The DWE (Deceased Wage Earner) died while domiciled in California. Accordingly, we apply California intestacy law to determine whether the Claimant is the NHs child under the Act. Based on the evidence currently available, under California law, the Claimant would not be able to inherit intestate from the DWE because the State court did not enter a paternity judgment during the DWE’s lifetime, the DWE did not openly acknowledge or hold out the Claimant as his own child, and it was not impossible for DWE to do so. Therefore, the child is not eligible for child’s benefits under 216(h)(2)(A) of the Act. Additionally, although the genetic test results provide evidence of DWE’s paternity, the evidence shows DWE was not living with the Claimant or contributing to his support when the DWE died. Also, the Claimant may not be deemed the DWE’s child under section 216(h)(3)(C) of the Act. Because the Claimant is not entitled to benefits as the DWE’s child, he may not receive the LSDP.

QUESTION

You asked whether a parent-child relationship existed between G~, the deceased wage earner (DWE), and child-claimant N~ (Claimant) for purposes of determining the Claimant’s entitlement to surviving child benefits and the Lump Sum Death Payment (LSDP).

SHORT ANSWER

The Claimant does not qualify as DWE’s child under section 216(h)(2)(A) of the Act and is not entitled to surviving child benefits on DWE’s record. Because the Claimant is not entitled to benefits as the DWE’s child, he may not receive the LSDP.

SUMMARY OF EVIDENCE

A~ (Mother) had a non-marital relationship with the DWE. She gave birth to the Claimant on February XX, 2015 in F~, California. Claimant’s birth certificate did not identify a father. The Mother sent DWE messages regarding the Claimant’s birth but DWE never responded.

In July 2015, the California Department of Child Support Services brought an action against DWE for child support for the Claimant. The DWE was served with child support papers at his father’s house, where he was then living. When his father asked about the child, the DWE denied that he was the Claimant’s father.

On July XX, 2015, the DWE died from a self-inflicted gunshot wound in A~, California. The Mother was no longer talking to DWE at this time.

In April 2016, the Claimant, Mother, and the Claimant’s paternal grandparents (Grandparents) submitted samples for genetic testing. LB Genetics issued a test report on May XX, 2016 finding a 99.98% probability that the Grandparents were in fact the Claimant’s biological grandparents. LB Genetics later tested a sample of DWE’s blood and found a 99.99% probability that he was the Claimant’s father.

On May XX, 2016, the Mother filed a claim for surviving child’s benefits and the LSDP on the DWE’s record. In a June 2016 Child Relationship Statement, the Mother indicated that the DWE admitted orally that he was the Claimant’s parent. She answered “no” to all other questions on the form, including questions going to whether the DWE held out the Claimant as his child or contributed to Claimant’s support. The Grandmother submitted a notarized affidavit attesting to her belief that the Claimant was her grandson, based on genetic testing and the fact that the Grandparents had no other sons.

The Mother filed a petition and supporting declaration in Orange County Superior Court to establish DWE’s parentage. On October XX, 2016, the Court issued a judgment finding DWE was the Claimant’s father and ordering DWE’s name be added to the Claimant’s birth certificate. An amended birth certificate was issued on December XX, 2016 naming DWE as Claimant’s father.

The Anaheim Field Office spoke with the Mother in December 2016 about DWE’s mental health. The Mother stated DWE had previously admitted that mental illness ran in his family, and she believed that was his way of telling her that he suffered from mental illness too. The Mother noted that he seemed in denial about the extent of his illness, he was impulsive, and he had substance abuse problems. She did not have any medical information about DWE’s condition but believed his mental illness prevented him from taking responsibility for a child.

The Anaheim Field Office also spoke with the Claimant’s paternal grandmother, A2~ (Grandmother) in December 2016. She stated that DWE was severely depressed and suffered from mental illness, which ran in the family. The Grandmother thought DWE was in denial about his condition and unable to take responsibility for a child. Further, although DWE was seeing a psychiatrist, the Grandmother believed he might not have been truthful with the doctor about his mental illness. The Grandmother was unable to obtain more information from DWE’s psychiatrist about his condition.

