PR: Title II Regional Chief Counsel Precedents

Effective Dates: 01/26/2018 - Present

TN 72 (01-18)

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~, Jr. (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:

the insured individual acknowledged in writing that he was his child,
a court decreed the insured individual to be his father prior to the insured individual’s death,
a court ordered the insured individual to contribute to his support prior to the insured individual’s death, or
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 14-078 Child Status Based on DNA Testing of the Claimant, the Claimant’s Mother, and the Number Holder’s Father—North Carolina Number Holder: M~ Claimant: C~

Date: April 17, 2014

1. Syllabus

North Carolina law does not specify the weight due genetic tests that address the likelihood of some relationship other than paternity, such as the grand-paternity relationship at issue in this case. North Carolina courts have not addressed the relevance of DNA test results showing the probability of a relationship between a child and a close relative of the deceased putative father. North Carolina will look to other jurisdictions for guidance, and other jurisdictions have recognized DNA testing of a putative grandparent as evidence of paternity. In earlier opinions, we determined a North Carolina court would consider test results based on DNA samples from the claimant’s putative grandfather, along with other relevant evidence, when deciding the number holder’s paternity. In the claimant’s case, we believe a North Carolina court would admit and consider the DNA testing report, which shows only a 91.158% probably of grand-parentage, to determine whether claimant was NH’s child. We believe a North Carolina court would conclude that without additional corroborating statements, the DNA testing report in claimant’s case does not provide clear, cogent and convincing evidence that the claimant was the NH’s child under North Carolina intestacy law.

2. Opinion

QUESTION

For determining the claimant’s eligibility for child’s insurance benefits (CIB) on the number holder’s earnings record, you have asked whether the claimant is the child of the number holder based on DNA testing of the claimant, the claimant’s mother, and the number holder’s father.

OPINION

A North Carolina court would conclude the claimant is not the child of the number holder under North Carolina intestacy law. Therefore, 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

On January XX, 2014, M2~, mother of C~ (Claimant), applied on Claimant’s behalf for CIB on the earnings record of M~, the number holder (NH).

Claimant’s mother submitted a copy of Claimant’s birth certificate, which shows Claimant was born on June, but does not identify Claimant’s father. NH’s death certificate indicates he died on June XX, 2010, while a resident of North Carolina. NH’s death certificate indicates he was married to someone other than Claimant’s mother and lists his father as J~. NH’s birth certificate identifies D~ as his father.

Claimant’s mother submitted a DNA testing report dated January XX, 2014. The DNA testing was performed on samples from Claimant, Claimant’s mother, and D~ (NH’s purported father). The report states the probability of relatedness is 91.158%. The report also states: “Based on the genetic results, the alleged grandparent is 10.31 times more likely to be related as a grandparent than to be unrelated.” The DNA testing report does not provide a probability regarding NH’s relationship to Claimant.

Claimant’s mother also completed a Child Relationship Statement on February XX, 2014. The statement indicated NH never acknowledged Claimant in writing. Specifically, NH did not make any statement to any agency asserting Claimant was his child; had never written any letters to anyone acknowledging Claimant as his son or he as Claimant’s father; never listed Claimant in a family tree or family record; did not list Claimant as a dependent on his tax records; did not take any insurance policies out on Claimant or make Claimant the beneficiary of an insurance policy; did not make a will listing Claimant as a beneficiary; did not list Claimant as his child on any applications for employment; did not register Claimant in a school or place of worship; never took Claimant to a doctor, dentist, or hospital or list himself as a parent; did not accept responsibility or pay for Claimant’s hospital expenses at birth; and did not make regular and substantial contributions to support Claimant. Claimant’s mother also stated NH orally admitted to a sister that Claimant was his child. ¹

Claimant’s mother provided another signed statement that NH had no known brothers. Claimant’s mother reported to agency personnel that NH was not present at Claimant’s birth, NH got mad and left her because she did not list him as the father on Claimant’s birth certificate, and NH never acknowledged Claimant at all. Agency personnel contacted D~, NH’s purported father, who reported he did not know his son, NH, had a son, although he also reported he did not have a relationship with NH.

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 Social Security Act (Act) § 202(d)(1); 20 C.F.R. § 404.350(a)(1) (2013). ² “Child” includes “the child” of an insured individual. See Act § 216(e); 20 C.F.R. § 404.354; Astrue v. Capato, 132 S. Ct. 2021, 2027-28 (2012). 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 section 216(h)(2)(A) or 216(h)(3)(C) of the Act. See C~, 132 S. Ct. at 2028. Under section 216(h)(2)(A) of the Act, 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); C~, 132 S. Ct. at 2028-34; Program Operations Manual System (POMS) GN 00306.001(C)(1)(a), (C)(2)(a).

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 was NH’s child under section 216(h)(2)(A) of the Act. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (4); POMS GN 00306.001(C)(1)(a), (C)(2)(a).

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 2013). ³ 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;

(2) 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.

N.C. Gen. Stat. Ann. § 29-19(b). The evidence does not indicate NH acknowledged Claimant as his child and thus subsection (b)(2) 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. ⁴ 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 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 describes an evidentiary standard stricter than a preponderance of the evidence, but less stringent than proof beyond a reasonable doubt.” Nash Cnty Dep’t of Soc. Servs., v. Beamon, 485 S.E.2d 851, 852 (N.C. Ct. App. 1997). 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, 687-88 (N.C. Ct. App. 2000) (quotations omitted).

Our office previously addressed the evidentiary value of DNA testing involving the father of a deceased number holder in determining paternity for the purpose of North Carolina intestate succession. See POMS PR 01115.036 (PR 08-158, PR 08-093). As discussed in PR 08-093, North Carolina recognizes the general admissibility and reliability of DNA testing in establishing paternity. See POMS PR 01115.036C (PR 08-093); N.C. Gen. Stat. Ann. §§ 8-50.1(b1), 49-14(f).

North Carolina law on the competency of blood tests establishes presumptions of paternity based on court-ordered genetic testing that are applicable in any civil action in which the question of parentage arises. See N.C. Gen. Stat. Ann. § 8-50.1(b1). North Carolina law creates a presumption of paternity based on genetic test results that show a statistical probability of paternity of 97% or higher. See N.C. Gen. Stat. Ann. § 8-50.1(b1)(4). If the tests show that the probability of parentage is between 85% and 97%, the test results will be weighed with other competent evidence. See N.C. Gen. Stat. Ann. § 8-50.1(b1)(3). In at least one case, a North Carolina court relied on this evidentiary statute in making an intestacy determination. See Batcheldor v. Boyd, 423 S.E.2d 810, 812 (N.C. Ct. App. 1992) (the court granted a motion to exhume the alleged father’s body to conduct genetic testing to establish inheritance rights). Nevertheless, neither subsection of section 8-50.1(b1) specifies the weight due genetic tests that address the likelihood of some relationship other than paternity, such as the grand-paternity relationship at issue here.

In addition, N.C. Gen. Stat. Ann. § 49-14(f) states that DNA tests constitute clear, cogent, and convincing evidence of paternity if the probability of parentage is 97% or higher. ⁵ Even assuming this statutory provision applies, the DNA evidence in Claimant’s case does not constitute “clear, cogent, and convincing evidence” under section 49-14(f) because the DNA test results do not identify a probability of paternity and fall below the percentage required to create a presumption of paternity.

As PR 01115.036C (PR 08-903) notes, North Carolina courts also have not addressed the relevance of DNA test results showing the probability of a relationship between a child and a close relative of the deceased putative father. However, in 2010 the United States district court for the Western District of North Carolina remanded a Social Security case back to the agency to address DNA evidence showing 95% probability of relatedness between the claimant child and the alleged father’s brother. See Carson v. Astrue, No. 3:09-cv-251-RJC-DCK, 2010 WL 4977055 (W.D.N.C. Nov. 8, 2010). The court found the DNA evidence did not rise to “clear and convincing” under North Carolina standards because the percentage was less than 97%, but it was still significant evidence. See id. at *3. The court did not draw a distinction between DNA evidence from the alleged parent and from a close relative. See id. Further, as discussed in PR 01115.036C (PR 08-903), North Carolina will look to other jurisdictions for guidance, and other jurisdictions have recognized DNA testing of a putative grandparent as evidence of paternity. Therefore, in our earlier opinions, we determined a North Carolina court would consider test results based on DNA samples from the claimant’s putative grandfather (i.e., the number holder’s father), along with other relevant evidence, when deciding the number holder’s paternity.

In PR 01115.036B (PR 08-158), we concluded that DNA test results indicating a 99.99% probability that the number holder’s father was the biological grandparent of the claimant, statements from the mother that she did not date anyone other than the number holder, and evidence that the number holder’s parents established a savings account for the claimant qualified as clear and convincing evidence that the claimant was the number holder’s child under North Carolina intestacy law. In PR 01115.036C (PR 08-093), DNA test results indicated a 99.99% probability of grand-paternity, together with the evidence that NH had no brothers and the mother had never been married to anyone else, qualified as clear and convincing evidence.

In Claimant’s case, we believe a North Carolina court would admit and consider the DNA testing report to determine whether Claimant was NH’s child. However, we believe a North Carolina court would conclude that without additional corroborating statements, the DNA testing report in Claimant’s case does not provide clear, cogent, and convincing evidence that Claimant was NH’s child under North Carolina intestacy law.

