that the donors were not required to verify their identities by presenting photo identification to a witness.

Walter H. P~, Jr. (Number Holder's Father) signed a verification form affirming that he is the biological father of Number Holder (we assume that Agency records confirm this relationship). In regard to the relationship between Number Holder and Claimant's Mother, Number Holder's Father stated that Number Holder "was spending time at the home of [Claimant's Mother]." Number Holder's Father advised your Claim's Representative that Number Holder had two male siblings, but that one had predeceased Number Holder. When asked if there was any chance that either of Number Holder's male siblings could be Claimant's biological father, Number Holder's Father answered in the negative, but provided no further explanation. Although Claimant's Mother said that she did not know the names of Claimant's male siblings, she stated emphatically that she had not had sexual relations with any of them.

DISCUSSION

You have asked us to determine whether a parent-child relationship exists between Number Holder and Claimant under the law of Virginia. See 42 U.S.C. ' 416(h)(2)(A) (2004) (stating that the Commissioner will apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which an insured individual was domiciled at the time of his death, to determine whether an applicant is the child of the deceased insured).

Virginia's intestacy statute allows a child born out-of-wedlock to inherit from a decedent's estate where there is clear and convincing evidence that the decedent is the child's father. Va. Code Ann. § 64.1-5.2 (2005). Virginia case law defines the term "clear and convincing evidence" as "that degree of proof which will produce in the mind of the trier of facts a firm belief as to the allegations sought to be established." Judical Inquiry and Review Commission of Virginia v. Paul M. Peatross, Jr., 269 Va. 428, 444 (2005) . The Virginia statute lists eight examples of evidence that may be considered clear and convincing, but specifically states that such evidence is not limited to the enumerated examples. The enumerated examples include "the results of scientifically reliable genetic tests, including DNA tests, weighted with all the evidence."

Va. Code Ann. § 64.1-5.2. This is the only enumerated example that is directly relevant to the present claim.

Although it is unlikely that grandparent DNA testing was contemplated when the Virginia Statute was written, we believe that there are circumstances under which the results of such testing, when "weighted with all of the evidence" could provide clear and convincing evidence of paternity, either under the specific provisions of the seventh example, or under the general provisions of Va. Code Ann. § 64.1-5.2, which indicate that clear and convincing evidence is not limited to the enumerated examples. In this case, however, we do not believe that the DNA test results, when weighted with the other evidence of record, are sufficient to establish clear and convincing evidence of a parent-child relationship between Number Holder and Claimant.

The primary problem with the evidence in this case is that the testing facility cannot verify the identification of the individuals whose DNA was tested. The DNA Analysis report, included in this claim file, specifically indicates that the test in issue is not legally binding; that photo identification was not verified by a witness; that the information provided is for personal informational purposes only; and that Informed Consent Notification and Sample Chain of Custody would be included if the test was intended for legal and/or custody documentation. Because even the testing facility does not consider these DNA test results to be admissible in court, we think it unlikely that a Virginia Court would deem the test to be a "scientifically reliable genetic test," which could establish paternity when weighted with the other evidence.

As a secondary matter, even if the DNA test was scientifically reliable, we believe that a Virginia Court would find that proof of a grandfather-grandchild relationship between Number-Holder's father and Claimant is not clear and convincing evidence of a parent-child relationship between Number-Holder and Claimant, in the absence of reliable evidence establishing that Claimant was not fathered by one of Number-Holder's male sibling (or paternal half-siblings). In a case of this nature, we believe that something more than the unsupported statements contained in the existing record is required to establish the parent-child relationship by clear and convincing evidence. In regard to other matters of proof, POMS recognizes that statements are more reliable if provided by disinterested parties and explained by concrete reasoning. See POMS RS 01301.165 (pertaining to support verification); GN 00302.585B (pertaining to age verification). Similarly, a Virginia Court could be expected to require disinterested and concrete testimony before concluding that Claimant was not fathered by one of Number Holder's male siblings.

CONCLUSION

For the reasons set forth above, it is our opinion that the evidence of record is insufficient to establish a parent-child relationship between Number Holder and Claimant under the law of Virginia.

Donna L. C~

Regional Chief Counsel

By: _____________________

Teri C. S~-

Assistant Regional Counsel

Under Virginia law, a DNA paternity test establishing a 99.95% probability that the number holder is the claimant's biological father is clear and convincing evidence of paternity despite the listing of another father on the original birth certificate. There is no evidence in file establishing that the other person ever consented to having his name placed on that birth certificate.

QUESTION PRESENTED

On August 31, 2005 you asked us to advise you whether Jennefer M~ is entitled to receive child's insurance benefits under Harry J. L~'s (number holder) account based on a DNA test establishing that there is a 99.95% probability that the number holder is Jennefer's biological father and an Administrative Support Order, dated June 23, 1995, ordering the number holder to make child support payments to Jennefer.

CONCLUSION

We have reviewed the information that you provided and have researched the relevant provisions of Virginia law as it pertains to establishing paternity for the purposes of intestate succession. We conclude that Jennefer is entitled to receive child's insurance benefits on the number holder's account based on clear and convincing evidence that the number holder is Jennefer's father.

BACKGROUND

The following is a summary of the relevant facts in this matter. The number holder filed for Social Security disability benefits in January of 1993 and became entitled to benefits as of January 1992. On August 9, 2005, Jennefer's mother filed an application for child's insurance benefits on the number holder's account pursuant to section 202(d)(1) of the Social Security Act.

Jennefer M~ was born on June 14, 1990. Jennefer's mother and the number holder were never married. Jennefer's birth certificate and her applications for a social security number (dated August 27, 1990 and October 9, 1990) identify Leslie B. W~ as her father. Jennefer's mother states that Leslie B. W~ is "who she was with" at the time of Jennefer's birth.

DNA test results, dated October 6, 1992, indicate that there is a 99.95% probability that the number holder is Jennefer's father. On June 23, 1995, the Commonwealth of Virginia, Department of Social Services, Division of Child Support Enforcement ordered the number holder to make child support payments to Jennefer.

DISCUSSION

The Social Security Act provides that in determining paternity for the purposes of entitlement to social security benefits, the Commissioner will apply the inheritance law of the state in which the insured individual was domiciled at the time the application was filed. Section 216(h)(2)(A) of the Act; 20 C.F.R. § 404.355(b)(1)(2005). If a child would be considered a child under the state intestacy law, then the child is deemed as such for the purposes of entitlement to benefits. Id. Because Harry J. L~ was domiciled in Virginia at the time that the application was filed, Virginia intestacy law applies.

Virginia's intestacy statute requires clear and convincing evidence of paternity, including, but not limited to, the results of scientifically reliable genetic tests, including DNA tests, weighted with all the evidence. Va. Code Ann. § 64.1-5.2(7) (2005). While Virginia's intestacy statute is silent as to the probability of paternity that constitutes clear and convincing evidence, Virginia's domestic relations and child support enforcement statutes state that blood test results that affirm at least a 98% probability of paternity have the same legal effect as a judgment of parentage. See Va. Code Ann. §§ 20-49.1(B)(1), 63.2-1913.

Virginia's intestacy statute further states that if a proceeding to determine parentage has been initiated and concluded pursuant to former § 20-61.1 or Chapter 3.1 (§ 20-49.1 et seq.) of Title 20, and the court enters a judgment against a man for the support, maintenance and education of a child as if the child were born in lawful wedlock to the man, that judgment shall be sufficient evidence of paternity for the purposes of intestate succession.

In this case, as the DNA test affirming that there is a 99.95% probability that the number holder is Jennefer's father has the same legal effect as a judgment of parentage and as there is a court judgment against the number holder for the support of Jennefer, there is sufficient evidence of paternity for the purposes of Virginia's law of intestate succession. Accordingly, we believe that a parent-child relationship has been established between the number holder and Jennefer and that Jennefer is entitled to child's insurance benefits on the number holder's account.

Although Leslie B. W~ is named as Jennefer's father on her birth certificate and her applications for a social security number, we do not believe that this in any way negates the clear and convincing evidence that the number holder is Jennefer's father for the purposes of intestate succession under Virginia law. In fact, under Virginia's law of intestate succession, the fact that Leslie B. W~ is listed as Jennefer's father on her birth certificate is not considered to be clear and convincing evidence of paternity unless Mr. W~ consented to an individual responsible for securing such information (other than Jennefer's mother) to have his name so listed. See Va. Code Ann. § 64.1-5.2(2) (2005); Johnson v. Branson, 228 Va. 65, 319 S.E.2d 735 (stating that the mere listing of decedent's name on purported son's West Virginia birth certificate was insufficient proof of paternity in the absence of clear and convincing evidence that the decedent consented that his name be listed as father on claimant's birth certificate). We have no information concerning whether Mr. W~ consented to be listed as Jennefer's father on her birth certificate. However, we believe that the evidence of the number holder's DNA test coupled with the order of support is sufficient to overcome any presumption that Mr. W~ is Jennefer's father.

Donna L. C~

Regional Chief Counsel

By: _____________________

Heather B~

Assistant Regional Counsel

If SSA determines that the NH had no brothers, or if the possibility that a brother fathered the child claimant is eliminated, a Virginia court would conclude that the grandparentage DNA test results weighted with the additional evidence constitute "clear and convincing" evidence of the NH's paternity.

QUESTION PRESENTED

This is in response to your request for an opinion as to whether Allison R. H~ (Allison) is entitled to surviving child's benefits on the account number of Jason H~ (Number Holder) where Allison's mother, Angela H~, has obtained and submitted grandparentage DNA test results revealing a 99.99% probability that the Number Holder's parents are Allison's grandparents.

SUMMATION

We reviewed the information that you provided and researched the relevant provisions of Virginia law as it pertains to establishing paternity. For the reasons that follow, we recommend that you further develop the record to eliminate the possibility that the Number Holder had a brother who fathered Allison. If the Number Holder had no brothers, or if he had one or more brothers but the possibility that one of them fathered Allison can be eliminated, we believe that a Virginia court would conclude that the grandparentage DNA test results weighted with the additional evidence provided by Ms. H~ constitutes "clear and convincing" evidence of the Number Holder's paternity.

BACKGROUND

The following is a summary of the relevant facts. On October 29, 2003, the Number Holder passed away while domiciled in Virginia. Ms. H~ gave birth to Allison six months later, on May 4, 2004. The Number Holder and Ms. H~ were never married and never cohabitated. Neither Allison's birth certificate nor an application for a social security number (NUMI) identifies Allison's father.

On June 10, 2004, Ms. H~ filed an application for child's benefits on Allison's behalf. In connection with her application, Ms. H~ completed a Child Relationship Statement indicating that the Number Holder orally admitted that he was Allison's father to his family members, including his parents, sisters, and grandmother, as well as to Ms. H~'s family. In addition, Ms. H~ submitted the results of a DNA grandparentage tests performed on September 3, 2004, on the Number Holder's parents, Ms. H~, and Allison, which indicate a 99.99% probability that the Number Holder's parents are Allison's grandparents.

DISCUSSION

The following is a summary of the relevant facts. On October 29, 2003, the Number Holder passed away while domiciled in Virginia. Ms. H~ gave birth to Allison six months later, on May 4, 2004. The Number Holder and Ms. H~ were never married and never cohabitated. Neither Allison's birth certificate nor an application for a social security number (NUMI) identifies Allison's father.

On June 10, 2004, Ms. H~ filed an application for child's benefits on Allison's behalf. In connection with her application, Ms. H~ completed a Child Relationship Statement indicating that the Number Holder orally admitted that he was Allison's father to his family members, including his parents, sisters, and grandmother, as well as to Ms. H~'s family. In addition, Ms. H~ submitted the results of a DNA grandparentage tests performed on September 3, 2004, on the Number Holder's parents, Ms. H~, and Allison, which indicate a 99.99% probability that the Number Holder's parents are Allison's grandparents.

DISCUSSION

Child's benefits may be granted based on the earnings record of an insured person who has died if the applicant is the insured's child. 20 C.F.R. § 404.350(a)(1) (2004). In determining whether an applicant is the insured's child, the Commissioner will apply the inheritance law of the state in which the insured was domiciled at the time of his death. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(4) (2004). The Number Holder was domiciled in the Commonwealth of Virginia at the time of his death. Accordingly, Virginia law applies.

Virginia's intestacy statute allows a child born out-of-wedlock to inherit from a decedent's estate where there is clear and convincing evidence that the decedent is the child's father. Va. Code Ann. § 64.1-5.2. Specifically, Virginia's statute provides:

For the purposes of this title, evidence that a man is the father of a child born out of wedlock shall be clear and convincing and may include, but shall not be limited to, the following:

That he cohabitated openly with the mother during all of the ten months immediately

prior to the time the child was born;

2. That he gave consent to a physician or other person, not including the mother, charged with the responsibility of securing information for the preparation of a birth record that his name be used as the father of the child upon the birth records of the child;

3. That he allowed by a general course of conduct the common use of his surname by the child;

That he claimed the child as his child on any statement, tax return or other document filed and signed by him with any local, state or federal government or any agency thereof;

5. That he admitted before any court having jurisdiction to try and dispose of the same that he is the father of the child;

6. That he voluntarily admitted paternity in writing, under oath;

7. The results of scientifically reliable genetic tests, including DNA tests, weighted with all the evidence; or

8. Other medical, scientific or anthropological evidence relating to the alleged

9. parentage of the child based on tests performed by experts.

Va. Code Ann. § 64.1-5.2. Virginia law does not address the use of grandparent DNA test results in attempting to establish paternity.

Although the Number Holder passed away prior to Allison's birth, Ms. H~ has provided the results of genetic testing of herself, Allison, and the Number Holder's parents, which reveal a 99.99% probability that the Number Holder's parents are Allison's grandparents. The only other relevant evidence of paternity provided by Ms. H~ is her statement that the Number Holder acknowledged paternity in front of his family, including his parents, sisters, and grandmother, and in front of her own family.

In the absence of any contradictory evidence, a Virginia court could conclude that the DNA evidence of grandparentage, weighted with the above-referenced statement, are clear and convincing evidence of the Number Holder's paternity. However, it is equally likely that a Virginia court could conclude that this evidence is insufficient to establish the Number Holder's paternity because the genetic test results do not rule out the possibility that another male member of the Number Holder's family, such as a brother, fathered Allison. In order to rule out the possibility that another member of the Number Holder's family fathered Allison, the Agency should request a statement from the Number Holder's parents to the effect that the Number Holder had no male siblings who could have fathered Allison. Assuming that the Number Holder did have one or more biological brothers, the Agency should request a statement from Ms. H~ attesting that sexual relations at the time of Allison's conception were limited to the Number Holder. In addition, the Agency may wish to seek DNA evidence from the Number Holder's brothers to rule out sibling paternity. If the Agency finds additional evidence to support the DNA test results, or discovers no evidence contradicting the results, then the Agency could conclude that Allison was the Number Holder's child for purposes of the Social Security Act.

CONCLUSION

For the reasons discussed above, we suggest that the Agency seek additional evidence related to whether the Number Holder was Allison's father. If the Agency either obtains additional evidence to support the DNA test results, such as a statement from the Number Holder's parents denying the existence of any male siblings and/or a statement from Ms. H~ denying a sexual relationship with any existing male siblings, or finds no evidence to contradict the test results, then the Agency could find that Allison was the Number Holder's child and award surviving child's benefits.

Donna L. C~

Regional Chief Counsel

By: _____________________

Elizabeth A. C~

Assistant Regional Counsel

Unrebutted DNA test results showing a 99.95% probability of paternity constitute clear and convincing evidence of paternity under Virginia law. The parent-child relationship is established as of the date of the DNA study, which is the date of the latest necessary piece of evidence establishing the child's paternity under Virginia law.

On March 9, 2001, you asked our advice as to whether genetic blood testing indicating a 99.95% probability that Willie G~ (G~) is the father of Travis D. F~ (Travis) is clear and convincing evidence of paternity under the Commonwealth of Virginia's intestacy statute. You further inquired as to the date of entitlement to benefits.

BACKGROUND

We have reviewed the materials provided and have researched the relevant provisions of Virginia law as it pertains to establishing paternity. Based on our research, we believe that a Virginia Court interpreting the intestacy statute would find that paternity was established as of June 20, 2000, the date of the DNA study, and that benefits should be paid as of that date.

On January 23, 2001, Evelyn A. F~ (Evelyn) filed an application for child's benefits on behalf of Travis on the account of G~. G~ had filed an application for disability insurance benefits in March 1992. At the time that G~ filed his application, he identified Lutrell G~, Willie G~ and Demeatrice G~ as his children under age eighteen.

In support of her claim for Travis, Evelyn provided DNA test results dated June 4, 2000 from blood drawn from G~ showing a 99.95% probability of paternity. Evelyn also submitted Travis' birth certificate with a date of birth of September 4, 1988; the birth certificate does not identify a father. However, Travis' application for a social security number, dated November 2, 1988, indicated that G~ was Travis' father. G~ has not responded to the Agency's inquiries concerning Travis.

DISCUSSION

The Social Security Act provides that, when determining paternity for purposes of entitlement to social security benefits, the Commissioner will apply the inheritance laws of the state in which the insured individual is domiciled at the time the application was filed. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1) (2000). Here, G~ was domiciled in the state of Virginia at the time the application was filed; therefore, Virginia law applies. A child born out of wedlock in Virginia will only be deemed legitimate by the subsequent intermarriage of the mother and father. Va. Code Ann. § 20-31.1. However, under Virginia law, a child born out of wedlock may inherit from a decedent's estate based upon a showing that the decedent is the father of the child. Va. Code Ann. § 64.1-5.1. To inherit, the child must establish paternity by clear and convincing evidence as set forth in Virginia's intestacy statute. Va. Code Ann. §§ 64.1-5.1(3)(b), -5.2. In that regard, the Code of Virginia provides that a child born out of wedlock may establish inheritance rights with "[t]he results of scientifically reliable genetic tests, including DNA tests, weighted with all the evidence." Va. Code Ann. § 64.1-5.2(7). Based on the evidence presented in this case, we believe there is clear and convincing evidence of paternity for inheritance purposes. Specifically, there are unrebutted DNA test results showing G~'s probability of paternity to be 99.95%. Indeed, under the Virginia Domestic Relations Statute, Va. Code Ann. § 20-49.1(B)(1), blood tests results that affirm at least a 98% probability of paternity are sufficient proof to establish a parent-child relationship. Based upon the unrebutted DNA test results, the November 2, 1988 social security application indicating G~ as Travis' father, and the lack of any contradictory evidence, we believe there is clear and convincing evidence of G~'s paternity under Virginia law.

Regarding the effective date of the parent-child relationship, the POMS state the Agency's position that in Virginia, where inheritance rights are conferred by statute based on an adjudication of paternity (but the statute does not legitimate the child) and the act or event conferring inheritance rights is prospective only, the date of the latest necessary piece of evidence needed to satisfy the applicable standard of proof is the effective date of the relationship. POMS GN 00306.055. In this case, the DNA study dated June 20, 2000 is the date the latest necessary piece of evidence was provided establishing G~'s paternity under Virginia law. Therefore, June 20, 2000 is the effective date of the parent-child relationship.

The regulations provide that, if the insured is living, child's benefits begin with the first month covered by the application throughout which all other requirements for entitlement are met. 20 C.F.R. § 404.352(a)(2)(i) (2000). Further, under 20 C.F.R. § 404.621(a)(i), child's benefits may be paid retroactively for up to twelve months with benefits beginning with the first month in the twelve month period in which all requirements for entitlement are met. See also POMS GN 00204.030. Thus, based upon a filing date of January 23, 2001, it appears that Travis is entitled to child's benefits, as the child of G~, as of June 20, 2000, when all requirements for entitlement were satisfied.

CONCLUSION

For the reasons stated above, it is our opinion that a parent-child relationship was established as of June 20, 2000 and that benefits should be paid retroactive to that date based on the filing date of January 23, 2001.

James A. W~

Regional Chief Counsel

By: _____________________

Anne v. S~

Assistant Regional Counsel

A Virginia court would find that the unrebutted DNA test establishing a 99.99% probability of paternity gives the child claimant inheritance rights with respect to the worker, effective with the date of the test. The child may receive benefits retroactive to the worker's death.

QUESTIONS PRESENTED

You asked our advice as to (1) whether there is sufficient evidence to establish a parent child relationship between deceased number holder Felix A. N~, Jr., (N~) and Sequan R. E~ ("the claimant") and if so, (2) what is the first month in which inheritance rights were conferred upon the claimant?

SUMMARY

We have reviewed the information that you provided and have researched the relevant provisions of Virginia law as it pertains to paternity. We believe that a Virginia court would find that a parent-child relationship was established between N~ and the claimant, effective May 26, 1992, the date of the probative DNA test results.

BACKGROUND

N~ died November 3, 2002. He was a resident of Virginia. The claimant was born in Richmond, Virginia on June 23, 1989. There is no evidence or contention that N~ and the claimant's mother, Mearko E~, were ever married. Patricia J~, whom you deemed a "non-relative payee applicant," filed an application for child benefits on the claimant's behalf on December 2, 2002. The agency denied the application on December 24, 2002. Ms. J~ then filed a Request for Reconsideration of that decision with the agency on January 27, 2003. Along with that request, Ms. J~ submitted Sequan's birth certificate, which identified Mearko E~ as his mother, but did not identify his father. Ms. J~ also submitted May 26, 1992 DNA test results, based on blood samples from N~, the claimant, and his mother, Mearko E~, indicating a 99.99% probability that N~ was the biological father of the claimant.^[4] Additionally, the local agency office reported that Ms. H~, the mother of N~'s other two children whose entitlement to child benefits is not disputed, stated in an interview that she was aware of a third child of N~'s named Sequan N~.

DISCUSSION

The Social Security Act provides that in determining paternity for purposes of entitlement to surviving child's benefits, the Commissioner will apply the inheritance laws of the state in which the insured individual had his permanent home at the time of death. 42 U.S.C. § 416(h)(2)(A). N~ lived in Virginia at the time of his death. Therefore, Virginia intestacy law applies. Under Virginia law, a child born out of wedlock may inherit from an intestate decedent based upon a showing that the decedent is the father of the child. Va. Code Ann. § 64.1-5.1. Evidence that a man is the father of a child born out of wedlock shall be clear and convincing and may include, among other things, the results of scientifically reliable genetic tests, including DNA test results, weighed with all of the evidence.

The Virginia intestacy statute does not set forth the percentage of probability of paternity sufficient to establish a parent-child relationship. However, the Virginia Domestic Relations Statute provides that blood test results that affirm at least a 98% probability of paternity are sufficient to establish a parent-child relationship. Va. Code Ann. § 20 49.1(B)(1). While this section is not binding on the agency, it does provide guidance as to the sufficiency of DNA testing in Virginia, and indicates the level of certainty required in order to obtain a court order adjudicating paternity. We believe that a Virginia court would find that the unrebutted DNA test establishes a 99.99% probability that N~ was the claimant's father. See e.g., Commonwealth v. Dep't of Soc. Serv. v. Flaneary, 469 S.E. 2d 79, 82-83 (Va. App. 1996) (uncontroverted evidence that

genetic blood tests resulted in 99.92% probability of paternity was clear and convincing evidence of paternity). It is also noteworthy that Agency regulations provide

If applicable State inheritance law requires a court determination of paternity, we will not require that you obtain such a determination but will decide your paternity by using the standard of proof that the State court would use as a basis for a determination of paternity.

20 C.F.R. § 404.355(b)(2). Therefore, the absence of a court order of paternity does not adversely impact this case.

Pursuant to POMS GN PHI00306.660, Virginia Intestacy Laws (as recently amended), the paternity of a child born out-of-wedlock can be established from, inter alia, the results of medically reliable blood testing weighed under all the evidence. ^[5] In this case, the paternal relationship between Sequan E~ and N~ was proven by the May 26, 1992 DNA test. We believe that the other evidence also supports the paternity of the number holder because Ms. H~, the mother of N~'s two other children who are entitled to benefits, informed the agency that N~ had a third child named Sequan N~.

