A claimant may be eligible for CIB on the earnings record of a deceased insured individual if the claimant is the insured individual’s “child.” Act § 202(d)(1); see 20 C.F.R. § 404.350(a)(1) (2022);^[1] Program Operations Manual System (POMS) GN 00306.002A, B. “Child” includes “the child” of an individual insured for benefits. Act § 216(e)(1); see Astrue v. Capato, 566 U.S. 541, 547-48 (2012); 20 C.F.R. § 404.354. A claimant may show he is “the child” of a deceased insured individual who never married his mother, within the meaning of section 216(e)(1), under sections 216(h)(2)(A) or 216(h)(3)(C) of the Act.

The agency first looks to the intestate succession laws of the state in which the NH was domiciled when he died. 42 U.S.C. § 216(h)(2)(A); 20 C.F.R. § 404.355(b); POMS GN 00306.010. If the father-child relationship cannot be established under State law, the agency looks to section 216(h)(3) of the Act, which describes a Federal standard for establishing a father-child relationship. See POMS GN 00306.100.

Relevant to this opinion, section 216(h)(3)(C)(i)(I))provides a claimant is considered “the child” if the insured individual is deceased and had acknowledged in writing that the claimant is his son.^[2] See 20 C.F.R. § 404.355(a)(3); POMS GN 00306.105. For a written acknowledgement to qualify, it must:

• identify the child by name, or otherwise reference the specific child in an identifiable manner, e.g., as the child born to a specific person on a certain date or the child who is the unborn sibling of another named child; and

• clearly acknowledge or identify the child as the NH’s child.

POMS GN 00306.105(B). A document does not need to be in the NH’s handwriting or signed, as long as it is a written record prepared at his direction. Id. Further, State law requirements regarding written acknowledgment for intestacy purposes are not controlling. Id.

The guidance in the POMS is consistent with Social Security Ruling (SSR) 79-22, which provides that:

[N]either the Act nor the Regulations . . . requires that the acknowledgement be executed in any special way. Any statement written by the wage earner, or at his direction, which acknowledges . . . the claimant as the wager earner’s son or daughter is sufficient acknowledgement in writing to satisfy the statutory requirement.

The available information does not identify where NH was domiciled at the time of his death, which is necessary to determine which state’s intestacy laws govern the determination of Claimant’s status as NH’s child. See Act § 216(h)(2)(A); Capato, 566 U.S. at 548-59; 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4); POMS GN 00306.001J. However, because the opinion request asks whether Claimant is NH’s child under North Carolina law, this opinion assumes NH was domiciled in North Carolina at the time of his death.

Under North Carolina intestacy law, a child of a person dying intestate generally is entitled to a share of the person’s personal property. See N.C. Gen. Stat. Ann. §§ 29-13(a), 29-14(b)(1), (b)(2), 29-15(1), (2), 29-16(a)(1) (West 2022). A child born out of wedlock may inherit from, in relevant part:

Any person who has acknowledged himself during his own lifetime and the child’s lifetime to be the father of such child in a written instrument executed or acknowledged before a certifying officer named in G.S. 52-10(b) and filed during his own lifetime and the child’s lifetime in the office of the clerk of superior court of the county where either he or the child resides.

N.C. Gen. Stat. Ann. § 29-19(b)(2) (West 2022)

NH’s text messages are insufficient to establish paternity under North Carolina’s intestacy law because there is no evidence they were “acknowledged before a certifying officer” and “filed during [NH’s] own lifetime . . . in the office of the clerk of superior court of the county where either he or the child resides.” See id.

Further, the text messages are insufficient to establish NH as the father of Claimant under section 216(h)(3)(C)(i)(I)) of the Act because they do not clearly acknowledge that Claimant is the son of NH.

Although the writing containing the recognition of paternity need not be in any particular form, see POMS GN 00306.105(B), SSR 79-22, it should contain a clear and unequivocal acknowledgment that the writer is the father of the child. See Johnson v. Sullivan, 735 F. Supp. 416, 420 (M.D. Fla. 1990). “Incomplete or ambiguous acknowledgements of paternity are not construed presumptively in illegitimate claimants’ favor.” Garcia ex rel. Garcia v. Sullivan, 874 F.2d 1006, 1008 (5th Cir.1989) . “A writing satisfies the statute when it ‘unequivocally acknowledges paternity,’ that is, when it ‘is susceptible of only one reasonable construction.’” Johnson, 735 F. Supp. at 421 (citations omitted). Examples of “unequivocal language” concerning paternity include references to a child as “my [son]” or “our baby.” Id. Thus, text messages may qualify as a writing under § 216(h)(3)(C)(i)(I) if the person sending the messages clearly and unequivocally acknowledges his paternity of the child.

Here, the texts messages from NH do not clearly and unequivocally acknowledge his paternity of Claimant. NH made statements that demonstrate his affection for Claimant and desire to spend time with Claimant. However, such statements are insufficient. See, e.g., Cox v. Schweiker, 684 F.2d 310, 317 (5th Cir. 1982) (references in diary by putative father to claimant as a “pretty” kid and designation of claimant as beneficiary of a life insurance policy was insufficient); Johnson, 735 F. Supp. at 421 (letter to claimant’s mother stating “I miss you and [claimant] so damn much” and “Give [claimant] a big kiss for me every morning” was insufficient).

Here, the strongest evidence of an acknowledgment of paternity is NH’s reference to Claimant as “my stinkin L~.” However, the statement is not unequivocal language of paternity because it fails to clearly identify Claimant as NH’s child. See Parker v. Barnhart, 2006 WL 2135754, at *5 (N.D. Tex. June 1, 2006) (holding number holder’s reference to claimant as “my little girl” was “far too ambiguous” and explaining that it “conveys affectionate feelings, [but] does not unequivocally imply a father-daughter relationship.”); cf. Vance v. Heckler, 757 F.2d 1324, 1327–28 (D.C. Cir. 1985) (putative father’s letter referring to mother of claimant and indicating that “I told her that I would take care of my son” was sufficient); PR 01210.036 North Carolina, A. PR. 13-100 Child Status Based on DNA Testing of Claimant, Claimant’s Mother, and Number Holder’s Sister – North Carolina (July 9, 2013) (advising that for purposes of deeming the claimant to be the NH’s child under section 216(h)(3)(C)(i)(I), NH’s messages on Facebook were sufficient where he, inter alia, referred to claimant as his “daughter”). Therefore, Claimant has not established that NH is his father under § 216(h)(3)(C)(i)(I).