Unlike our earlier opinions that relied in part on a 99.99% probability of grand-parentage to establish paternity, the testing in Claimant’s case shows only a 91.158% probability of grand-parentage. Also, there is a discrepancy between NH’s birth certificate and death certificate regarding the identity of NH’s father. Therefore, it is unclear if D~, whose DNA was used as the putative grandfather, is actually NH’s father. Additionally, Claimant’s mother did not provide much corroborating non-genetic evidence. Although she stated NH was the father and left her when she did not list him as the father on Claimant’s birth certificate, the mother did not provide statements that she had never been married or that she did not date anyone other than NH. Further, NH’s purported father was not aware that NH had a child, NH never made any written statements acknowledging Claimant, and NH did not provide financial support to Claimant. Even though Claimant’s mother reported in the Child Relationship Statement that NH acknowledged Claimant to a sister, she provided a conflicting statement to agency personnel that NH never acknowledged Claimant. Thus, although the DNA evidence and the non-genetic evidence presented here would be probative of paternity, the evidence provided does not constitute “clear, cogent, and convincing” evidence of NH’s paternity. Therefore, Claimant is not NH’s child for purposes of North Carolina intestacy law and section 216(h)(2)(A) of the Act.

The evidence 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 the child was his child, (2) a court decreed the insured individual to be the father of the child, (3) a court ordered the insured individual to contribute to the support of the child, or (4) the insured individual is the child’s natural father and was living with or contributing to the support of the child at the time the insured individual died. See Act § 216(h)(3)(C); 20 C.F.R. § 404.355(a)(3), (4). To show he or she is the son or daughter of an insured individual, a claimant must show he or she is the biological child of the insured individual. See POMS GN 00306.100.D.1. The record does not indicate Claimant met the threshold requirement of section 216(h)(3)(C) of being NH's biological child. See Act § 216(h)(3)(C); 20 C.F.R. § 404.355(a)(3), (a)(4); POMS GN 00306.100.D.1. Moreover, the evidence provided in Claimant’s case does not satisfy the other requirements of section 216(h)(3)(C). Therefore, Claimant cannot qualify as the child of NH under any provision of section 216(h)(3)(C) of the Act.

CONCLUSION

A North Carolina court would conclude Claimant is not NH’s child under North Carolina intestacy law. Therefore, Claimant is not NH’s child for determining Claimant’s eligibility for CIB on NH’s earning record.

Mary A. Sloan
Regional Chief Counsel

By: __________
Rebecca Ringham
Assistant Regional Counsel

D. PR 09-009 Effect of DNA Evidence in Claim for Auxiliary Child's Benefits - North Carolina Claimant – M~ Number Holder – E~, Jr.

Date: October 21, 2008

1. Syllabus

In North Carolina, DNA testing showing a 99.99 percent likelihood that the clamant was a child of the number holder combined with the number holder's signed affidavit acknowledging paternity would be sufficient to establish the relationship by the State's "clear, cogent, and convincing" standard.

Additionally, while the relationship under State law would only be established effective with the date of the DNA test, June 2008, the relationship may also be established under Section 202(h)(3) of the Act as of March 2008, the month of the written acknowledgement.

2. Opinion

QUESTION PRESENTED

In a case governed by North Carolina intestacy law, you asked whether the claimant would be entitled to child's benefits, and whether those benefits would include retroactive benefits, on the earnings record of the number holder where DNA test results showed a 99.99% probability that the number holder was the claimant's father and the number holder had acknowledged the claimant as his child in a notarized document.

OPINION

Under North Carolina intestacy law, a court would conclude the claimant is the child of the number holder, and the claimant would be entitled to retroactive benefits. While the earliest date of entitlement under North Carolina law would be the date of the DNA test results, we believe related federal provisions could date entitlement from the date the number holder acknowledged in writing the claimant as his child.

BACKGROUND

On August XX, 2006, Claimant M~’s mother, V~ , applied for auxiliary child's benefits on Claimant's behalf on the earnings record of E~, Jr., the number holder (NH). NH was found disabled in 1994 and receives concurrent benefits. Claimant was born on September. Although Claimant's birth certificate listed M~, as his father, Claimant's mother states E~, Jr., was not Claimant's biological father. Because Claimant's mother failed to provide sufficient evidence to support her claim that NH was Claimant's father, the Agency denied Claimant's application on May XX, 2007.

On August XX, 2008, Claimant's mother submitted additional evidence to the Agency consisting of (1) a signed and notarized Affidavit of Parentage for Child Born Out of Wedlock dated March XX, 2008, in which NH acknowledged he is the natural father of Claimant; and (2) DNA test results dated June XX, 2008, demonstrating a 99.99% probability that NH is Claimant's biological father. We understand, from our discussion with N~ that the Social Security Administration (SSA) considered this additional evidence to be "new and material," within the meaning of 20 C.F.R. §§ 404.988 and 404.989, and have reopened the claim to consider it in light of the new evidence.

DISCUSSION

To qualify for auxiliary child's benefits on the record of an individual entitled to disability benefits, an applicant must be that individual's "child." See Social Security Act (Act) § 202(d), 42 U.S.C. § 402(d); 20 C.F.R. § 404.350(a)(1) (2008). "Child" means an individual who is related to the insured person as a natural child, legally adopted child, stepchild, grandchild, step grandchild, or equitably adopted child. See Act § 216(e), 42 U.S.C. § 216(e); 20 C.F.R. § 404.354. Only the provisions relating to a natural child apply to this claim.

An applicant can qualify as the insured person's natural child if, among other methods, the applicant could inherit the insured person's personal property as his or her child under the intestacy laws of the state where the insured has his permanent home when the claim for child's benefits was filed. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b). Because NH was domiciled in North Carolina at the time of the application, we look to North Carolina law.

An applicant who does not qualify as an insured individual's child under 216(h)(2), but is the natural child of the insured individual, is deemed to be the insured individual's child if the insured individual acknowledged in writing that the applicant is his or her son or daughter. See Act § 216(h)(3); 20 C.F.R. § 404.355(a)(3).

For purposes of intestate succession in North Carolina, an illegitimate child is entitled to take by, through, and from:

Any person who has been finally adjudged to be the father of such child pursuant to the provisions of G.S. 49-1 through 49.9 or the provisions of G.S. 49-14 through G.S. 49-16;

(2) 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. § 29-19(b) (2008). It is unclear whether either of these actions has occurred in this case. There is no indication that NH has been adjudged to be Claimant's father as required under subsection (b)(1). Additionally, although Claimant provided a notarized affidavit in which NH acknowledged Claimant as his natural child, it is unclear whether this document was filed with an appropriate clerk of superior court as required under subsection (b)(2). However, where state law requires a court determination of paternity, the Agency will not require that a child obtain such a determination but will decide paternity by using the standard of proof that the state court would use. 20 C.F.R. § 404.355(b)(2).

The only provision in subsection (b)(1) that is relevant to Claimant's claim is N.C. GEN. STAT. ANN. § 49-14 (2008), which discusses civil actions to establish paternity. 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 describes an evidentiary standard stricter than a preponderance of the evidence, but less stringent than proof beyond a reasonable doubt." Nash County Dep't of Soc. Servs., v. Beamon, 485 S.E.2d 851, 852 (N.C. Ct. App. 1997). 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 weight to place on the testimony." Brown v. Smith, 526 S.E.2d 686, 687-88 (N.C. Ct. App. 2000) (quotations omitted).

North Carolina has established presumptions of paternity based on genetic testing. N.C. GEN. STAT. ANN. § 49-14(f) states:

When a determination of paternity is pending in a IV-D case, the court shall enter a temporary order for child support upon motion and showing of clear, cogent, and convincing evidence of paternity. For purposes of this subsection, the results of blood or genetic tests shall constitute clear, cogent, and convincing evidence of paternity if the tests show that the probability of the alleged parent's parentage is ninety-seven percent (97%) or higher. If paternity is not thereafter established, then the putative father shall be reimbursed the full amount of temporary support paid under the order.

In addition, N.C. GEN. STAT. ANN. § 8-50.1(b1)(4) states:

If the experts conclude that the genetic tests show that the alleged parent is not excluded and that the probability of the alleged parent's parentage is ninety-seven percent (97%) or higher, the alleged parent is presumed to be the parent and this evidence shall be admitted. This presumption may be rebutted only by clear, cogent, and convincing evidence.

In this case, the DNA test results show a 99.99% probability that NH is Claimant's biological father. As a result, the DNA evidence would create a presumption of paternity under section 8-50.1(b1)(4). See Program Operations Manual System (POMS) GN 00306.580.4.d. This presumption may only be rebutted by "clear, cogent, and convincing evidence." Id. Although someone other than NH is listed as Claimant's father on the birth certificate, this fact alone does not appear sufficient to rebut the presumption that NH is Claimant's father, especially where NH has also acknowledged Claimant as his child. See State ex rel. Miller v. Hinton, 556 S.E.2d 636 (N.C. App. 2001) (although another man was listed as the father on the birth certificate, court ordered defendant to pay child support where DNA testing showed a 99.62% probability that defendant was the biological father of the child).