With respect to the effective date of the right to inherit, POMS GN 00306.055 provides that where a state law, such as Virginia law, confers inheritance rights but does not legitimate the child, the claimant's status as the number holder's child is established effective with the date of the piece of evidence that satisfies the applicable standard of proof. As the relevant piece of evidence here, the DNA test, was conducted on May 26, 1992, the claimant's father-child relationship with N~ is established as of that date.

Finally, the regulations provide that if the insured is deceased, the child is entitled to benefits beginning with the first month covered by the application in which he meets all other requirements for entitlement. 20 C.F.R. § 404.352(a)(1). The regulations provide that, after the first month the child could have been entitled to benefits, he or she may receive retroactive benefits for up to six months preceding the date of the application. 20 C.F.R. § 404.621(a)(2). In this case, the child's application has a filing date of December 2, 2002. The DNA test results, which establish paternity, are dated May 26, 1992. As such, pursuant to the regulation providing retroactive benefits, the claimant is entitled to benefits retroactive to six months prior to December 2, 2002. However, because the number holder's death did not occur until November 3, 2002, the claimant may receive benefits retroactive only to that date, assuming that you find that he meets all other requirements for entitlement.

CONCLUSION

For the reasons set forth above, it is our opinion that, because there is no evidence of record to contradict the DNA test results, a court likely would find the evidence sufficient to establish that the number holder is the father of the claimant under Virginia law, effective May 26, 1992.

James A. W~

Regional Chief Counsel

By: _____________________

Margaret M~

Assistant Regional Counsel

A Virginia court would find that a parent-child relationship was established between the NH and the child claimants. The effective date of the relationship is the date of the DNA test results. The child claimants would be entitled to benefits retroactive to 6 months prior to the date of their applications.

INTRODUCTION

This is in response to your request for our advice whether a parent-child relationship is established between Lemmie W~, the deceased number holder, and Charmaine J. H~ and Shaneka M. H~, minor children, under Virginia law and, if so, the effective date of such relationship. We also have addressed the issue of entitlement to retroactive benefits.

SUMMARY

We have reviewed the information that you provided and have researched the relevant provisions of Virginia law as it pertains to paternity. We believe that a Virginia court would find that a parent-child relationship was established between the number holder and Charmaine and Shaneka. The effective date of the parent-child relationship is August 21, 2000, the date of the DNA test results, which is the latest necessary piece of evidence to establish paternity under Virginia law. Finally, Charmaine and Shaneka would be entitled to benefits retroactive to six months prior to January 2, 2003, the date of their applications.

BACKGROUND

Lemmie W~, the number holder, died on November 28, 2002. He was a resident of Virginia. Charmaine and Shaneka, twins, were born on November 18, 1988. The number holder and Antoinette A. H~, the mother of Charmaine and Shaneka, were not married and did not cohabit. Neither Charmaine nor Shaneka's birth certificates, filed on December 7, 1988, contain information regarding their father. However, both Charmaine's applications for a social security number, completed on December 8, 1988 and December 23, 2002, and Shaneka's applications for a social security number, completed on December 14, 1988 and December 23, 2002, indicate that Eric A~ was their father.

On August 21, 2000, prior to the number holder's death, Antoinette H~ obtained DNA testing between the number holder and Charmaine, which showed a 99.95% probability that the number holder was Charmaine's father.

On September 26, 2000, the Commonwealth of Virginia, Department of Social Services, Division of Child Support Enforcement entered an order of child support, identifying the number holder as the parent of Charmaine and Shaneka and directing him to make child support payments. On that date, the number holder acknowledged in writing his receipt of this order of support.

On January 2, 2003, Antoinette H~ filed applications for surviving child's benefits on behalf of Charmaine and Shaneka. Also on that date, she completed a Child Relationship Statement in which she indicated that she had been dating Eric A~ and had named him as Charmaine and Shaneka's father. She also indicated that she had obtained DNA testing because the children looked like the number holder.

DISCUSSION

The Social Security Act provides that in determining paternity for purposes of entitlement to surviving child's benefits, the Commissioner will apply the inheritance laws of the state in which the insured individual had his permanent home at the time of death. 42 U.S.C. § 416(h)(2)(A). N~ lived in Virginia at the time of his death. Therefore, Virginia intestacy law applies. Under Virginia law, a child born out of wedlock may inherit from an intestate decedent based upon a showing that the decedent is the father of the child. Va. Code Ann. § 64.1-5.1. Evidence that a man is the father of a child born out of wedlock shall be clear and convincing and may include, among other things, the results of scientifically reliable genetic tests, including DNA test results, weighed with all of the evidence.

The Virginia intestacy statute does not set forth the percentage of probability of paternity sufficient to establish a parent-child relationship. However, the Virginia Domestic Relations Statute provides that blood test results that affirm at least a 98% probability of paternity are sufficient to establish a parent-child relationship. Va. Code Ann. § 20 49.1(B)(1). While this section is not binding on the agency, it does provide guidance as to the sufficiency of DNA testing in Virginia, and indicates the level of certainty required in order to obtain a court order adjudicating paternity. We believe that a Virginia court would find that the unrebutted DNA test establishes a 99.99% probability that N~ was the claimant's father. See e.g., Commonwealth v. Dep't of Soc. Serv. v. Flaneary, 469 S.E. 2d 79, 82-83 (Va. App. 1996) (uncontroverted evidence that genetic blood tests resulted in 99.92% probability of paternity was clear and convincing evidence of paternity). It is also noteworthy that Agency regulations provide

If applicable State inheritance law requires a court determination of paternity, we will not require that you obtain such a determination but will decide your paternity by using the standard of proof that the State court would use as a basis for a determination of paternity.

20 C.F.R. § 404.355(b)(2). Therefore, the absence of a court order of paternity does not adversely impact this case.

Pursuant to POMS GN PHI00306.660, Virginia Intestacy Laws (as recently amended), the paternity of a child born out-of-wedlock can be established from, inter alia, the results of medically reliable blood testing weighed under all the evidence. [2][2] In this case, the paternal relationship between Sequan E~ and N~ was proven by the May 26, 1992 DNA test. We believe that the other evidence also supports the paternity of the number holder because Ms. H~, the mother of N~'s two other children who are entitled to benefits, informed the agency that N~ had a third child named Sequan N~.

With respect to the effective date of the right to inherit, POMS GN 00306.055 provides that where a state law, such as Virginia law, confers inheritance rights but does not legitimate the child, the claimant's status as the number holder's child is established effective with the date of the piece of evidence that satisfies the applicable standard of proof. As the relevant piece of evidence here, the DNA test, was conducted on May 26, 1992, the claimant's father-child relationship with N~ is established as of that date.

Finally, the regulations provide that if the insured is deceased, the child is entitled to benefits beginning with the first month covered by the application in which he meets all other requirements for entitlement. 20 C.F.R. § 404.352(a)(1). The regulations provide that, after the first month the child could have been entitled to benefits, he or she may receive retroactive benefits for up to six months preceding the date of the application. 20 C.F.R. § 404.621(a)(2). In this case, the child's application has a filing date of December 2, 2002. The DNA test results, which establish paternity, are dated May 26, 1992. As such, pursuant to the regulation providing retroactive benefits, the claimant is entitled to benefits retroactive to six months prior to December 2, 2002. However, because the number holder's death did not occur until November 3, 2002, the claimant may receive benefits retroactive only to that date, assuming that you find that he meets all other requirements for entitlement.

CONCLUSION

For the reasons set forth above, it is our opinion that, because there is no evidence of record to contradict the DNA test results, a court likely would find the evidence sufficient to establish that the number holder is the father of the claimant under Virginia law, effective May 26, 1992.

James A. W~

Regional Chief Counsel

By: _____________________

Roxanne A~

Assistant Regional Counsel

 

A Virginia court would find that a parent-child relationship was established between the NH and the child claimants. The effective date of the relationship is the date of the DNA test results. The child claimants would be entitled to benefits retroactive to 6 months prior to the date of their applications.

NOTE: It is unclear why the children were not entitled under section 216(h)(3) based on the court order of support that was issued more than 2 years before the NH's death.

INTRODUCTION

This is in response to your request for our advice whether a parent-child relationship is established between Lemmie W~, the deceased number holder, and Charmaine J. H~ and Shaneka M. H~, minor children, under Virginia law and, if so, the effective date of such relationship. We also have addressed the issue of entitlement to retroactive benefits.

SUMMARY

We have reviewed the information that you provided and have researched the relevant provisions of Virginia law as it pertains to paternity. We believe that a Virginia court would find that a parent-child relationship was established between the number holder and Charmaine and Shaneka. The effective date of the parent-child relationship is August 21, 2000, the date of the DNA test results, which is the latest necessary piece of evidence to establish paternity under Virginia law. Finally, Charmaine and Shaneka would be entitled to benefits retroactive to six months prior to January 2, 2003, the date of their applications.

BACKGROUND

Lemmie W~, the number holder, died on November 28, 2002. He was a resident of Virginia. Charmaine and Shaneka, twins, were born on November 18, 1988. The number holder and Antoinette A. H~, the mother of Charmaine and Shaneka, were not married and did not cohabit. Neither Charmaine nor Shaneka's birth certificates, filed on December 7, 1988, contain information regarding their father. However, both Charmaine's applications for a social security number, completed on December 8, 1988 and December 23, 2002, and Shaneka's applications for a social security number, completed on December 14, 1988 and December 23, 2002, indicate that Eric A~ was their father.

On August 21, 2000, prior to the number holder's death, Antoinette H~ obtained DNA testing between the number holder and Charmaine, which showed a 99.95% probability that the number holder was Charmaine's father.

On September 26, 2000, the Commonwealth of Virginia, Department of Social Services, Division of Child Support Enforcement entered an order of child support, identifying the number holder as the parent of Charmaine and Shaneka and directing him to make child support payments. On that date, the number holder acknowledged in writing his receipt of this order of support.

DISCUSSION

The Social Security Act provides that a child born to parents who do not marry can qualify for surviving child's benefits if the child is entitled to inherit personal property under such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which [the] insured individual was domiciled at the time of his death. 42 U.S.C. § 416(h)(2)(A). In the present case, the number holder was domiciled in the Commonwealth of Virginia at the time of his death. Therefore, Virginia intestacy law applies.

Under Virginia law, a child born out of wedlock may inherit from a decedent's estate based upon a showing that the decedent is the father of the child. Va. Code Ann. § 64.1-5.1. In order to inherit, the child must establish paternity by clear and convincing evidence as set forth in Virginia's intestacy statute. Va. Code Ann. § 64.1-5.1(3)(b), -5.2. The Code of Virginia provides, in pertinent part, that for purposes of inheritance, evidence that a man is the father of a child born out of wedlock shall be clear and convincing and may include, but shall not be limited to, [t]he results of medically reliable genetic blood grouping tests weighted with all the evidence. Va. Code Ann. § 64.1-5.2(7).

The Virginia intestacy statute does not set forth the percentage of probability of paternity that is sufficient to constitute clear and convincing evidence. The Virginia domestic relations statute, however, provides that blood test results that affirm at least a 98% probability of paternity are sufficient to establish a parent-child relationship. Va. Code Ann. § 20-49.1(B)(1). While this section is not binding, it does provide guidance as to the sufficiency of DNA testing in Virginia.

Based on the DNA results and the administrative order of support, we believe that a Virginia court would find the DNA results to be clear and convincing evidence that the number holder was the father of Charmaine. The unrebutted DNA test established a 99.95% probability that the number holder was the father of Charmaine. See, e.g., Commonwealth v. Department of Soc. Serv. V. Flaneary, 469 S.E. 2d 79, 82-83 (Va. App. 1996) (uncontroverted evidence that genetic blood tests resulted in 99.92% probability of paternity was clear and convincing evidence of paternity). Because Charmaine and Shaneka are twins, we believe that a court would find that the DNA testing between Charmaine and the number holder is sufficient to establish paternity between the number holder and Shaneka as well.

Because we believe that a Virginia court would find that the DNA results are clear and convincing evidence of paternity, the effective date of the parent-child relationship between the number holder and Charmaine and Shaneka is August 21, 2000, the date of the DNA testing.

The regulations provide that if the insured is deceased, the children are entitled to benefits beginning with the first month covered by the application in which they meet all other requirements for entitlement. 20 C.F.R. § 404.352(a)(1) (2002). Charmaine and Shaneka met the requirements for entitlement on January 2, 2003, the date of their applications. The regulations further provide that children filing as survivors may receive retroactive benefits on the record of the deceased number holder for up to six months beginning with the first month in which all requirements are met. 20 C.F.R. § 404.621(a)(ii) (2002). Here, Charmaine and Shaneka met the requirements for entitlement on January 2, 2003, and are entitled to benefits retroactive to six months from that date.

CONCLUSION

For the reasons stated above, it is our opinion that a court would likely find that DNA evidence is sufficient to establish that the number holder was the father of Charmaine and Shaneka under Virginia law, effective August 21, 2000. In addition, they are entitled to benefits retroactive to six months prior to date of entitlement of January 2, 2003.

James A. W~

Regional Chief Counsel

By:___________________________

Anne v. S~

Assistant Regional Counse

Unrebutted DNA test results establishing that there is at least a 99.99% probability that the NH is the child claimant's father constitute clear and convincing evidence of paternity under Virginia law. In addition, there is other evidence that, standing alone, supports a conclusion of paternity; specifically, a division of the Commonwealth of Virginia issued an Order finding conclusively that G~ was the child's father. Since Virginia law confers inheritance rights based on an adjudication of paternity, but does not legitimate the child, the parent-child relationship is effective with the date of the DNA test (the latest necessary piece of evidence establishing paternity under Virginia law).

QUESTION PRESENTED

On February 28, 2003, you asked our advice as to whether there is sufficient evidence to establish a parent-child relationship between Richard N. G~ (G~), the deceased number holder, and Akeem L. C~ (Akeem). Additionally, if a parent-child relationship can be established, you asked for the effective date of that relationship and whether retroactive benefits can be paid.

SUMMARY

We have reviewed the material you provided and have researched the relevant provisions of Virginia law as it pertains to paternity. Based on our research, it is our opinion that a parent-child relationship was established between G~ and Akeem, effective November 13, 2002. Thus, retroactive benefits should be allowed from November 13, 2002.

BACKGROUND

G~ died on September 5, 1996, in the state of Virginia. Prior to that date, on July 29, 1994, Akeem was born. His mother, Pamela C~ (C~), apparently believed that another man was Akeem's father (Franklin W. H~) and placed that man's name on Akeem's birth certificate and applications for a social security number. However, DNA testing subsequently proved that this man was not Akeem's father.

C~ then pursued DNA testing to prove that G~ was the father of Akeem. C~ was never married to G~ and never resided with him. However, the results of the DNA tests conducted on November 13, 2002, proved, with a probability of 99.99%, that G~ was the father of Akeem. The Commonwealth of Virginia Department of Social Services, Division of Child Support Enforcement, issued an order on December 13, 2002, finding that G~ was the father of Akeem. C~ then filed a request for surviving child's benefits on December 18, 2002, on behalf of Akeem. She also filed a new birth certificate on January 23, 2003, naming G~ as the father of Akeem.

DISCUSSION

In determining entitlement to surviving child's benefits, the Commissioner shall apply the inheritance laws of the state in which the insured had his permanent home at the time that he died. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1) (2002). G~ was a resident of Virginia at the time of his death. Accordingly, Virginia law of intestacy applies in this case.

A child born out of wedlock in Virginia will only be deemed legitimate by the subsequent intermarriage of the mother and father. Va. Code. Ann. § 20-31.1; Program Operations Manual System (POMS) GN 00306.055. Under Virginia law, however, a child born out of wedlock may inherit from a decedent's estate based upon a showing that the decedent is the father of the child. Va. Code Ann. § 64.1-5.1. Evidence that a man is the father of a child born out of wedlock shall be clear and convincing and may include, among other things, the results of scientifically reliable genetic tests, including DNA tests, weighted with all the evidence. Va Code Ann. § 64.1-5.2 (7). With regard to genetic testing, another section of the Virginia Code, pertaining to domestic relations proceedings, provides that blood test results that affirm at least a 98% probability of paternity are sufficient to establish a parent-child relationship. Va. Code Ann. § 20-49.1(B)(1).

In addition, the Virginia Code goes on to provide that if a proceeding to determine parentage has been initiated, and the court enters judgment against a man for the support, maintenance, and education of a child, that judgment shall be sufficient evidence of paternity. Va. Code Ann. § 64.1-5.2.

In this case, based on the facts you provided, we believe there is clear and convincing evidence that G~ is the father of Akeem. The unrebutted DNA test results establish that there is at least a 99.99% probability that G~ is the biological father of this child. Because there is no evidence to contradict the DNA test results establishing paternity by 99.99%, we believe a Virginia probate court would find that the evidence in this case constitutes clear and convincing evidence that G~ in the father of Akeem.

In addition, there is other evidence that, standing alone, supports a conclusion of paternity between G~ and Akeem. Specifically, a division of the Commonwealth of Virginia issued an Order finding conclusively that G~ was the biological father of Akeem.

Thus, based on the information you have provided, it appears likely that a Virginia court would find G~ to be the father of Akeem under its inheritance statutes.

Regarding the effective date of the parent-child relationship, the POMS GN 00306.055 directs that where a state law confers inheritance rights based on an adjudication of paternity (but does not legitimate the child), and the provision is effective prospectively only, the claimant's status as the nameholder's child is established effective with the following date:

if more than one piece of evidence is needed to satisfy the applicable standard of proof, the date of the latest necessary piece of evidence;

POMS GN 00306.055. Since, as stated above, Virginia law confers inheritance rights based on an adjudication of paternity, but does not legitimate the child, and the DNA test was the latest necessary piece of evidence establishing paternity under Virginia law, the parent-child relationship is effective November 13, 2002, the date of the DNA test.

Finally, the regulations provide that, if the insured is deceased, the child is entitled to benefits beginning with the first month covered by the application in which he meets all other requirements for entitlement. 20 C.F.R. § 404.352(a)(1). The regulations state that a child may receive retroactive benefits for up to twelve months preceding the date of his application. 20 C.F.R. § 404.621(a). However, benefits can only be paid from the first month that all requirements for entitlement are met. 20 C.F.R. §§ 404.620(a)(1), .621(a). In this case, the application date is December 18, 2002, approximately one month after completion of the DNA testing on November 13, 2002. Accordingly, retroactive benefits should be paid in this case from November 13, 2002, forward.

CONCLUSION

For the reasons stated above, it is our opinion that the DNA testing performed in this case between G~ and Akeem, combined with the other evidence submitted by the applicant, is sufficient to establish a parent-child relationship between G~ and Akeem. Therefore, we believe there is clear and convincing evidence of a parent-child relationship between Richard N. G~ and Akeem L. C~, effective November 13, 2002. Finally, we believe that benefits should be paid retroactive to November 13, 2002.

James A. W~

Regional Chief Counsel

By:___________________________

Amy E. N~

Assistant Regional Counse

A grandparentage DNA test and unsupported statement that the putative father orally admitted paternity, alone, is insufficient to establish paternity under Virginia law.

You have asked whether the evidence submitted is sufficient to establish a parent-child relationship between Derek D. L~ (L~) and Destinee M. S~ (Destinee). Additionally, if a parent-child relationship can be established, you have asked for the effective date of that relationship. Finally, you have asked whether retroactive benefits can be paid on behalf of Destinee.

SUMMARY

We have reviewed the material provided and have researched the relevant provisions of Virginia law as it pertains to paternity. Based on our research, it is our opinion that the evidence is insufficient to establish a parent-child relationship between L~ and Destinee.

BACKGROUND

Destinee was born on June 4, 1999, to Taisha F. S~ (Taisha). L~ died on August 29, 2001. Prior to his death, L~ resided in Virginia. L~ and Taisha never married or cohabitated. Destinee's birth certificate does not provide any information about her father.

In October 2001, Taisha filed an application for surviving child benefits for Destinee on the social security number of L~. The application was denied for failure to establish relationship.

According to the Child Relationship Statement completed by Taisha on May 30, 2002, L~ never acknowledged in writing that Destinee was his daughter, never listed her as a dependent on a tax return or named her as his child on any other record, and never provided for her financially. Taisha did state on the Child Relationship Statement that L~ admitted orally that he was Destinee's father, but there is nothing to corroborate this assertion.

A DNA Parentage Test Report dated May 3, 2002, indicates that, using the genetic markers found in the testing of Rosemary L~, L~'s mother, Aher biological son is estimated to have a probability of paternity of 99.99%.

DISCUSSION

In determining entitlement to surviving child's benefits, the Commissioner shall apply the inheritance laws of the state in which the insured had his permanent home at the time that he died. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1) (2002). A child born out of wedlock in Virginia will only be deemed legitimate by the subsequent intermarriage of the mother and father. Va. Code. Ann. § 20-31.1; Program Operations Manual System (POMS) GN 00306.055. Under Virginia law, however, a child born out of wedlock may inherit from a decedent's estate based upon a showing that the decedent is the father of the child. Va. Code Ann. § 64.1-5.1. Evidence that a man is the father of a child born out of wedlock shall be clear and convincing and may include, but shall not be limited to, the following:

1. a. 

   That he cohabitated openly with the mother during all of the ten months immediately prior to the time the child was born;

2. b. 

   responsibility of securing information for the preparation of a birth record that his name be used as the father of the child upon the birth records of the child;

3. c. 

   That he allowed by a general course of conduct the common use of his surname by the child;

4. d. 

   That he claimed the child as his child on any statement, tax return or other document filed and signed by him with any local, state or federal government or any agency thereof;

5. e. 

   That he admitted before any court having jurisdiction to try and dispose of the same that he is the father of the child;

6. f. 

   That he voluntarily admitted paternity in writing, under oath;

7. g. 

   The results of scientifically reliable genetic tests, including DNA tests, weighed with all the evidence; or

8. h. 

   Other medical, scientific or anthropological evidence relating to the alleged parentage of the child based on tests performed by experts.

Va. Code Ann. § 64.1-5.2.

With regard to genetic testing, Va. Code Ann. § 20-49.1(B)(1), which relates to domestic relations proceedings, provides that blood test results that affirm at least a 98% probability of paternity are sufficient to establish a parent-child relationship. Va. Code Ann. § 20-49.1(B)(1). The Virginia Code, however, does not specifically state whether testing of relatives of a putative father is acceptable evidence of paternity, i.e., whether such evidence rises to the level of Aclear and convincing.

While we believe that the unrebutted grandparentage DNA test may sufficiently establish that Rosemary L~ is Destinee's grandmother, such evidence is insufficient to establish that L~ is Destinee's father. We believe that the Virginia court would require additional evidence to establish paternity by clear and convincing evidence. The record does include a statement by Taisha that L~ orally admitted that he was Destinee's father, but this assertion is unsupported. The record does not include other evidence such as a judicial determination of paternity, written acknowledgment of paternity, or evidence that L~ did not have any male siblings. Accordingly, we believe the file must be further developed.

CONCLUSION

For the reasons stated above, it is our opinion that a grandparentage DNA test and unsupported statement that the putative father orally admitted paternity, alone, is insufficient to establish paternity under Virginia law. Therefore, because Destinee would not be recognized as L~'s child under Virginia law, we believe that, absent further development, she should not be determined to be the child of the Number Holder under 42 U.S.C. § 416(h)(2)(A) and entitled to child's insurance benefits. Since the parent-child relationship was never established, the issues of the effective date of child's benefits and retroactivity of child's benefits are moot.

James A. W~ Regional Chief Counsel

By:__________________________

Eda L. G~

Assistant Regional Counsel

Under Virginia law, paternity for inheritance purposes can be established by the results of scientifically reliable genetic tests, including DNA tests, weighed with all the other evidence. DNA test results showing a 99.51 % and 99.93% probability that the child claimants are the NH's children, and the lack of any evidence expressly refuting the test results, establish paternity under Virginia law. The children's status is effective with the date of the DNA test results.

