PR: Title II Regional Chief Counsel Precedents

Effective Dates: 07/01/2016 - Present

TN 46 (07-16)

A. PR 16-116 Claimant’s Status as the Number Holder’s Child for Entitlement to Child Insurance Benefits on the Number Holder’s Earnings Record

Date: April 15, 2016

1. Syllabus

The number holder (NH) was domiciled in North Carolina when he died. Therefore, we look to North Carolina intestacy law to determine whether the claimant is NH’s child for child insurance benefit (CIB) purposes. Under North Carolina’s intestacy law, a surviving child is entitled to a share of a decedent’s personal property not disposed of by will and not distributed to a surviving spouse. The child support order sufficiently establishes the claimant was the NH’s child for CIB purposes under Section 216(h)(2)(A) of the Act. The claimant is the NH’s child under the North Carolina intestacy law and is eligible CIB benefits on NH’s earnings record.

2. Opinion

QUESTION

You have asked whether a claimant’s birth certificate, which lists the number holder as the father with the same last name as the claimant and a mother with a different last name, is sufficient to show that the claimant is the number holder’s child for determining the claimant’s eligibility for child insurance benefits (CIB) on the number holder’s earning record. You have also asked whether Program Operations Manual System (POMS) GN00306.120B.2 and B.3 apply in this situation.

OPINION

The claimant is the number holder’s child for determining the claimant’s eligibility for CIB on the number holder’s earning record. Although you have asked us whether POMS GN00306.120B.2 and B.3 apply, we did not reach this issue because a child support order sufficiently establishes the claimant was the number holder’s child for CIB purposes.

BACKGROUND

T~. (Claimant) was born February XX, 1999, in V, North Carolina. His birth certificate identifies his mother as E~ and his father as T2~, the number holder (NH). Claimant provided an October 2002 order from the General Court of V~, North Carolina, indicating NH was in arrears for child support payments to E~, Claimant’s mother. The order identifies NH as the non-custodial parent of Claimant. The court also noted that changed circumstances allowed it to adjust the amount of child support NH has to pay to $332.00 per month effective November XX, 2002. NH’s death certificate indicates he was a resident of North Carolina when he died on September XX, 2015.

DISCUSSION

To be eligible for CIB on the earnings record of an individual who died fully or currently insured, a claimant must be the individual’s “child.” See Social Security Act (Act) § 202(d)(1); 20 C.F.R. § 404.350(a)(1).¹ “Child” includes “the child” of an insured individual. Act § 216(e); 20 C.F.R. § 404.354; Astrue v. Capato, 132 S. Ct. 2021, 2027 (2012). A claimant may show he is “the child” of a deceased insured individual, within the meaning of section 216(e)(1), by meeting the requirements listed in section 216(h)(2)(A) of the Act. See Capato, 132 S. Ct. at 2028. Under section 216(h)(2)(A), a claimant is considered “the child” of the insured individual if the claimant could inherit the insured individual’s intestate personal property under the law of the State in which the insured individual was domiciled when he died. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4); POMS GN 00306.055A.1; Capato, 132 S. Ct. at 2028; Schafer v. Astrue, 641 F.3d 49, 52 (4th Cir. 2011).

NH’s death certificate indicates he was domiciled in North Carolina when he died. Therefore, we look to North Carolina intestacy law to determine whether Claimant is NH’s child for CIB purposes. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4). Under North Carolina’s intestacy law, a surviving child is entitled to a share of a decedent’s personal property not disposed of by will and not distributed to a surviving spouse. See N.C. Gen. Stat. Ann. §§ 29-13(a), 29-14(b)(1), (b)(2), 29-15(1), (2), 29-16(a)(1).² North Carolina intestacy law states in pertinent part that a child born out of wedlock shall be entitled to take by, through and from:

(1) Any person who has been finally adjudged to be the father of the child pursuant to the provisions of G.S. 49-1 through 49-9 or the provisions of G.S. 49-14 through 49-16. . . .

N.C. Gen. Stat. Ann. § 29-19(b). An adjudication under subsection (b)(1) includes an order determining the support of a child of parents not married to each other. See N.C. Gen. Stat. Ann. §§ 49-1 through 49-9. When considering a child support action, the court must determine whether the alleged father is a parent of the child, and if he is, the amount of child support. See N.C. Gen. Stat. Ann. § 49-7.