LEGAL STANDARDS

A. Federal Law

Under the Social Security Act (Act), every child of an individual who died fully or currently insured is entitled to child’s insurance benefits, if the child proves that he:

(1) is the insured individual’s child, as defined in section 216(e) of the Act;

(2) has applied for such benefits;

(3) is unmarried;

(4) is under the age of 18; and

(5) was dependent upon the insured individual at the time of his death.

Social Security Act § 202(d)(1); 20 C.F.R. § 404.350; Program Operations Manual System (POMS) GN 00306.001(A).

The Act defines “child” as “the child or legally adopted child of an individual.” Social Security Act § 216(e)(1). A claimant has child status if he has the right to inherit from the insured individual’s estate under State intestacy laws. Social Security Act § 216(h)(2)(A). Where the insured individual is deceased, the agency applies the intestacy laws of the State where he was domiciled at the time of death. Social Security Act § 216(h)(2)(A); POMS GN 00306.055.

An applicant who satisfies the requirements of section 216(h)(2)(A) of the Act is also deemed dependent upon the insured individual. 20 C.F.R. ' 404.361(a) (“If you are the insured’s natural child, as defined in § 404.355, you are considered dependent upon him or her”); Social Security Ruling (SSR) 77-2c (“where state intestacy law provides that a child may take personal property from a father’s estate, it may reasonably be thought that the child will more likely be dependant during the parent’s life...”).

If the applicant does not qualify under section 216(h)(2)(A) of the Act, he may still be deemed the child of the insured individual under alternative federal standards. See Social Security Act § 216(h)(3). An applicant may qualify as the child of an insured individual if, before the insured’s death:

(1) he acknowledged the applicant as his child in writing;

(2) a court decreed him the child’s father; or

(3) a court ordered that he contribute to the child’s support.

Social Security Act § 216(h)(3)(C)(i). An applicant may also qualify as the child of an insured individual if the agency finds that the insured is the applicant’s father, and he was living with or contributing to the applicant’s support at the time of the insured’s death. Social Security Act § 216(h)(3)(C)(ii).

B. California Law

Pursuant to the Probate Code, a child may inherit through his or her natural parents regardless of the parents’ marital status. Cal. Prob. Code § 6450(a). A parent-child relationship is established where the relationship is presumed and not rebutted under the Uniform Parentage Act (UPA). Cal. Prob. Code § 6453(a); see generally Cal. Fam. Code §§ 7600-7730 (California’s UPA). Under the UPA, several presumptions of parentage arise when a child is born before, during, or after a marriage, or attempted marriage, of the presumed parent and the child’s natural mother. Cal. Fam. Code § 7611(a)-(c). A presumption also arises, even absent a marriage, where the presumed parent “receives the child into his or her home and openly holds out the child as his or her natural child.” Cal. Fam. Code § 7611(d); see also POMS GN 00306.430.A.1.b.6.

Where no presumption of parentage applies under the UPA, a parent-child relationship may be established through an action brought under Family Code section 7630(c) to determine the

existence of a father and child relationship, so long as one of the following conditions exist:

(1) A court order was entered during the father’s lifetime declaring paternity;

(2) Paternity is established by clear and convincing evidence that the father has openly held out the child as his own; or

(3) It was impossible for the father to hold out the child as his own and paternity is established by clear and convincing evidence.

Cal. Prob. Code § 6453(b); see also Cal. Fam. Code § 7630(c) (actions to establish a father-child relationship not based upon a presumption arising under Cal. Fam. Code § 7611). Genetic testing that indicates a likelihood of paternity of 100 times or greater creates a rebuttable presumption of paternity. Cal. Fam. Code § 7555(a); see also POMS GN 00306.430.A.1.c (recognizing that submission of genetic test results is one method for establishing clear and convincing evidence of paternity).