QUESTION PRESENTED

On December 23, 2002, you asked for our advice on the following issues: (1) whether a parent-child relationship can be established between the number holder, Ned J~, and the claimants, Neandrea L. P~ and Lytashia D. P~; (2) if so, the effective date(s) of those relationships; and (3) whether the claimants were entitled to retroactive benefits.

SUMMARY

We reviewed the information you provided and researched applicable Virginia law. A Virginia court would likely find that a parent-child relationship has been established between the number holder, Ned J~, and the claimants, Neandrea L. P~ and Lytashia D. P~. The effective date of the relationship for Neandrea is April 5, 1990, and for Lytashia is April 26, 1995. Further, Neandrea and Lytashia are entitled to benefits retroactive to August 30, 2001.

BACKGROUND

On August 30, 2002, Mary E. P~ (P~), a resident of Virginia, filed applications for child's insurance benefits on behalf of her minor daughters, Neandrea (born July 8, 1989) and Lytashia (born July 10, 1990), alleging that Ned J~ (J~) was the father of the two girls. The information you provided indicated that P~ and J~ are not married, and do not cohabit. Neandrea's and Lytashia's birth certificates do not contain any information regarding the identity of their father. However, a DNA paternity test performed on April 5, 1990 showed a 99.51% probability that J~ is Neandrea's father. And a DNA paternity test performed on April 26, 1995 showed a 99.93% probability that J~ is Lytashia's father. Nonetheless, according to the information provided, neither Neandrea's nor Lytashia's applications for social security numbers contain any information regarding the identity of their father. Further, according to the information provided, J~ applied for disability benefits in October 1997, but did not mention that he had any children under the age of eighteen. Lastly, the information you provided indicated that J~ is also a resident of Virginia.

DISCUSSION

When determining paternity for purposes of entitlement to social security benefits, the Commissioner applies the inheritance laws of the state in which the insured had his permanent home at the time the applicant filed her application. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b) (2002). Here, J~'s permanent home was in Virginia when P~ filed Neandrea's and Lytashia's applications for benefits. Thus, the Virginia intestacy laws control.

Under Virginia law, paternity for inheritance purposes can be established by, among other means, (1) evidence that the putative father cohabitated openly with the mother for all ten months immediately prior to the child's birth; (2) the father claimed the child as his own on any statement, tax return, or other document filed with any local, state, or federal government or agency thereof; (3) the father admitted to any court of competent jurisdiction that he was the child's father; (4) the father voluntarily admitted paternity in writing, under oath; or (5) the results of scientifically reliable genetic tests, including DNA tests, weighed with all the other evidence. Va. Code Ann. § 64.1-5.2(1), (4)-(7).

With respect to genetic testing, the Virginia intestacy statute does not set forth the statistical probability that is sufficient to establish a parent-child relationship. However, the Virginia Domestic Relations statutes provide that blood test results which show at least a 98% probability of paternity is sufficient to establish a parent-child relationship. Va. Code Ann. § 20-49.1(B)(1). Further, the Virginia Supreme Court in Buckland v. Commonwealth of Virginia, 329 S.E.2d 803, 807 (Va. 1985) held that a blood test which showed a 99.27% probability of paternity, standing alone, proved paternity beyond a reasonable doubt. Thus, because the record contains J~'s test results which showed a 99.51% probability that he is Neandrea's father, and a 99.93% probability that he is Lytashia's father; and because the record is devoid of any evidence which expressly refutes the test results, we conclude that a Virginia court would find that the existing record is sufficient to show that J~ is the father of Neandrea and Lytashia.

With respect to the effective date of the parent-child relationship, the POMS indicate that where a state law confers inheritance rights based on an adjudication of paternity, and the provision is effective prospectively only, the date of the latest necessary piece of evidence needed to satisfy the applicable standard of proof is the effective date of paternity. POMS GN 00306.055. Here, the latest necessary pieces of evidence provided to establish paternity under Virginia law were the results of J~'s DNA testing. Thus, the effective date of the parent-child relationship for Neandrea is April 5, 1990, and the effective date of the parent-child relationship for Lytashia is April 26, 1995, the respective dates of J~'s DNA testing.

Finally, the regulations provide that if the insured is living, children are entitled to benefits beginning with the first month covered by their applications throughout which they meet all the other requirements for entitlement if the first month of entitlement is September 1981 or later. 20 C.F.R. § 404.352(a)(2)(i) (2002). The regulations further provide that children may receive retroactive benefits for up to twelve months preceeding the date of their applications. 20 C.F.R. § 404.621(a)(1)(i) (2002); see also, POMS GN 00204.030. Here, Neandrea's and Lytashia's applications were filed on August 30, 2002. As more fully set forth above, Neandrea met all the requirements as of April 5, 1990, and Lytashia met all the requirements as of April 26, 1995, the respective dates of J~'s genetic testing results. Consequently, Neandrea and Lytashia met all the requirements for entitlement to child's benefits throughout the twelve months preceeding the date of their applications. Thus, Neandrea and Lytashia are entitled to retroactive benefits back to August 30, 2001.

CONCLUSION

For the reasons stated above, it is our opinion that a Virginia court would likely find sufficient evidence to establish that J~ is Neandrea's and Lytashia's father; and that under Virginia law, the effective dates of the parent-child relationship for Neandrea and Lytashia were April 5, 1990 and April 26, 1995, respectively. Hence, retrospective benefits should be paid as noted above.

James A. W~

Regional Chief Counsel

By:

Robert W. F~

Assistant Regional Counsel

The Virginia intestacy statute does not explicitly recognize an informal oral acknowledgment as ameans of proving by clear and convincing evidence that the child is entitled to inherit from the putative father. Moreover, the statement from the NH's mother does not satisfy the clear and convincing evidence standard.

QUESTION PRESENTED

You requested a legal opinion as to whether there is sufficient evidence to establish a parent-child relationship between Wallace E. R~ (R~), the deceased number holder, and Tayquan S~ (Tayquan). Additionally, if a parent-child relationship can be established, you asked for the effective date of that relationship, whether the prior claim can be reopened, and whether retroactive benefits can be paid.

SUMMARY

Based on our review of the facts you provided and the applicable law, we believe that the evidence is not sufficient to establish a parent-child relationship between Tayquan and R~. The Virginia intestacy statute does not explicitly recognize an informal oral acknowledgment as a means of proving by clear and convincing evidence that the child is entitled to inherit from the putative father. The statement from the number holder's mother does not satisfy the clear and convincing evidence standard of the intestacy statute. Moreover, we believe that the totality of evidence submitted does not satisfy the provisions of either § 216(h)(3)(c)(i) or (ii). Therefore, the prior claim should not be reopened, and no benefits can be paid.

BACKGROUND

R~ died on April 18, 1997 in Richmond, Virginia. On May 7, 1997, Sasha S~ (Sasha) filed an application on behalf of her son, Tayquan L. S~, for surviving child's benefits based on R~'s account. This claim was initially denied on July 15, 1998. It appears that Sasha sought review of the initial determination as the file contains a Special Determination dated January 28, 1999 wherein Tayquan's claim was again denied. There is no evidence to suggest that Sasha appealed the determination of January 28, 1999. Instead, she filed a new application for Tayquan over four years later on August 21, 2002.

In support of the first application, Sasha submitted the following evidence: an undated note from Eric S~, who indicated that he was a close friend of R~ and that R~ told him “all the time” that he had a son named Tayquan L. S~; a statement from Lisa J~ who indicated that she was R~'s girlfriend for two years and that R~ stated that he was Tayquan's father; a birthday card addressed “To My son” and signed “Love always, Dad;” another birthday card signed “Love, Dad;” a copy of a photograph of three adults and three children with a note stating, “[t]his is a picture of Grandma Nu-Nu, Aunt Weddie, Lamar, Jazz, and of course you, my son, and I,” and signed “I love you, Dad;” a Child Relationship Statement dated May 8, 1997 wherein Sasha indicated that R~ had given gifts to Tayquan for Christmas one year and cards and gifts for his third and fourth birthdays, and that R~ had given money to Tayquan; R~'s funeral home program which indicates that Tayquan was one of R~'s four children; a newspaper announcement of R~'s death which indicates that Tayquan was one of R~'s children; a summons issued by the Commonwealth of Virginia Department of Social Services Division of Child Support Enforcement indicating that R~ was named as Tayquan's putative father; information regarding an application for social security number wherein Sasha was listed as Tayquan's mother but no information regarding his father was provided; and Tayquan's birth certificate listing Sasha as his mother but no information regarding his father. Based on this evidence, the Agency determined that proof of relationship was not met.

We note that a Report of Contact on June 11, 1997 indicated that Sasha had attempted to obtain child support unsuccessfully from R~ through the court system, and that on August 24, 1998 a Report of Contact indicated that the Bureau of Child Support Enforcement had no evidence to establish paternity of Tayquan by R~ and that R~ had not cooperated with paternity proceedings.

After a second application was filed on August 21, 2002, the number holder's mother submitted a statement on September 16, 2002 indicating that he told her that he was Tayquan's father. You asked whether this submission qualifies as an informal acknowledgment of paternity according to POMS GN00306.065A.1.

DISCUSSION

In determining entitlement to surviving child's benefits, section 216(h)(2)(A) of the Social Security Act (Act) directs the Commissioner to apply the inheritance laws of the state in which the insured had his permanent home at the time that he died. 20 C.F.R. § 404.355(b)(1) (2001). Under Virginia law, a child born out of wedlock may inherit from a decedent's estate based upon a showing that the decedent is the father of the child. Va. Code Ann. § 64.1-5.1. Evidence that a man is the father of a child born out of wedlock may include the eight enumerated items in the intestacy statute, as well as other evidence that rises to the level of “clear and convincing.” Va. Code Ann. § 64.1-5.2 (6).

In this case, based on the facts you provided us, we believe that Tayquan has not met the requirements for establishing a parent-child relationship under Virginia intestacy law. The birthday cards purportedly sent by R~ to Tayquan do not meet the requirements for a voluntary admission since they were not signed writings given under oath. Va. Code Ann. § 64.1-5.2 (6). Additionally, the note purportedly written by R~ that accompanied the family picture does not meet the requirements for a voluntary admission; the note is not a signed writing given under oath.

Moreover, while the Virginia statute indicates that the evidence that may be considered as evidence of paternity is not limited to the eight specific categories described in Va. Code Ann. § 64.1-5.2, it appears that the evidence submitted in support of the second application, the statement from R~'s mother that R~ told her he was the father, does not meet the clear and convincing evidence standard provided in the intestacy statute.

We have reviewed the case law in Virginia regarding the clear and convincing evidence standard, and concluded that this is a high standard that is not met in this case. For instance, in Jones v. Eley, the Virginia Supreme Court examined the issue of whether the clear and convincing evidence standard was met based on evidence not specifically enumerated in Va. Code Ann. § 64.1-5.2(1)-(8). 256 Va. 198 (Va. 1998). The evidence submitted in support of the claim for surviving child's benefits included representations of paternity on the part of the insured. Id. at 202. While the Court found that the clear and convincing evidence standard was met, the Court noted that, “most significantly,” the insured had completed and signed an insurance beneficiary designation form on which he stated that the child was his daughter. Id. at 202. Therefore, this was, in effect, a written acknowledgment of paternity by the child's father. Here, while the record contains informal acknowledgments of paternity, including the number holder's mother's statement that her son had told her that he was Tayquan's father, the record does not contain any written evidence that rises to the level of clear and convincing; in fact, there is nothing signed by the number holder clearly stating that he is Tayquan's father.

In addition to determining whether a parent-child relationship was established under Virginia law, we examined whether a parent-child relationship was established under § 216(h)(3)(C) of the Act, which provides the requirements for establishing a parent-child relationship without reference to state law. We believe that Tayquan has not met the requirements for benefits under this section of the Act. According to § 216(h)(3)(C)(i), a child shall be deemed the child of a deceased individual if such individual (I) had acknowledged in writing that the applicant is his or her son or daughter, (II) had been decreed by a court to be the mother or father of the applicant, (III) or had been ordered by a court to contribute to the support of the applicant because the applicant was his or her son or daughter. Since the provisions of § 216(h)(3)(C)(i)(II)-(III) are clearly not met here, we examined the evidence pursuant to § 216(h)(3)(C)(i)(I) which concerns acknowledgments in writing. However, the birthday cards and the note accompanying the family picture that R~ purportedly sent to Tayquan would most likely not constitute acknowledgments in writing pursuant to § 216(h)(3)(C)(i)(I). First, it is not clear that R~ wrote the cards or the note. Second, it is not clear whether the salutation on one of the cards, “To My son,” was referring to Tayquan, or to one of R~'s other sons. See McMillian by McMillian v. Heckler, 759 F.2d 1147 (4th Cir. 1985)(citing Montgomery v. Schweiker, 523 F. Supp. 1128, 1131-32(D. Md. 1981)(holding that parentage by virtue of acknowledgment under § 216(h)(3)(C)(i)(I) should be found only on basis of clear and unequivocal evidence); see also Social Security Ruling (SSR) 66-47 (stating that a document met the requirements for an acknowledgment in writing within the meaning of § 216(h)(3)(C)(i)(I) since it identified the children by name, indicated that the insured was the father of the children, and was signed by the insured).

Furthermore, we believe Tayquan has not met the requirements of section § 216(h)(3)(C)(ii) of the Act. Under this provision of the Act, a parent-child relationship is established “if the insured individual is shown by evidence satisfactory to the Commissioner to have been the mother or father of the applicant, and such insured individual was living with or contributing to the support of the applicant at the time such insured individual died.” Here, the evidence does not show that R~ was living with Tayquan at the time of his death. The Child Relationship Statement that Sasha completed actually suggests otherwise. Moreover, while Sasha indicated that R~ had given Tayquan some gifts on one Christmas and two birthdays and money on one occasion, there is no evidence demonstrating that he was regularly contributing to Tayquan's support at the time of his death. 20 C.F.R. § 404.366(a)(2) (stating that contributions must be made regularly and must be large enough to meet an important part of the child's ordinary living costs); Coleman v. Shalala, 1993 WL 404174 (E.D. Va. 1993) (holding that the record did not show that the insured was making regular contributions to the child's support at the time of his death).

CONCLUSION

For the reasons discussed above, we believe that the evidence is insufficient to establish a parent-child relationship between R~ and Tayquan. Therefore, we believe Tayquan is not entitled to receive surviving child's benefits pursuant to his application of August 21, 2002. There is no basis to award retroactive benefits or to reopen the prior application.

James A. W~

Regional Chief Counsel

By:__________________________

Christine O~

Assistant Regional Counsel

The evidence of nonpaternity in this case consists of an autopsy report showing that the NH had a medical condition that can cause sterility. However, the evidence does not clearly establish that he was sterile and could not have been the father of the two entitled children. Therefore, SSA should conduct further development to determine whether the entitlement of the NH's children should be reopened and revised to deny benefits.

QUESTION PRESENTED

On November 1, 2002, you asked us for a legal opinion as to whether there is a parent-child relationship between the Number Holder (Kody S. M~) and Jordan F. M~ and Haley D. M~ under the law of Virginia. Because Jordan F~ and Haley D~ were awarded benefits in June 2002, you also asked whether benefits should be ceased or retroactively terminated if there is no parent-child relationship.

SUMMATION

Based on our review of the facts in this case and our research of the relevant statutes and case law, we believe that further information is required in order to determine whether a parent-child relationship exists between Kody S. M~ and Jordan F~ and Haley D. M~.

BACKGROUND

In your request, you stated that the agency awarded benefits to Jordan F~ and Haley D. M~ on the record of Number Holder Kody S. M~ in June 2002. Although Kody M~ and Vanessa H~ were never married and did not cohabit, there was clear and convincing evidence of parentage, including a written acknowledgment of paternity given to the Virginia Bureau of Vital Statistics by Kody M~, birth certificates naming Kody M~ as the father, and use by the children of the Number Holder's last name. See Va. Code Ann. § 64.1-5.2 (Michie 1999) (listing evidence that may be considered in determining paternity of a child born out of wedlock).

In September 2002, Marina S~, mother of the Number Holder, filed a statement rebutting paternity. She stated that Kody M~ had Kallmann Syndrome, which caused him to be sterile and unable to father any children. Ms. S~ submitted an autopsy report on Kody M~, listing Kallmann Syndrome, with related testicular hypoplasia, as one of the pathological diagnoses.

In your request, you asked whether the presumption of legitimacy would be rebutted by the autopsy report under Virginia law. However, there is no presumption of legitimacy in this case. Ordinarily, under Virginia law, a presumption exists in favor of the legitimacy of a child born in wedlock. Wyatt v. Dep't of Social Srvcs., 397 S.E.2d 412, 415 (Va. App. 1990). To rebut the presumption of legitimacy, evidence of non-paternity must be clear and convincing, namely “strong, distinct, satisfactory and conclusive.” Wyatt, 397 S.E.2d at 415. In this case, Kody M~ and Vanessa H~, the children's mother, were never married, so the presumption of legitimacy of children born in wedlock does not apply. Virginia statutory and case law does not provide for any other presumptions of legitimacy. Accordingly, the question is not whether there is sufficient evidence to rebut a presumption of legitimacy, but whether the autopsy report warrants re-opening of the prior decision awarding benefits.

An award of benefits may be re-opened within one year for any good reason. 20 C.F.R. § 404.988 (2001); POMS GN 040001.010. Ms. S~ submitted her statement rebutting paternity, along with the autopsy report, on September 4, 2002, within three months of the initial award of benefits. In addition, Ms. S~'s statement, with the accompanying autopsy report, constitutes a good reason to re-open the award of benefits in this case.

On re-opening, the agency should consider whether Jordan F~ and Haley D. M~ are the children of Kody M~ pursuant to § 216(h)(2) of the Social Security Act (Act). The Act provides that in determining whether an applicant is the child of an insured individual, the Commissioner will apply the inheritance law of the state in which the insured individual was domiciled at the time the application was filed or, if the insured individual is dead, of the state in which the insured individual was domiciled at the time of his death. Act § 216(h)(2)(A); 20 C.F.R. 404.355(b)(1) (2000). Because Kody M~ was domiciled in Virginia at the time of his death, the agency should apply Virginia law of intestacy in assessing whether Jordan F~ and Haley D. M~ were children of Kody M~.

Pursuant to Virginia intestacy law, paternity of a child born out of wedlock must be proven by clear and convincing evidence. Va. Code Ann. § 64.1-5.2 (Michie 1999). Accordingly, on re-opening, the agency must determine whether there is clear and convincing evidence that Kody M~ is the father of Jordan F~ and Haley D. M~. The evidence that must be considered includes Kody M~'s written acknowledgment of paternity to the Virginia Bureau of Vital Statistics, the birth certificates, the use of Kody M~'s surname by the two children, and the autopsy report listing Kallmann Syndrome as a pathological diagnosis. The autopsy report should be considered pursuant to Va. Code Ann. § 64.1-5.2(8) (Michie 1999), which allows consideration of “other medical, scientific or anthropological evidence relating to the alleged parentage of the child based on tests performed by experts.”

It is not clear whether the autopsy report would sufficiently outweigh the other evidence of paternity in this case. The medical literature related to Kallman Syndrome suggests that males with the syndrome are generally sterile (see attachments). However, it also indicates that Kallman Syndrome may be treatable and that symptoms may vary (see attachments). It is not clear from our review of the autopsy report whether testicular hypoplasia related to Kallmann Syndrome would necessarily render a man sterile. In addition, it is not clear whether Kody M~ may have undergone treatment to reverse the sterility caused by Kallman Syndrome. Accordingly, the agency should attempt to obtain further evidence related to this condition. In particular, the agency may wish to seek further evidence from Mr. M~'s own treating physician, who could indicate whether Mr. M~ had undergone treatment or was in fact sterile.

Virginia law does not give controlling weight to scientific or genetic test results related to paternity. Va. Code Ann. § 64.1-5.2 (Michie 1999). Rather, these test results are simply considered as one piece of evidence related to paternity. Va. Code Ann. § 64.1-5.2(8) (Michie 1999). However, the domestic relations statute related to paternity allows the establishment of paternity based on genetic tests which affirm at least a ninety-eight percent probability of paternity. Va. Code Ann. § 20-49.1 (Michie 1999). While this provision is not controlling, it does suggest that a medical test establishing the impossibility of paternity with one-hundred percent accuracy would be given significant weight. Accordingly, if the agency obtains evidence showing that paternity was medically impossible, a reviewing court would likely determine that non-paternity was established by clear and convincing evidence despite any contradictory evidence.

If the agency determines that Jordan F~ and Haley D. M~ are not the children of Kody M~ pursuant § 216(h)(2) of the Act based on Virginia intestacy law, it should then consider whether the children may be deemed to be the children of Kody M~ pursuant to § 216(h)(3) of the Act. Pursuant to § 216(h)(3)(C)(i) of the Act, an applicant may be deemed to be the child of the deceased number holder if the number holder had acknowledged in writing that the applicant was his child. However, in order to be deemed a child of the number holder, the child must actually be the number holder's son or daughter. POMS GN 00306.100(D). Accordingly, the agency must consider evidence that is submitted showing that the number holder is not the biological parent in determining whether to apply § 216(h)(3). Evidence of non-paternity must be “very persuasive in order to override a written acknowledgment.” POMS GN 00306.100(D).

The evidence of non-paternity in this case consists of a statement from Ms. S~ and the autopsy report showing a pathological diagnosis of Kallmann's Syndrome. As previously stated, this evidence does not clearly establish that Kody M~ was sterile and could not have been the father of Jordan F~ and Haley D. M~. However, if the agency obtains evidence that Kody M~ was biologically incapable of being the father to the children, this evidence would be “very persuasive” and could override the written acknowledgment of paternity. Therefore, the agency should conduct further investigation, as previously described, before deeming Jordan F~ and Haley D. M~ to be the children of Kody M~.

CONCLUSION

For the reasons stated above, we believe that the agency should seek further medical evidence related to Kallmann Syndrome, specifically as to whether Kody M~ was in fact sterile. If the agency determines that Mr. M~ was medically incapable of being the father of Jordan F~ and Haley D. M~, it should retroactively deny benefits.

James A. W~

Regional Chief Counsel

By:__________________________

Kelly C. C~

Assistant Regional Counsel

A DNA test report indicating a 99.99% probability of paternity constitutes clear and convincing evidence of paternity under Virginia intestacy law.

QUESTION PRESENTED

On November 4, 2002, you asked our advice as to (1) whether the evidence of parentage of the deceased number holder (Jimar E. H~), which included DNA testing results and a court order establishing H~'s paternity, is sufficient to establish that H~ is the father of Traevis N. K~ (Traevis) and, (2) if so, when inheritance rights were conferred for the purpose of establishing entitlement to benefits for the surviving child.

CONCLUSION

We have reviewed the material you provided and have researched the relevant provisions of Virginia law as it pertains to establishing paternity. We conclude that, in this case, the evidence provided to us constitutes clear and convincing evidence of paternity. We further conclude that inheritance rights were conferred as of September 17, 2002, the date of the DNA Parentage Test Report.

BACKGROUND

In your request, you indicated that Kristin M. K~ (K~) applied for child's benefits for Traevis on October 22, 2002. The file does not contain any indication that H~ had given K~ any support or acknowledged the child. It also does not suggest that Traevis was either living with or being supported by H~ at the time of his death. At the time K~ applied for child's benefits, she submitted Traevis' birth certificate, which did not list H~ as the child's father, a DNA testing report, and a court order. The DNA testing report dated September 17, 2002, indicated that, based upon blood drawn from H~, there was a 99.99% probability that H~ was the father of Traevis. The September 23, 2002, court order from the Juvenile and Domestic Relations Court for the City of Roanoke stated that H~ was adjudicated to be the biological father of Traevis.