In Claimant’s case, the evidence provided does not include an initial order in which a court determined that NH was Claimant’s father and ordered NH to pay child support. However, the October 2002 order from the General Court of V~, North Carolina, identified NH as Claimant’s non-custodial parent, indicated NH was in arrears for child support, and changed the amount of child support NH had to pay to Claimant’s mother to $332.00 per month. We believe that the October 2002 order is sufficient evidence to establish that NH was finally adjudged to be Claimant’s father pursuant to North Carolina child support law and that Claimant is NH’s child under North Carolina’s intestacy law. See N.C. Gen. Stat. Ann. §§ 29-19(b)(1), 49-7. Therefore, Claimant is NH’s child under Section 216(h)(2)(A) of the Act for determining Claimant’s eligibility for CIB on NH’s earnings record. See Act §§ 202(d)(1), 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1); POMS GN 00306.055A.1.

Although you asked us whether Claimant was NH’s child under Section 216(h)(3)(C) of the Act, and whether POMS GN00306.120B.2 and B.3 apply, we did not reach this issue. The child support order sufficiently establishes Claimant was NH’s child for CIB purposes under Section 216(h)(2)(A) of the Act, so it is unnecessary to consider Section 216(h)(3)(C).

CONCLUSION

Claimant is NH’s child under North Carolina intestacy law and Section 216(h)(2)(A) of the Act for determining Claimant’s eligibility for CIB on NH’s earnings record.

Sincerely,

Mary Ann Sloan

Regional Chief Counsel

By: Jeffrey S. Wilson

Assistant Regional Counsel

B. PR 16-077 Use of DNA Testing of NH’s Brother to Establish Number Holder’s Paternity

Date: February 1, 2016

1. Syllabus

The NH died while domiciled in North Carolina; therefore, we look to the North Carolina intestacy law to determine whether Claimant is NH’s child. Under the North Carolina intestacy law, proof of paternity must be established by clear, cogent, and convincing evidence. When the DNA tested belongs to a putative paternal relative other than the putative father or when testing the putative father’s DNA reveals a probability of paternity between 85% and 97%, the DNA testing, standing alone, does not amount to the clear, cogent, and convincing evidence to establish paternity under North Carolina intestacy law.

The available evidence also does not establish that the Claimant is NH’s child under section 216(h)(3)(C) of the Act. The Claimant’s mother did not submit evidence that would satisfy any of the four foregoing requirements of section 216(h)(3)(C). The Claimant does not qualify as NH’s child under any provision of section 216(h)(3)(C) of the Act. The evidence the Claimant’s mother submitted is not sufficient to establish that the Claimant could inherit from the NH under the North Carolina intestacy law. The Claimant is not the NH’s child for determining Claimant’s eligibility for CIB on the NH’s earnings record.

2. Opinion

QUESTION

You asked whether a DNA test showing a high probability that a number holder’s brother is the uncle of a claimant establishes that the claimant is the number holder’s child for determining the claimant’s eligibility for child’s insurance benefits (CIB) on the number holder’s earnings record.

SHORT ANSWER

The DNA test results, alone, do not amount to the clear, cogent, and convincing evidence necessary to establish the claimant is the number holder’s child under North Carolina intestacy law. Thus, under the current record, the claimant is not the number holder’s child for determining the claimant’s eligibility for CIB on the number holder’s earnings record.

BACKGROUND

According to the information provided, P~ (Claimant’s mother) filed an application on behalf of her son, M~, (Claimant), for CIB on the earnings record of M2, the number holder (NH). To support the application, Claimant’s mother submitted Claimant’s birth certificate, which shows that Claimant was born on April XX, 2015, and has the same surname as NH. A father is not identified on the birth certificate. Claimant’s mother also submitted the results of DNA testing. The DNA testing report indicates that a facility accredited by the American Association of Blood Banks (AABB) analyzed DNA samples from Claimant and K~ (NH’s brother). The DNA testing revealed a 99.4721% probability that NH’s brother is Claimant’s uncle.

NH’s death certificate indicates that he died on November XX, 2014, while domiciled in North Carolina. The death certificate does not identify a surviving spouse, and the information provided does not indicate that NH ever married Claimant’s mother.