ANALYSIS

A. Whether the Claimant Satisfies Section 216(h)(2)(A) of the Act

Here, DWE died while domiciled in California. Accordingly, we apply California intestacy law to determine whether the Claimant is DWE’s “child” under section 216(h)(2)(A) of the Act.

First, under the Probate Code, a parent-child relationship may be established if the relationship is presumed and not rebutted under the UPA, as set forth in Family Code section 7600 et seq. See Cal. Prob. Code § 6453(a). Here, the UPA’s parentage presumptions are inapplicable because the DWE never married or attempted to marry the Mother, and he never received the Claimant into his home. See Cal. Family Code § 7611(a)-(d).

Second, a parent-child relationship may be established through an action brought under Family Code section 7630(c) if one of the conditions listed in Probate Code section 6453(b) exists. As discussed below, none of the conditions in section 6453(b) are satisfied here.

1. No Court Issued an Order of Paternity During DWE’s

Lifetime

First, a parent-child relationship may be established under Probate Code section 6453(b)(1) if a court entered an order during the father’s lifetime declaring paternity. See Cal. Prob. Code § 6453(b)(1); POMS GN 00306.430.A.1.b.7.A. Here, Orange County Superior Court issued a judgment establishing DWE’s paternity on October XX, 2016, over a year after the DWE’s death on July XX, 2015. Accordingly, this judgment does not satisfy Probate Code section 6453(b)(1).

2. DWE Did Not Openly Hold Out the Claimant as His Own

Child

Second, a parent-child relationship may be established under Probate Code section 6453(b)(2) if there is clear and convincing evidence that the father openly held out the child as his own. See Cal. Prob. Code § 6453(b)(2). According to the Mother, DWE’s father and stepmother “were aware of [Claimant’s] existence.” However, DWE’s father said that DWE denied the Claimant was his child. Although the Mother’s Child Relationship Statement indicates that DWE admitted he was the Claimant’s parent, there is no evidence that anyone besides DWE’s father and stepmother were aware of the Claimant, and DWE told them the child was not his. The Mother responded “no” to all other questions in the Child Relationship Statement going to whether the DWE held out the Claimant as his own child or contributed to his support. The evidence therefore does not satisfy the “holding out” requirement of Probate Code section 6453(b)(2). See POMS GN 00306.430.A.1.b.7.B (“[T]o establish holding out, the putative father must have incurred some … cost, in proclaiming the child as his own ….”).

3. It Was Not Impossible for DWE to Hold Out the Claimant as His Own Child

Third, a parent-child relationship may be established under Probate Code section 6453(b)(3) if (i) it was impossible for the father to hold out the child as his own, and (ii) paternity is established by clear and convincing evidence See Cal. Prob. Code § 6453(b)(3); POMS GN 00306.430.A.1.b.7.C. Here, genetic testing showed a 99.99% probability that the DWE was the Claimant’s father. However, evidence of biological paternity alone is insufficient to satisfy section 6453(b)(3). Instead, there must also be evidence that it was impossible for the DWE to hold out the Claimant as his own child. See Cal. Prob. Code § 6453(b)(3); POMS GN 00306.430.A.1.b.7.C. That does not appear to be the case here. The DWE lived for five months after Claimant’s birth. As such, he had the opportunity to openly acknowledge the Claimant was his own child and contribute to his support and care, but did not do so. See Cheyanna M. v. A.C. Nielsen Co., 66 Cal.App.4th 855, 877 (Cal. 1998) (“legislative history indicates that the ‘impossibility’ provision was enacted to cover the situation . . . where the father dies before the child is born”); POMS PR 01005.006 California, (C) PR 12-064 Establishing Parent-Child Relationship under California Law; Deceased Wage Earner – G~; SSN ~, Claimant – A~; SSN ~ (where father lived for a year after child’s birth, it was not impossible for him to hold out the child as his own, and genetic testing alone was insufficient to satisfy Probate Code section 6453(b)(3)).