DISCUSSION

The Social Security Act (Act) provides that, when determining issues of paternity for purposes of Social Security benefits, the agency will look to the applicable state's inheritance laws as interpreted by the courts of that state. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.354 (2002). In this case, H~ resided in the Commonwealth of Virginia at the time of his death. Thus, the agency will look to Virginia's inheritance laws as interpreted by the courts of that state. 42 U.S.C. § 416(h)(2)(A).

A child born out of wedlock in Virginia may inherit from a decedent's estate based upon a showing that the decedent is the father of the child. Va. Code Ann. § 64.1-5.1. The child must establish paternity by clear and convincing evidence as set forth in Virginia's intestacy statute. Va. Code Ann. §§ 64.1-5.1(3)(b), -5.2.

Pursuant to Virginia's intestacy statute, evidence that a man is the father of a child born out of wedlock shall include, but shall not be limited to, “the results of scientifically reliable genetic tests, including DNA tests, weighted with all the evidence.” Va. Code Ann. § 64.1-5.2(7). Furthermore, in the domestic relations context, the Virginia statute provides that in a proceeding to determine parentage, the relationship between a child and a man may be established by “[s]cientifically reliable genetic tests, including blood tests, which affirm at least a ninety-eight percent probability of paternity.” Va. Code Ann. § 20-49.1B(1). Such genetic blood test results have the same effect as a judgment establishing parentage. Va. Code Ann. § 20-49.8.

In this case, K~ submitted genetic blood test results indicating a 99.99% probability that H~ is the father of Traevis. This is clear and convincing evidence of H~'s paternity under the law of the Commonwealth of Virginia and is the equivalent of a judgment establishing paternity. Va. Code Ann. §§ 20-49.8, 64.1-5.2(7). Traevis would be entitled to inherit personal property as the child of H~ under the intestacy laws of Virginia. Va. Code Ann. § 64.1-5.2(7).

Regarding the date Traevis is entitled to benefits, the POMS state the Agency's position that in Virginia, where inheritance rights are conferred by statute based on an adjudication of paternity (but the statute does not legitimate the child), and the act or event conferring inheritance rights is prospective only, if one piece of evidence is needed to satisfy the applicable standard of proof, the date of the latest necessary piece of evidence is the effective date that the claimant's status as the insured's child is established. POMS GN 00306.055. In this case, one piece of evidence, the DNA Parentage Test Report, established H~'s paternity. Thus, September 17, 2002, the date of the DNA Parentage Test Report, is the effective date because the report is the piece of evidence that was necessary to establish paternity. You have also provided us a September 23, 2002 adjudication of paternity. Under Virginia law, the DNA testing results have the same effect as an adjudication of paternity. Therefore, the court order of September 23, 2002, was not necessary to prove paternity in an intestacy proceeding.

Finally, you have asked whether Traevis is entitled to retroactive benefits. The regulations provide that if the insured is deceased, the child is entitled to benefits beginning with the first month covered by the application in which he meets all other requirements for entitlement. 20 C.F.R. § 404.352(a)(1). The regulations further provide that a child may receive retroactive benefits for up to six months beginning with the first month in which all requirements are met. 20 C.F.R. § 404.621(a)(1)(ii); see also POMS GN 00204.030. In this case, the application date is October 22, 2002. Since all requirements for entitlement were met on the date of the DNA testing, September 17, 2002, benefits should be allowed retroactively to that date.

James A. W~

Regional Chief Counsel

By:_________________________

Tara A. C~

Assistant Regional Counsel

A parent-child relationship is established between the child claimant and the NH under Virginia law because the DNA test results on the child's putative grandparents and court order determining parentage constitute clear and convincing evidence of paternity. The effective date of the parent-child relationship is the date of the court order, since it is the last piece of convincing evidence.

QUESTION PRESENTED

This is in response to your October 18, 2002 request for our advice regarding (1) whether a parent-child relationship existed between the number holder, Jermaine D~ (D~) and Zaukeus O. W~ (Zaukeus); (2) the effective date of any such relationship; and (3) whether Zaukeus is entitled to retroactive benefits.

SUMMARY

We have reviewed the material you provided and have researched the relevant provisions of Virginia law regarding paternity. Based on our research, it is our opinion that a parent-child relationship was established between D~ and Zaukeus because the DNA test results on the child's putative grandparents and the court Order determining parentage constitute clear and convincing evidence of paternity. The effective date of the parent-child relationship is June 12, 2002, the date of the court Order establishing parentage. Lastly, benefits should not be retroactive because the court Order, the last piece of evidence establishing paternity, was not produced until the date of benefit application.

BACKGROUND

D~ died on November 7, 1994, at which time he resided in the state of Virginia. Zaukeus was born on August 5, 1993. Both Zaukeus' birth certificate and his application for a Social Security Number list Shemika W~ (Shemika) as his mother. Neither document identifies a father. D~ and Shemika were never married and never lived together.

In 1994 and 1997 Shemika filed applications for surviving child's benefits on behalf of her son, Zaukeus. These applications were denied for failure to establish a relationship.

Shemika filed a third application for benefits on June 12, 2002. Along with this application, she submitted DNA test results based on samples from herself, Zaukeus, and D~'s parents, James M~ and Linda D~. This testing established a 99.92% probability that the biological son of James M~ and Linda D~ is the father of Zaukeus, as compared to an untested, unrelated man.

Shemika also submitted as evidence a court Order Determining Parentage from the Juvenile and Domestic Relations District Court dated June 12, 2002. According to this Order, Jermaine D~, (date of birth April 28, 1974, SSN ~) is the father of Zaukeus O. W~, (date of birth August 5, 1993, SSN ~).

DISCUSSION

When determining paternity for purposes of entitlement to Social Security benefits, the Commissioner shall apply the inheritance laws of the state in which the insured had his permanent home at the time that he died. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1) (2002). In this case, Virginia intestacy law applies because D~ resided in Virginia at the time of his death.

The Virginia law of intestate succession provides that a child born out of wedlock may inherit from a decedent's estate based upon a showing by clear and convincing evidence that the decedent is the father of the child. Va. Code Ann. § 64.1-5.1(3)(b). Such evidence may include “[t]he results of scientifically reliable genetic tests, including DNA tests, weighted with all the evidence.” Va Code Ann. § 64.1-5.2(7). The final paragraph of the statute also provides that if a proceeding to determine parentage has been initiated and concluded pursuant to section 20-49.1, et seq., of Title 20, and the court enters a judgment against a man for support, that judgment shall be sufficient evidence of paternity for purposes of taking an intestate share. Although the Virginia domestic relations court did not enter an order of support because D~ was deceased, it did state that the DNA test results were sufficient to find that D~ was the father of Zaukeus.

The unrebutted DNA test results on D~'s parents estimate that their biological son has a probability of paternity of 99.92% as compared to an untested, unrelated man. Although the Virginia Code does not specifically state whether DNA testing of relatives of a putative father is “clear and convincing” evidence of paternity, it does not exclude such testing as a potential basis for establishing a paternal relationship. Moreover, as stated, a Virginia court found this genetic evidence sufficient to enter an award of parentage. While the possibility exists that Zaukeus could have been fathered by a brother of D~ (if one exists), the Virginia domestic relations court was apparently not concerned with this possibility since it issued an Order finding paternity based on the DNA testing.

Although this Order is not a judgment for support, maintenance, or education, no such order could have been entered against D~ because he was deceased at the time of the court proceeding. For this reason, we believe that the Order should be given comparable weight to a judgment for support and should be treated as clear and convincing evidence of paternity.

Regarding the effective date of the parent-child relationship, the POMS GN 00306.055 directs that where a state law confers inheritance rights based on an adjudication of paternity, and where the conferring of paternity rights is prospective only, if more than one piece of evidence is needed to satisfy the applicable standard of proof, the date of the latest necessary piece of evidence is the effective date of the claimant's status as the number holder's child. POMS GN 00306.055. Since the court Order of parentage was the latest necessary piece of evidence establishing paternity under Virginia law, the parent-child relationship is effective June 12, 2002.

Finally, the regulations provide that, if the insured is deceased, the child is entitled to benefits beginning with the first month under the application in which he meets all other requirements for entitlement. 20 C.F.R. § 404.352(a)(1). In this case, the benefit application date was June 12, 2002, the same date as the court's Order. Because the first month that all requirements were met for Zaukeus was the same month that his application was filed, benefits should not be retroactive.

CONCLUSION

For the reasons stated above, it is our opinion that the DNA testing performed on the grandparents in this case, combined with the court Order, is sufficient to establish a parent-child relationship between D~ and Zaukeus. Therefore, we believe there is clear and convincing evidence of a parent-child relationship between Jermaine D~ and Zaukeus O. W~ effective June 12, 2002. Finally, we believe that benefits should not be paid retroactively.

James A. W~

Regional Chief Counsel

By:

Wendy S~

Assistant Regional Counsel

The mother of the child claimants submitted DNA test results based on blood samples from herself, the claimants, and both paternal grandparents showing probabilities ranging from 99.95% to 99.98% that the NH was the father of the children. Based on the DNA test results and the mother's allegation of paternity, combined with the absence of any evidence contradicting paternity, a Virginia court would find the DNA test results to be clear and convincing evidence that the NH was the children's father. The effective date of the relationship is the date of the DNA test results.

QUESTION PRESENTED

This is in response to your July 13, 2002, request for our advice regarding (1) whether a parent-child relationship existed between Raish A. H~, Jr. (H~), the deceased number holder, and Rhonda V. H~ (Rhonda), Bridgette A. H~ (Bridgette), and Shauntia M. H~ (Shauntia) (collectively referred to as “the claimants”), (2) the effective date of the relationship, and (3) whether the claimants are entitled to retroactive benefits.

SUMMARY

We have reviewed the information that you provided and have researched the relevant provisions of Virginia law as it pertains to paternity. We believe that a Virginia court would find that a parent-child relationship was established between H~ and the claimants. The effective date of the parent-child relationship for Rhonda is March 19, 2002, and for Bridgette and Shauntia is March 1, 2002, the respective dates of the DNA test results. Retroactive benefits should not be allowed.

BACKGROUND

H~, who resided in Martinsburg, Virginia, filed an application for social security disability benefits in April 1990. He made no mention that he had children. H~ died in May 1990. On March 28, 2002, Susan D. H~ (H~), the claimants' mother, filed an application for surviving child benefits on behalf of Rhonda, born May 11, 1984, Bridgette, born March 16, 1987, and Shauntia, born March 7, 1988. Birth certificates and applications for social security numbers for the claimants contain no information as to “father.” H~ and H~ were not married and did not live together. H~ submitted DNA test results based on blood samples from herself, the claimants, and both paternal grandparents. The tests resulted in a 99.95% probability that H~ was the father of Rhonda, a 99.96% probability that H~ was the father of Bridgette, and a 99.98% probability that H~ was the father of Shauntia.

DISCUSSION

The Social Security Act provides that in determining paternity for purposes of entitlement to surviving child's benefits, the Commissioner will apply the inheritance laws of the state in which the insured individual had his permanent home at the time of death. 42 U.S.C. § 416(h)(2)(A). H~ resided in Virginia at the time of his death. Therefore, Virginia intestacy law applies. Under Virginia law, a child born out of wedlock may inherit from a decedent's estate based upon a showing that the decedent is the father of the child. Va. Code Ann. § 64.1-5.1. Evidence that a man is the father of a child born out of wedlock shall be clear and convincing and may include, among other things, the results of scientifically reliable genetic tests, including DNA test results, weighted with all of the evidence. Va Code Ann. § 64.1-5.2 (7).

The Virginia intestacy statute does not set forth the percentage of probability of paternity sufficient to establish a parent-child relationship. However, the Virginia Domestic Relations Statute provides that blood test results that affirm at least a 98% probability of paternity are sufficient to establish a parent-child relationship. Va. Code Ann. § 20-49.1(B)(1). While this section is not binding, it does provide guidance as to the sufficiency of DNA testing in Virginia.

Based on the DNA results and the mother's allegation of paternity, combined with the absence of any evidence contradicting paternity, we believe that a Virginia court would find the DNA results to be clear and convincing evidence that H~ was the father of the claimants. The unrebutted DNA tests establish a 99.95% probability that H~ was the father of Rhonda, a 99.96% probability that he was the father of Bridgette, and a 99.98% probability that he was the father of Shauntia.. see, e.g., Commonwealth v. Department of Soc. Serv. v. Flaneary, 469 S.E. 2d 79, 82-83 (Va. App. 1996) (uncontroverted evidence that genetic blood tests resulted in 99.92% probability of paternity was clear and convincing evidence of paternity).

As to the effective date of the parent-child relationship, the POMS direct that where a state law confers inheritance rights based on an adjudication of paternity (but does not legitimate the child), and the provision is effective prospectively only, the date of the latest necessary piece of evidence needed to satisfy the applicable standard of proof is the effective date. POMS GN 00306.055. In this case, the DNA studies were the latest necessary piece of evidence provided establishing paternity under Virginia law. Therefore, the effect date of the parent-child relationship for Rhonda is March 19, 2002. The effective date of the parent-child relationship for Bridgette and Shauntia is March 1, 2002.

The regulations provide that if the insured is deceased, the children are entitled to benefits beginning with the first month covered by the application in which they meet all other requirements for entitlement. 20 C.F.R. § 404.352(a)(1) (2002). Children may receive retroactive benefits for up to twelve months preceding the date of the application. 20 C.F.R. § 404.621. However, benefits can only be paid from the first month that all requirements for entitlement are met. 20 C.F.R. § 404.620(a)(1). In this case, the application was filed in March 2002, the same month that all requirements for entitlement were met. Accordingly, retroactive benefits should not be paid.

CONCLUSION

For the reasons stated above, it is our opinion that a court would likely find the DNA evidence sufficient to establish that H~ was the claimants' father under Virginia law, effective March 19, 2002 for Rhonda, and March 1, 2002 for Bridgette and Shauntia. Retroactive benefits should not be paid.

James A. W~

Regional Chief Counsel

By:

Nora R. K~

Assistant Regional Counsel

The presumption of legitimacy of twins conceived in wedlock is overcome by clear and convincing evidence, including DNA test results, showing that a man other than the biological mother's husband was the children's biological father. The DNA test results, in addition to the unrebutted statements of the children's mother and the NH's mother give the children inheritance rights with respect to the NH under Virginia law, effective with the date of the DNA tests.

QUESTION PRESENTED

On July 29, 2002, you asked our advice as to whether there is sufficient evidence to establish a parent-child relationship between Brandon M. G~ (G~), the deceased number holder, and twin children, London M. G~ (London) and Brandon M. G~ (Brandon). Additionally, if a parent-child relationship can be established, you asked for the effective date of that relationship and whether retroactive benefits can be paid.

SUMMARY

We have reviewed the material you provided and have researched the relevant provisions of Virginia law as it pertains to paternity. Based on our research, it is our opinion that a parent-child relationship was established between G~ and both referenced children, effective February 14, 2002. Thus, retroactive benefits should be allowed from February 14, 2002.

BACKGROUND

G~ died on August 3, 2001, in the state of Virginia. On June 3, 2002, Carla L. M~ (Carla) filed an application on behalf of her twin sons London and Brandon (date of birth November 24, 2001) for surviving child's benefits based on G~'s account. Along with this application, Carla submitted evidence including the results of DNA testing, the birth certificates of the referenced children, and several written statements.

1. DNA Evidence

Carla submitted the results of DNA tests performed on February 14, 2002, utilizing samples of G~'s DNA which had been kept on file by the military during G~'s period of service. G~'s DNA was compared to the DNA of both London and Brandon with the following results: the probability that G~ was the father of London was 99.98%; the probability that G~ was the father of Brandon was 99.99%.

2. Other Evidence

G~ and Carla were never married. Carla was actually married to another man (Marwan T. G~) during the entire period of her pregnancy. However, Carla submitted a statement indicating that she and G~ had resided together from December 2000 through the date of G~'s death in August 2001. While no evidence was submitted to support this statement, there is also nothing in the file to contradict the allegation.

London's birth certificate does not identify a father, but lists G~'s date of birth in the relevant location. Brandon's birth certificate does not identify a father. In addition, neither child's application for a Social Security Number includes the identity of the father.

A statement completed by Carla and submitted with the applications filed on behalf of London and Brandon indicates that G~ made an allotment for both children while serving in the military, made oral admissions of paternity of both children, and made regular and substantial contributions to their support. There is no indication in the documentation as to whether supporting evidence was offered for these averments.

A second statement submitted with the applications reiterates that G~ resided with Carla for the relevant time period and that G~ admitted paternity to his family and his commanding officer. This statement adds that G~ also attended medical appointments with Carla during her pregnancy.

You have indicated that no supporting evidence was submitted to prove these averments.

Finally, a report of contact made with G~'s mother, Diane G~ (Diane), states that G~ told Diane of Carla's pregnancy. Diane did not know whether G~ and Carla had ever resided together.

DISCUSSION

In determining entitlement to surviving child's benefits, the Commissioner shall apply the inheritance laws of the state in which the insured had his permanent home at the time that he died. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1) (2001). A child born out of wedlock in Virginia will only be deemed legitimate by the subsequent intermarriage of the mother and father. Va. Code. Ann. § 20-31.1; Program Operations Manual System (POMS) GN 00306.055. Under Virginia law, however, a child born out of wedlock may inherit from a decedent's estate based upon a showing that the decedent is the father of the child. Va. Code Ann. § 64.1-5.1. Evidence that a man is the father of a child born out of wedlock shall be clear and convincing and may include, among other things, evidence that he cohabited with the mother during all of the ten months immediately prior to the time the child was born, a voluntary admission of paternity in writing and under oath, and/or the results of scientifically reliable genetic tests, including DNA tests, weighted with all the evidence. Va Code Ann. § 64.1-5.2 (1), (6), (7). With regard to genetic testing, another section of the Virginia Code, pertaining to domestic relations proceedings, provides that blood test results that affirm at least a 98% probability of paternity are sufficient to establish a parent-child relationship. Va. Code Ann. § 20-49.1(B)(1). See also Veeney ex rel. Strother v. Sullivan, 973 F.2d 326 (4th Cir. 1992) (holding that blood test evidence should be considered in addition to all other probative evidence in determining the putative father's paternity for purposes of awarding Social Security benefits).

In this case, based on the facts you provided us, we believe there is clear and convincing evidence that G~ is the father of both London and Brandon. The unrebutted DNA test results, which utilized actual samples from G~ and the two children, sufficiently establish that there is at least a 99.98% probability that G~ is the biological father of both children. In addition, there is other evidence that supports a conclusion of paternity between G~ and the children. The unrebutted evidence contained in the relevant documentation indicates that G~ lived with Carla through the date of his death, a time period which included several months of Carla's pregnancy, even though she was married to another man at the time. Though not made in writing or under oath, we have inferred that G~ made an admission of paternity to his family as evidenced by his conversation with his mother advising her of Carla's pregnancy. G~ apparently made regular contributions to the financial support of the children, and both children use G~'s surname. One of the children also shares his first name. Finally, at least one twin's birth certificate makes reference to G~'s date of birth in a location specifically designated for the father's date of birth. Even though none of these other items of evidence, standing alone, is sufficient to meet the specific statutory requirements of section 64.1-5.2 of the Virginia Code, when they are considered in conjunction with the results of the DNA testing, we believe a Virginia Court would rule that there is clear and convincing evidence of paternity in this case. See Jones v. Eley, 256 Va. 198, 200-02 (1998) (holding that evidence, such as voluntary admissions of paternity made by the putative father to family members and contributions made by the putative father to the financial support of the children, was sufficient to establish a parent-child relationship between the putative father and the children even without DNA evidence); Wyatt v. Virginia Dept. of Soc. Serv., 11 Va. App. 225, 229-30 (1990) (holding that the presumption of legitimacy of a child born in wedlock was overcome by clear and convincing evidence, including DNA test results, that proved a man other than the biological mother's husband was the biological father of the child in question).

Thus, based on the information you have provided, it appears likely that a Virginia court would find G~ to be the father of both London and Brandon under its inheritance statutes.

Regarding the effective date of the parent-child relationship, the POMS GN 00306.055 directs that where a state law confers inheritance rights based on an adjudication of paternity (but does not legitimate the child), and the provision is effective prospectively only, the claimant's status as the nameholder's child is established effective with the following dates:

if more than one piece of evidence is needed to satisfy the applicable standard of proof, the date of the latest necessary piece of evidence;

POMS GN 00306.055. Since, as stated above, Virginia law confers inheritance rights based on an adjudication of paternity, but does not legitimate the child, and the DNA test was the latest necessary piece of evidence establishing paternity under Virginia law, the parent-child relationship is effective February 14, 2002, the date of the DNA test.

Finally, the regulations provide that, if the insured is deceased, the child is entitled to benefits beginning with the first month covered by the application in which he meets all other requirements for entitlement. 20 C.F.R. § 404.352(a)(1). The regulations provide that a child may receive retroactive benefits for up to twelve months preceding the date of his application. 20 C.F.R. § 404.621(a). However, benefits can only be paid from the first month that all requirements for entitlement are met. 20 C.F.R. §§ 404.620(a)(1), .621(a). In this case, the application date is June 3, 2002, approximately four months after completion of the DNA testing on February 14, 2002. Accordingly, retroactive benefits should be paid in this case from February 14, 2002, forward.

CONCLUSION

For the reasons stated above, it is our opinion that the DNA testing performed in this case between G~ and the referenced children, combined with the other evidence submitted by the applicant, is sufficient to establish a parent-child relationship between G~ and both London and Brandon. Therefore, we believe there is clear and convincing evidence of a parent-child relationship between Brandon M. G~ and twin children, London M. and Brandon M. G~, effective February 14, 2002. Finally, we believe that benefits should be paid retroactive to February 14, 2002.

James A. W~

Regional Chief Counsel

By:

Amy E. N~

Assistant Regional Counsel

A Virginia court interpreting its intestacy statute would find that the child claimant is the NH's child because DNA test results, a signed statement admitting paternity, and an order for Faithe's support and health insurance, taken together, are clear and convincing evidence of paternity.

NOTE: This opinion cites the provision of Virginia law that a child has inheritance rights if there is clear and convincing evidence of paternity, including the results of scientifically reliable genetic tests, including DNA tests, weighted with all the evidence. This is consistent with POMS GN 00306.660. The summary in this opinion is basically consistent with this provision of Virginia law. However, the opinion also contains the misleading statement that under Virginia law, DNA test results affirming at least a 98% probability of paternity have the same effect as a judgment establishing parentage, and that the DNA test results alone established the child's paternity.

QUESTIONS PRESENTED

This is in response to your June 26, 2002 request for our advice regarding (1) whether a parent-child relationship exists between John W. ~ (Insured) and Faithe C.J~ (Faithe); (2) the effective date of any such relationship; and (3) whether Faithe is entitled to retroactive benefits.

SUMMATION

We have reviewed the material you provided and have researched Virginia law as it pertains to establishing paternity. We believe that a Virginia court interpreting its intestacy statute would find that Faithe is the Insured's child because the March 22, 2001 DNA test results, a signed statement admitting paternity, and an order for Faithe's support and health insurance, taken together, are clear and convincing evidence of paternity. Because Faithe would be entitled to inherit personal property from the Insured pursuant to Va. Code Ann. § 64.1-5.2, she is the Insured's child for purposes of the Social Security Act (Act), 42 U.S.C. § 416(h)(2). The effective date of the parent-child relationship is March 22, 2001, the date of the DNA test results, which was the latest necessary piece of evidence to establish paternity under Virginia law. Finally, Faithe is entitled to retroactive child's insurance benefits from October 23, 2001, through the date of her application, April 23, 2002.