DISCUSSION

A claimant may be eligible for CIB on the earnings record of an individual who dies a fully or currently insured individual if the claimant is the insured individual’s “child.” See Act § 202(d)(1); 20 C.F.R. § 404.350(a)(1) (2015). “Child” includes “the child” of an insured individual. Act § 216(e); see 20 C.F.R. § 404.354; Astrue v. Capato, — U.S. —, 132 S. Ct. 2021, 2027-28 (2012). A claimant may show he is “the child” of a deceased insured individual, within the meaning of section 216(e)(1), by meeting the requirements of either section 216(h)(2)(A) or 216(h)(3)(C) of the Act. See Capato, 132 S. Ct. at 2028. Under section 216(h)(2)(A), a claimant is considered “the child” of a deceased insured individual if he could inherit the insured individual’s intestate personal property under the law of the state in which the insured individual was domiciled when he died. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4); Capato, 132 S. Ct. at 2028-34; POMS GN 00306.001(C)(1)(a), (C)(2)(a). NH’s death certificate indicates that he was domiciled in North Carolina when he died. Therefore, we look to North Carolina intestacy law to determine whether Claimant is NH’s child.

Under North Carolina intestacy law, a child of a person who died 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 2016). North Carolina intestacy law states, in pertinent part, that a child born out of wedlock shall be entitled to take by, through and from:

Any person who has been finally adjudged to be the father of the child pursuant to the provisions of G.S. 49-1 through 49-9 or the provisions of G.S. 49-14 through 49-16;
Any person who has acknowledged himself during his own lifetime and the child’s lifetime to be the father of the 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[; or]
A person who died prior to or within one year after the birth of the child and who can be established to have been the father of the child by DNA testing.

N.C. Gen. Stat. Ann. § 29-19(b).

The evidence does not indicate that NH acknowledged Claimant as his child prior to NH’s death and, thus, subsection (b)(2) of the above North Carolina Code does not apply in Claimant’s claim. The evidence also does not include DNA testing results that establish NH’s paternity. Rather, the DNA test results available only address whether NH’s brother is Claimant’s uncle. Therefore, subsection (b)(3) of the above North Carolina Code also does not apply in Claimant’s claim.

The only provision in subsection (b)(1) that is relevant to Claimant’s claim is N.C. Gen. Stat. Ann. § 49-14, which discusses civil actions to establish paternity. See N.C. Gen. Stat. Ann. § 49-14. North Carolina law prohibits civil actions to establish paternity unless the action is commenced, and judgment entered, either prior to the death of the putative father or within a certain period of the putative father’s death. See N.C. Gen. Stat. Ann. § 49-14(c). However, SSA regulations state that the agency will not apply any state inheritance law requirement that an action to establish paternity must be taken or commenced before or within a specified time of the insured individual’s death. See 20 C.F.R. § 404.355(b)(2). Similarly, if the state inheritance law requires a court determination of paternity, SSA will not require a claimant to obtain a court determination, but will decide the claimant’s paternity by using the standard of proof that the state court would use as the basis for the determination of paternity. See id.

Under North Carolina law, proof of paternity must be established by “clear, cogent, and convincing evidence.” N.C. Gen. Stat. Ann. § 49-14(b). Clear, cogent and convincing evidence is an evidentiary standard that “is greater than the preponderance of the evidence standard required in most civil cases, but not as stringent as the requirement of proof beyond a reasonable doubt required in criminal cases.” In re Montgomery, 316 S.E.2d 246, 252 (N.C. 1984). In deciding a paternity claim under § 49-14, a trial court has the duty “to determine whether evidence offered in a particular case is clear, cogent, and convincing,” and “it is within the court’s discretion to consider some, none or all of the evidence, and to determine the appropriate weight to place on the testimony.” Brown v. Smith, 526 S.E.2d 686, 688 (N.C. Ct. App. 2000) (internal quotation marks omitted).