The Mother and Grandmother submitted statements indicating that they believe that DWE denied the extent of his mental illness, and that condition prevented him from taking responsibility for a child. The Grandmother thought DWE might not have been truthful with his psychiatrist about his condition. The Mother thought that, in addition to his mental illness, DWE was impulsive and had substance abuse issues. However, these statements are ambiguous and speculative. The agency has not received any medical evidence or medical opinion indicating that DWE had a diagnosed mental illness or other condition that prevented him from holding out a child as his own. In addition, we have found no California law indicating that mental illness, standing alone, is sufficient to meet the “impossibility” provision of California Probate Code section 6453(b)(3). Although DWE took his own life and may well have had a mental illness, in the absence of more specific supporting evidence, these facts alone are insufficient to show it was impossible for DWE to acknowledge parentage and hold out the Claimant as his own child. See Estate of Burden 53 Cal. Rptr. 3d 390, 393, 396 (Cal. Ct. App. 2007) (holding that father’s email acknowledging he was “a party to conception” of the child and his admissions of parentage to family and the child’s mother satisfied the “holding out” provision of California law).

Accordingly, the Claimant does not qualify as DWE’s child under section 216(h)(2)(A) of the Act.

B. Whether the Claimant Satisfies Section 216(h)(3)(C) of the Act

Under section 216(h)(3)(C)(i) of the Act, the Claimant may be deemed DWE’s child if, before DWE’s death:

(1) DWE acknowledged in writing that the Claimant was his child;

(2) a court decreed DWE to be the Claimant’s father; or

(3) a court ordered that DWE contribute to the Claimant’s support.

Social Security Act § 216(h)(3)(C)(i). None of these circumstances are present here. Although the State court issued a paternity judgment and ordered DWE’s name be added to the Claimant’s birth certificate, this did not occur before the DWE’s death as required under section 216(h)(3)(C)(i).

Under section 216(h)(3)(C)(ii) of the Act, the Claimant may qualify as DWE’s child if the agency finds that DWE was the Claimant’s father, and that DWE was living with or contributing to the Claimant’s support at the time of DWE’s death. Social Security Act § 216(h)(3)(C)(ii). Although the genetic test results provide evidence of DWE’s paternity, the evidence shows DWE was not living with the Claimant or contributing to his support when the DWE died.

Accordingly, the Claimant may not be deemed the DWE’s child under section 216(h)(3)(C) of the Act.

C. Whether the Claimant Is Entitled to Receive the LSDP

Upon the death of an insured individual who does not have a surviving spouse, a LSDP may be paid to each person entitled to child’s benefits on the insured’s record. Social Security Act § 202(i)(2); 20 C.F.R. § 404.392. Because the Claimant is not entitled to child’s benefits under section 216(h)(2)(A) of the Act, as discussed above, he may not receive the LSDP.

CONCLUSION

Based on the evidence currently available, under California law, the Claimant would not be able to inherit intestate from the DWE because the State court did not enter a paternity judgment during DWE’s lifetime, DWE did not openly acknowledge or hold out the Claimant as his own child, and it was not impossible for DWE to do so. The Claimant may not be deemed the DWE’s child under alternative federal standards either. Accordingly, the Claimant does not qualify as DWE’s child under section 216(h)(2)(A) of the Act and is not entitled to benefits on DWE’s record. Because the Claimant is not entitled to benefits as the DWE’s child, he may not receive the LSDP.

A surviving child can be awarded benefits under Section 216(h)(2) of the Social Security Act without a court paternity determination, or identification on the child’s birth certificate as the wage earner being the child’s father. Under California intestacy law, Claimant can establish that the deceased wage earner (DWE) is the natural father because the DWE represented himself as the Claimant's father to family, friends, and on a social media site before his death. DWE disclosed his intention to establish his paternity for his daughter in court on a social media site. Claimant was listed as one of two daughters of the DWE's in his obituary. Claimant is therefore entitled to child survivor’s benefits under section 216(h)(2) of the Social Security Act.

QUESTION

You asked whether a parent-child relationship existed between Jacobi, the deceased wage earner (DWE), and Sienna (Claimant) for purposes of determining Claimant’s entitlement for child survivor’s insurance benefits, where the DWE is not identified as the father on Claimant’s birth certificate and no court made a paternity determination.