BACKGROUND

Based upon the information you provided to us, the following is a summary of the relevant facts in this matter. Faithe, a minor child, was born on December 2, 1999. Faithe's mother is Linda M~. The Insured is a resident of Norfolk, Virginia. Faithe carries the same surname as the Insured, although there is no evidence that he allowed the common use of his surname. The Insured and Ms. M~ were never married and never cohabitated. There is no evidence that Faithe and the Insured ever lived together. Neither Faithe's birth certificate nor her application for a Social Security number identifies the father.

On April 23, 2002, Ms. M~, on behalf of Faithe, applied for child's benefits on the earnings record of the Insured. In support of the application, Ms. M~ submitted DNA test results dated March 22, 2001 which show a statistical probability of 99.97% that the Insured is Faithe's father. Ms. M~ also submitted a statement signed by the Insured admitting that Faithe is his child. Finally, Ms. M~ submitted a March 28, 2001 notice from the Department of Social Services, Division of Child Support Enforcement stating that the Insured was proven to be Faithe's legal father, and an order that the Insured make monthly child support payments and carry health insurance for Faithe.

DISCUSSION

Child's benefits may be granted based on the earnings record of an insured person who is entitled to old-age benefits if the applicant is the insured person's child, and is dependent on the insured. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a) (2001). In determining whether an applicant is the insured's child, the Commissioner will apply the inheritance law of the state in which the insured was domiciled at the time the application was filed. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1). The Insured was domiciled in the Commonwealth of Virginia at the time the application was filed. Accordingly, Virginia law applies.

A child born out-of-wedlock in Virginia will be deemed legitimate only by the subsequent intermarriage of the mother and father. Va. Code Ann. § 20-31.1. Nevertheless, the Virginia intestacy statute provides that a child born out-of-wedlock may inherit from a decedent's estate based upon a showing that the decedent is the child's father. Va. Code Ann. § 64.1-5.2. Under Virginia's intestacy statute, evidence of paternity must be clear and convincing, and includes, but is not limited to the following:

(4) that he claimed the child as his child on any statement, tax return or other document filed and signed by him with any local, state or federal government or any agency thereof;

. . . . .

(7) [t]he results of scientifically reliable genetic tests, including DNA tests, weighted with all the evidence[.]

Va. Code Ann. § 64.1-5.2 . Additionally, a judgment in a parentage proceeding for the support, maintenance and education of the child is sufficient evidence of paternity for purposes of the intestacy statute. Va. Code Ann. § 64.1-5.2.

We believe that there is clear and convincing evidence of paternity under Virginia's intestacy statute. First, there is an unrebutted DNA test result showing a statistical probability of 99.97% that the Insured is Faithe's father. Va. Code Ann. § 64.1-5.2(7). While Virginia's intestacy statute is silent as to the probability of paternity that constitutes clear and convincing evidence, Virginia's domestic relations statute states that blood test results that affirm at least a 98% probability of paternity have the same legal effect as a judgment of parentage. See Va. Code. Ann. § 20-49.1(B)(1). Second, the Insured filed a signed statement with the Agency admitting that he is Faithe's father, which is also evidence of paternity under Virginia's intestacy statute. Va. Code Ann. § 64.1-5.2(4). Finally, the notice from Virginia's Department of Social Services, Division of Child Support Enforcement stating that the Insured was proven to be Faithe's father, and the order that he pay child support, are sufficient evidence of paternity under the intestacy statute. Va. Code Ann. § 64.1-5.2. The DNA test results, which have the same legal effect as a parentage judgment, weighted with the signed admission of parentage and the support order, constitute clear and convincing evidence that the Insured is Faithe's father.

Once paternity is established, the applicant must also prove that she is dependent upon the insured. 20 C.F.R. § 404.350(a)(2). Since a Virginia court would find that Faithe is the Insured's child under Virginia's intestacy statute, the Agency will consider her dependent upon him. 20 C.F.R. § 404.361(a).

The next question is when the parent-child relationship became effective. The POMS state the Agency's position that where a state law confers inheritance rights based on an adjudication of paternity (but the statute does not legitimate the child) and the provision is effective prospectively only, the applicant's status as the insured's child is established effective with the following dates:

• •

  if one piece of evidence satisfies the applicable standard of proof (e.g., blood test results constitute clear and convincing evidence), the date of that piece of evidence; or

• •

  if more than one piece of evidence is needed to satisfy the applicable standard of proof, the date of the latest necessary piece of evidence.

POMS GN 00306.055A.3.

Under Virginia law, DNA test results which affirm at least a 98% probability of paternity have the same effect as a judgment establishing parentage. Va. Code Ann. § 20-49.1B(1), -49.8. In this case, one piece of evidence, the DNA test results, established the Insured's paternity. Thus, the effective date of the parent-child relationship is the date of the DNA test results, March 22, 2001.

You also provided us with a notice from the Department of Social Services, Division of Child Support Enforcement dated March 28, 2001 stating that the Insured had been proven to be Faithe's legal father. Additionally, you provided us with an order for child support and health insurance dated April 17, 2001. Under Virginia law, the DNA testing results have the same effect as an adjudication of paternity. Va. Code Ann. § 20-49.1B(1), -49.8. Thus, the notice and order, while relevant, are not necessary to establish paternity in an intestacy proceeding. The latest necessary piece of evidence was the DNA test results, which had the same effect as an adjudication of paternity.

You further asked whether Faithe is entitled to retroactive benefits. The regulations provide that if the insured is living, child's benefits begin with the first month covered by the application throughout which the claimant meets all other requirements for entitlement to benefits. 20 C.F.R. § 404.352(a). All of the requirements for entitlement were met as of March 22, 2001, the date that the parent-child relationship became effective. The first month throughout which Faithe met all of the requirements for benefits would therefore be April 2001.

While Faithe met all of the requirements for benefits in April 2001, she is not entitled to benefits retroactive to that date. Child's benefits based on the earnings record of a person not entitled to disability benefits may be paid retroactively for up to six months immediately preceding the month in which the application is filed, beginning with the first month in which all requirements for entitlement are met. 20 C.F.R. § 404.621(a)(1)(ii). Faithe's application was filed on April 23, 2002. Accordingly, Faithe is entitled to benefits for the six month period prior to her application, from October 23, 2001, through April 23, 2002.

James A. W~

Regional Chief Counsel

By: ________________________________

Elizabeth A. C~

Assistant Regional Counsel

For purposes of proving a right to an intestate share, Virginia law provides that paternity may be established by "the results of scientifically reliable genetic tests, including DNA tests, weighted with all the evidence. In this case, DNA test results showed a statistical probability of 99.98% that the NH was the child's father, but the only other evidence provided is the shared name of the NH and the child. A Virginia court interpreting the intestacy statute might determine that the applicant would be entitled to inherit from the deceased NH based on the DNA test results submitted, and the other evidence. However, because of the paucity of evidence in this case, it cannot be established conclusively that the requirements for proving paternity have been satisfied. The agency should seek additional evidence relating to paternity; e.g., whether the NH and the mother were living together or engaging in a sexual relationship during the possible time of conception of the applicant; whether the mother identified the NH as the child's father prior to the child's birth; or whether the NH ever allowed the common use of his name by the applicant.

QUESTIONS PRESENTED

This is in response to your March 29, 2002 request for our advice regarding (1) whether a parent-child relationship existed between the number holder and Richard L H~, Jr.; (2) the effective date of any such relationship; and (3) whether Richard L. H~, Jr. is entitled to retroactive benefits.

SUMMATION

We have reviewed the material you provided and have researched the relevant provisions of Virginia law as it pertains to establishing paternity. Although a Virginia court interpreting the intestacy statute might arguably determine that Richard L. H~, Jr. would be entitled to inherit from the deceased wage earner based on the DNA test results of January 4, 2002 and the other evidence, because of the paucity of evidence other than the DNA test results, we cannot establish conclusively that the requirements for proving paternity have been satisfied. Accordingly, we suggest that the agency attempt to obtain additional evidence before awarding surviving child's benefits.

BACKGROUND

Based upon the information you provided to us, the following is a summary of the relevant facts in this matter. Richard L. H~, Jr. (the applicant), a minor child, was born on July 21, 2000. The mother of the applicant is Bridgette D. L~ (the mother). Richard L. H~ (the number holder) died on November 1, 1999, more than eight and one-half months before the applicant was born. Prior to his death, the number holder was a resident of Richmond, Virginia. The applicant and the number holder share the same first name, middle initial, and surname, and the applicant's name includes the designation “Jr.” However, there is no evidence that the number holder allowed the common use of his name by the applicant.

The number holder and the mother were not married and did not live together. An application for a Social Security number for the applicant completed on October 16, 2000, as well as the applicant's birth certificate, list Bridgette D. L~ as the mother. However, these documents do not contain any information regarding the identity of the father.

On December 7, 2000, the mother, on behalf of the applicant, applied for surviving child's benefits on the earnings record of the number holder. That application was denied for failure to establish a parent-child relationship.

On February 11, 2002, the mother, on behalf of the applicant, filed the instant application for the lump sum death benefit and surviving child's benefits based upon the earning records of the number holder. In support of this application, the mother submitted DNA test results dated January 4, 2002, which were subsequently filed with the Richmond Juvenile and Domestic Relations Court on January 10, 2002.1 The DNA test results stated that the number holder could not be excluded as the biological father of the applicant since the applicant and the number holder share the same genetic markers. The DNA test results showed a statistical probability of 99.98% that the number holder was the father of the applicant. According to the laboratory report, the number holder's DNA sample was collected on November 2, 1999 — the day after his death — and was received by the laboratory for testing on December 27, 2001.

DISCUSSION

The Social Security Act provides that, when determining paternity for purposes of entitlement to Social Security benefits, the Commissioner will apply the inheritance laws of the state in which the insured individual was domiciled at the time of his death. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1) (2001). In the present case, the number holder was domiciled in the state of Virginia at the time of his death. Therefore, Virginia intestacy law applies. Under Virginia law, a child born out-of-wedlock may inherit from a decedent's estate upon establishing, by clear and convincing evidence, that the decedent is the father of the child. Va. Code Ann. §§ 64.1-5 -5.2. For purposes of proving a right to an intestate share, the Virginia Code provides that “clear and convincing” evidence that a man is the father of a child born out of wedlock includes, but is not limited to, the following:

1. That he cohabited openly with the mother during all of the ten months immediately prior to the time the child was born;

2. That he gave consent to a physician or other person, not including the mother, charged with the responsibility of securing information for the preparation of a birth record that his name be used as the father of the child upon the birth records of the child;

3. That he allowed by a general course of conduct the common use of his surname by the child;

4. That he claimed the child as his child on any statement, tax return or other document filed and signed by him with any local, state or federal government or any agency thereof;

5. That he admitted before any court having jurisdiction to try and dispose of the same that he is the father of the child;

6. That he voluntarily admitted paternity in writing, under oath;

7. The results of scientifically reliable genetic tests, including DNA tests, weighted with all the evidence; or

8. Other medical, scientific or anthropological evidence relating to the alleged parentage of the child based on tests performed by experts. Va. Code Ann. § 64.1-5.2.2

Clearly, § 64.1-5.2(7) (paragraph (7) above) is the only portion of the statute applicable under the facts of the instant case. Pursuant to § 64.1-5.2(7), paternity may be established by [t]he results of scientifically reliable genetic tests, including DNA tests, weighted with all the evidence." Va. Code Ann. § 64.1-5.2(7). In this case, the DNA test results show a statistical probability of 99.98% that the number holder was the father of the applicant. 3§ 64.1-5.2(7). However, other than the DNA test results, the only other evidence in the materials you provided to us which supports a claim of paternity is the shared name of the number holder and the applicant. But, as mentioned above, there is no evidence the number holder ever consented to the use of his name by the applicant. While, in the absence of any contradictory evidence, a reviewing court could arguably find clear and convincing evidence of paternity in this case based upon the DNA test results alone, considering that the applicant's birth certificate and an application for a Social Security number for the applicant do not contain any information regarding the identity of the father, we are unable to determine for certain whether this would, in fact, be the result.

Therefore, we recommend that the agency seek additional evidence relating to paternity prior to making a decision in this case. For example, the agency could seek evidence as to whether the number holder and the mother were living together or engaging in a sexual relationship during the possible time of conception of the applicant. In addition, and by way of further example, the agency could seek information as to whether the mother identified the number holder as the father of the applicant prior to the applicant's birth. The agency could also attempt to ascertain whether the number holder ever allowed the common use of his name by the applicant. Without any such additional evidence, we are unable to conclude, based on the DNA tests alone, whether a court would determine that the applicant is the number holder's child. You also inquired about the effective date of any parent-child relationship between the number holder and the applicant and whether the applicant is entitled to retroactive benefits. The answers to those questions should be held in abeyance until any additional evidence obtained by the agency can be reviewed and a determination made as to whether a parent-child relationship has been established.

CONCLUSION

For the above reasons, we suggest that the agency seek additional evidence related to whether the number holder was the applicant's father. Without any such additional evidence, we are unable to conclude, based on the DNA tests alone, whether a court would determine that the applicant is the number holder's child.

Frank V. S~, III

Regional Chief Counsel

By:

Robert W. K~

Assistant Regional Counsel

Unrebutted DNA test results show that there is a 99.8% probability that the child claimant shares the same mother as an acknowledged child of the NH; a 99.1% probability of full siblingship; and a likelihood of 429 to 1 that the two children share the same biological father. Based on this evidence, it appears likely that a Virginia court would find the NH to be the father of the child claimant under its inheritance statutes. The inheritance rights would be effective from the date of the DNA test results.

QUESTION PRESENTED

On February 26, 2002, you asked our advice as to whether there is sufficient evidence to establish a parent-child relationship between Roland P. W~ (W~) and Rolanda L. B~ (Rolanda). Additionally, if a parent-child relationship can be established, you asked for the effective date of that relationship and whether retroactive benefits can be paid.

SUMMARY

We have reviewed the material you provided and have researched the relevant provisions of Virginia law as it pertains to paternity. Based on our research, it is our opinion that a parent-child relationship was established between W~ and Rolanda, effective September 7, 2001. Retroactive benefits should not be allowed.

BACKGROUND

W~ died on November 30, 1989, in the state of Virginia. In July 1990, Sheila L. B~ (Sheila) filed an application on behalf of her daughter Rolanda (date of birth February 15, 1988) for surviving child's benefits based on W~'s account. This application was denied because evidence of paternity was not submitted. Sheila also filed an application on behalf of her other daughter, Jazmin T. B~ (Jazmin) (date of birth October 17, 1983). This application was granted based on W~'s written acknowledgment that he was the father of Jazmin.

Sheila and W~ were not married. Sheila apparently had a prior relationship with W~ that resulted in the birth of Jazmin in 1983. However, Sheila admitted to sexual involvement with another man, James B~ (B~), during the period of time before Rolanda was born in 1988. Sheila also claimed that she was raped by W~ during the same time period, but did not report the rape. When she learned she was pregnant with Rolanda, Sheila believed that B~ was the father of the child. After the death of W~, Sheila decided that W~ was Rolanda's father because she believed that Rolanda bore a physical resemblance to W~. The other evidence submitted with the initial application revealed that Rolanda's birth certificate did not name Rolanda's father, but that three out of four of Rolanda's applications for a social security number named W~ as her father.

On September 11, 2001, Sheila submitted a second application for surviving child's benefits on behalf of Rolanda. With this application, Sheila submitted DNA test results dated September 7, 2001, which showed that Rolanda and Jazmin had a 99.8% probability of sharing the same mother and a 99.1% probability of full siblingship. This testing also indicated that the likelihood that Rolanda and Jazmin shared the same biological father was 429 to 1.

DISCUSSION

In determining entitlement to surviving child's benefits, the Commissioner shall apply the inheritance laws of the state in which the insured had his permanent home at the time that he died. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1) (2001). A child born out of wedlock in Virginia will only be deemed legitimate by the subsequent intermarriage of the mother and father. Va. Code. Ann. § 20-31.1; Program Operations Manual System (POMS) GN 00306.055. Under Virginia law, however, a child born out of wedlock may inherit from a decedent's estate based upon a showing that the decedent is the father of the child.

Va. Code Ann. § 64.1-5.1. Evidence that a man is the father of a child born out of wedlock shall be clear and convincing and may include, among other things, a voluntary admission of paternity in writing and under oath, and/or the results of scientifically reliable genetic tests, including DNA tests, weighted with all the evidence. Va Code Ann. § 64.1-5.2 (6), (7).

With regard to genetic testing, another section of the Virginia Code, pertaining to domestic relations proceedings, provides that blood test results that affirm at least a 98% probability of paternity are sufficient to establish a parent-child relationship. Va. Code Ann. § 20-49.1(B)(1).

In this case, based on the facts you provided us, we believe there is clear and convincing evidence that W~ is the father of Rolanda. The unrebutted DNA test results sufficiently establish that Rolanda and Jazmin are siblings and that there is a likelihood of 429 to 1 (mathematically a 99.7% probability) that they share the same biological father. Therefore, in view of the clear and convincing evidence that W~ is the father of Jazmin based on his written acknowledgment of paternity, we must conclude that W~ is also the father of Rolanda. See Veeney ex rel. Strother v. Sullivan, 973 F.2d 326, 328, 332 (4th Cir. 1992) (holding that there was clear and convincing evidence of paternity where DNA testing revealed that the child in question was the sibling of an acknowledged child of the putative father, had a genetic relationship to other male family members of the putative father, and probably had the same biological father as the acknowledged child).

Thus, based on the information you have provided, it appears likely that a Virginia court would find W~ to be the father of Rolanda under its inheritance statutes.

Regarding the effective date of the parent-child relationship, the POMS GN 00306.055 directs that where a state law confers inheritance rights based on an adjudication of paternity (but does not legitimate the child), and the provision is effective prospectively only, the claimant's status as the nameholder's child is established effective with the following dates:

if more than one piece of evidence is needed to satisfy the applicable standard of proof, the date of the latest necessary piece of evidence;

POMS GN 00306.055. Since, as stated above, Virginia law confers inheritance rights based on an adjudication of paternity, but does not legitimate the child, and the DNA test was the latest necessary piece of evidence establishing paternity under Virginia law, the parent-child relationship is effective September 7, 2001, the date of the DNA test.

Finally, the regulations provide that, if the insured is deceased, the child is entitled to benefits beginning with the first month covered by the application in which she meets all other requirements for entitlement. 20 C.F.R. § 404.352(a)(1). The regulations provide that a child may receive retroactive benefits for up to twelve months preceding the date of her application. 20 C.F.R. § 404.621. However, benefits can only be paid from the first month that all requirements for entitlement are met. 20 C.F.R. § 404.620(a)(1). In this case, the application date is in September 2001, the same month that all requirements for entitlement were met. Accordingly, retroactive benefits should not be paid in this case.

CONCLUSION

For the reasons stated above, it is our opinion that the DNA testing performed in this case between two siblings, one of whom is the acknowledged child of the Number Holder, is sufficient to establish that the Number Holder is also the father of the other sibling under Virginia law. Therefore, we believe there is clear and convincing evidence of a parent-child relationship between Roland P. W~ and Rolanda L. B~, effective September 7, 2001. Finally, we believe that retroactive benefits should not be paid.

 

James A. W~

Regional Chief Counsel

By:__________________________

Amy E. N~

Assistant Regional Counsel

DNA test evidence showing a 99.91% probability that the NH was the child's father, weighted with the Texas court orders of paternity and support, constitutes clear and convincing evidence of paternity under Virginia law. Therefore, the child would be eligible to inherit from the NH under the Virginia laws of intestate succession. The effective date of the parent-child relationship is the date of the DNA evidence establishing the NH as the child's father.

INTRODUCTION

This is in response to your February 28, 2002, request for our opinion whether (1) a parent-child relationship exists between the Number Holder and Michael C. F~; and, if so, (2) the effective date of that relationship; and (3) whether Michael C. F~ is entitled to retroactive benefits.

BACKGROUND

Douglas D. F~, Jr., the Number Holder, is a resident of Virginia.

Michael C. F~ (Michael), a minor child, was born on May 22, 1984.

Michael R. F~ is shown as Michael's father on his application for a social security number, dated August 9, 1984.

Nadine L~, Michael's mother, and the Number Holder were never married and did not cohabitate.

On January 29, 2002, Ms. L~ applied for child's insurance benefits on Michael's behalf, on the earning's record of the Number Holder. In support of this application, she submitted DNA test results dated July 31, 2001, indicating a 99.91% probability that the Number Holder was Michael's father. She also submitted a temporary default order of paternity from the District Court of Denton County, Texas, dated August 29, 2001, finding that Douglas D. F~ was the biological father of Michael, and a subsequent default order of paternity and order of child support from the same court, issued on January 23, 2002, directing that Michael C. F~ pay child support for Michael.

DISCUSSION

The Social Security Act provides that an illegitimate child can qualify for benefits if the child is entitled to inherit personal property under “such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which [the] insured individual . . . [was] domiciled at the time of his death.” 42 U.S.C. § 416(h)(2)(A). An illegitimate child who meets the standard which Congress set forth in section 216(h)(2)(A) is deemed to be legitimate and, therefore, dependent. Mathews v. Lucas, 427 U.S. 495, 514-15 n.17 (1976). In the present case, Douglas D. F~, Jr., the alleged father, is domiciled in the state of Virginia. Therefore, Virginia intestacy law applies.

Under Virginia law, a child born out of wedlock may inherit from a decedent's estate based upon a showing that the decedent is the father of the child. Va. Code Ann. § 64.1-5.1. In order to inherit, the child must establish paternity by clear and convincing evidence as set forth in Virginia's intestacy statute.

Va. Code Ann. §§ 64.1-.1(3)(b),-5.2. The Code of Virginia provides, in pertinent part, that for purposes of inheritance, evidence that a man is the father of a child born out of wedlock shall be clear and convincing and may include, but shall not be limited to, “[t]he results of medically reliable genetic blood grouping tests weighted with all the evidence.” Va. Code Ann. § 64.1-5.2(7).

The Virginia intestacy statute does not set forth the percent probability of paternity that is sufficient to constitute clear and convincing evidence. The domestic relations statute, however, provides that a parent and child relationship between a child and a man may be established by scientifically reliable genetic tests, including blood tests, which affirm at least a 98% probability of paternity. Va. Code Ann. § 20-49.1.

In the present case, Ms. L~ has submitted DNA test results showing a 99.91% probability that the Number Holder was Michael's father. This test result would be sufficient to establish a parent-child relationship between the Number Holder and Michael under the Virginia domestic relations statute.

For purposes of inheritance, the Code of Virginia also provides that if a proceeding to determine parentage has been initiated and concluded pursuant to § 20-49.1, and the court enters a judgment against a man for the support, maintenance and education of a child as if the child were born in lawful wedlock to the man, that judgment shall be sufficient evidence of paternity for the purposes of this section. Va. Code Ann. § 64.1-5.2. In the present case, as indicated above, Ms. L~ has submitted both a court order of paternity and a court order of support from the District Court of Denton Country, Texas, finding that the Number Holder was Michael's father. Although the court orders were issued in the state of Texas and, therefore, would not satisfy the requirements to establish paternity under the Virginia statute mentioned above, we believe that they do provide other persuasive evidence of paternity in this case. It is our opinion, therefore, that the DNA test results, weighted with the Texas court orders of paternity and support, provide clear and convincing evidence of paternity for purposes of intestate succession under § 64.1-5.2(7) of the Virginia Code.

With respect to the effective date of conferring inheritance rights, the POMS state the Agency's position that in Virginia, where inheritance rights are conferred by statute based on an adjudication of paternity (but the statute does not legitimate the child), and the act or event conferring inheritance rights is prospective only, if more than one piece of evidence is needed to satisfy the applicable standard of proof, the date of the latest necessary piece of evidence is the effective date that the claimant's status as the number holder's child is established. POMS GN 00306.055. In the present case, the date of the latest necessary piece of evidence establishing the Number Holder's paternity is July 31, 2001, the date of the DNA evidence establishing the Number Holder as Michael's father.