Our office previously determined that DNA evidence can be used to establish paternity for intestate purposes in North Carolina. See POMS PR 01115.036 (PR 14-078, PR 08-158, PR 08-093, 02-069). Under North Carolina law, testing of a putative father’s DNA that reveals a 97% or greater likelihood of paternity effectively amounts to the clear, cogent, and convincing evidence necessary to establish paternity under North Carolina intestacy law because it creates a presumption of paternity that can be rebutted only with other clear, cogent, and convincing evidence. See N.C. Gen. Stat. Ann. § 8-50.1(b1)(4). But when the DNA tested belongs to a putative paternal relative other than the putative father or when testing the putative father’s DNA reveals a probability of paternity between 85% and 97%, the DNA testing, standing alone, does not amount to the clear, cogent, and convincing evidence necessary to establish paternity under North Carolina intestacy law. See POMS PR 01115.036 (PR 14-078, PR 08-158, PR 08-093, 02-069). In these situations, the DNA testing must be combined with additional evidence to meet the clear, cogent, and convincing standard for establishing paternity under North Carolina intestacy law. See id.

We have determined that DNA evidence revealing a 99.99% probability that the father of a number holder was a claimant’s grandfather, combined with statements from the claimant’s mother indicating that she did not have a sexual relationship with any of the number holder’s brothers and had dated the number holder exclusively in the 6 years preceding his death, could amount to the clear, cogent, and convincing evidence necessary to establish the number holder’s paternity. See id. (PR 08-158). We also have determined that DNA evidence revealing a 99.99% probability that the parents of a number holder were a claimant’s grandparents, combined with evidence showing that the number holder did not have brothers who might have fathered the claimant, could amount to the clear, cogent, and convincing evidence necessary to establish the number holder’s paternity. See id. (PR 08-093).

The foregoing cases indicate that DNA evidence showing a high probability that a relative of the putative father is related to the claimant, standing alone, cannot constitute the clear, cogent, and convincing evidence necessary to establish paternity. To amount to the clear, cogent, and convincing evidence necessary to establish paternity, such DNA evidence must be combined with other evidence that suggests the only way the relationship the DNA test supports could exist is if the putative father is the claimant’s father.

Thus, without evidence suggesting that Claimant’s mother did not have a sexual relationship with any of NH’s brothers, the DNA test results showing a 99.4721% probability that NH’s brother is Claimant’s uncle do not amount to clear, cogent, and convincing evidence necessary to establish paternity under North Carolina intestacy law because NH’s brother would still be Claimant’s uncle if Claimant’s father was a brother of NH. As the only evidence Claimant’s mother submitted to establish NH’s paternity was the DNA test results showing a 99.4721% probability that NH’s brother is Claimant’s uncle, the evidence available is insufficient to establish that Claimant is NH’s child under section 216(h)(2)(A) of the Act.

The evidence available also does not establish Claimant is NH’s child under section 216(h)(3)(C) of the Act. To qualify as “the child” of a deceased insured individual under section 216(h)(3)(C), a claimant must be the son or daughter of the insured individual and show one of the following: (1) the insured individual acknowledged in writing that he was his child, (2) a court decreed the insured individual to be his father prior to the insured individual’s death, (3) a court ordered the insured individual to contribute to his support prior to the insured individual’s death, or (4) the insured individual is his natural father and was living with him or contributing to his support at the time the insured individual died. See Act § 216(h)(3)(C); 20 C.F.R. § 404.355(a)(3), (4); POMS GN 00306.100.A, B. The record, as discussed above, does not establish that Claimant met the threshold requirement of section 216(h)(3) of being NH’s son, i.e., his biological child. See Act § 216(h)(3); 20 C.F.R. §404.355(a)(3); POMS GN 00306.100.D.1. Claimant’s mother also did not submit evidence that would satisfy any of the four foregoing requirements of section 216(h)(3)(C). Claimant, therefore, does not qualify as NH’s child under any provision of section 216(h)(3)(C) of the Act.

CONCLUSION

The evidence Claimant’s mother submitted is not sufficient to establish Claimant could inherit from NH under North Carolina intestacy law and, therefore, Claimant is not NH’s child under section 216(h)(2)(A) of the Act. The evidence also does not establish Claimant could be deemed NH’s child under section 216(h)(3)(C) of the Act. Claimant, therefore, is not NH’s child for determining Claimant’s eligibility for CIB on NH’s earnings record.