Regarding the effective date of the parent-child relationship between NH and Claimant, POMS GN 00306.055A.3 provides that an act/event conferring inheritance rights generally has effect only from the date of such act/event. For purposes of showing Claimant is NH's child under North Carolina's intestacy law, the DNA testing conducted in June 2008 was the act/event creating the presumption that Claimant is NH's natural child. POMS GN 00306.580.4d. However, because NH acknowledged in writing that Claimant was his natural child in March 2008, this acknowledgment appears sufficient to establish Claimant's entitlement to child's benefits under section 216(h)(3) of the Act. See 216(h)(3); 20 C.F.R. § 404.355(a)(3); POMS GN 00306B.1. As a result, it appears that Claimant can be paid benefits from March 2008, the earlier of the two events demonstrating a parent-child relationship between NH and Claimant.

You asked whether a precedent opinion in a claim involving survivor's benefits would allow for Claimant to receive benefits retroactively twelve months prior to the date he originally filed his application in August 2006. We do not believe this precedent opinion is applicable to a claim for auxiliary benefits. POMS PR 01120.036A North Carolina (PR 06-324, Sept. 19, 2006) explains that any judgment entered under North Carolina's paternity statute establishing the decedent as the father of a child shall be entered nunc pro tunc ("now for then") to the day preceding the date of the father's death. See N.C. GEN. STAT. ANN. § 49-14(c); see also N.C. GEN. STAT. ANN. § 29.19(b)(1) (stating inheritance rights may be established based on an adjudication under § 49-14). Because a North Carolina paternity judgment in a case where the putative father has died has a retroactive effect back to the day preceding the death of the father, a parent-child relationship could be established as of that date, rather than the date of the DNA testing or submission of other clear and convincing evidence of paternity. See POMS PR 01120.036A. As a result, DNA testing could be used in a claim for survivor's benefits to establish a parent-child relationship retroactively back to the day before the death of the deceased father or six months before the date of the application, whichever is the most recent. See id.; POMS GN 00306.580.5.

However, POMS PR 01120.036A does not apply to a claim for auxiliary benefits because the event required for retroactive effect of a paternity judgment, the death of the father, has not occurred. Because NH is living, the Claimant's act of applying for benefits cannot be the most recent event under POMS PR 01120.036A. As a result, we see no reason to deviate from general rule outlined in POMS GN 00306.055A.3 that an act/event conferring inheritance rights has effect only from the date of such act/event.

CONCLUSION

We believe a North Carolina court would conclude Claimant is the child of NH under North Carolina intestacy law. Therefore, we believe Claimant is NH's child for the purposes of auxiliary child's benefits. Moreover, Claimant has presented sufficient evidence to establish he would be deemed NH's natural child under section 216(h)(3) of the Act. As a result, we believe the effective date of the relationship between Claimant and NH would be March 2008, the month NH acknowledged Claimant in writing.

Mary A. Sloan
Regional Chief Counsel

By: __________
Joseph P. Palermo, III
Assistant Regional Counsel

E. PR 08-158 Child Status Based on DNA Testing of the Claimant, the Claimant's Mother, and the Number Holder's Father-North Carolina

Date: July 24, 2008

1. Syllabus

Under North Carolina law, proof of paternity must be established by "clear, cogent, and convincing evidence." While a DNA testing report indicated a 99.99% probability NH's father was Claimant's grandfather, but not offering any conclusion regarding the probability that NH was Claimant's father, does not meet the clear, cogent, and convincing standard; a North Carolina court would consider it as one piece of a package of evidence in order to reach that standard.

2. Opinion

QUESTION

You have asked whether the claimant is the child of the number holder based on DNA testing of the claimant, the claimant's mother, and the number holder's father. You also have asked, if the claimant is the number holder's child, what is the effective date of the relationship and whether the claimant would be entitled to retroactive benefits.

OPINION

We believe a North Carolina court would conclude the claimant is the child of the number holder under North Carolina intestacy law. The effective date of the relationship is the day before the number holder's death, but the claimant may not receive retroactive benefits for any month prior to the six months before the date of his application.

BACKGROUND

On January XX, 2004, P~ , mother of A~ (Claimant), applied on Claimant's behalf for child's insurance benefits on the earnings record of J~ , the number holder (NH). Claimant was born on December. NH died on October XX, 2004, while a resident of North Carolina. NH's death certificate indicates he was never married.

In connection with Claimant's application, Claimant's mother submitted a copy of Claimant's birth certificate. The birth certificate does not identify Claimant's father. Claimant's mother also submitted a DNA testing report dated January 8, 2008. The DNA testing was performed on samples from Claimant, Claimant's mother, and R~ (NH's father). The report states NH's father could not be excluded as a biological grandfather of Claimant. The report also states: "Using the genetic markers found in the testing of the alleged biological grandfather, the probability he is the biological grandfather is 99.99%, as compared to untested, unrelated persons. This study supports the conclusion that a son of the grandfather is the biological father of the child." The DNA testing report does not provide a probability regarding NH's relationship to Claimant.

The Agency determined NH's father had three sons. However, Claimant's mother provided a signed statement that she never had a sexual relationship with either of NH's father's other sons. Claimant's mother also stated she started dating NH in 1998 and continued to date him until he went missing in October 2004. She claimed she did not date anyone else during that period. Claimant's mother also claimed she moved in with NH shortly after Claimant's birth and they were living together at the time of his disappearance, although she had indicated on Claimant's application that Claimant was not living with NH at the time of his death. Claimant's mother reported Claimant was the only grandchild of Claimant's parents and they have a savings account for Claimant. Claimant's mother further stated she has never been married.

DISCUSSION

A claimant may be eligible for child's insurance benefits 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 Social Security Act (Act) § 202(d)(1), 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a)(1) (2008). "Child" includes the natural child of an insured individual. See Act § 216(e), 42 U.S.C. § 416(e); 20 C.F.R. § 404.354 (2008). Under section 216(h)(2)(A) of the Act, 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 at the time of his death. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (4) (2008).

NH was domiciled in North Carolina at the time of his death. Therefore, North Carolina intestacy law applies in determining whether Claimant was NH's child for the purposes of section 216(h)(2)(A) of the Act. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (4). North Carolina intestacy law states in pertinent part:

(b) For purposes of intestate succession, an illegitimate child shall be entitled to take by, through and from:

(1) Any person who has been finally adjudged to be the father of such 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) (2008). The evidence does not indicate NH acknowledged Claimant as his child and thus subsection (b)(2) 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 (2008). 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, the Social Security Administration 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 describes an evidentiary standard stricter than a preponderance of the evidence, but less stringent than proof beyond a reasonable doubt." Nash County Dep't of Soc. Servs., v. Beamon, 485 S.E.2d 851, 852 (N.C. Ct. App. 1997). 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 weight to place on the testimony." Brown v. Smith, 526 S.E.2d 686, 687-88 (N.C. Ct. App. 2000) (quotations omitted).

North Carolina has established presumptions of paternity based on genetic testing. N.C. GEN. STAT. ANN. § 49-14(f) states:

In addition, N.C. GEN. STAT. ANN. § 8-50.1(b1)(4) states:

However, neither statutory provision applies directly to Claimant's case. Both provisions involve test results showing "the probability of the alleged parent's parentage." N.C. GEN. STAT. ANN. §§ 8-50.1(b1)(4), 49-14(f) (emphasis added). In Claimant's case, the DNA testing report indicated a 99.99% probability NH's father was Claimant's grandfather; the report did not offer any conclusion regarding the probability that NH was Claimant's father. Thus, the DNA evidence in Claimant's case does not constitute "clear, cogent, and convincing evidence" under section 49-14(f) or create a presumption of paternity under section 8-50.1(b1)(4).

Nevertheless, we believe a North Carolina court would conclude the DNA testing report, together with the other evidence in Claimant's case, provides clear, cogent, and convincing evidence that Claimant was NH's child under North Carolina intestacy law. As noted in Program Operations Manual System (POMS) PR 01115.036A (PR 08-093, Apr. 11, 2008), North Carolina recognizes the general admissibility and reliability of DNA testing. PR 01115.036A. N.C. GEN. STAT. ANN. §§ 8-50.1(b1)(4), 49-14(f) also indicate North Carolina has concluded DNA evidence generally is reliable evidence to establish paternity. PR 01115.036A notes that North Carolina courts have not addressed the relevance of DNA test results showing a high probability of a relationship between a child and a close relative of the deceased putative father. However, as discussed in PR 01115.036A, North Carolina will look to other jurisdictions for guidance, and other jurisdictions have recognized DNA testing of a child and a close relative of the deceased putative father as evidence of paternity.

In Claimant's case, we believe a North Carolina court would admit and consider the DNA testing report to determine whether Claimant was NH's child. The DNA testing report stated the testing showed a 99.99% probability NH's father is Claimant's biological grandfather. The report also concluded the study supports the conclusion a son of NH's father is the biological father of Claimant. Although NH's father had two sons other than NH, Claimant's mother stated she never had a sexual relationship with any of NH's brothers. Claimant's mother also reported she did not date anyone other than NH from 1998 through his death in 2004. She also stated she has never been married. The statements of Claimant's mother appear to exclude other persons from being Claimant's father, and together with the DNA evidence, provide strong evidence NH is Claimant's father. In addition, Claimant's mother reported Claimant was the only grandchild of Claimant's parents and they have a savings account for Claimant, which indicates NH's parents had accepted Claimant as their grandchild and as the child of NH. Claimant's mother provided seemingly contradictory statements as to whether Claimant was living with NH at the time of his death, but we believe the other evidence is sufficient to establish clear, cogent, and convincing evidence that Claimant was NH's child.

