Here, the DNA test shows a probability that Aunt is the aunt of Claimant, not a probability
that NH is the father of Claimant. Therefore, the DNA test does not show paternity
and does not create a rebuttable or conclusive presumption of paternity.
Further, the DNA test does not establish paternity by clear and convincing evidence
because there is no evidence that NH is the brother of Aunt other than the unsupported
statements of Mother. In POMS PR 01115.047(B), the agency found DNA tests between a claimant and an alleged child of a deceased
number holder had no value because of a lack of evidence—beyond the unsupported claims
of claimant’s mother—that the alleged child was the child of the number holder. Similarly,
here, the record lacks evidence that Aunt and NH are siblings.
Moreover, even if established, a sibling relationship between Aunt and NH would not
suffice to show paternity by clear and convincing evidence because there is no evidence
showing Aunt did not have a brother(s) other than NH who could have fathered Claimant.
This reasoning is consistent with precedent opinion in POMS PR 01115.012(E). In that opinion, avuncular genetic test results established a 99.99% probability
that the number holder’s brother was the claimant’s uncle as opposed to being unrelated
to the claimant. Id. However, the testing did not exclude the possibility that another
brother of the number holder was the claimant’s father. Id. The opinion concluded
that because the genetic testing did not address that possibility, it did not establish
that the claimant could inherit from the number holder under Georgia intestacy law.
Id.
Finally, the record lacks evidence that would constitute clear and evidence of paternity.
In addition to using the results of DNA tests to determine paternity, a Tennessee
court would also consider: (1) the declarations and conduct of Mother; (2) any acknowledgment
by NH; (3) family resemblance; and (4) evidence concerning NH’s access, opportunity,
and capacity to have children. See POMS PR 01115.047(B).
Here, the available evidence does not establish paternity by clear and convincing
evidence. First, Mother was married to S~ at the time of Claimant’s birth, and the
birth certificate lists S~ as Claimant’s father. Second, the Divorce Decree also shows
Mother and S~ had an agreed parenting plan, which suggests that S~ acted as Claimant’s
father, even after he and Mother divorced.[3]
Third, there is no evidence that NH acknowledged paternity of Claimant, provided support
for Claimant’s Mother, or held Claimant out as his son. Under similar facts, the Tennessee
Court of Appeals held the record lacked clear and convincing evidence of paternity
where the deceased putative father did not: (1) attempt to legitimate the child by
adjudication; (2) acknowledge paternity openly to the public; (3) hold the child out
to his family as his daughter; (4) provide support to the child's mother; and (5)
the record lacked evidence of community acceptance of the child as the putative father’s
daughter. Gentry v. Jordan, 1986 WL 8152, at *2 (Tenn. Ct. App. July 25, 1986).
For the foregoing reasons, the facts of record do not establish NH’s paternity of
Claimant by clear and convincing evidence. Therefore, Claimant is not entitled to
CIB. Because he is not entitled to CIB, he is also not entitled to a LSDP.[4] See Act § 202(i)(2); 20 C.F.R. § 404.392.