You have further asked whether Michael is entitled to retroactive benefits. The regulations provide that if the insured is living, child's benefits begin with the first month covered by the application throughout which the claimant meets all other requirements for entitlement, if the first month of entitlement is September 1981 or later. 20 C.F.R. § 404.352(a)(2)(i) (2001).

The regulations further provide, at 20 C.F.R. § 404.621(a)(ii), that child's benefits may be paid retroactively for up to six months beginning with the first month in which all requirements for entitlement are met. See also POMS GN 00204.030. In the present case, Ms. L~ filed an application for child's benefits on January 29, 2002.

The date that Michael established he was the child of the Number Holder, and thus met all other requirements for entitlement, was July 31, 2001, the date of the DNA evidence. Therefore, because he met all of the requirements for entitlement on July 31, 2001, seven months prior to the date of his application, Michael would be entitled to retroactive benefits for the full six months allowable.

CONCLUSION

For the reasons stated above, we believe that DNA test evidence showing a 99.91% probability that the Number Holder was Michael's father, weighted with the Texas state court orders of paternity and support establishing the Number Holder as the father, constitutes clear and convincing evidence of paternity under Virginia law. Therefore, because he would be eligible to inherit from the Number Holder under the Virginia laws of intestate succession, Michael should be determined to be the child of the Number Holder under § 216(h)(2)(A) of the Act and entitled to child's insurance benefits. We further believe that the effective date of the parent-child relationship is July 31, 2001, the date of the DNA evidence establishing the Number Holder as Michael's father, and he would be entitled to retroactive benefits for the full six months allowable.

James A. W~

Regional Chief Counsel

By:__________________________

Anne V. S~

Assistant Regional Counsel

Genetic blood test results indicating a 99.99% probability that the NH is the child's father, and an undated letter from the NH that does not contradict the DNA test results, constitute clear and convincing evidence of paternity under Virginia law. The date of the paternity evaluation report is the effective date of the parent-child relationship.

QUESTIONS PRESENTED

On January 11, 2002, you asked our advice as to (1) whether a parent-child relationship can be established under the law of Virginia between the Number Holder, William T~, IV, and Dominic L. T~; (2) if such a relationship can be established, the effective date of the relationship for entitled to child's benefits; and (3) whether the child is entitled to benefits.

CONCLUSION

Based on our review of the genetic blood test results and our research of the relevant Virginia statutes and case law, we believe that, under the legal standard of the Commonwealth of Virginia, there is clear and convincing evidence that William T~, IV, is the father of Dominic L. T~. Thus, Dominic L. T~ is entitled to child's benefits commencing on July 1, 2001 which is the first month covered by his application “throughout” which he met all other requirements for entitlement.

BACKGROUND

In your request, you indicated that on May 31, 2001 Jacqulin F. T~ filed an application for child's insurance benefits on behalf of her son, Dominic L. T~. You provided us with a June 14, 2001 Paternity Evaluation Report, documenting genetic blood test results indicating a 99.99% probability that William T~, IV, is the father of Dominic L. T~. You provided June 18, 2001 notification from the Virginia Division of Child Support Enforcement (Hampton District Office) that William T~, IV, has been proven to be the legal father of Dominic L. T~ by DNA testing. You also included the child's birth certificate which contained no information regarding paternity.

You told us that William T~, IV, a resident of Virginia, filed for disability benefits on February 13, 1993. The only child he acknowledged on his application was Chrystal M. T~. Mr. T~ became entitled to disability benefits in November 1992. You also indicated that William T~, IV, and Jacqulin F. T~ were not married and did not live together. In addition, you provided us with an undated letter (post-marked January 2, 1998) from William T~, IV, to Jacqulin F. T~ stating the following: “Each time I think of you and Dominque I hurt inside. Knowing we should be one big happy family.”

DISCUSSION

Section 202(d) of the Social Security Act provides that an unmarried minor child of an individual entitled to disability insurance benefits under the Act, may receive child's insurance benefits if the child “was dependant upon such individual” at the time the application was filed. 42 U.S.C. § 402(d)(1). Unlike a legitimate child, an illegitimate child is not automatically deemed dependant and, thus, not automatically entitled to benefits. 42 U.S.C. § 402(d)(3). However, an illegitimate child may establish dependancy by showing that he would be entitled to inherit personal property under the intestacy laws of the state in which the insured individual is “domiciled” when the insured filed for benefits. 42 U.S.C. § 416(h)(2)(A). An illegitimate child who meets this standard is deemed to be legitimate and, therefore, dependant. Mathews v. Lucas, 427 U.S. 495, 514-15 n.17 (1976).

In this case, Mr. T~ lived in the Commonwealth of Virginia when the child's application was filed. Thus, the Agency will look to Virginia's inheritance laws as interpreted by the courts of that state. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. §§ 404.354, 404.355(a)(1).

The Code of Virginia provides that a child born out of wedlock may inherit from a decedent's estate based upon a showing that the decedent is the father of the child. Va. Code Ann. § 64.1-5.2. An illegitimate child must establish paternity by clear and convincing evidence, which may include, but shall not be limited to, “the results of scientifically reliable genetic tests, including DNA tests, weighted with all the evidence.” Va. Code Ann. § 64.1-5.2(7).

The Code of Virginia also provides that if the court enters judgment against a man for the support, maintenance, and education of a child as if the child were born in lawful wedlock to the man pursuant to § 20-49.1 et seq. of the Domestic Relations Statute, that judgment shall be sufficient evidence of paternity for the purposes of § 64.1-5.2. In a proceeding to determine parentage under § 20-49.1 of the Domestic Relations Statute, the relationship between a child and a man may be established by “[s]cientifically reliable genetic tests, including blood tests, which affirm at least a ninety-eight percent (98%) probability of paternity.” Va. Code Ann. § 20-49.1B(1). Such genetic blood test results have the same legal effect as a judgment establishing parentage entered into pursant to Va. Code Ann. § 20-49.B(1).

In this case, Jacqulin T~ submitted genetic blood test results indicating a 99.99% probability that William T~, IV, is the father of Dominic L. T~. Ms. T~ also submitted the undated letter. Although William T~, IV, does not refer to Dominic as his son, there is nothing in the letter to contradict the DNA test results. This evidence exceeds the statute's standard for clear and convincing evidence necessary to establish William T~, IV's paternity under the law of the Commonwealth of Virginia and is the equivalent of a judgment establishing parentage. Va. Code Ann. §§ 20-49.8, 64.1-5.2(7). Dominic L. T~ would be entitled to inherit personal property as the child of William T~, IV, under the intestacy laws of Virginia. Va. Code Ann. § 64.1-5.2(7). Thus, Dominic L. T~ is deemed legitimate, and therefore, dependant, and is entitled to receive child's insurance benefits under the Act. 42 U.S.C. § 416(h)(2)(A).

Regarding the effective date of the parent-child relationship, the POMS state the Agency's position that in Virginia, where inheritance rights are conferred by statute based on an adjudication of paternity (but the statute does not legitimate the child), and the act or event conferring inheritance rights is prospective only, if one piece of evidence is needed to satisfy the applicable standard of proof, the date of the latest necessary piece of evidence is the effective date that the claimant's status as the insured's child is established. POMS GN 00306.055. In this case, one piece of evidence, the Paternity Evaluation Report, established the paternity of William T~, IV. Thus, June 14, 2001, the date of the Paternity Evaluation Report, is the effective date of the parent-child relationship.

You further asked whether the applicant is entitled to retroactive benefits. The regulations provide that if the insured is living, benefits begin with the first month covered by the application “throughout” which the claimant meets all other requirements for entitlement. 20 C.F.R. § 404.352(a) (2001). In the present case, the applicant applied for benefits on May 31, 2001. However, he did not meet all of the requirements for entitlement until June 14, 2001, the date that the DNA test results established paternity. Accordingly, retroactive benefits should not be paid in this case because the applicant did not establish entitlement until two weeks after the application for benefits was filed.

James A. W~

Regional Chief Counsel

By:__________________________

Sandra R. G~

Assistant Regional Counsel

For purposes of proving a child's right to an intestate share, paternity may be established by the results of scientifically reliable genetic tests, including DNA tests, weighted with all the evidence. Blood test results that affirm at least a 98% probability of paternity are sufficient to establish a parent-child relationship. In this case, based upon the unrebutted DNA test results showing the NH's probability of paternity to be 99.99%, and the other evidence submitted, there is clear and convincing evidence of paternity for inheritance purposes. Since this provision of Virginia law does not legitimate the child, but provides prospective inheritance rights only, the child's status as the NH's child is established effective with the date of the DNA test, per POMS GN 00306.055.

QUESTIONS PRESENTED

You have asked whether the evidence submitted is sufficient to establish a parent-child relationship between Wayne D~ (D~) and Crystal R. H~ (Crystal). Additionally, if a parent-child relationship can be established, you asked for the effective date of that relationship. Finally, you asked whether retroactive benefits can be paid on behalf of Crystal.

SUMMARY

We have reviewed the material you provided and have researched the relevant provisions of Virginia law as it pertains to establishing paternity. Based on our research, it is our opinion that a parent-child relationship was established between D~ and Crystal, effective September 5, 2001, the date of the DNA Parentage Test Report. We further conclude that Crystal is not entitled to retroactive benefits.

BACKGROUND

On April 21, 1998, Tina M. H~ (H~), the mother of Crystal, filed an application for surviving child benefits for Crystal. Crystal was born on January 5, 1991. D~ died on July 29, 1995. Prior to his death, D~ resided in Norfolk, Virginia. D~ and H~ never married, and there is no evidence that they lived together at any time prior to D~'s death. Crystal's birth certificate does not list her father's name. Social Security cards issued on February 21, 1991 and September 20, 1995, show Crystal's father as “unknown.” D~ never acknowledged in writing that he was Crystal's father, nor was he ever decreed by a court to be Crystal's father or ordered to contribute to her support.

In support of her claim, H~ submitted excerpts from a family Bible belonging to Louise D~, D~'s grandmother. A page of the Bible entitled “Important Events in Our Family's History” included the following notation: “Crystal R. H~ was born January 5, 1991 at De Paul Hospital Norfolk, Virginia. Wayne M.'s daughter.” H~ also submitted a copy of the obituary for D~ listing Crystal as D~'s daughter. Lastly, H~ submitted letters from Lorraine R~, D~'s mother, and from Mr. and Mrs. William Z~, D~'s grandparents. Both Lorraine R~s and the Z~ stated the D~ always acknowledged Crystal as his daughter. H~'s April 1998 application was denied initially and on reconsideration.

On September 10, 2001, H~ filed a second application for surviving child's benefits on Crystal's behalf. In support of the most recent claim, H~ submitted a DNA Parentage Test Report dated September 5, 2001. The report indicates that D~ “cannot be excluded as the biological father of the child, Crystal R. H~, since they share genetic markers.” Specifically, the report indicates that the probability of paternity is 99.99%.

DISCUSSION

In determining entitlement to surviving child's benefits, the Commissioner shall apply the inheritance laws of the state in which the insured had his permanent home at the time that he died. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1) (2001). A child born out of wedlock in Virginia will only be deemed legitimate by the subsequent intermarriage of the mother and father. Va. Code. Ann. § 20-31.1; Program Operations Manual System (POMS) GN 00306.055. Under Virginia law, however, a child born out of wedlock may inherit from a decedent's estate upon establishing, by clear and convincing evidence, that the decedent is the father of the child. Va. Code Ann. § 64.1-5.1. For purposes of proving a right to an intestate share, paternity may be established by, inter alia, the results of scientifically reliable genetic tests, including DNA tests, weighted with all the evidence. Va. Code Ann. § 64.1-5.2(7). With regard to genetic testing, the Virginia domestic relations statute provides that blood test results that affirm at least a 98% probability of paternity are sufficient to establish a parent-child relationship. Va. Code Ann. § 20-49.1(B)(1). Based upon the unrebutted DNA test results showing D~'s probability of paternity to be 99.99%, the excerpts from Louise D~'s family Bible, the copy of D~'s obituary listing Crystal as his daughter, statements from D~'s mother and grandparents that D~ always acknowledged Crystal as his daughter, and the lack of contradictory evidence, we believe that there is clear and convincing evidence of paternity for inheritance purposes.

Regarding the effective date of the parent-child relationship, the POMS GN 00306.055 directs that where a state law confers inheritance rights based on an adjudication of paternity (but does not legitimate the child), and the provision is effective prospectively only, the claimant's status as the nameholder's child is established effective with the following dates:

if one piece of evidence satisfies the applicable standard of proof (e.g., blood test results constitute clear and convincing evidence), the date of that piece of evidence;

POMS GN 00306.055. Since, as stated above, Virginia law confers inheritance rights based on an adjudication of paternity, but does not legitimate the child, and the blood test constitutes clear and convincing evidence of paternity, the parent-child relationship is effective September 5, 2001, the date of the blood test.

Finally, the regulations provide that if the insured is deceased, the child is entitled to benefits beginning with the first month covered by the application in which she meets all other requirements for entitlement. 20 C.F.R. § 404.352(a)(1)(2001). The regulations further provide that benefits can only be paid from the first month that all requirements for entitlement are met. 20 C.F.R. § 404.620(a)(1)(2001). In this case, H~ applied for benefits in September 2001, the same month that all requirements for entitlement were met. Hence, Crystal is not entitled to retroactive benefits.

James A. W~

Regional Chief Counsel

By:__________________________

Dina W~ G~

Assistant Regional Counsel

DNA test results performed after the NH's death showed a statistical probability of 99.98% that the NH was the father of one child, and 99.96% for the other child. Under Virginia law, a child born out of wedlock may inherit from a decedent's estate upon establishing paternity by clear and convincing evidence. For purposes of proving a right to an intestate share, paternity may be established by the results of scientifically reliable genetic tests, including DNA tests, weighted with all the evidence.

Based upon the unrebutted DNA test results and the other evidence in this case (the claimants having the same surname as the NH's; the listing of the NH as father on one of the children's applications for an SSN; and the mother's allegation that the NH may have orally acknowledged paternity), there is clear and convincing evidence of paternity under Virginia law. There is no contradictory evidence.

Concerning the issue of when the parent-child relationship is effective, the policy set forth in POMS GN 00306.055A.3. applies. If a State law intestacy provision confers prospective inheritance rights based on an adjudication of paternity, the claimant's status as the NH's child is established effective with the date of the latest piece of evidence necessary to meet the standard of proof. In this case, this is the date of the blood test results.

QUESTIONS PRESENTED

This is in response to your September 14, 2001, request for our advice regarding (1) whether a parent-child relationship existed between the number holder and the applicants; (2) the effective date of any such relationship; and (3) whether the applicants are entitled to retroactive benefits.

SUMMATION

We have reviewed the material you provided and have researched the relevant provisions of Virginia law as it pertains to establishing paternity. We believe that a Virginia court interpreting the intestacy statute would find that the applicants would be entitled to inherit from the deceased wage earner because the July 30, 2001 DNA test results rise to the level of clear and convincing evidence of paternity. The effective date of the parent-child relationship is July 30, 2001, the date of the DNA test results, which was the latest necessary piece of evidence to establish paternity under Virginia law. Finally, the applicants should not be paid retroactive benefits because they did not meet all the requirements for entitlement until July 30, 2001, two months after their applications were filed.

BACKGROUND

Based upon the information you provided to us, the following is a summary of the relevant facts in this matter. Cain S.M. G~, a minor child, was born on July 18, 1997. Isidro N. G~, a minor child, was born on July 21, 1998. (Cain and Isidro hereinafter will be referred to collectively as “the applicants”). The mother of the applicants is Shannon H~ (formerly Shannon L. G~, hereinafter “the mother” ). Salomon M. G~ (hereinafter “the number holder”) died on April 25, 2001. Prior to his death, the number holder was a resident of Chesterfield, Virginia. It is noteworthy that the applicants carry the same surname as the number holder. However, there is no evidence that the number holder allowed the common use of his surname by the applicants.

The number holder and the mother were not married and did not live together. There is no evidence that the applicants and the number holder ever lived together. There is no evidence that the number holder ever supported the applicants economically. Three applications for a Social Security number for Cain list the number holder as Cain's father. An application for a Social Security number for Isidro does not indicate the name of the father. The birth certificates for both applicants do not list any information regarding the identity of the father.

On May 18, 2001, the mother, on behalf of the applicants, applied for surviving child's benefits and lump sum death payments on the earnings record of the number holder. Eventually, in support of these applications, the mother submitted DNA test results dated July 30, 2001. The DNA test results showed a statistical probability of 99.98% that the number holder was the father of Cain. Further, the DNA test results showed a statistical probability of 99.96% that the number holder was the father of Isidro. In addition, the mother completed a Child Relationship Statement. This statement indicated that the number holder had admitted orally to someone that he was the father of the applicants. The materials you provided to us do not contain any further evidence regarding this alleged oral admission of paternity by the number holder.

DISCUSSION

The Social Security Act provides that, when determining paternity for purposes of entitlement to social security benefits, the Commissioner will apply the inheritance laws of the state in which the insured individual was domiciled at the time of his death. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1) (2001). In the present case, the number holder was domiciled in the state of Virginia at the time of his death. Therefore, Virginia intestacy law applies. Under Virginia law, a child born out-of-wedlock may inherit from a decedent's estate upon establishing, by clear and convincing evidence, that the decedent is the father of the child.

Va. Code Ann. §§ 64.1-5.1, -5.2. The Virginia Code provides that for purposes of proving a right to an intestate share, paternity may be established by “[t]he results of scientifically reliable genetic tests, including DNA tests, weighted with all the evidence.” Va. Code Ann. § 64.1-5.2(7).1

Based on the evidence presented in this case, we believe there is clear and convincing evidence of paternity for inheritance purposes under Virginia law. Specifically, there are unrebutted DNA test results showing a statistical probability of 99.98% that the number holder was the father of Cain. Similarly, there are unrebutted DNA test results showing a statistical probability of 99.96% that the number holder was the father of Isidro. Indeed, under the Virginia Domestic Relations Statute, blood test results that affirm at least a 98% probability of paternity are sufficient proof to establish a parent-child relationship. See Va. Code. Ann. § 20-49.1(B)(1). The fact that the DNA sample was obtained after the date of the number holder's death is of no consequence. The relevant provisions of Virginia law do not indicate that DNA test results taken after an individual's death are any less reliable than tests taken when the individual was alive. The material you provided does not contain any evidence that would suggest that the DNA test results are unreliable.

In addition to the DNA test results, the evidence you provided to us contains other information indicating that the number holder was the father of the applicants. First, the applicants and the number holder share the same surname, G~. Second, three applications for a Social Security number for Cain list the number holder as Cain's father. Third, the child relationship statement at least suggests that the number holder may have orally acknowledged that he was the father of the applicants.

Based upon the unrebutted July 30, 2001 DNA test results and the other evidence discussed above, we believe that there is clear and convincing evidence of paternity under Virginia law. There is no evidence in the materials we received that tends to contradict this rather clear evidence of paternity.

Regarding the effective date of the parent-child relationship, the POMS state the Agency's position that in Virginia, where inheritance rights are conferred by statute based on an adjudication of paternity (but the statute does not legitimate the child), and the act or event conferring inheritance rights is prospective only, the date of the latest necessary piece of evidence needed to satisfy the applicable standard of proof is the effective date. POMS GN 00306.055(A)(3). In the present case, the July 30, 2001 DNA test results were the latest necessary piece of evidence provided establishing paternity under Virginia law. Therefore, July 30, 2001 is the effective date of the parent-child relationship.

You further asked whether the applicants are entitled to retroactive benefits. The regulations provide that if the insured is deceased, benefits begin with the first month covered by the application in which the claimant meets all other requirements for entitlement. 20 C.F.R. § 404.352(a) (2001). The regulations also provide that benefits can only be paid from the first month that all requirements for entitlement are met. 20 C.F.R. § 404.620(a)(1) (2001). In the present case, the applicants applied for benefits on May 18, 2001. However, they did not meet all of the requirements for entitlement until July 30, 2001, the date that the DNA test results established paternity. Accordingly, retroactive benefits should not be paid in this case because the applicants did not establish entitlement until two months after their applications for benefits were filed. Benefits should be paid only from July 2001 onwards.

A Virginia court would find that the claimants would be entitled to inherit from the deceased NH because the 7/30/01 DNA test results rise to the level of clear and convincing evidence of paternity. The effective date of the parent-child relationship is 7/30/01. The claimants are not entitled to retroactive benefits because they did not meet all the requirements for entitlement until two months after their applications were filed.

QUESTIONS PRESENTED

This is in response to your September 14, 2001, request for our advice regarding (1) whether a parent-child relationship existed between the number holder and the applicants; (2) the effective date of any such relationship; and (3) whether the applicants are entitled to retroactive benefits.

SUMMATION

We have reviewed the material you provided and have researched the relevant provisions of Virginia law as it pertains to establishing paternity. We believe that a Virginia court interpreting the intestacy statute would find that the applicants would be entitled to inherit from the deceased wage earner because the July 30, 2001 DNA test results rise to the level of clear and convincing evidence of paternity. The effective date of the parent-child relationship is July 30, 2001, the date of the DNA test results, which was the latest necessary piece of evidence to establish paternity under Virginia law. Finally, the applicants should not be paid retroactive benefits because they did not meet all the requirements for entitlement until July 30, 2001, two months after their applications were filed.

BACKGROUND

Based upon the information you provided to us, the following is a summary of the relevant facts in this matter. Cain S.M. G~, a minor child, was born on July 18, 1997. Isidro N. G~, a minor child, was born on July 21, 1998. (Cain and Isidro hereinafter will be referred to collectively as “the applicants”). The mother of the applicants is Shannon H~ (formerly Shannon L. G~, hereinafter “the mother” ). Salomon M. G~ (hereinafter “the number holder”) died on April 25, 2001. Prior to his death, the number holder was a resident of Chesterfield, Virginia. It is noteworthy that the applicants carry the same surname as the number holder. However, there is no evidence that the number holder allowed the common use of his surname by the applicants.

The number holder and the mother were not married and did not live together. There is no evidence that the applicants and the number holder ever lived together. There is no evidence that the number holder ever supported the applicants economically. Three applications for a Social Security number for Cain list the number holder as Cain's father. An application for a Social Security number for Isidro does not indicate the name of the father. The birth certificates for both applicants do not list any information regarding the identity of the father.

On May 18, 2001, the mother, on behalf of the applicants, applied for surviving child's benefits and lump sum death payments on the earnings record of the number holder. Eventually, in support of these applications, the mother submitted DNA test results dated July 30, 2001. The DNA test results showed a statistical probability of 99.98% that the number holder was the father of Cain. Further, the DNA test results showed a statistical probability of 99.96% that the number holder was the father of Isidro. In addition, the mother completed a Child Relationship Statement. This statement indicated that the number holder had admitted orally to someone that he was the father of the applicants. The materials you provided to us do not contain any further evidence regarding this alleged oral admission of paternity by the number holder.

DISCUSSION

The Social Security Act provides that, when determining paternity for purposes of entitlement to social security benefits, the Commissioner will apply the inheritance laws of the state in which the insured individual was domiciled at the time of his death. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1) (2001). In the present case, the number holder was domiciled in the state of Virginia at the time of his death. Therefore, Virginia intestacy law applies. Under Virginia law, a child born out-of-wedlock may inherit from a decedent's estate upon establishing, by clear and convincing evidence, that the decedent is the father of the child.