Regarding the effective date of the parent-child relationship between NH and Claimant, PR 01120.036A (PR 06-324, Sept. 19, 2006) discusses when the parent-child relationship begins under North Carolina law. PR 01120.036A explains that any judgment entered under North Carolina's paternity statute establishing the decedent as the father of a child shall be entered nunc pro tunc ("now for then") to the day preceding the date of the father's death. See N.C. GEN. STAT. ANN. § 49-14(c); see also N.C. GEN. STAT. ANN. § 29.19(b)(1) (stating inheritance rights may be established based on an adjudication under § 49-14). Therefore, we believe a North Carolina court would conclude the effective date of the parent-child relationship between NH and Claimant would be October 6, 2004, the day before NH's death. However, as noted in PR 01120.036A, a claimant who applies for child's insurance benefits after the first month he could have been entitled to benefits may receive benefits only for up to six months immediately before the month in which he applied for benefits. See 20 C.F.R. § 404.621(a)(2) (2008). Claimant applied for benefits in January 2008. Therefore, Claimant could receive benefits for up to six months immediately before January 2008.

CONCLUSION

We believe a North Carolina court would conclude Claimant is the child of NH under North Carolina intestacy law. Therefore, we believe Claimant is the child of NH for the purposes of child's insurance benefits. The effective date of the relationship between Claimant and NH is October XX, 2004, the day before NH's death, but Claimant could not receive benefits for more than the six months immediately before his application date.

Mary A. Sloan
Regional Chief Counsel

By: __________
Brian C. Hubert
Assistant Regional Counsel

F. PR 08-093 DNA Testing of Paternal Grandparents to Establish Relationship of Claimant to Deceased Number Holder in North Carolina Number Holder – J2~ , Jr.

Date: April 11, 2008

1. Syllabus

Under North Carolina law, DNA tests showing a 99% probability that the parents of the number holder are grandparents of the claimant are sufficient to establish the number holder's paternity as long as there are no brothers of the number holder who could have fathered the child.

2. Opinion

QUESTION

You have asked whether, under North Carolina law, the results of a DNA test that compares the DNA of a child claimant to the DNA of the parents of the deceased number holder can be accepted as proof of paternity where the test results establish a 99.99% probability that the number holder's parents are the grandparents of the child claimant.

OPINION

For the reasons stated below, we believe the DNA test results showing a 99.99% probability that the number holder's parents are the grandparents of child claimant are adequate evidence of the number holder's paternity under North Carolina law.

BACKGROUND

C~ the mother of the child claimant, had previously filed for benefits for her daughter, J~ (Claimant), on the earnings record of J2~ the number holder (NH). NH died in May 1991. Claimant was born on October. Claimant's mother was never married to NH, nor has she ever been married. NH had two sisters, but no brothers. Claimant's mother presented evidence from LabCorp of Burlington, North Carolina in the form of a DNA test, which compared genetic markers from Claimant and NH's parents. The test results indicated a 99.99% probability that NH's parents are the grandparents of Claimant. The test result stated, "The alleged paternal grandparents, . . . could not be excluded as the biological grandparents of [Claimant], since they share genetic markers. Using the genetic markers found in the testing of the alleged biological grandparents the probability they are the biological grandparents is 99.99%, as compared to untested, unrelated persons."

DISCUSSION

To qualify for child's insurance benefits on the earnings record of an insured individual who has died, a claimant must be the insured individual's "child." See Social Security Act (Act) ' 202(d), 42 U.S.C. ' 402(d); 20 C.F.R. ' 404.350(a)(1) (2007). "Child" may include the natural child, adopted child, or stepchild of an insured individual. See Act ' 216(e), 42 U.S.C. § 416(e); 20 C.F.R. ' 404.354 (2007). In determining whether an applicant is the child of a deceased insured individual, the Social Security Administration (SSA) applies the State law that 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. See Act ' 216(h)(2)(A), 42 U.S.C. ' 416(h)(2)(A); 20 C.F.R. ' 404.355(a)(1) (2007) ("You may be eligible for benefits as the insured's natural child if . . . [y]ou could inherit the insured's personal property as his or her natural child under State inheritance laws").

The precedent opinion in PR 01115.036D addresses DNA testing of a child's alleged paternal biological relatives and the standard of proof that North Carolina would use to prove paternity. That opinion notes that under North Carolina intestate inheritance law, an illegitimate child may take from a person who has been finally adjudged to be the father of such child. The statute cited in the precedent opinion goes on to explain that for the purposes of establishing paternity, the results of blood or genetic tests shall constitute clear, cogent, and convincing evidence of paternity if the tests show that the probability of the alleged parent's parentage is 97 percent or higher.

The North Carolina Supreme Court has recognized that DNA testing is generally admissible as an established technique considered reliable within the scientific community. See Batcheldor v. Boyd, 423 S.E.2d 810, 814 (N.C. 1992). Although the North Carolina courts have not ruled on the issue of whether genetic tests showing a high probability of relation to a close relative of a deceased putative father is sufficient to establish clear and convincing evidence of paternity, North Carolina will look to other jurisdictions for guidance. See State v. Williams, 399 S.E.2d 348, 349 (N.C. App. 1991); O'Brien v. O'Brien, 508 S.E.2d 300, 306 (N.C. App. 1998). As set forth in POMS PR 01115.011 Florida, Subpart C, PR 06-079, it appears that a number of jurisdictions have recognized the admissibility of this type of evidence to support a claim of paternity. See In re Santos, 768 N.Y.S.2d 272 (N.Y. 2003) (DNA testing of a child's putative grandparents could be used to satisfy the clear and convincing evidence standard for proving paternity); Drake v. Apfel, No. CIV. 300 CV 154OH, 2001 WL 705784 (N.D. Tex. June 18, 2001) (DNA testing of putative father's mother coupled with other evidence supported finding of clear and convincing evidence of paternity); Estate of S~, 612 N.Y.S.2d 756 (N.Y. 1994) (DNA testing of a child's putative grandparents could provide clear and convincing evidence of paternity); M.A. v. The Estate of A.C., 643 A.2d 1047 (N.J. Super. 1993) (court ordered the decedent's siblings and mother to submit to DNA testing for paternity purposes in an intestacy proceeding because denying the tests could deprive the child of evidence necessary to establish his right to equal treatment under the law); Tipps v. Metropolitan Life Insurance Company, 768 F. Supp. 577, 580 (S.D. Tex. 1991) (DNA testing of deceased putative father's parents, legitimate son, and putative daughter provided clear and convincing evidence to rebut presumption of paternity); In re Estate of R~, 583 A.2d 782, 784 (N.J. Super 1990) (court has "inherent power" to order collateral relatives of decedent to submit to blood tests to determine paternity of non-marital child), cited in In re Estate of M~, 868 A.2d 680, 685 n.4 (Vt. 2004).

In the present case, in addition to the genetic test which shows a 99.99% probability that NH's parents are Claimant's grandparents, the evidence also shows that NH had no brothers who might have fathered Claimant. Although Claimant's mother was never married to NH, the evidence shows that she has never been married to anyone else. Additionally, the evidence shows that NH was alive at the time of Claimant's conception, and that he died five months before her birth. Accordingly, we believe that DNA testing of Claimant and NH's parents showing a 99.99% probability that NH's parents are the grandparents of Claimant is adequate to establish clear, cogent, and convincing evidence of NH's paternity.

CONCLUSION

For the foregoing reasons, we conclude the DNA test results, showing a 99.99% probability that NH's parents are the grandparents of Claimant, would satisfy a North Carolina court that Claimant is the child of NH for the purposes of North Carolina intestacy law. Therefore, an SSA adjudicator could conclude Claimant is the child of NH for the purposes of child's insurance benefits.

Mary A. Sloan
Regional Chief Counsel

By: __________
Richard V. Blake
Assistant Regional Counsel

G. PR 08-077 Laboratory Certification, North Carolina Number Holder – M~ Claimant – A~

Date: March 13, 2008

1. Syllabus

North Carolina does not require specific credentials for a laboratory performing DNA testing. Rather, State law establishes necessary qualifications for the person offering the DNA evidence.

North Carolina statutes regarding admissibility of blood tests in paternity action require only that the evidence be offered by a duly qualified, licensed practicing physician, immunologist, geneticist, or other duly qualified person.

2. Opinion

QUESTION

In considering this child's claims for benefits, you asked for the accreditation requirements of DNA testing laboratories in North Carolina and by implication, whether the laboratory met these requirements.

North Carolina does not require specific credentials for a laboratory performing DNA testing. Rather, state law establishes necessary qualifications for the person offering the DNA evidence. So, while we cannot provide an opinion as to the qualifications of the laboratory in this instance or of North Carolina DNA testing laboratories in general, we can say the credentials of the laboratory director in this case appear sufficient to meet North Carolina requirements.

BACKGROUND

Claimant's mother filed for survivor benefits on behalf of A~ (Claimant) on the earnings record of M~, the number holder (NH). Claimant's mother presented DNA evidence that demonstrated a 99.978% probability that NH was Claimant's father. A1-Labs (an affiliate of Independent Forensics) received NH's posthumous DNA evidence, with documents indicating the chain of custody from the Office of the Chief Medical Examiner/Tox Department on October XX, 2007. Independent Forensics then performed the DNA test. Independent Forensics is accredited by the American Association of Blood Banks, College of American Pathologists, National Forensic Science Technology Center, and Forensic Quality Services-International. The results were certified by the laboratory director of Independent Forensics, who has a Ph.D.