SHORT ANSWER

Yes. Under California intestacy law, Claimant can establish that the DWE is her natural father because the DWE openly held Claimant out as his daughter. She is therefore entitled to child survivor’s benefits under section 216(h)(2) of the Social Security Act.

SUMMARY OF EVIDENCE

The DWE and Claimant’s mother, Megan, were romantically involved with each other at the time of Claimant’s conception. Megan ended the relationship before Claimant’s birth on September, and cut off further contact with the DWE due to his addiction to prescription drugs. According to Megan, she did not include the DWE’s name on Claimant’s birth certificate at the advice of her attorney, because she did not want him around her daughter and sought to strengthen her legal position in any custody dispute that might arise. The DWE died in California of a drug overdose on November XX, 2009.

In support of the child survivor’s claim, ^[1] Megan presented print copies of messages the DWE sent via the social networking site, “Myspace.” On January XX, 2009, the DWE sent Megan a Myspace message from the address myspace.com/j~, disclosing his intention to establish his paternity for his daughter in court; however, his daughter is not named in this message. The message indicates that the DWE had tried to contact Megan in other ways, but she did not respond. On May XX, 2009, the DWE sent Megan a Myspace message from the address myspace.com/j~, ^[2] stating he was ready to file in court if Megan did not allow him to become a part of Claimant’s life; this message identified Claimant by her first name (Sienna). On August XX, 2009, the DWE sent another message through Myspace from the j~ account, indicating that he wanted Sienna to consider him her father, and both he and his family wanted to be a part of her life.

Megan also provided statements in support of the claim from various friends and family members. The DWE’s mother, Karen , wrote a letter indicating her son believed he was Claimant’s father, and offered to undergo genetic testing to prove the relationship. In addition, Claimant’s mother, grandmother (Angela ), Godmother (Maria ), and friends Marie and Isaac, all submitted short letters stating that the DWE believed he was Claimant’s father. Megan further stated that she witnessed the DWE’s relationship with Megan at the time she became pregnant, that Megan ended their relationship due to the DWE’s drug use and the best interest of the then-unborn child, and that the DWE had contacted her in November 2008 seeking advice on how “to fix his relationship with Megan so he could see his new daughter.”

The DWE’s obituary lists Sienna as one of his two daughters.

ANALYSIS

Federal Law

Under the Social Security Act (Act), every unmarried minor child of an insured individual ^[3] that dies fully or currently insured shall be entitled to child insurance benefits. Social Security Act § 202(d)(1), 42 U.S.C. § 402(d)(1). However, to receive child insurance benefits, the applicant must qualify as the insured individual’s “child,” as defined by section 216(e) of the Act, and be dependent on the insured individual at the time of his death. See id.; 20 C.F.R. § 404.350. Section 216(e)(1) of the Act defines a “child” as “the child or legally adopted child of an individual.” Social Security Act § 216(e)(1), 42 U.S.C. § 416(e)(1). Section 216(h) of the Act provides further elaboration on the definition of child: “[i]n determining whether an applicant is the child...[of] the insured individual...apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which [the insured] was domiciled.” Social Security Act § 216(h)(2)(A), 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1). ^[4] In applying state law, we do not require the claimant to obtain a court determination but use the same law and standards that the state court would use. 20 C.F.R. § 404.355(b).

An applicant who satisfies the requirements of section 216(h)(2)(A) of the Act is also deemed dependent upon the insured individual. 20 C.F.R. ( 404.361(a) (“If you are the insured’s natural child, as defined in § 404.355, you are considered dependent upon him or her”); Social Security Ruling (SSR) 77-2c (“where state intestacy law provides that a child may take personal property from a father’s estate, it may reasonably be thought that the child will more likely be dependent during the parent’s life...”).

Intestacy Standard - California Law

Here, the DWE died domiciled in California. Therefore, to determine whether the Claimant is the DWE’s child pursuant to section 216(h)(2)(A), we consider California intestacy law.