Va. Code Ann. §§ 64.1-5.1, -5.2. The Virginia Code provides that for purposes of proving a right to an intestate share, paternity may be established by “[t]he results of scientifically reliable genetic tests, including DNA tests, weighted with all the evidence.” Va. Code Ann. § 64.1-5.2(7).1

Based on the evidence presented in this case, we believe there is clear and convincing evidence of paternity for inheritance purposes under Virginia law. Specifically, there are unrebutted DNA test results showing a statistical probability of 99.98% that the number holder was the father of Cain. Similarly, there are unrebutted DNA test results showing a statistical probability of 99.96% that the number holder was the father of Isidro. Indeed, under the Virginia Domestic Relations Statute, blood test results that affirm at least a 98% probability of paternity are sufficient proof to establish a parent-child relationship. See Va. Code. Ann. § 20-49.1(B)(1). The fact that the DNA sample was obtained after the date of the number holder's death is of no consequence. The relevant provisions of Virginia law do not indicate that DNA test results taken after an individual's death are any less reliable than tests taken when the individual was alive. The material you provided does not contain any evidence that would suggest that the DNA test results are unreliable.

In addition to the DNA test results, the evidence you provided to us contains other information indicating that the number holder was the father of the applicants. First, the applicants and the number holder share the same surname, G~. Second, three applications for a Social Security number for Cain list the number holder as Cain's father. Third, the child relationship statement at least suggests that the number holder may have orally acknowledged that he was the father of the applicants.

Based upon the unrebutted July 30, 2001 DNA test results and the other evidence discussed above, we believe that there is clear and convincing evidence of paternity under Virginia law. There is no evidence in the materials we received that tends to contradict this rather clear evidence of paternity.

Regarding the effective date of the parent-child relationship, the POMS state the Agency's position that in Virginia, where inheritance rights are conferred by statute based on an adjudication of paternity (but the statute does not legitimate the child), and the act or event conferring inheritance rights is prospective only, the date of the latest necessary piece of evidence needed to satisfy the applicable standard of proof is the effective date. POMS GN 00306.055(A)(3). In the present case, the July 30, 2001 DNA test results were the latest necessary piece of evidence provided establishing paternity under Virginia law. Therefore, July 30, 2001 is the effective date of the parent-child relationship.

You further asked whether the applicants are entitled to retroactive benefits. The regulations provide that if the insured is deceased, benefits begin with the first month covered by the application in which the claimant meets all other requirements for entitlement. 20 C.F.R. § 404.352(a) (2001). The regulations also provide that benefits can only be paid from the first month that all requirements for entitlement are met. 20 C.F.R. § 404.620(a)(1) (2001). In the present case, the applicants applied for benefits on May 18, 2001. However, they did not meet all of the requirements for entitlement until July 30, 2001, the date that the DNA test results established paternity. Accordingly, retroactive benefits should not be paid in this case because the applicants did not establish entitlement until two months after their applications for benefits were filed. Benefits should be paid only from July 2001 onwards.

Virginia courts would require additional evidence, beyond an unrebutted grandparentage DNA test, to establish paternity by clear and convincing evidence. There is no such other evidence in this case such as a judicial determination of paternity, oral admission, written acknowledgment of paternity, or evidence that the NH did not have any male siblings. Also, the child's mother gave conflicting evidence in support of her claim.

QUESTIONS PRESENTED

You have asked whether the evidence submitted is sufficient to establish a parent-child relationship between Nigel A. K~ (Nigel), and Anige'a A. K~ (Anige'a). Additionally, if a parent-child relationship can be established, you have asked for the effective date of that relationship. Finally, you have asked whether retroactive benefits can be paid on behalf of Anige'a.

SUMMARY

We have reviewed the material provided and have researched the relevant provisions of Virginia law as it pertains to paternity. Based on our research, it is our opinion that the evidence is insufficient to establish a parent-child relationship between Nigel and Anige'a.

BACKGROUND

Nigel and Connie Y. W~ (Connie) dated for approximately a year and a half. The two never married and never cohabitated. Nigel, who was in the military, came back from sea duty on April 9, 2000, and was shot to death on April 12, 2000. On December 7, 2000, Connie gave birth to Anige'a. Prior to his death, Nigel resided in Virginia. Nigel never signed anything acknowledging Anige'a as his daughter. Anige'a's birth certificate does not provide any information about her father. Additionally, an August 14, 2000 application for Anige'a's social security number (NUMI) does not provide any information about Anige'a's father.

On May 17, 2001, Connie filed an application for surviving child benefits for Anige'a on the social security number of Nigel. On that same date, Connie completed a Child Relationship Statement (SSA-2519), on which she indicated that Nigel orally admitted to his parents, Carol and Nathaniel O.K~ (the K~s), that he was Anige'a's father. Connie stated, “Nigel told them that I was pregnant and I [sic] was the father.” In addition, Connie reported to a claims representative that Nigel told his cousin, Craig S~, that she was pregnant with his child, but not to mention it because he was still legally married.

Connie also submitted a DNA Grandparentage Test Report dated May 9, 2001, which indicates that the K~s “cannot be excluded as the biological grandparents of the child named Anige'a A. (sic) K~.” Specifically, the report indicates that the probability of grandparentage is 99.93%.

On May 27, 2001, a claims representative contacted Carol K~ at work. Carol K~ stated that Nigel's cousin, Craig S~, knew that Connie was pregnant; however, Nigel told him not to tell anyone since Nigel was still married. Carol K~ also stated that she did not find out about the pregnancy until after her son's death. Carol K~ added, however, that she and her husband believed Connie and were more than willing to participate in the paternity test.

DISCUSSION

In determining entitlement to surviving child's benefits, the Commissioner shall apply the inheritance laws of the state in which the insured had his permanent home at the time that he died. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1) (2000). A child born out of wedlock in Virginia will only be deemed legitimate by the subsequent intermarriage of the mother and father. Va. Code. Ann. § 20-31.1; Program Operations Manual System (POMS) GN 00306.055. Under Virginia law, however, a child born out of wedlock may inherit from a decedent's estate based upon a showing that the decedent is the father of the child.

Va. Code Ann. § 64.1-5.1. Evidence that a man is the father of a child born out of wedlock shall be clear and convincing and may include, but shall not be limited to, the following:

1. That he cohabitated openly with the mother during all of the ten months immediately prior to the time the child was born;

2. That he gave consent to a physician or other person, not including the mother, charged with the responsibility of securing information for the preparation of a birth record that his name be used as the father of the child upon the birth records of the child;

3. That he allowed by a general course of conduct the common use of his surname by the child;

4. That he claimed the child as his child on any statement, tax return or other document filed and signed by him with any local, state or federal government or any agency thereof;

5. That he admitted before any court having jurisdiction to try and dispose of the same that he is the father of the child;

6. That he voluntarily admitted paternity in writing, under oath;

7. The results of scientifically reliable genetic tests, including DNA tests, weighed with all the evidence; or

8. Other medical, scientific or anthropological evidence relating to the alleged parentage of the child based on tests performed by experts.

Va. Code Ann. § 64.1-5.2.

With regard to genetic testing, Va. Code Ann. § 20-49.1(B)(1), which relates to domestic relations proceedings, provides that blood test results that affirm at least a 98% probability of paternity are sufficient to establish a parent-child relationship. Va. Code Ann. § 20-49.1(B)(1). The Virginia Code, however, does not specifically state whether testing of relatives of a putative father is acceptable evidence of paternity, i.e., whether such evidence rises to the level of “clear and convincing.”

While we believe that the unrebutted Grandparentage DNA test sufficiently establishes that the K~s are the grandparents of Anige'a, such evidence is insufficient to establish that Nigel is the father of Anige'a. 1We believe that the Virginia court would require additional evidence, beyond DNA testing of relatives, to establish paternity by clear and convincing evidence. The record does not include other evidence such as a judicial determination of paternity, oral admission, written acknowledgment of paternity, or evidence that Nigel did not have any male siblings.

It must also be pointed out that Connie gave conflicting evidence in support of her claim. On the Child Relationship Statement form, Connie asserted that Nigel told the K~s about her pregnancy. However, Carol K~ told a claims representative that she did not find out about the pregnancy until after her son's death. Interestingly, both Connie and Carol K~ asserted that Nigel told his cousin, Craig S~, about the pregnancy. The record, however, does not include any statements from Craig S~.

CONCLUSION

For the reasons stated above, it is our opinion that a Grandparentage DNA test, alone, is insufficient to establish paternity under Virginia law. Therefore, because Anige'a would not be recognized as Nigel's child under Virginia law, we believe that she should not be determined to be the child of the Number Holder under 42 U.S.C. § 416(h)(2)(A) and entitled to child's insurance benefits. Since the parent-child relationship was never established, the issues of the effective date of child's benefits and retroactivity of child's benefits are moot.

Under Virginia law, the child must establish paternity by clear and convincing evidence. An out-of-wedlock child may establish paternity by clear and convincing evidence with the results of scientifically reliable genetic tests, including DNA tests, weighted with all the evidence. Blood test results that affirm at least a 98% probability of paternity are sufficient to establish a parent-child relationship.

Since blood test results constitute clear and convincing evidence of paternity, the parent-child relationship is effective with the date of the blood test report.

QUESTIONS PRESENTED

You have asked whether the evidence submitted is sufficient to establish a parent-child relationship between John C. J~ (J~) and Zyi'kala M. J~ (Zyi'kala). Additionally, if a parent-child relationship can be established, you have asked for the effective date of that relationship. Finally, you have asked whether retroactive benefits can be paid on behalf of Zyi'kala.

CONCLUSION

We have reviewed the material provided and have researched the relevant provisions of Virginia law as it pertains to paternity. Based on our research, it is our opinion that a parent-child relationship was established between J~ and Zyi'kala, effective April 16, 2001, the date of the DNA Parentage Test Report. We further conclude that Zyi'kala is entitled to retroactive benefits.

BACKGROUND

Zyi'kala was born on June 29, 2000 to Crystal A. B~ (B~). J~ died on August 3, 2000. Prior to his death, J~ resided in Virginia. He never married and never cohabitated with B~. J~ never signed anything acknowledging Zyi'kala as his daughter. Zyi'kala's birth certificate does not provide any information about her father. However, an August 14, 2000 application for Zyi'kala's social security number indicates J~ as Zyi'kala's father.

On August 29, 2000, B~ filed an application for surviving child benefits for Zyi'kala on the social security number of J~. B~ did not submit any evidence to support her claim. The application was denied. On May 9, 2001, B~ filed a second application for surviving child's benefits for Zyi'kala on the social security number of J~. The Child Relationship Statement (SSA-2519) completed at that time indicates that J~ orally admitted that he was the father of Zyi'kala.

A DNA Parentage Test Report dated April 16, 2001 indicates that J~ “cannot be excluded as the biological father of the child, Zyikala (sic) J~, since they share genetic markers.” Specifically, the report indicates that the probability of paternity is 99.99%. On April 26, 2001, the Commonwealth of Virginia, Department of Social Services, Division of Child Support enforcement made a determination that J~ was proven to be Zyi'kala's legal father.

DISCUSSION

In determining entitlement to surviving child's benefits, the Commissioner shall apply the inheritance laws of the state in which the insured had his permanent home at the time that he died. 42 U.S.C. § 416(h)(2)(a); 20 C.F.R. § 404.355(b)(1) (2000). A child born out of wedlock in Virginia will only be deemed legitimate by the subsequent intermarriage of the mother and father. Va. Code. Ann. § 20-31.1; Program Operations Manual System (POMS) GN 00306.055. Under Virginia law, however, a child born out of wedlock may inherit from a decedent's estate based upon a showing that the decedent is the father of the child. Va. Code Ann. § 64.1-5.1. To inherit, the child must establish paternity by clear and convincing evidence as set forth in Virginia's intestacy statute. Va. Code Ann. §§ 64.1-5.1(3)(b), -5.2. In that regard, the Code of Virginia provides that a child born out of wedlock may establish inheritance rights by clear and convincing evidence with “[t]he results of scientifically reliable genetic tests, including DNA tests, weighted with all the evidence.” Va. Code Ann. § 64.1-5.2(7). The Virginia Code provides that blood test results that affirm at least a 98% probability of paternity are sufficient to establish a parent-child relationship. Va. Code Ann. § 20-49.1(B)(1). Based upon the unrebutted DNA test results showing J~'s probability of paternity to be 99.99%; the determination made by the Commonwealth of Virginia, Department of Social Services, Division of Child Support Enforcement; Zyi'kala's social security application, which lists J~ as her father; B~'s statement that J~ made an oral admission of paternity; and the lack of contradictory evidence, we believe that there is clear and convincing evidence of paternity for inheritance purposes.

Regarding the effective date of the parent-child relationship, the POMS GN 00306.055 directs that where a state law confers inheritance rights based on an adjudication of paternity (but does not legitimate the child), and the provision is effective prospectively only, the claimant's status as the nameholder's child is established effective with the following dates:

if one piece of evidence satisfies the applicable standard of proof (e.g., blood test results constitute clear and convincing evidence), the date of that piece of evidence;

POMS GN 00306.055. Since, as stated above, Virginia law confers inheritance rights based on an adjudication of paternity, but does not legitimate the child, and the blood test constitutes clear and convincing evidence of paternity, the parent-child relationship is effective April 16, 2001, the date of the blood test.

Finally, the regulations provide that if the insured is deceased, the child is entitled to benefits beginning with the first month covered by the application in which she meets all other requirements for entitlement. 20 C.F.R. § 404.352(a)(1)(2000). The regulations further provide that a child may receive retroactive benefits for up to twelve months preceding the date of her application. 20 C.F.R. § 404.621 (2000). In this case, Zyi'kala is entitled to retroactive benefits effective April 2001, the month that all requirements for entitlement were met, and one month preceding the date of her second application.

The paternity standard in Virginia is clear and convincing evidence.

The Virginia intestacy statute does not give the percent probability of paternity which constitutes clear and convincing evidence. However, the percent probability of paternity under the domestic relations statute is 98%.

A support determination made by the Virginia Division of Child Support Enforcement against the NH is not a court ordered judgment. However, such a determination coupled with a court order of paternity is equivalent to a court order for support, maintenance, and education of a child.

DNA sibship test results showing 99.4% probability of the NH's paternity in addition to a support determination by the Virginia Division of Child Support Enforcement and a court order of paternity constitute clear and convincing evidence of the NH's paternity.

INTRODUCTION

This is in response to your May 21, 2001, request for our advice regarding (1) whether a parent-child relationship existed between the Number Holder and Brandon L. T~; (2) the effective date of the relationship; (3) whether Brandon L. T~ is entitled to retroactive benefits; and (4) whether, under § 216(h)(3)(C)(ii) of the Social Security Act (Act), the Number Holder was contributing to the support of the child.

Based on our review of the information you have provided and our research of applicable law, we have concluded that a parent-child relationship was established between the Number Holder and Brandon, effective March 6, 2001, the date of the court order establishing paternity.

BACKGROUND

Brandon L. T~, a minor child, was born on March 23, 1998. Ernest W. T~, the Number Holder, died fully insured on October 14, 2000, in Petersburg, Virginia.

Cynthia D. J~, Brandon's mother, and the Number Holder were never married and did not cohabitate. The Number Holder is not listed as Brandon's father on his birth certificate. The Number Holder is also not listed as Brandon's father on his application for a social security number dated May 13, 1998.

On February 16, 2001, Ms. J~ applied for surviving child's benefits, on behalf of Brandon, on the earnings record of the Number Holder. In support of this application, she submitted DNA sibship test results dated February 8, 2001. The DNA sibship test was based on genetic tests conducted between Ms. J~, Brandon, and Antonio C~, the Number Holder's adult child. The results of this test show a statistical probability of 99.4% that Brandon and Antonio are second degree relatives. We believe this testing demonstrates that Brandon and Antonio share the same father. Thus, this testing is strong evidence that the Number Holder is Brandon's father.

Ms. J~ also submitted a support determination made by the Virginia Division of Child Support Enforcement, dated February 12, 2001, indicating that the Number Holder was Brandon's father. This determination was made based upon the results of the DNA sibship test. Ms. J~ also submitted a court order of paternity from the City of Petersburg Juvenile and Domestic Relations District Court, dated March 6, 2001, finding that the Number Holder was the father of Brandon.

DISCUSSION

The Social Security Act provides that an illegitimate child can qualify for benefits if the child is entitled to inherit personal property under “such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which [the] insured individual . . . [was] domiciled at the time of his death.” 42 U.S.C. § 416(h)(2)(A). An illegitimate child who meets the standard which Congress set forth in section 216(h)(2)(A) is deemed to be legitimate and, therefore, dependent. M~ v. L~, 427 U.S. 495, 514-15 n.17 (1976). In the present case, Ernest W. T~, the alleged father, was domiciled in the state of Virginia at the time of his death. Therefore, Virginia intestacy law applies.

Under Virginia law, a child born out of wedlock may inherit from a decedent's estate based upon a showing that the decedent is the father of the child. Va. Code Ann. § 64.1-5.1. In order to inherit, the child must establish paternity by clear and convincing evidence as set forth in Virginia's intestacy statue. Va. Code Ann. §§ 64.1-5.1(3)(b), -5.2. The Code of Virginia provides, in pertinent part, that for purposes of inheritance, evidence that a man is the father of a child born out of wedlock shall be clear and convincing and may include, but shall not be limited to, “[t]he results of medically reliable genetic blood grouping tests weighted with all the evidence.” Va. Code Ann. § 64.1-5.2(7).

The Virginia intestacy statue does not set forth the percent probability of paternity that is sufficient to constitute clear and convincing evidence. The domestic relations statute, however, provides that a parent and child relationship between a child and a man may be established by scientifically reliable genetic tests, including blood tests, which affirm at least a ninety-eight percent probability of paternity. Va. Code. Ann. § 20-49.1.

In the present case, Ms. J~ has submitted DNA test results showing a 99.4% probability that the Number Holder was the father of Brandon. This test result would be sufficient to establish a parent-child relationship between the Number Holder and Brandon under the Virginia domestic relations statue.

For purposes of inheritance, the Code of Virginia also provides that if a proceeding to determine parentage has been initiated and concluded pursuant to § 20-49.1, and the court enters a judgment against a man for the support, maintenance and education of a child as if the child were born in lawful wedlock to the man, that judgment shall be sufficient evidence of paternity for the purposes of his section. Va. Code Ann. § 64.1-5.2. In the present case, as indicated above, Ms. J~ has submitted a support determination made by the Virginia Division of Child Support Enforcement, indicating that the Number Holder was Brandon's father. She also submitted a court order of paternity from the City of Petersburg Juvenile and Domestic Relations District Court, dated March 6, 2001, finding that the Number Holder was the father of Brandon. Although the support determination made by the Virginia Division of Child Support Enforcement against the Number Holder is not a court ordered judgment, we believe that this support determination, coupled with the court order of paternity, is equivalent to a court order for support, maintenance and education. In this case, the court could not enter an order for support, maintenance, or education because the Number Holder was deceased by the time the court would have entered its order. The only order that the court could enter, therefore, would be one of paternity. It is our opinion that the court order determining parentage, coupled with the Virginia Division of Child Support Enforcement against the Number Holder, is sufficient to constitute clear and convincing evidence of paternity for purposes of intestate succession.

With respect to the effective date of conferring inheritance rights, the POMS state the Agency's position that in Virginia, where inheritance rights are conferred by statue based on an adjudication of paternity (but the statute does not legitimate the child), and the act or event conferring inheritance rights is prospective only, if more than one piece of evidence is needed to satisfy the applicable standard of proof, the date of the latest necessary piece of evidence is the effective date that the claimant's status as the number holder's child is established. POMS GN 00306.055. In the present case, the date of the latest necessary piece of evidence establishing the Number Holder's paternity is March 6, 2001, the date of the court order of paternity establishing the Number Holder as the father of Brandon. Therefore, the effective date of the parent-child relationship between the Number Holder and Brandon is March 6, 2001.

You have further asked whether Brandon is entitled to retroactive benefits. The regulations provide that if the insured is deceased, child's benefits begin with the first month covered by the application in which the claimant meets all other requirements for entitlement. 20 C.F.R. § 404.352(a)(2000). The regulations further provide that child's benefits may be paid retroactively for up to six months beginning with the first month in which all requirements for entitlement are met. 20 C.F.R. § 404.621(a)(ii). In the present case, Ms. J~ filed an application for child's benefits on February 16, 2001, the date that Brandon established he was the child of the Number Holder, and thus met all other requirements for entitlement, was March 6, 2001, the date of the court order of paternity. Therefore, because Brandon met all of the requirements for entitlement on March 6, 2001, eighteen days after the date of his application, retroactive benefits are not at issue.

Finally, you have asked whether the requirement under § 216(h)(3)(C)(ii) of the Act, that the Number Holder was contributing to the support of the child, has been met. However, in the instant case, it is not necessary to determine whether this requirement has been met because Brandon has established that he is the child of the Number Holder under § 216(h)(2)(A) of the Act. It is only where a child is not, and has not been deemed to be, the child of an insured individual under § 216(h)(2) of the Act that a determination under § 216(h)(3)(C)(ii) would be appropriate.

CONCLUSION

For the reasons stated above, we believe that DNA test evidence showing a 99.4% probability that the Number Holder was Brandon's father, in addition to the support determination made by the Virginia Division of Child Support Enforcement against the Number Holder and the court order of paternity establishing the Number Holder as the father, constitutes clear and convincing evidence of paternity under Virginia law. Therefore, because he would be eligible to inherit from the Number Holder under Virginia laws of intestate succession, Brandon should be determined to be the child of the Number Holder under § 216(h)(2)(A) of the Act and entitled to surviving child's insurance benefits. We further believe that the effective date of the parent-child relationship is March 6, 2001, eighteen days after Brandon's application. Thus, retroactive benefits are not at issue. Finally, a determination under § 216(h)(3)(C)(ii) of the Act is not necessary in the present case.

DNA test results showing a 99.99% probability that the NH is the child's biological father constitute clear and convincing evidence of the NH's paternity under Virginia law and therefore give the child inheritance rights. Since the act conferring inheritance rights is prospective only, and the date of the DNA test report is March 5, 2001, that is the effective date of the parent-child relationship.

INTRODUCTION

This is in response to your May 14, 2001, request for our advice (1) whether DNA test evidence from the Number Holder, as well as a determination of paternity from the Commonwealth of Virginia, Department of Social Services, Division of Child Support enforcement, is sufficient evidence to establish a parent-child relationship between the Number Holder and Matthew W. R~, the surviving child, under Virginia law; (2) if so, what the effective date is of that relationship; and (3) whether the claimant is entitled to retroactive benefits.

Based on our review of the information you have provided and our research of the applicable law, we have concluded that a parent-child relationship was established between the Number Holder and Matthew, effective March 7, 2001, the date of the DNA Parentage Test Report. We have further concluded that Matthew would be entitled to benefits retroactive to March 7, 2001.

BACKGROUND

Nathan C. L~, the Number Holder, died fully insured on February 16, 2001. He was a resident of Virginia at the time of his death. Matthew W. R~, a minor child, was born on December 21, 2000. Nathan C. L~ and Patty B~, Matthew's mother, cohabited from August 1999 until Mr. L~'s death on February 16, 2001. Neither Matthew's application for a social security number nor his birth certificate indicates his father's name.

On April 27, 2001, Ms. B~ applied for surviving child's benefits on behalf of Matthew, on the earning's record of the Number Holder. In support of this application, Ms. B~ submitted a DNA Parentage Test Report dated March 7, 2001, which indicated a 99.99% probability that the Number Holder is the biological father of Matthew. Ms. B~ also submitted a notification dated March 26, 2001 from the Commonwealth of Virginia, Department of Social Services, Division of Child Support enforcement, determining that the Number Holder is Matthew's father.