DISCUSSION

CONCLUSION

Because the director of Independent Forensics, who offered the DNA test results in this case, is a duly qualified, licensed practicing physician, immunologist, geneticist, or other duly qualified person, the laboratory director appears to qualify under North Carolina law as an individual capable of offering admissible DNA evidence.

Mary A. Sloan
Regional Chief Counsel

By: __________
Natalie K. Jemison
Assistant Regional Counsel

H. PR 07-043 Oral Acknowledgment As Clear, Cogent, and Convincing Evidence to Overcome the Presumption of Paternity Under North Carolina Intestacy Law

Date: January 9, 2007

1. Syllabus

In this case, North Carolina courts would find that statements from relatives that the deceased number holder had orally acknowledged the child in conversations with them coupled with a signed statement from the mother's husband that he did not have access and could not be the father would constitute clear and convincing evidence sufficient to rebut the presumption of legitimacy and establish that the child is one “born out of wedlock”.

The evidence most likely would not, however, be found to meet the clear, cogent, and convincing standard necessary to establish that the deceased number holder is the child's father.

2. Opinion

QUESTION PRESENTED

You have asked whether an oral acknowledgement can constitute clear and convincing evidence under North Carolina intestacy law sufficient to rebut the state presumption of legitimacy and justify a child-status determination under Section 216(h)(2)(A) of the Social Security Act (Act), 42 U.S.C. § 416(h)(2)(A).

ANSWER

For the reasons set forth below, an SSA adjudicator could conclude that the oral acknowledgment(s) accompanied by the specific facts in this case rebut the presumption of legitimacy but do not provide a basis for establishing clear, cogent, and convincing evidence of paternity under North Carolina intestacy law.

BACKGROUND

According to your inquiry, number holder, O~ (NH) died on February XX, 2004. At the time of his death, he was domiciled in North Carolina. On September XX, 2006, H~ (Claimant) filed for disabled widow's benefits on NH's record. In her application for benefits, Claimant stated she is the mother of NH's child, S~. To support this claim, Claimant submitted signed statements from friends and relatives stating NH told them he was the biological father of S~. However, Claimant was married to J~ when S was born. Claimant also listed J~ as S~'s biological father on S~'s birth certificate. J~, however, submitted a signed statement indicating he could not be S~'s biological father, because he has not lived with Claimant or in North Carolina since 1972.

DISCUSSION

The Act defines “widow” to include the surviving wife of an individual who is the mother of his son or daughter. See § 216(c), 42 U.S.C. § 416(c), 20 C.F.R. § 404.355. A “child” of an insured individual includes, among others, one who could inherit a child's share of the insured individual's property under the intestate succession law of the state where the insured individual was domiciled when he died. See § 216(h)(2(A) of the Act, 20 C.F.R. § 404.355(b).

Here, Claimant attempts to prove she is NH's widow by showing her daughter, S~, is NH's daughter. In support of her claim, Claimant provided the following evidence: (1) her statement that NH is S~'s biological father, (2) a signed statement from J~ , Claimant's husband at the time of S~'s birth, indicating he is not S~'s biological father, (3) a signed statement from J~, NH's brother, saying NH told him S~ was NH's daughter, (4) a signed statement from M~, a friend, indicting she heard NH refer to S~ as his daughter, (5) a signed statement from W~, a local pharmacist and friend, stating NH told him S~ was his natural daughter, (6) a signed statement from V~ , NH's sister, indicating NH said S~ was his daughter, and (7) a signed statement from S~ stating Claimant and NH told her she was NH's daughter.

Because NH died domiciled in North Carolina, North Carolina intestacy law applies. See § 216(h)(2)(A) of the Act, 20 C.F.R. § 404.355(b). Under North Carolina law, there is a strong presumption that a child born during wedlock is the natural, legitimate child of the mother's spouse. This presumption can be overcome by clear and convincing evidence, which establishes that the husband was impotent or did not have access to the wife when the child was conceived. See Carpenter v. Hawley, 281 S.E.2d 783, 718-19 (N.C. Ct. App. 1981) (citing Ray v. Ray, 219 S.E.2d 224 (N.C. 1941)), see also N.C. GEN. STAT. §49-12.1(b) (2006). In Wake County, ex rel. Manning, 270 S.E.2d 901 (N.C. Ct. App. 1981), the North Carolina Court of Appeals found the testimony of the child's mother that she had not seen her husband in five years and had sexual relations only with the alleged putative father during the period in which conception occurred was sufficient to show husband did not have access to his wife and to overcome the presumption of legitimacy. Conversely, in Nash County Department of Social Services ex rel. Williams v. Beamon, 485 S.E.2d 851 (N.C. 1997) the appellate court found that the putative father's testimony that he did not know the child's mother, had not had sexual relations with her, and was not the father of her child was sufficient to rebut the presumption created by a 99.96% probability of paternity from paternity test results.

Here, Claimant was married to J~, not NH, at the time of S~'s conception. However, J~ stated he has not been to North Carolina or with Claimant since he left in 1972. Claimant also stated she had been separated from J~. Following the holding in Wake County, the fact that J~ and Claimant lived apart and had not seen each other since 1972 could be enough to overcome the presumption of legitimacy. See Wake County, 270 S.E.2d at 904.

If the evidence presented in this matter rebuts the presumption of legitimacy, S~ would meet the definition of a child born out of wedlock. See Legitimation of Locklear by J~, 334 S.E.2d 46, 50-51 (N.C. 1985). As relevant here, a child born out of wedlock can inherit from and through her father if paternity is established by an adjudication. See N.C. GEN. STAT. § 29-19 (2006). A child may also inherit if the biological father acknowledged the child in a written instrument executed before a certifying officer and properly filed in his lifetime. See id. Neither of these actions occurred prior to NH's death. However, where state law requires a court determination of paternity, the Agency will not require that a child obtain such a determination but will decide paternity by using the standard of proof that the state court would use. See 20 C.F.R. § 404.355(b)(2) (2006). The laws governing a civil action to establish paternity are found at N.C. GEN. STAT. §§ 49-14 through 49-16.

To establish the paternity of a child born out of wedlock, proof of paternity must be by "clear, cogent, and convincing evidence." N.C. GEN STAT. § 49-14(b) (2006). “Clear, cogent, and convincing describes an evidentiary standard stricter than a preponderance of the evidence, but less stringent than proof beyond a reasonable doubt.” North Carolina State Bar v. Sheffield, 326 S.E.2d 320, 323 (N.C. 1985) (citing In re Montgomery, 316 S.E.2d 246 (N.C. 1984)). In Brown v. Smith, 526 S.E.2d 686 (N.C. Ct. App. 2000), the North Carolina Court of Appeals examined whether the trial court had properly found that the plaintiff presented clear, cogent, and convincing evidence to show that the defendant was the father of her child. An expert testified at trial that the sexual relations of the parties were consistent with conception of a child with a pregnancy that came to term on or about the child at issue's birthday. The plaintiff also testified that she had not had sexual contact with any man other than the defendant during a two year period which included the time of conception. Exhibits at trial also indicated that the defendant bore a strong resemblance to the child. The appellate court found that this evidence was sufficient for the trial court to conclude that the defendant was the father of the child under “clear, cogent, and convincing” standard. See id. at 688.

CONCLUSION

We can find support for an SSA adjudicator to conclude Claimant provided sufficient evidence to rebut the presumption of legitimacy and determine S~ was a child born out of wedlock. Based on the decision in B~, we can also find support for an SSA adjudicator to conclude that the evidence presented by Claimant would satisfy the “clear, cogent, and convincing” standard to establish that NH was S~'s father. In this regard, Claimant states that NH was S~'s father and friends and relatives state NH acknowledged S~ was his daughter and S~ resembled NH. On the other hand, the “clear, cogent, and convincing” standard is a high standard to meet. Claimant made no assurances that her sexual relations with NH were exclusive during the relevant period and she presented no DNA or similar scientific evidence to support her claim. Therefore, we find greater support of an SSA adjudicator to determine Claimant has not provided sufficient evidence to meet the “clear, cogent and convincing” standard required in North Carolina.

Mary A. Sloan
Regional Chief Counsel

By: __________
Jennifer L. Patel
Assistant Regional Counsel

I. PR 06-145 Eligibility Based Upon Genetic Testing of Relative; Laboratory Certification, North Carolina Number Holder – M~ (NH) Claimant – S~

Date: May 25, 2006

1. Syllabus

The North Carolina statute stating that the results of blood or genetic tests shall constitute clear, cogent, and convincing evidence of paternity if the tests show that the probability of the alleged parent's parentage is 97 percent or higher, do not specify that the testing of more than one paternal relative is needed.

2. Opinion

FACTS

Claimant's mother filed for survivor benefits on Claimant's behalf on the record of M~ (NH). Claimant's mother presented DNA evidence from NH's father showing a 99.99 percent probability that NH's father was Claimant's paternal grandparent. While NH had brothers, Claimant's mother provided a statement indicating she did not have sexual relations with the NH's brother or father. There is no evidence in the file to contradict that assertion. The Laboratory Corporation of America performed the testing in January 2006. The laboratory is located in North Carolina and accredited by the American Association of Blood Banks. The results were certified by the laboratory director, who has a Ph.D.