Pursuant to the California Probate Code, a child may inherit through his or her natural parents, regardless of the parents’ marital status. Cal. Prob. Code § 6450(a). A parent-child relationship is established where the relationship is presumed and not rebutted under California’s Uniform Parentage Act (UPA). Cal. Prob. Code § 6453(a); see also Cal. Fam. Code § 7611 (setting out criteria for presuming paternity). Alternatively, the Probate Code provides that a parent-child relationship may be established through an action brought under California Family Code § 7630(c), so long as one of the following conditions exist:

(1) A court order was entered during the father’s lifetime declaring paternity;

(2) Paternity is established by clear and convincing evidence that the father has openly held out the child as his own; or

(3) It was impossible for the father to hold out the child as his own (e.g., the father died before the child’s birth) and paternity is established by clear and convincing evidence.

Cal. Prob. Code § 6453(b); see also Cal. Fam. Code § 7630(c) (actions to establish a father-child relationship not based upon a presumption arising under Cal. Fam. Code § 7611).

Claimant may inherit under California Probate Code § 6453(b)(2), which requires clear and convincing evidence that the DWE openly held Claimant out as his child. See Cal. Prob. Code § 6453(b)(2). ^[5] California courts have found the “holding out” requirement satisfied when a father has made several oral and written acknowledgments of paternity on a number of occasions. See In re Estate of B~, 53 Cal. Rptr. 3d 390, 396 (Cal. Ct. App. 2007) (equating “holding out” with “acknowledged,” and finding that decedent held putative heir out as child because he acknowledged in writing his role in child’s conception, and admitted paternity to his mother, brother, and sister); see also Estate of G~, 24 P.3d 1191 (Cal. 2001) (holding that the legislative intent of the acknowledgment requirement in Probate Code §§ 6452, 6453(b)(2) did not require that a father have personal contact with a child, financially provide for the child, or receive the child into his home). ^[6]

In B~, the court found the evidence met the acknowledgment requirement of section 6453(b)(2) based on the alleged father’s written acknowledgment that he was “a party to conception” many years earlier, his marriage proposal to the claimant’s mother near the time of conception, and his admissions that he was the father to his own mother, brother and sister, as well as to his son, the child in question. See B~, 53 Cal. Rptr. 3d at 396. Significantly, the father’s email admission to his sister that he was merely “a party to conception” was intended to indicate that he had no familial feeling towards the child, he expressed his lack of interest in pursuing a relationship with his then-adult son, and he also chose not to respond to cards or emails his son sent to him. Id. at 392-93. Nonetheless, the B~ court construed the email as a written acknowledgement. Id. at 396.

Here, the DWE sent multiple electronic messages to Claimant’s mother during Claimant’s infancy indicating that he was Claimant’s father, that he wanted to be a part of her life, and that he was willing to both provide care (such as changing diapers) and pay child support. Claimant’s mother admits that she is the one who prevented the DWE from establishing a relationship with the child, which is consistent with the content of the DWE’s messages. Thus, under B~, a California court would likely view the DWE’s Myspace messages as written acknowledgement of paternity. ^[7] Id. at 396.

In addition to the Myspace messages, Claimant’s grandmother, Godmother, as well as the DWE’s mother and two friends, were aware of the DWE’s relationship with Megan at the time of Claimant’s conception, and stated that DWE openly acknowledged Claimant as his daughter. Moreover, the Claimant’s mother admitted that she prevented the DWE from having contact with the child due to her fears regarding his drug use and future custody claims. Megan, a mutual friend, confirmed that Megan did not maintain contact with the DWE but that the DWE tried to make contact and have a relationship with the child.

Accordingly, a California court would likely conclude that Claimant provided clear and convincing evidence that the DWE held Claimant out as his child. See id.; Cal. Prob. Code § 6453(b)(2).

CONCLUSION

Claimant can inherit from the DWE under California intestacy law because clear and convincing evidence establishes that the DWE openly held Claimant out as his child. Therefore, he is entitled to benefits under section 216(h)(2) of the Act.