Mary Ann Sloan

Regional Chief Counsel

By: Peter S. Massaro, III

Assistant Regional Counsel

C. PR 04-040 Eligibility for Child's Benefits after Termination of Parental Rights SSN ~ J2~, Number Holder

DATE: December 8, 2003

1. SYLLABUS

North Carolina statutes do not preclude a child from inheriting from the parent's estate when there has been a termination of parental rights, unless there has been a final order of adoption by another person.

2. OPINION

The number holder, J2~, is the biological father of J~. The mother's name is E~ and there is no information in the record from your office regarding the marital status of the parties when J~ was born. However, there is information to indicate that you have a court order that required the number holder to support J~. This document can be used to establish proof of relationship for entitlement to child's insurance benefits. There was no birth date for J~ on any of the documents submitted with the opinion request.

Sometime around the time J~ was eight years of age, someone spoke to J~ about the possibility of visitation with his natural father. The child became upset and a petition to terminate the father's parental rights was filed by an A~. We assume this individual is the child's grandmother or aunt but there is no identifying information regarding the identity of the petitioner in the court documents or in your statement of facts. The petition was filed on November XX, 2001. The number holder obtained an attorney and essentially admitted to all of the allegations in the petition, and joined in the petition to terminate his parental rights. The court granted the joint petition by court order entered on May XX, 2002. The judge signed the order on June XX, 2002.

The number holder, died on June XX, 2003. Your office has asked for an opinion on whether the parental termination order precludes J~'s entitlement to child's insurance benefits on his father's Social Security record. We have determined that J~ is entitled to child's insurance benefits on the number holder's account.

Section 216(h)(2)(A) of the Social Security Act, 42 U.S.C. § 416(h)(2)(A)(2003) ³ , provides that the Commissioner, in determining whether an applicant is the child of an insured individual, shall use the law governing the devolution of intestate personal property applied by the courts of the State in which the insured individual was domiciled at the time of his death. Eligibility for Social Security child's benefits is governed by the provisions of 20 C.F.R. §404.355 as follows:

(a) Eligibility as a natural child. You may be eligible for benefits as the insured's natural child if any of the following conditions is met:

(1) You could inherit the insured's personal property as his or her natural child under State inheritance laws, as described in paragraph (b) of this section.

(b) Use of State Laws-

(1) General. To decide whether you have inheritance rights as the natural child of the insured, we use the law on inheritance rights that the State courts would use to decide whether you could inherit a child's share of the insured's personal property if the insured were to die without leaving a will.

There is no question about the paternity of J2~ or whether the number holder had a legal obligation to support the child. Therefore, the child had inheritance rights from the estate of his natural father under the laws of North Carolina. See N.C. Gen. Stat. §29-15. Thus, the sole question remaining is whether the termination of the number holder's parental rights also extinguished the child's right to inherit from his natural father's estate. The termination of parental rights is governed by N.C. Gen. Stat. § 7B-1100 and subsequent sections, and the legislative intent of parental terminations is explained in section 7B-1100 as follows:

The General Assembly hereby declares as a matter of legislative policy with respect to termination of parental rights:

(1) The general purpose of this Article is to provide judicial procedures for terminating the legal relationship between a juvenile and the juvenile's biological or legal parents when the parents have demonstrated that they will not provide the degree of care which promotes the healthy and orderly physical and emotional well-being of the juvenile.

However, North Carolina statutes do not preclude a child from inheriting from the parent's estate when there has been a termination of parental rights unless there has been an adoption and a final order of adoption. N.C.Gen. Stat. § 7B-1112 provides that:

An order terminating the parental rights completely and permanently terminates all rights and obligations of the parent to the juvenile and of the juvenile to the parent arising from the parental relationship, except that the juvenile's right of inheritance from the juvenile's parent shall not terminate until a final order of adoption is issued. The parent is not thereafter entitled to notice of proceedings to adopt the juvenile and may not object thereto or otherwise participate therein.

In reviewing the above statutory provision, and the information submitted by your office, we have concluded that J~ can inherit from his father's estate under the laws of the state of North Carolina, in the absence of any documents showing that he was adopted by someone else. In reviewing the information presented in the record, we concluded that J~ is entitled to receive child's insurance benefits on the wage record of his natural father, irrespective of the termination of the father's parental rights.

Very truly yours,

Mary A. S~
Regional Chief Counsel

Sharon F. Y~
Assistant Regional Counsel.