ANALYSIS

As you noted, the precedent opinion in PR 01115.036D (PR 01-216) states that the DNA testing of a child's alleged paternal biological relatives provides the standard of proof that North Carolina would use to prove paternity. In that opinion, testing was conducted on two paternal relatives, the NH's mother and brother. However, the statutes cited in the opinion, especially the statute stating that the results of blood or genetic tests shall constitute clear, cogent, and convincing evidence of paternity if the tests show that the probability of the alleged parent's parentage is 97 percent or higher, do not specify that the testing of more than one paternal relative is needed. Accordingly, we believe that the testing of NH's father is adequate to establish clear, cogent, and convincing evidence of NH's paternity. As PR 01115.036D (PR 01-216) states, the relationship can be established effective on the date of the testing, in this case, February 2006.

North Carolina does not have specific statutory or regulatory requirements for accrediting DNA testing laboratories. North Carolina statutes regarding admissibility of blood tests in paternity action require only that the evidence be offered by a duly qualified, licensed practicing physician, immunologist, geneticist, or other duly qualified person. N.C. Gen. Stat. Ann. Secs. 49-7, 8-50.1 (a) (West 2006); see State v. F~, 277 N.C. 305, 177 S.E.2d 385 (1970). The laboratory director here appears to meet these requirements. His affidavit also meets the verification of chain of custody requirements in N.C. Gen. Stat. Ann. Sec. 8-50.1(b) (West 2006). North Carolina also has a regulation requiring certification of laboratories conducting HIV testing. 10A N.C. Admin. Code 42D.0101 (1995). This provision requires that the laboratory be certified by an organization such as the American Association of Blood Banks. Id. While this regulation does not directly apply to DNA testing laboratories, it provides some guidance. The Laboratory Corporation of America states in its affidavit that it is certified by the American Association of Blood Banks. Accordingly, the laboratory appears to meet North Carolina requirements for an acceptable laboratory.

Mary A. Sloan
Regional Chief Counsel

By: _________________
Laurie G. Remter
Assistant Regional Counsel

J. PR 06-039 Effect of Indirect Evidence of Paternity on Child's Claim in North Carolina Claimant – K~ Number Holder – J~

Date: December 27, 2005

1. Syllabus

Under North Carolina law, oral acknowledgement of paternity may be sufficient to meet the State's "clear, cogent, and convincing" evidentiary standard for establishing a parent relationship for a child born out of wedlock. The period of retroactivity extends to the more recent of the day before the father’s death or six month before the date of the application.

2. Opinion

Questions

In a case governed by North Carolina (NC) intestacy law, you asked the following questions:

Can oral acknowledgment be used as clear and convincing evidence under North Carolina State Intestacy Law?

If so, is the evidence submitted sufficient to establish the child's right to inherit under North Carolina Law?

Per PR 01120.036 a child entitled as an illegitimate child with inheritance rights cannot be paid retroactively. Are any modifications to this provision warranted?

Short Answers

As discussed in greater detail below, NC intestacy law requires a child born out of wedlock to prove paternity by clear, cogent, and convincing evidence (rather than clear and convincing evidence), though the standards are similar.⁶ We conclude that evidence of the type offered here can certainly be considered in determining whether a child as satisfied the requisite standard of proof. Moreover, we find support for a conclusion that the evidence, here, satisfies that standard. There is, however, also some support for a finding that the evidence presented may not satisfy the clear, cogent and convincing standard. Finally, the prior precedent opinion should be modified to state that DNA testing may be used to establish a parent-child relationship retroactively to the day before the death of the deceased father, or the full retroactive period of the application, whichever is the most recent.

Background

The facts as presented are that J~, the deceased number holder (NH), died on December XX, 2004, domiciled in Rocky Mount, North Carolina. Subsequently, K~ (Claimant) was born on March, to C~. C~ and the NH were not married or living together at the time of his death, and his name does not appear as the father on Claimant's birth certificate. NH also never acknowledged Claimant in writing. In support of her claim that NH was claimant's father, C~ has presented the following evidence: (1) her statement that NH is Claimant's father; (2) a letter from the NH's parents stating that NH is Claimant's father; (3) letters from two friends of NH stating they believe NH is Claimant's father; (4) NH and C~ parented another child, J~, whom NH acknowledged in an affidavt; and (5) a "family visitation" program for NH's funeral from the Social Union Baptist Church that lists an "unborn baby boy K~." None of the sources, other than C~, indicate that NH actually acknowledged Claimant in their presence (even orally). Instead, they express their personal knowledge that NH is Claimant's father.

Authority

On April XX, 2005, C~ filed a claim for child's benefits on Claimant's behalf on the NH's record. Section 216(h)(2)(A) of Social Security Act (Act) provides:

In determining whether an applicant is the child ... of a fully or currently insured individual for purposes of this subchapter, the Commissioner of Social Security shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual is domiciled at the time such applicant files an application . . . . Applicants who according to such law would have the same status relative to taking intestate personal property as a child . . . shall be deemed such.

42 U.S.C. § 416(h)(2)(A).

For purposes of intestate succession in North Carolina, an illegitimate child is entitled to take by, through, and from

(1) Any person who has been finally adjudged to be the father of such child pursuant to the provisions of G.S. 49-1 through 49.9 or the provisions of G.S. 49-14 through G.S. 49-16;

(2) 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 … 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. § 29-19(b) (2005). Apparently, neither of these actions occurred prior to the NH's death. However, where state law requires a court determination of paternity, the Agency will not require that a child obtain such a determination but will decide paternity by using the standard of proof that the state court would use. 20 C.F.R. § 404.355(b)(2) (2005).

Analysis

Because there is no evidence that the NH formally acknowledged Claimant in writing as required under N.C. Gen. Stat. § 29-19(b)(2), Claimant would only be able to inherit from the NH through intestacy if he met the requirements of N.C. Gen. Stat. § 29-19(b)(1). As relevant to this case, the Agency would look to the laws governing a civil action to establish paternity found at N.C. Gen. Stat. §§ 49-14 through 49-16 (2006). ⁷

To establish the paternity of a child born out of wedlock, proof of paternity must be by "clear, cogent, and convincing evidence." N.C. Gen. Stat. § 49-14(b) (2005). "Clear, cogent, and convincing describes an evidentiary standard stricter than a preponderance of the evidence, but less stringent than proof beyond a reasonable doubt." North Carolina State Bar v. Sheffield, 326 S.E.2d 320, 323 (N.C. 1985) (citing In re M~, 316 S.E.2d 246 (N.C. 1984)). In Brown v. Smith, 526 S.E.2d 686 (N.C. 2000), the North Carolina Court of Appeals examined whether the trial court had properly found that the plaintiff presented clear, cogent, and convincing evidence to show that the defendant was the putative father of her child. An expert testified at trial that the sexual relations of the parties were consistent with conception of a child and with a pregnancy that came to term on or about the child at issue's birthday. The plaintiff also testified that she had not had sexual contact with any other man than the defendant for a two year period. Exhibits at trial also indicated that the defendant bore a strong resemblance to the child. The appellate court found that this evidence was sufficient for the trial court to conclude that the defendant was the father of the child under the "clear, cogent, and convincing" standard. ⁸ See id. at 688. Conversely, in Nash County Dept. of Soc. Servs. ex rel. Williams v. Beamon, 485 S.E.2d 851 (N.C. 1997) the appellate court found that the putative father's testimony that he did not know the child's mother, had not had sexual relations with her, and was not the father of her child was sufficient to rebut the presumption created by a 99.96% probability of paternity from paternity test results.

POMS PR 01120.036 provides that a child entitled as an illegitimate child with inheritance rights cannot be paid retroactively. However, the North Carolina paternity statute, N.C. Gen. Stat. Sec. 49-14, provides that any judgment entered under the section establishing a decedent to be the father of a child shall be entered nunc pro tunc to the day preceding the date of death of the father. N.C. Gen. Stat. 49-14(c). If the state law granting inheritance rights to an out-of-wedlock child makes those rights retroactive for some period prior to the act or event that confers those rights, such as when the child has been legitimated, then benefits would be retroactive. See POMS GN 00306.050. Because the North Carolina paternity statute has a retroactive effect back to the day preceding the death of the father, a parent-child relationship could be established as of that date, rather than the date of the DNA testing or submission of other clear and convincing evidence of paternity.

Conclusions

Given the evidence that the court found sufficient to establish or refute paternity in these two cases, one might conclude that the evidence presented by C~ would satisfy the "clear, cogent, and convincing" standard to establish that NH was Claimant's putative father. In this regard, C~ states that NH was Claimant's father; NH's parents and close friends express their personal knowledge that NH was Claimant's father; and NH had previously acknowledged another child that he had with C~. On the other hand, the evidence in the current case is somewhat weaker than that presented in S~, above. C~ made no assurances that her sexual relations with NH were exclusive during the relevant period; no source stated that NH had orally acknowledged Claimant; no source mentioned that Claimant bears a close personal resemblance to NH; and, most importantly, Claimant presented no DNA or similar scientific evidence to support his claim. Consequently, we can also find legal support for a conclusion that Claimant has not presented clear, cogent, and convincing evidence in this case. On balance, given the rather liberal reading of the standard adopted in S~, above, we would lean toward finding the standard is satisfied in this case.