DISCUSSION

The Social Security Act (Act) provides that an illegitimate child can qualify for benefits if the child is entitled to inherit personal property under “such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which [the] insured individual . . . [was] domiciled at the time of his death.” 42 U.S.C. § 416(h)(2)(A). An illegitimate child who meets the standard which Congress set forth in section 216(h)(2)(A) is deemed to be legitimate and, therefore, dependent. M~ v. L~, 427 U.S. 495, 514-15 n.17 (1976). In the present case, Nathan C. L~, the alleged father, was domiciled in the state of Virginia at the time of his death. Therefore, Virginia intestacy law applies. Under Virginia law, a child born out of wedlock may inherit from a decedent's estate based upon a showing that the decedent is the father of the child. Va. Code Ann. § 64.1-5.1. In order to inherit, the child must establish paternity by clear and convincing evidence as set forth in Virginia's intestacy statute. Va. Code Ann. §§ 64.1-5.1(3)(b), -5.2. The Code of Virginia provides, in pertinent part, that for purposes of inheritance, evidence that a man is the father of a child born out of wedlock shall be clear and convincing and may include, but shall not be limited to, “[t]he results of scientifically reliable genetic tests, including DNA tests, weighted with all the evidence.” Va. Code Ann. § 64.1-5.2(7).

The Virginia intestacy statute does not set forth the percent probability of paternity that is sufficient to constitute clear and convincing evidence. The domestic relations statute, however, provides that a parent and child relationship between a child and a man may be established by scientifically reliable genetic tests, including blood tests, which affirm at least a ninety-eight percent probability of paternity. Va. Code Ann. § 20-49.1.

In the present case, Ms. B~ has submitted DNA test results showing a 99.99% probability that Nathan C. L~ is the biological father of Matthew. We believe this is clear and convincing evidence of Matthew W. R~'s paternity under the law of the Commonwealth of Virginia and is the equivalent of a judgment establishing paternity. Va. Code Ann. §§ 20-49.8, 64.1-5.2(7). Matthew W. R~ would be entitled to inherit personal property as the child of Nathan C. L~ under the intestacy laws of Virginia. Va. Code Ann. § 64.1-5.2(7).

With respect to the effective date of conferring inheritance rights, the POMS state the Agency's position that in Virginia, where inheritance rights are conferred by statute based on an adjudication of paternity (but the statute does not legitimate the child), and the act or event conferring inheritance rights is prospective only, if more than one piece of evidence is needed to satisfy the applicable standard of proof, the date of the latest necessary piece of evidence is the effective date that the claimant's status as the number holder's child is established.

POMS GN 00306.055. In the present case, one piece of evidence, the DNA Parentage Test Report, established Matthew W. R~'s paternity. Thus, March 7, 2001, the date of the DNA Parentage Test Report, is the effective date of the parent-child relationship.

The March 26, 2001 notification from the Commonwealth of Virginia, Department of Social Services, Division of Child Support Enforcement, determining that the Number Holder is Matthew's father, and evidence that the Number Holder and Matthew's mother cohabited during the ten months immediately prior to the time the child was born, although relevant, were not absolutely necessary to prove paternity because of the DNA test results dated March 7, 2001. Under Virginia law, the DNA testing results and the fact of cohabitation have the same effect as an adjudication of paternity. Va. Code Ann. § 64.1-5.2 (1), (7). Therefore, because of the results of the DNA testing, neither the determination of March 26, 2001 nor the fact that Matthew's mother and the Number Holder cohabited was necessary to prove paternity in an intestacy proceeding.

Finally, you have asked whether Matthew is entitled to retroactive benefits. The regulations provide that if the insured is deceased, the child is entitled to benefits beginning with the first month covered by the application in which he meets all other requirements for entitlement. 20 C.F.R. § 404.352(a)(1)(2000). The regulations further provide that a child may receive retroactive benefits for up to six months beginning with the first month in which all requirements are met.

20 C.F.R. § 404.621(a)(ii); see also POMS GN 00204.030. In this case, the March 7, 2001 DNA testing results established the effective date of Matthew W. R~'s status as the insured's child. Hence, because Matthew had met all of the requirements for entitlement on March 7, 2001, he would be entitled to benefits retroactive to that date.

CONCLUSION

Based on our review of the genetic blood test results and our research of the relevant Virginia statutes and case law, we believe that, under the Commonwealth of Virginia legal standard, there is clear and convincing evidence that Nathan C. L~ is the father of Matthew W. R~. Thus, Matthew W. R~ is entitled to child's benefits commencing on March 7, 2001.

The Virginia statute is silent about whether testing of relatives of the putative father is acceptable evidence of paternity. However, it is believed that Virginia courts would require additional evidence beyond DNA testing of relatives to establish paternity by clear and convincing evidence.

A court order of paternity issued after death is equivalent to a judgment for the support, maintenance, and education of a child. The combination of DNA testing of the NH's parents showing a 99.92% probability that the NH is the child's father along with a court order of paternity constitutes clear and convincing evidence of paternity.

INTRODUCTION

This is in response to your April 16, 2001 request for our advice as to whether: (1) DNA test evidence from the parents of the Number Holder, as well as a court order of paternity, is sufficient to establish a parent-child relationship between the Number Holder and Christyna S. F~ (Christyna) under Virginia law; (2) if so, what is the effective date of that relationship; and (3) whether retroactive benefits can be paid on behalf of Christyna.

Based on our review of the information you have provided and our research of the applicable law, we have concluded that a parent-child relationship was established between the Number Holder and Christyna, effective November 13, 2000, the date of the court order establishing paternity. We further conclude that retroactive benefits are not at issue.

BACKGROUND

In your request, you indicated that Christopher P~, the Number Holder, died fully insured on April 5, 1997. Mr. P~ was a resident of Virginia at the time of his death. Christyna S. F~, a minor child, was born on December 6, 1997. Mr. P~ and Chanda K. F~, Christyna's mother, never married and did not cohabit.

On November 22, 2000, Ms. F~ filed an application for surviving child's benefits on behalf of Christyna, on the earnings record of Mr. P~. In support of this application, Ms. F~ was asked to submit relationship evidence. She submitted a DNA Parentage Test Report dated September 13, 2000 which indicated that the blood drawn from the Number Holder's parents showed a 99.92% probability that the Number Holder is Christyna's father as compared to an untested, unrelated man. Ms. F~ also submitted a court order dated November 13, 2000 determining that the Number Holder is Christyna's father. Finally, she submitted Christyna's long form birth certificate, issued November 16, 2000, indicating that the Number Holder is Christyna's father.

DISCUSSION

The Social Security Act (Act) provides that an illegitimate child can qualify for benefits if the child is entitled to inherit personal property under “such law as would be applied in determining the devolution of intestate property by the courts of the State in which [the] insured individual . . . [was] domiciled at the time of his death.” 42 U.S.C. § 416(h)(2)(A). In the present case, the Number Holder resided in the Commonwealth of Virginia at the time of his death. Therefore, Virginia intestacy law applies.

Under Virginia law, a child born out of wedlock will only be deemed legitimate by the subsequent intermarriage of the mother and father. Va. Code. Ann. § 20-31.1. However, a child born out of wedlock may inherit from a decedent's estate based upon a showing that the decedent is the father of the child. Va. Code Ann. § 64.1-5.1. In order to inherit, the child must establish paternity by clear and convincing evidence as set forth in Virginia's intestacy statute. Va. Code Ann. §§ 64.1-5.1(3)(b), -5.2.

Pursuant to Virginia's intestacy statute, a child born out of wedlock may establish inheritance rights by clear and convincing evidence with “[t]he results of scientifically reliable genetic tests, including DNA tests, weighted with all the evidence.” Va. Code Ann. § 64.1-5.2(7). The Virginia intestacy statute does not set forth the percent probability of paternity that is sufficient to constitute clear and convincing evidence. However, the domestic relations statute provides that blood test results that affirm at least a ninety-eight percent probability of paternity are sufficient to establish a parent-child relationship. Va. Code Ann. § 20-49.1(B)(1).

In the present case, Ms. F~ has submitted DNA test results indicating that the blood drawn from Mr. P~'s parents show a 99.92% probability that he is Christyna's father as compared to an untested, unrelated man. The Virginia statute is silent with respect to whether testing on the relatives of the putative father is acceptable evidence of paternity, i.e., whether such evidence rises to the level of “clear and convincing.” We believe that in the present case, a Virginia court would require additional evidence, beyond DNA testing of relatives, to establish paternity by clear and convincing evidence. For example, the unavailability of other male siblings or access to the mother would clearly establish circumstances that link the putative father to the DNA results. We note that sufficient evidence to adjudicate paternity was apparently presented to the court in this case, because the City of Richmond's Juvenile and Domestic Relations District Court found that Mr. P~ was, in fact, the father of Christyna.

 

For purposes of inheritance, the Code of Virginia provides that if a proceeding to determine parentage has been initiated and concluded pursuant to § 20-49.1, and the court enters a judgment against a man for the support, maintenance, and education of a child as if the child were born in lawful wedlock to the man, that judgment shall be sufficient evidence of paternity for the purposes of that section. Va. Code Ann. § 64.1-5.2. In the present case, as indicated above, Ms. F~ has submitted a court order of paternity dated November 13, 2000, finding that Mr. P~ was the father of Christyna. Although this court order of paternity is not a judgment for the support, maintenance, and education of Christyna, we believe it is equivalent to such an order and should be accorded comparable weight. In fact, the court could not enter an order for support, maintenance, or education in this case because Mr. P~ was deceased at the time the court entered its order. Therefore, the only order the court could enter was one of paternity. It is our opinion that the court order determining parentage is a sufficient judgment under the Virginia Code to constitute clear and convincing evidence of paternity for purposes of intestate succession.

With regard to the effective date of the parent-child relationship, the POMS state the Agency's position that in Virginia, where inheritance rights are conferred by statute based on an adjudication of paternity (but the statute does not legitimate the child), and the act or event conferring inheritance rights is prospective only, if more than one piece of evidence is needed to satisfy that applicable standard of proof, the date of the latest necessary piece of evidence is the effective date that the claimant's status as the number holder's child is established. POMS GN 00306.055. In this case, the date of the latest necessary piece of evidence establishing the number holder's paternity is November 13, 2000, the date of the court order of paternity establishing Mr. P~ as the father of Christyna. Therefore, it is our opinion that a parent-child relationship was established effective November 13, 2000.

Finally, you have asked whether Christyna is entitled to retroactive benefits. The regulations provide that if the insured is deceased, the child is entitled to benefits beginning with the first month covered by the application in which she meets all other requirements for entitlement. 20 C.F.R. § 404.352(a)(1)(2000). The regulations further provide that a child may receive retroactive benefits for up to six months beginning with the first month in which all requirements are met.

20 C.F.R. § 404.621(a)(ii); see also POMS GN 00204.030. In this case, however, the application date is the same month that all requirements for entitlement were met, November 2000. Hence, retroactive benefits are not at issue.

CONCLUSION

For the above reasons, it is our opinion that DNA test evidence indicating that the blood drawn from the Number Holder's parents show a 99.92% probability that the Number Holder is Christyna's father as compared to an untested, unrelated man, in conjunction with a state court order of paternity establishing the Number Holder as the father, constitutes clear and convincing evidence of paternity under Virginia law. Therefore, it is our opinion that a parent-child relationship was established between the Number Holder and Christyna, effective November 13, 2000, the date of the court order establishing paternity. We further conclude that retroactive benefits are not at issue.

The Virginia code provides that a judgment entered pursuant to the domestic relations statute, Va. Code Ann. section 20-49.1 et seq., is sufficient evidence of paternity for purposes of inheritance. Therefore, a court order establishing visitation rights for the NH as the claimant's birth father is sufficient evidence of paternity.

BACKGROUND

You asked our advice regarding the effective date of the parent-child relationship between Charles W~ (W~) and Mathew A. C~ (Mathew) and whether retroactive benefits could be paid on behalf of Mathew.

On October 11, 2000, Jesusa A. C~ (Jesusa) filed an application for child's benefits on behalf of Mathew on the account of W~, who began receiving disability insurance benefits in July 1999. In support of her claim, Jesusa provided DNA test results dated May 4, 2000 from blood drawn from W~ showing a 99.98% probability of paternity. In addition, Jesusa submitted a court order dated January 4, 2000, establishing visitation rights for W~, as Mathew's birth father. We have reviewed the materials provided and have researched the relevant provisions of Virginia law as it pertains to establishing paternity. Based on our research, we believe that a Virginia Court interpreting the intestacy statute would find that paternity was established as of January 4, 2000, the date of the court order establishing W~'s visitation rights, as Mathew's birth father. Therefore, we believe that retroactive benefits should be paid on behalf of Mathew.

DISCUSSION

The Social Security Act provides that, when determining paternity for purposes of entitlement to social security benefits, the Commissioner will apply the inheritance laws of the state in which the insured individual is domiciled at the time the application was filed. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1) (2000). Here, W~ was domiciled in the state of Virginia at the time the application was filed; therefore, Virginia law applies. Under Virginia law, a child born out of wedlock may inherit from a decedent's estate based upon a showing that the decedent is the father of the child. Va. Code Ann. § 64.1-5.1. To inherit, the child must establish paternity by clear and convincing evidence as set forth in Virginia's intestacy statute. Va. Code Ann. §§ 64.1-5.1(3)(b), -5.2. In that regard, the Code of Virginia provides that a child born out of wedlock may establish inheritance rights with “[t]he results of scientifically reliable genetic tests, including DNA tests, weighted with all the evidence.” Va. Code Ann. § 64.1-5.2(7). In addition, the Virginia Code provides that a judgment entered pursuant to the domestic relations statute, Va. Code Ann. § 20-49.1 et seq., is sufficient evidence of paternity for purposes of inheritance. Va. Code Ann. § 64.1-5.2. Based on the evidence presented in this case and as you state in your request for advice, we believe there is clear and convincing evidence of paternity for inheritance purposes.

Specifically, there are unrebutted DNA test results showing W~'s probability of paternity to be 99.98%. Indeed, under the Virginia Domestic Relations Statute, Va. Code Ann. § 20-49.1(B)(1), a 99.98% probability of paternity would be sufficient proof to obtain a court order of child support. Further, Jesusa submitted a court order issued in the domestic relations context which orders that W~, as the birth father, be granted visitation rights with Mathew. Va. Code Ann. § 20-49.8. Thus, there is clear and convincing evidence of W~'s paternity under Virginia law.

Regarding the effective date of the parent-child relationship, the POMS state the Agency's position that in Virginia, where inheritance rights are conferred by statute based on an adjudication of paternity (but the statute does not legitimate the child) and the act or event conferring inheritance rights is prospective only, the date of the latest necessary piece of evidence needed to satisfy the applicable standard of proof is the effective date of the relationship. In this case, the court order dated January 4, 2000, is the date the latest necessary piece of evidence was provided establishing Wilson's paternity under Virginia law. Therefore, January 4, 2000 is the effective date of the parent-child relationship.

The regulations provide that, if the insured is living, child's benefits begin with the first month covered by the application throughout which all other requirements for entitlement are met. 20 C.F.R. § 404.352(a)(2)(i) (2000). Further, under 20 C.F.R. § 404.621(a)(i), child's benefits may be paid retroactively for up to twelve months with benefits beginning with the first month in the twelve month period in which all requirements for entitlement are met. See also POMS GN 00204.030. Thus, it appears that Mathew is entitled to receive child's benefits, as the child of W~, as of January 2000, when all requirements for entitlement were satisfied.

CONCLUSION

For the reasons stated above, it is our opinion that a parent-child relationship was established as of January 4, 2000 and that retroactive benefits should be paid on behalf of Mathew.

Under Virginia law, an out-of-wedlock child may inherit from a decedent's estate upon establishing, by clear and convincing evidence, that he/she is the decedent's child. Paternity may be established by scientifically reliable genetic test results, with a probability rating of 98% or higher, weighted with all the evidence. The results of genetic testing, together with the worker's voluntary statement under oath, are clear and convincing evidence of paternity.

Genetic blood testing conducted in accordance with the AABB standards are scientifically reliable absent evidence challenging the results or the reliability of the test procedure or methodology.

BACKGROUND

You requested our opinion as to whether the results of DNA genetic blood testing on the deceased wage earner, which showed a 99.95% probability that he was the child's biological father, is clear and convincing evidence that the deceased wage earner is the father of Ashley A. A~. Our research indicates that a Virginia court interpreting the intestacy statute would find that Ashley A. A~ would be entitled to inherit from the deceased wage earner because the DNA test results, along with the wage earner's statement under oath in his voluntary agreement to blood testing rises to the level of clear and convincing evidence of paternity.

DISCUSSION

The Social Security Act provides that, when determining paternity for purposes of entitlement to social security benefits, the Commissioner will apply the inheritance laws of the state in which the insured individual was domiciled at the time of his death. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R § 404.354 (1999). Here, the deceased wage earner was domiciled in Virginia when he died, such that Virginia law controls. Under Virginia law, an out-of-wedlock child may inherit from a decedent's estate upon establishing, by clear and convincing evidence, that she is the decedent's child. Va. Code Ann. §§ 64.1-5.1, -5.2. Section 64.1-5.2(7) of the Virginia Code provides that for purposes of proving a right to an intestate share, paternity may be established by “[t]he test results of scientifically reliable genetic tests, including DNA tests, weighted with all the evidence.”

There is no dispute that the blood test results of 99.95% are of a sufficient degree of probability of paternity to satisfy a Virginia court, as 98% probability would be sufficient proof of paternity to obtain a court order of child support in Virginia according to the provisions of the domestic relations statute governing child support adjudications. Va. Code Ann. § 20-49. 1. Moreover, there is no dispute regarding the reliability of the test results as the laboratory that performed the DNA testing is accredited by the American Association of Blood Banks (AABB). See Commonwealth of Virginia, on Behalf of Overby v. Flaneary, 469 S.E. 2d 79, 85-6 (Va. Ct. App 1996) (holding that if genetic blood testing is conducted in accordance with the AABB standards, and there is no evidence challenging the test results or the reliability of the test procedure or methodology, then the test results are scientifically reliable).

The remaining issue is whether there is sufficient other evidence of record to associate the test results of the wage earner with the child claiming benefits on his record. We believe that a Virginia Court would find that a sufficient nexus exists based on the “Voluntary Agreement for Blood Testing” signed by the wage earner that you provided. The wage earner stated, under oath, that he voluntarily agreed to submit to blood testing for the purpose of proving or disproving that he was the biological father of Ashley L. A~, born to Diana F~. He further agreed, under oath, that if the testing indicated at least a 98% probability of paternity, that he would be declared the legal father and would be responsible for the payment of child support and the provision of medical support until the child reached the age of 18. We believe that a Virginia court would find that this voluntary statement under oath, together with the blood test results, is clear and convincing evidence that the child would be entitled to inherit from the wage earner.

CONCLUSION

We believe that a Virginia court would find that the results of the genetic DNA test, together with the wage earner's voluntary statement under oath, is clear and convincing evidence of paternity that would entitle the child of the wage earner to inherit under the intestacy statute.

The information that you provided did not indicate whether a Virginia court entered an order for child support based on the DNA test results and the voluntary statement. Had such an order been entered, the court order alone would be clear and convincing evidence under the intestacy statute. Va. Stat. Ann. § 64.1-5.2.

For purposes of inheritance under the Virginia statute, evidence that a man is the father of a child born out of wedlock includes, but is not limited to, the results of scientifically reliable genetic tests, including DNA tests, weighted with all the evidence. A Virginia court would require additional evidence, beyond the DNA testing of relatives, to establish paternity by clear and convincing evidence. Such evidence should clearly establish circumstances that link the putative father to the DNA results, such as access to the mother or unavailability of other male siblings.

The effective date of conferring inheritance rights is the date of the latest necessary piece of evidence (POMS GN 00306.055.

You asked our advice as to (1) whether the results of DNA genetic blood testing performed on the parents of the deceased wage earner (Robert J. H~) are clear and convincing evidence of paternity under the Commonwealth of Virginia's intestacy statute, (2) if the DNA testing results are insufficient to establish paternity of the wage earner, whether the court order establishing paternity confers inheritance rights, and (3) when the inheritance rights were conferred for the purpose of establishing entitlement to benefits for the surviving child, Cheyenne D. T~.

BACKGROUND

In your request, you indicated that Debora A. T~ has filed for child's benefits for Cheyenne D. T~ as the child of the deceased wage earner. You provided us with a report by the local Social Security office; a numident established from Cheyenne's birth certificate showing her father's name as “Unknown”; DNA testing results from blood drawn from the putative father's parents showing a 99.95% probability of paternity of the wage earner; and a March 22, 1999 court order holding that Robert J. H~ is adjudicated to be the biological father of Cheyenne D. T~ based on the DNA testing and testimony. We have reviewed the material you provided and have researched the relevant provisions of Virginia's inheritance laws as they pertain to establishing paternity, including a review of several state and federal court decisions and the relevant POMS provisions. We conclude that, in this case, the inheritance rights were conferred as of March 22, 1999, when the state court accepted the DNA evidence and testimony as conclusive proof of paternity.

DISCUSSION

The Social Security Act (Act) provides that, when determining issues of paternity for purposes of Social Security benefits, the agency will look to the applicable state's inheritance laws as interpreted by the courts of that state. 42 U.S.C. ' 416(h)(2)(A); 20 C.F.R. ' 404.354 (1999). Under Virginia law, a child born out of wedlock in Virginia will only be deemed legitimate by the subsequent intermarriage of the mother and father. Va. Code Ann. ' 20-31.1. Nevertheless, a child born out of wedlock may inherit from a decedent's estate based upon a showing that the decedent is the father of the child. Va. Code Ann. ' 64.1-5.1. The child must establish paternity by clear and convincing evidence as set forth in Virginia's intestacy statute. Va. Code Ann. '' 64.1-5.1(3)(b), -5.2.

The Code of Virginia provides, in pertinent part, that, for purposes of inheritance, evidence that a man is the father of a child born out of wedlock shall include, but shall not be limited to, “the results of scientifically reliable genetic tests, including DNA tests, weighted with all the evidence.” Va. Code Ann. ' 64.1-5.2(7). The statute is silent with respect to whether testing on the relatives of the putative father is acceptable evidence of paternity, i.e., whether such evidence rises to the level of “clear and convincing.” We believe that, in the present case, a Virginia court would require additional evidence, beyond the DNA testing of relatives, to establish paternity by clear and convincing evidence. We believe that such evidence should clearly establish circumstances that link the putative father to the DNA results, such as access to mother or unavailability of other male siblings. We note that the domestic relations court order adjudicating paternity acknowledged that additional testimony was present in this case that apparently satisfied the court that the putative father was, in fact, the father of Cheyenne T~.

However, it should be noted that our conclusion is not based on the existence of a court order as a prerequisite to the entitlement to social security benefits. While Virginia is a state which accepts an adjudication of paternity under Va. Code Ann. ' 20-49.8 in order to take under the intestacy statutes, Va. Code Ann. ' 64.1-5.1, the agency still has the discretion to determine paternity for social security benefit purposes absent a formal adjudication by a court declaring paternity. The agency has stated before the United States Supreme Court that “the Act directs the Commissioner of Social Security—not, in the first instance, the courts—to 'apply such law as would be applied . . . by the courts of the State' concerned.” Lawrence v. Chater, 116 S. Ct. 604, 606 (1996) (quoting section 216(h)(2)(A) of the Act). In Lawrence, the agency acknowledged that in the first instance, it could and must apply a state's law as the state courts would apply the law. Therefore, in the circumstances of this case, we conclude only that the DNA testing and evidence referred to in the court order would meet Virginia's clear and convincing evidence standard.

With regard to the effective date of conferring inheritance rights, we note that the POMS state the agency's position that in Virginia, where inheritance rights are conferred by statute based on an adjudication of paternity (but the statute does not legitimate the child), and the act or event conferring inheritance rights is prospective only, if more than one piece of evidence is needed to satisfy the applicable standard of proof, the date of the latest necessary piece of evidence is the effective date that the claimant's status as the number holder's child is established. POMS GN 00306.055. In this case, the date of the latest necessary piece of evidence establishing the wage earner's paternity is March 22, 1999, when the state court accepted the DNA evidence and testimony as conclusive proof of paternity.

CONCLUSION

As outlined above, our research shows that, in this case, the agency may permissibly use March 22, 1999 as the effective date that Cheyenne's entitlement to child's benefits was established because that was the date of the latest piece of evidence required to show paternity.