Finally, DNA testing may be used to establish a parent-child relationship retroactively to the day before the death of the deceased father in North Carolina. Of course, benefits could not begin more than six months before the date of the claimant's application. 20 C.F.R. Sec. 404.621(a)(2). Thus, the period of retroactivity would run to the more recent of the day before the father's death or six months before the date of the application.

Mary A. Sloan
Regional Chief Counsel
By: _________________
Joseph P. Palermo, III
Assistant Regional Counsel

K. PR 02-069 NH: B~, SSN: ~ Acceptability of DNA Test of Putative Siblings as Evidence of Paternity

DATE: November 27, 2001

1. Syllabus

Genetic test results showing that the child claimant and another child (entitled under section 216(h)(3) based on the NH's written acknowledgment) have a 97.8723% probability of siblingship establish a statutory presumption of paternity under North Carolina law. Since the presumption has not been rebutted, the child may inherit under North Carolina law.

2. Opinion

You have requested our opinion as to whether, under North Carolina law, the results of a DNA test that compares the DNA of a child to that of a known child of the number holder (NH), that is, compares the DNA of putative siblings, can be accepted as proof of paternity. Because the DNA testing laboratory used the tests on the siblings' DNA to determine the likelihood that the NH, B~, is the father of A~ , it is our opinion the genetic test results submitted establish a statutory presumption of paternity, that the presumption is not rebutted, and that A~ is entitled to surviving child's benefits on the account of the deceased NH.

Subsequent to the NH's death on April XX, 1992, B2~ (C1) was awarded child's benefits as a surviving child under Section 216(h)(3) of the Social Security Act based upon a written acknowledgement of paternity by the NH to the Welfare Office.

On September XX, 1992, D~, the mother of A~ (C2), filed a claim for surviving child's benefits on behalf of C2 based on the NH's record. This application was denied on November XX, 1992, based upon a lack of evidence establishing paternity. On January XX, 1995, H~ requested reopening of the claim, and submitted new evidence which allegedly established the relationship between the NH and C2. This request was dismissed on October XX, 1995, because the new evidence did not justify reopening.

On April XX, 2001, H~ filed a new claim on behalf of C2, and submitted evidence seeking to establish the relationship. Included in this evidence is a report of a DNA siblingship test dated April XX, 2001, performed by Identigene, a laboratory accredited by the American Association of Blood Banks. The DNA of C2 was compared to the DNA of C1, and the results demonstrate that the two children are 46 times more likely to have the same biological father as they are to have different biological fathers, and that the probability of siblingship is 97.8723%.

As applied by the North Carolina courts, this statute creates a presumption that a child born more than 280 days after the intestate's death is not en Ventre sa mere. Byerly v. Tolbert, supra. In a proceeding to distribute an intestate estate, the burden rests upon the child to establish by the greater weight of the evidence (preponderance of the evidence) that the intestate was his father. ⁹ Byerly v. Tolbert, supra.

In the case sub judice, the primary evidence offered to rebut the presumption that the child was not en vent re sa mere are the statements of R~. The evidence supporting the negative presumption are the hospital records.

R~'s statements regarding the child's birth are of very little evidentiary value in view of the fact that the file indicates she has a very low I.Q. and a very poor memory. A psychological evaluation conducted on March XX, 1986, revealed that R~ had impairments of her cognitive, sensory, and motor abilities, with striking memory (recent and remote) deficits. Furthermore, more than 15-1/2 years have passed between the birth of the child and the time R~ made the statements regarding the birth. Given her poor memory, her I.Q. and the number of children she has had over the years, it is our opinion you would be warranted to find that her evidence does not outweigh the hospital records, which indicated that the child was a full term child, and that the presumption the child was not in being at the death of the wage earner has not been rebutted.

However, the North Carolina Supreme Court has said that 280 days is not an extraordinarily long period of gestation, E~, supra; also, see State v. White, supra, and has observed the question is one to be resolved primarily on the basis of medical opinions. County of Lenoir Ex Rel Dudley v. Dawson, supra; State v. White, supra. We suggest you contact the physician who provided prenatal care, if there was one, to see if he has any additional relevant treatment records regarding the birth.

North Carolina law regarding use of genetic marker testing to establish paternity, N.C. Gen. Stat. § 8-50.1 (2001), provides

***
(3) If the tests show that the alleged parent is not excluded and that the probability of the alleged parent's parentage is between eighty-five percent (85%) and ninety-seven percent (97%), this evidence shall be admitted by the court and shall be weighed with other competent evidence;

(4) If the experts conclude that the genetic tests show that the alleged parent is not excluded and that the probability of the alleged parent's parentage is ninety-seven percent (97%) or higher, the alleged parent is presumed to be the parent and this evidence shall be admitted. This presumption may be rebutted only by clear, cogent, and convincing evidence.

Additionally, N.C. Gen. Stat. § 29-19 provides for the intestate inheritance rights of illegitimate children. An illegitimate child may take from a person who has been finally adjudged to be the father of such child or from any person who has acknowledged himself during his or the child's lifetime to be the father of such child in a written instrument acknowledged before a certifying officer and filed with the court. There is no direct acknowledgment of paternity in this claim. With respect to the adjudication of paternity in actions commenced after the death of the putative father, N.C. Gen. Stat. § 49-14 (f) states:

For purposes of this subsection, the results of blood or genetic tests shall constitute clear, cogent, and convincing evidence of paternity if the tests show that the probability of the alleged parent's parentage is ninety-seven percent (97%) or higher.

As noted above, the DNA testing submitted by Aja shows a 97.8723 percent probability that A~ and B2~ have the same father. Because SSA has already determined that NH is the father of C1, this testing creates the presumption that NH is the father of C2.

It is our opinion that the DNA test results show a probability of paternity in excess of 97%, giving rise to a presumption of paternity which may be rebutted only by "clear, cogent and convincing evidence. In the absence of such evidence, A~ is entitled to child's survivor benefits based on the record of the NH, B~.

Very truly yours,

Mary A. Sloan
Regional Chief Counsel, Atlanta

Michael S. Feintstein
Assistant Regional Counsel

L. PR 83-019 Lord Mansfield Rule - Legitimacy Under North Carolina Law - Court Order of Paternity Involving Third Party - AN ~, Maryland , DWE

Date: June 28, 1983

1. Syllabus

LEGITIMACY AND LEGITIMATION — PRESUMPTION AND EVIDENCE — NORTH CAROLINA

Beginning July 7, 1981, North Carolina no longer follows the Lord Mansfield Rule in paternity cases. (Lord Mansfield Rule, North Carolina, RAIV, [W~], to Associate Commissioner for Operational Policy and Procedure, May 31, 1983.)

PARENT & CHILD — FEDERAL DEFINITION OF CHILD — OTHER EVIDENCE OF PATERNITY — NORTH CAROLINA

A North Carolina District court order issued pursuant to the child support provisions of N.C. Gen. Stat. §§110-128 - 110-141 is entitled to substantial weight in the absence of any contradictory evidence on the issue of paternity.

(Legitimacy under North Carolina law - Applicability of Lord Mansfield Rule - Court Order of Paternity Involving Third Party, AN ~, Maryland, DWE, RAIV, [W~], to Assistant Regional Commissioner, Insurance Programs Branch, June 28, 1983.)

2. Opinion

In your memorandum of February 24, 1983 you asked two questions. First, you asked whether the Lord Mansfield Rule was still applicable in North Carolina. Second, you asked whether a 1977 North Carolina court order of paternity would be "admissible" to rebut the presumption of legitimacy of four children born in wedlock. In response to your first question, a recent opinion from this office has concluded that the Lord Mansfield Rule was abrogated in North Carolina on and after July 7, 1981. (Lord Mansfield Rule, North Carolina, RAIV, [W~], to Associate Commissioner for Operational Policy and Procedure, May 31, 1983.) A copy of that opinion is attached. Consequently, this opinion will address your second question regarding the 1977 North Carolina court order of paternity.

According to the file, E~ ceremonially married the insured on March XX, 1959 in North Carolina. The couple separated in 1960 but were never divorced. During the period 1963-1968, four children were conceived and born to the insured's wife. S~ has admitted, in writing, that he dated the insured for a 13-year period (1963-1976) and has further acknowledged, in writing, that he is the natural father of the four children born to the insured's wife during the period 1963-1968. Although allegedly separated, the insured and his wife continued to see one another at least during the period 1963-1968. According to S~ the insured would be at his wife's house at least part of the time while S~ was dating the insured's wife.

A North Carolina District court order dated May 10, 1977 determined that S~ was the natural father of the four subject children. This order was based largely upon the written acknowledgement of paternity executed by S~ and a written affirmation of paternity executed by the insured's wife. Incident to this judicial proceeding, S~ voluntarily agreed to contribute child support in the amount of $30 per month beginning June 1, 1977. The insured died on August XX, 1980. This child support was payable to the Superior Court clerk and thereafter, delivered to the North Carolina Department of Human Resources. The written acknowledgment of S~ the affirmation of the insured's wife and the resulting court order of paternity and support were all incident to the statutory authority contained in North Carolina Gen. Stat. Chapter 110. Under this Chapter 110, a county has the duty to seek contributions from the parent(s) of those dependent children who are seeking public assistance in those situations where the natural parent is financially capable of providing such assistance.

Pursuant to N.C. Gen. Stat. §49-14, the paternity of a child born out of wedlock may be established by a civil action but such establishment of paternity shall not have the effect of legitimation. This statute requires that the proof of paternity be established beyond a reasonable doubt. Under the law of North Carolina there is strong presumption that a child born during wedlock is the natural, legitimate child of the married parties. This presumption can be rebutted only if it is established that the husband was impotent or did not have access to the wife at the time when the child was conceived. Further, since the Lord Mansfield Rule is no longer applicable, the husband or wife are competent to testify as to the child's illegitimacy. Wake County Ex. Rel. Manning v. Green, 279 S.E.2d 901 (1981). If the husband and wife are living together, evidence that the wife had sexual relations with a man other than her husband is not sufficient to bastardize the child since the husband's lack of access cannot be established. Ray v. Ray, 219 N.C. 217, 13 S.E.2d (1941). However, the Supreme Court of North Carolina has indicated that a different rule would be applicable if the husband and wife are living apart and the wife is "notoriously living in open adultery." State v. Green, 210 N.C. 162, 185 S.E. 670 (1936); Ray v. Ray, supra.

In the present case, there is evidence that the insured visited his wife from time to time while allegedly separated and during the periods of time when the subject children were conceived. If the paternity issue were to be resolved pursuant to a civil action under N.C. Gen. Stat. §49-14, we would be clearly faced with weighing the effect of the abrogation of the Lord Mansfield Rule and its impact upon the strong if not irrebuttable presumption of legitimacy where the insured apparently had access to his wife at a time when the subject children were conceived. However, the court order of paternity in the present case was not a result of a civil action pursuant to N.C. Gen. Stat. §49-14. The present court order arose from proceedings incident to North Carolina Gen. star. §§110-128 - 110-141. The purposes of this legislation include assuring financial support to dependent children as a supplement to the support provided by the responsible parent. N.C. Stat. §110-128. The county may initiate civil proceedings or take up proceedings commenced by the mother to establish paternity as well as child support. N.C. Gen. Stat. §110-130. A parent may be subpoenaed for testimony to establish both paternity and support. The parent shall not be excused from giving testimony pursuant to any privilege which would otherwise be available. N.C. Gen. Stat. §110-130. In lieu of or in conclusion of any legal proceeding to establish paternity, the written acknowledgment of paternity executed by the putative father when accompanied by a written affirmation of paternity executed by the mother and approved by the judge of the District Court as in the present case shall have the same force and effect as a judgment of that court. A written agreement to support when approved by the District Court as in the present case, shall have the same force and effect as an order of support from the District Court and enforceable accordingly. N.C. Gen. Stat. §110-132. Following the filing of the acknowledgment of paternity with the District Court, the declarant will be summoned to court to show cause, if any, why an order of support should not issue. The prior judgment of paternity shall be res judicata as to that issue. N.C. Gen. Stat. §110-132.

In the present case, the District Court judgment of paternity and support was the result of proceedings pursuant to N.C. Gen. Stat. 110-132. The putative father's written acknowledgment of a voluntary support agreement, and the mother's written affirmation of paternity constituted the basis for the court's paternity and support orders. It is implicit from this statutory scheme that any presumption of legitimacy has been rebutted and the "beyond a reasonable doubt" standard of proof has been satisfied with the written acknowledgment of paternity executed by the putative father and the written affirmation of paternity executed by the mother.

Although the Social Security Administration is not bound by ex parte State court orders (judgments), the court's orders in the present case are consistent with the law of North Carolina and the apparent facts of this case. Therefore, it is the opinion of this office that you would be justified in according substantial weight to these court orders in the absence of any new and contradictory evidence.

Footnotes:

[1]

^. ^. It is unclear from the statement if NH alleged admitted Claimant was his child to his sister or the sister of Claimant’s mother.

[2]

^. ^. All subsequent references to 20 C.F.R. are to the 2013 edition.

[3]

^. ^. All subsequent references to N.C. Gen Stat. Ann. are to the West 2013 edition.

[4]

^. ^. The other provisions noted in subsection (b)(1) are not applicable to Claimant’s claim. Sections 49-1 through 49-9 involve prosecution for nonsupport of illegitimate children. See N.C. Gen. Stat. Ann. §§ 49-1 to -9. Section 49-15 simply provides that upon the establishment of paternity under section 49-14, the mother and father have the same rights, duties, and obligations with regard to support and custody of the child as if the child was the legitimate child of the mother and father. See N.C. Gen. Stat. Ann. § 49-15. Section 49-16 merely establishes the parties who may bring an action under section 49-14. See N.C. Gen. Stat. Ann. § 49-16.

[5]

^. ^. N.C. Gen. Stat. Ann.§ 49-14(f) appears to be limited to “IV-D” cases, which are cases “in which services have been applied for or are being provided by a child support enforcement agency established pursuant to Title IV-D of the Social Security Act as amended and” Article 9 of the North Carolina General Statutes, which pertains to child support. N.C. Gen. Stat. Ann. § 110-129(7). The evidence provided does not suggest anyone commenced an action for child support on behalf of Claimant.

[6]

^. ^. Indeed, the Supreme Court of NC has said "It is well established that 'clear and convincing' and 'clear , cogent, and convincing' describe the same evidentiary standard." In the matter of Montgomery, 316 S.E.2d 246, 252 (N.C. 1984).

[7]

^. ^. Sections 49-1 through 49-9 of the North Carolina General Statutes involve prosecution for nonsupport of illegitimate children. See N.C. Gen. Stat. §§ 49-1 though 49-9 (2006). North Carolina prohibits civil actions to establish paternity unless they are commenced, and judgment entered, prior to the death of the putative father; within one year of after the death of the putative father, if a proceeding for administration of the estate of the putative father has not been commenced within one year of his death; or within the period specified in G.S. 28A-19-3(a) for presentation of claims against an estate, if a proceeding for administration of the estate of the putative father has been commenced within one year of his death. N.C. Gen. Stat. § 49-14(c) (2006). However, SSA ignores these types of time-limits under 20 C.F.R. § 404.355(b)(2).

[8]

^. ^. Although there was a genetic marker test that determined a 99.91 % probability that the defendant was the father of the child, the court considered this evidence separately. For purposes of the statute, the results of blood or genetic tests showing the probability of the alleged parent's parentage is 97% or higher constitutes clear, cogent, and convincing evidence of paternity. See N.C. Gen. Stat. § 49-14(f).

[9]

^. ^. A suit brought under N.C.Gen.Stat. §49-14 to establish the duty of an alleged father to support his child, although civil in nature, requires that paternity be established beyond a reasonable doubt, County of Lenoir Ex Rel Dudley v. Dawson, 298 S.E.2d 418 (1982); see opinion, re: Lord Mansfield Rule, North Carolina, RAIV [W~], to Associate Commissioner for Operational Policy and Procedures, May 31, 1983 as is the case where an alleged parent is charged with the crime of failing to support a child. State v. White, supra. In a criminal proceeding under N.C.Gen.Stat. §14-322 due process considerations limit the effect of the presumption that a child born during marriage is legitimate with the result that the presumption may be rebutted by evidence proffered by the defendant that either shows he could not be the father or that someone else could be, thereby presenting a jury question of whether the State had shown paternity beyond a reasonable doubt.

Footnotes:

[1]

^. All references to the Code of Federal Regulations are to the 2016 edition.

[2]

^. All references to N.C. Gen. Stat. Ann. are to the West 2015 edition.

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PS: Title XVI Regional Chief Counsel Precedents

POMS Reference

PR: Title II Regional Chief Counsel Precedents

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

1. Syllabus

2. Opinion

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

1. Syllabus

2. Opinion

C. PR 14-078 Child Status Based on DNA Testing of the Claimant, the Claimant’s Mother, and the Number Holder’s Father—North Carolina Number Holder: M~ Claimant: C~

1. Syllabus

2. Opinion

D. PR 09-009 Effect of DNA Evidence in Claim for Auxiliary Child's Benefits - North Carolina Claimant – M~ Number Holder – E~, Jr.

1. Syllabus

2. Opinion

E. PR 08-158 Child Status Based on DNA Testing of the Claimant, the Claimant's Mother, and the Number Holder's Father-North Carolina

1. Syllabus

2. Opinion

F. PR 08-093 DNA Testing of Paternal Grandparents to Establish Relationship of Claimant to Deceased Number Holder in North Carolina Number Holder – J2~ , Jr.

1. Syllabus

2. Opinion

G. PR 08-077 Laboratory Certification, North Carolina Number Holder – M~ Claimant – A~

1. Syllabus

2. Opinion

H. PR 07-043 Oral Acknowledgment As Clear, Cogent, and Convincing Evidence to Overcome the Presumption of Paternity Under North Carolina Intestacy Law

1. Syllabus

2. Opinion

I. PR 06-145 Eligibility Based Upon Genetic Testing of Relative; Laboratory Certification, North Carolina Number Holder – M~ (NH) Claimant – S~

1. Syllabus

2. Opinion

J. PR 06-039 Effect of Indirect Evidence of Paternity on Child's Claim in North Carolina Claimant – K~ Number Holder – J~

1. Syllabus

2. Opinion

K. PR 02-069 NH: B~, SSN: ~ Acceptability of DNA Test of Putative Siblings as Evidence of Paternity

1. Syllabus

2. Opinion

L. PR 83-019 Lord Mansfield Rule - Legitimacy Under North Carolina Law - Court Order of Paternity Involving Third Party - AN ~, Maryland , DWE

1. Syllabus

2. Opinion

Footnotes: